text:
    James DILLON v. Robert RICE et al.
    No. 66170.
    Supreme Court of Louisiana.
    May 19, 1980.
    Gordon Hackman, Boutte, for plaintiff-applicant.
    John C. Gomila, Jr., Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendants-respondents.
   MARCUS, Justice.

James Dillon filed this suit against defendants seeking damages for personal injuries sustained by him when his automobile was hit from the rear by another vehicle. Defendants stipulated to liability. The sole issue at trial was the amount of damages to be awarded. After trial on the merits, the trial judge rendered judgment in favor of plaintiff and against defendants in the sum of $15,000 for personal injuries, $13,753 for loss of earnings, $2,120 for medical expenses, together with interest from date of judgment until paid and all costs, including expert witness fees which were fixed in the judgment. Defendant appealed and plaintiff answered the appeal. The court of appeal affirmed the judgment of the trial court fixing the awards for pain and suffering and medical expenses but reversed the judgment as to the award for loss of wages. It amended the judgment by awarding plaintiff interest from the date of demand until paid and by eliminating the expert witness fees previously paid by the defendants. On plaintiff’s application, we granted certiorari to review the correctness of this decision.

Plaintiff felt pain in his back immediately after the accident on July 8, 1976. Despite the fact that the pain became more severe, he returned to his work as a shipyard welder four days later. Plaintiff consulted a chiropractor who diagnosed his problem as muscle strain and treated him for about two months before discharging him as asymptomatic. The back pains did not cease, but plaintiff continued to work, having co-employees assist him with heavy lifting.

Plaintiff did not seek further medical treatment until March 7, 1977, when he consulted an orthopedic surgeon, Dr. Ralph Gessner, who treated him regularly for what was diagnosed as chronic lumbosacral strain. Plaintiff was fitted with a surgical corset and returned to work. On March 17, 1977, plaintiff’s employer’s first aid department discovered that he was suffering pain from a back injury and wearing the surgical corset. As a result, his employer forced him to go on disability leave “until his condition resolved.” Although Dr. Gessner told plaintiff he could work on “light duty,” the employer informed him that there was no light duty available.

In May 1977, plaintiff was hospitalized for his back pains. He was placed in traction and underwent a myelogram which was negative. Plaintiff was discharged from the hospital after one week. Plaintiff’s doctor recommended exploratory surgery to check for a possible herniated disc, but plaintiff refused to undergo surgery unless it was absolutely necessary. In November 1977, plaintiff was examined by Dr. Harold Stokes who concluded that there were no signs from which a diagnosis of a herniated disc could be made, as plaintiff’s subjective complaints of pain were the only indication of back problems. Both Dr. Gessner and Dr. Stokes noted at trial on March 31, 1978, that there were no objective findings to prevent plaintiff from working at his trade as a welder.

The trial judge concluded that plaintiff had suffered a lumbosacral strain and considered that an award of $15,000 would be adequate to compensate him for his pain, suffering and mental anguish; he further awarded plaintiff the sum of $13,753 to cover his loss of wages from the date of discharge by his employer on March 17, 1977, until the day of trial. He considered that plaintiff was unable to work during this period as a result of his injury in the accident. Medical expenses were fixed at $2,120. He noted in his written reasons for judgment that the medical evidence negated plaintiff’s claims “as to permanent disability and future loss of earnings.”

The court of appeal affirmed the awards for pain and suffering and medical expenses and the denial of plaintiff’s claims for permanent disability and future loss of earnings, but reversed the award of $13,753 for loss of wages covering the period from March 17, 1977 (date of discharge by plaintiff’s employer) until the day of trial, finding that plaintiff had not adequately proven that he was unable to work during that period. We granted certiorari primarily to consider that ruling.

Our review of the record convinces us that plaintiff worked in pain from the time he returned to work four days after the accident until discharged by his employer on March 17, 1977. During this period, he was assisted in his work by fellow employees. He stated that he continued to work despite his pain in order to maintain his seniority with his employer for whom he had worked since 1967 and to support his wife and children. We are further convinced that plaintiff adequately proved that the injury sustained by him in the accident prevented him from working from the date of his discharge by his employer to the date of trial, thus entitling him to recover loss of wages during that period. We do not consider the fact that his employer discharged him when they discovered that he was working in pain and wearing a surgical corset forms any basis for denying recovery. On the contrary, we consider that it supports our conclusion that plaintiff was unable to work during the period subsequent to his discharge. Under the circumstances, we do not consider that the trial judge was clearly wrong in allowing recovery for loss of wages. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Hence, the court of appeal erred in holding otherwise. The other findings of fact by the trial judge which were affirmed by the court of appeal are fully supported by the record.

Plaintiff also seeks reimbursement for damage done to his car in the collision. Neither the trial court nor the court of appeal mentioned this item of damage. As defendants correctly point out, plaintiff’s original and amending petition make no mention of property damage. While La. Code Civ.P. art. 861 provides that, when items of special damage are claimed, they shall be specifically alleged, we nonetheless believe that, based upon the record before us, plaintiff should be granted the relief to which he is entitled under the authority of art. 862 of the Code of Civil Procedure.

Plaintiff testified that the estimate to repair the damage to his automobile was $650.54. An attempt was made at that time to introduce the written estimate of the repairs in evidence. Defendant objected solely on the ground of hearsay. Subject to defendant’s objection, the estimate was permitted to be received in evidence. Plaintiff subsequently offered the testimony of the repairman who made the estimate. He stated that the cost to repair plaintiff’s automobile was $650.54. We consider that defendant’s failure to object on the ground that plaintiff was not entitled to an item of special damage not specifically alleged combined with the nature of his objection at the time the estimate was first offered in evidence constitutes an implied consent on the part of defendant to place the issue of property damage before the court for its consideration. While the estimate was not made until more than sixteen months after the accident (November 9, 1977), we consider that plaintiff sufficiently proved this item of damage to allow recovery. Hence, the courts below erred in omitting this item of damage from the judgment.

DECREE

The judgment of the court of appeal is reversed insofar as it denied the award of $13,753 for loss of wages, and the judgment of the trial court as to this award is reinstated. It is further ordered that the judgment of the court of appeal is amended to include the sum of $650.54 for repairs to plaintiff’s automobile. In all other respects, the judgment of the court of appeal is affirmed.

       Chief Judge FREDERICK S. ELLIS participated in this decision as an Associate Justice Ad Hoc.

      . 375 So.2d 742 (La.App. 4th Cir. 1979).

      . 377 So.2d 1251 (La.1979).

      . La.Code Civ.P. art. 862 provides in pertinent part:
      [A] final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.


source: Caselaw Access Project

author: GAUTHIER, Justice ad hoc.

license: Public Domain

text:
    STATE of Louisiana v. Dannye K. TELFORD.
    No. 66187.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy J. Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.
    Armand F. Rabun, Rabun & Post, Farm-erville, for defendant-appellant.
   GAUTHIER, Justice ad hoc.

The defendant Dannye K. Telford was indicted by a grand jury for negligent homicide in violation of La.R.S. 14:32. After a trial by jury, he was convicted and sentenced to two (2) years imprisonment in the parish jail, subject to public work. Defendant assigns two errors allegedly committed by the trial court as the basis for this appeal.

On the evening of November 3, 1977, at approximately 11:00 p. m., the defendant was driving his pickup truck on U. S. Highway 167. An “18 wheeler” gravel truck, operated by Calvin Johnson, was approaching from the opposite direction and the two vehicles collided. The Telford vehicle continued forward, crossing the road, coming to rest just off the pavement some distance on from the point of impact. Officers who investigated the accident determined that the point of impact was about two feet across the center line of the lane in which Calvin Johnson had been traveling. The Johnson vehicle swerved to the shoulder after impact and overturned coming to rest partially on and partially off the road, upside down, with the driver’s side of the cab crushed in. Another automobile came along a few minutes later, skidded in the loose gravel, and struck the rear of the Ioadbed of the gravel truck.

Calvin Johnson was found pinned in the driver’s seat and was pronounced dead at the scene. The police officers determined that Telford was the driver of the pickup truck involved. He was arrested at the scene when officers noted that he appeared to be intoxicated. Defendant was subsequently indicted for negligent homicide, tried, convicted and sentenced as above described.

ASSIGNMENT OF ERROR NO. 2

The defense contends that the trial court was in error in granting a recess of the trial.

Following numerous continuances, defendant’s trial was finally begun on July 17, 1979. The state elicited testimony from Officers Stephens and Thomas, who investigated the accident, that defendant’s pickup truck had been the cause of the accident and that Telford had been present at the scene of the accident shortly after it had occurred. Joseph Pennington, another state witness, testified that he had seen the defendant driving the vehicle. However, on cross-examination, he admitted that he had not seen Telford actually operating the vehicle, but rather had seen him near the truck immediately after the accident. Defense counsel cross-examined both the officers and Pennington as to whether they had seen another individual at the scene of the accident.

The tenor of his cross-examination and objections suggested that the defense was attempting to establish that another person had been in the Telford vehicle at the time of the accident, thereby implying that this person, and not the defendant, had been the driver of the truck. The actual identity of this unknown person was revealed during the cross-examination of Officer Thomas. The state suspecting that the said Michael Grafton was a passenger in the pickup at the time of the accident, then caused an instanter subpoena to be issued commanding his appearance in court for 3:15 p. m. that day.

After Officer Thomas had testified, the state called Farmerville Police Officer George L. Cothran, and attempted to examine him about statements allegedly made by Telford at the scene of the accident. The defense objected on the ground that the alleged statements were inculpatory and the state had not revealed its intention to use these statements in response to defendant’s discovery motion. The jury was removed and the state continued its examination. Cothran testified that the defendant had threatened to “get” him and another officer when the investigation was completed, and that Telford asked why they were doing this to him — that it was just “as much his (Johnson’s) fault as mine.”

The trial judge then ruled that the statements allegedly made by the defendant were in fact inculpatory, and since notice had not been provided to the defense in answer to the Motion for Discovery, they were inadmissible. Immediately after this ruling the state requested a brief recess which was granted.

The state contends that during the recess they sought the whereabouts of Michael Grafton, and when it was discovered that he could not reach court until approximately 4:15 p. m., a further recess was sought until the following morning. The state candidly admits realizing then that they had failed to establish that Telford was driving the vehicle that caused the accident, and moved for the recess referred to above.

When court reconvened the defense argued against the recess, alleging that it was now 3:30 p. m. and that the trial could be concluded by 5:00 p. m. The trial judge granted the recess over the defense’s objection until 9:00 a. m. the next morning, commenting that it had previously agreed to conclude the court proceeding early on this date so that defense counsel could make a 5:30 p. m. engagement.

The following morning Grafton appeared in court and testified that Telford had been the driver of the vehicle at the time of the accident. The remainder of his testimony centered around his opinion as to defendant’s sobriety and manner of driving, most of which was exculpatory in nature.

La.C.Cr.P. Art. 708 defines a recess as a temporary adjournment of a trial or hearing that occurs after the trial has commenced. The granting of a recess, like that of a continuance, is a matter within the sound discretion of the trial court, and will not be reversed by this Court in the absence of a showing of an abuse of discretion by the trial judge. State v. Charles, 350 So.2d 595 (La.1977); State v. Sharp, 321 So.2d 331 (La.1975). This discretion is allowed in order to ensure that the proceedings are conducted with dignity and in an orderly and expeditious manner, so as to see that justice is done. See State v. Humphreys, 319 So.2d 344 (La.1975).

In the case at bar the state was faced with the realization that there was a lack of direct evidence to identify the defendant as the actual driver of the pickup truck. A witness, Michael Grafton, had been found who could possibly resolve the identity issue and whose attendance at trial could be obtained. In addition, there had been an advance agreement by the trial judge with counsel for the defendant that the trial would not continue into the evening since defense counsel had a 5:30 p. m. engagement. In effect, the recess granted was for only one and one-half to two hours.

Under these circumstances it cannot be said that the trial court abused its discretion in granting the state’s request for a recess. The defendant made no showing, beyond the mere assertion that another witness was permitted to testify, as to how he was prejudiced. In fact, the bulk of Grafton’s testimony, if believed by the jury, would have tendered to exculpate Telford, for he testified that the defendant was not drunk, was not staggering, was not speeding, did not cross the center line and did not go into the other lane of traffic.

In balancing the search for the truth and the need for full development of facts at a trial, with the prejudicial effects which might have accrued to the defendant, we find that the recess was properly granted.

The assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defense contends that the trial court committed error in refusing to give the following requested special charge explaining the presumptive negligence clause of La.R.S. 14:32:

“The provision in the negligent homicide statute to the effect that the violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence, meaning criminal negligence, does not change the rule as to the presumption of innocence or place any affirmative burden upon the accused. The presumption provided in this statute does not in any way destroy the basic presumption of innocence of the accused. In a negligent homicide case, if the State makes proof of the violation of a statute or ordinance, the defendant may choose not to take the stand, and refuse to introduce any evidence whatsoever in his own behalf, relying solely on his presumption of innocence, and at the end of the trial, the jury should acquit the defendant, and it is their sworn duty to do so, if the State has not proved to their satisfaction the guilt of the accused beyond a reasonable doubt. The presumption is one of criminal negligence, an element of the crime of negligent homicide, and is not a prima facie presumption of guilt of such crime.”

La.C.Cr.P. Art. 802 provides in part “[that] the court shall charge the jury as to the law applicable to the case.” It is also the duty of the trial judge to give a requested charge, if the charge does not require qualification, limitation, or explanation and is not included in the general charge or in another special charge, if the requested charge is totally correct and pertinent to the case. La.C.Cr.P. Art. 807. See also State v. Clement, 368 So.2d 1037 (La.1979); State v. Marse, 365 So.2d 1319 (La.1978).

The trial court must charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. This charge must be supported by the evidence presented at trial, because the trial court is not required to instruct the jury on abstract principles of law. State v. Clement, supra; State v. Marse, supra.

In the case before the bar, the trial judge had determined at a hearing prior to trial that he would not make reference to the presumptive evidence language of R.S. 14:32 . During the course of the trial there was no mention whatsoever of the presumption. In fact, there is no reference in the trial record to any violation of criminal statutes or ordinances by Telford, other than the one for which he was being tried.

The trial judge’s charge to the jury made no mention of the presumptive evidence language, nor of the effect of the intoxication evidence in the case. There is nothing in the charge which might suggest to the jury that an implication could be drawn that the defendant had violated a criminal statute or ordinance other than the charge he was defending against. Thus, the entire matter of Telford’s intoxication was presented and treated as one of the facts surrounding the accident.

Since no evidence was presented at trial concerning any inference or violations of statutes, the trial judge was correct in not charging the jury in regards to the presumptive language of R.S. 14:32. Such a charge would not have been supported by the evidence presented at trial; and would have been in conflict with his previous commitment.

Defendant’s requested charge was undoubtedly designed to overcome any prejudicial effect which might arise from an instruction that would convey to the jury the idea that it should give special weight to violations of other criminal statutes. As no such instruction was given to the jury, no counter instruction was necessary. As noted by the state, the requested jury charge could only expose jurors to the concept of the presumption, the very evil which defense counsel had sought to avoid, a concept of which they were totally unaware.

The constitutional problems inherent in the use of the presumptive evidence language of R.S. 14:32 thus did not arise in this case. Defendant’s requested special charge was therefore properly denied.

AFFIRMED.

      . Defendant assigned three errors. In brief to this Court, the defense specifically abandons Assignment of Error No. 1 except insofar as it related to Assignment of Error No. 3.

      . The original trial date of June 5, 1978, was delayed at least six occasions by grants of continuance, which defendant contends were requested solely by the state. The minutes do not reveal the reason for the several continuances of trial in this matter, but counsel for the prosecution claims that both the state and the defense consented to continuances pending a determination by the Fifth Circuit Court of Appeals as to the constitutionality of the provision contained in La.R.S. 14:32 that violation of a statute or ordinance constitutes presumptive evidence of negligence. See Hammontree v. Phelps, 605 F.2d 1371 (5th Cir. 1979). The state version of the need for these continuances would appear to be supported by defendant’s May 9, 1979, motion wherein defense counsel cites the pendency of the presumptive negligence issue before this Court as justification of his request.

      . However, Grafton later testified that he did not receive the subpoena until approximately 4:15 p. m. (Tr., p. 97)

      . When testimony resumed on the following morning, it took nearly three and one-half hours to conclude the trial. (Tr., minutes, p. 4)

      . La.R.S. 14:32 in pertinent part provides:
      Negligent homicide is the killing of a human being by criminal negligence.
      The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.

      . In ruling on a Motion to Quash prior to trial, the Trial Judge stated that it was his intention not to instruct the jury on the presumptive evidence language of the negligent homicide article because of pending litigation as to its constitutionality. See Hammontree v. Phelps, 605 F.2d 1371 (5th Circuit 1979); (Trial, Part III, Ruling on Motion To Quash, p. 1-2).


author:
      DIXON, Chief Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Carter DOZE.
    No. 66210.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., Asst. Attys. Gen., for plaintiff-appellee.
    William L. Lowe, Shreveport, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Doze was charged with second degree murder, found guilty of manslaughter by a unanimous jury and sentenced to eighteen years at hard labor. The one error assigned on appeal concerns the admission, over objection by the defense, of the testimony of the victim’s neighbor about a conversation which took place between the two women a few hours before the homicide.

On the evening of December 24, 1977, a man called the Shreveport Police Department to report that he had just killed his landlady. When the police arrived at the address supplied by the caller they found Carter Doze awaiting them on the porch of the residence. Doze stated that he had made the phone call to the police and, with regard to the killing, he explained that “it was either her or me. I had to do it.” Doze led the police to the body of his landlady where it lay inside the house, the victim of multiple knife wounds.

Because Doze had admitted killing the victim, both in his initial statement to the police and in a subsequent recorded statement, the only issue for the jury was whether the killing was a justifiable homicide, that Doze struggled with the victim after she came at him with a knife, finally got control of the weapon, and stabbed her in an attempt to protect himself.

The testimony of a member of the coroner’s office showed that the victim received seventeen knife wounds. Two of these were stab wounds sufficient to cause her death; the remaining wounds were superficial cuts on her left hand and others generally clustered about the left side of her head, face and neck. In response to questioning by the defense, the same expert medical witness agreed that most of these wounds could have been inflicted as Doze struggled to bend the victim’s right hand, holding the knife, away from himself and back toward her body. A broken piece of the knife blade was found lying near the body; the handle and the rest of the blade were found in the adjoining kitchen. The defendant’s right hand had suffered several superficial cuts during the incident.

Other testimony — and the jury’s own observations — showed that the defendant was a very heavyset man, about 6' 4" tall, and blind in one eye. The victim was 5' 3" tall, weighing about 140 pounds, seventy-four years of age but having the physical appearance of a woman of fifty. Doze had told the police that he had been having some problems with his landlady — disagreements over the amount of his rent. Items of clothing apparently belonging to the defendant were found on the steps leading from the back porch of the residence and on the ground nearby, as if they had been thrown from the back door.

In the testimony complained of, a neighbor recounted the conversation she had with the victim across their back fence on the afternoon of the homicide:

“Q And did she say anything to you about the defendant at that time?
A Yes, sir, she did.
Q In general terms, what did she say, to the best of your memory?
A She told me she wanted to get that man out of her house.
Q Did she say why?
A Yes, sir, she did.
Q And why?
A She said that he had come in drunk and he had fallen over the table and broke her punch bowl, and he was using the bathroom in the bed.
Q Did you — and you left your residence at that time?
A I did, sir.
Q And I guess was the last time you saw her?
A That was.”

The defense contends that this witness’ testimony, purporting to recount what the victim told her, is inadmissible hearsay. It also contends that the defendant was prejudiced by the trial court’s error in admitting this testimony, because it tended to rebut the self-defense theory by providing a motive for a homicidal attack by Doze. The state counters by arguing that the portion of the testimony which concerned defendant’s unsavory behavior was not hearsay at all, because it was not introduced in order to prove that in fact he had so conducted himself; and that the remainder of the testimony was admissible under the exception to the hearsay rule which permits the introduction of statements manifesting the declarant’s state of mind.

In State v. Sheppard, 371 So.2d 1135, 1142 (La.1979), we provided the following succinct definition and characterization of hearsay evidence:

“Hearsay is an out of court assertion introduced to prove the truth of its content. State v. Weedon, 342 So.2d 642 (La.1977). Hearsay is generally inadmissible because of its historic unreliability and because of the unfairness to the defendant who cannot test the truth of the statement. State v. Thompson, 331 So.2d 848 (La.1976). ...”

In the testimony at issue here, the victim’s statement constituted an out of court assertion of her state of mind, that is, her intention to evict the defendant, and was hearsay. C. McCormack, Evidence, § 249 (Cleary ed. 1972). However, declarations of mental state are generally admissible, as an exception to the hearsay rule, if introduced to prove the state of mind of the declarant, when that state of mind is at issue. State v. Sheppard, supra. Here, however, the state of mind of the declarant was not at issue. What was at issue, instead, was the state of mind of the defendant, said the prosecutor in arguing the issue, to prove that Doze had a motive for the killing.

The state of mind of the victim is relevant to the existence of a motive for the killing only if two further inferences are made from the initial inference that the victim did intend to evict the defendant. The first of these additional inferences is that the victim actually transformed her intention into action, that she took some affirmative steps to “get that man out of her house.” Declarations of state of mind are usually admissible for the purpose of proving that the intention of the declarant was actually carried out. McCormack, supra, § 295. The inference that the victim acted on her declared intention is probably supported by evidence tending to show that she threw the defendant’s clothing out of the house. The final and crucial inference which must be made is that the victim communicated her intention to the defendant and that the defendant reacted to this communication. Only if her intention to evict defendant were known to the defendant himself, would it have any relevance to his subsequent conduct. There is no evidence whatsoever that would tend to support this inference, but there is a real danger that a jury might interpret the fact to be proved (that the defendant attacked his landlady) as evidence of the fact to be inferred from the hearsay testimony (that his landlady ordered him to leave the premises).

Two recent cases involving the state’s use of hearsay evidence to prove motive have presented us with similar situations. In State v. Weedon, 342 So.2d 642, 647 (La.1977), testimony about the victim’s declarations of her intention to leave her husband was introduced to prove that her husband had a motive for killing her. In finding that this evidence was inadmissible, we made the following statement:

“Accordingly, we find that this third . declaration also is inadmissible. In effect, its introduction attempted to prove a motive for the killing, by hearsay inadmissible for that purpose: That the defendant killed his wife Sunday because she intended to leave him that morning. Admission of hearsay for such purpose is not permitted, because of its historic unreliability.
Since the hearsay was far more probative of motive, prohibited by our jurisprudence, than of the wife’s state of mind (assuming the latter, uncommunicated to her husband, to be relevant, cf. 32 La.L. Rev. 355), its prejudicial effect far outweighed its probative value as to the wife’s state of mind or intention. The declaration is thus inadmissible on that ground also, insofar as offered to prove the wife's state of mind. Pugh, Louisiana Evidence Law 418-20 (1974).”

In State v. Johnson, 381 So.2d 436 (La.1980), a friend of the victim was permitted to testify that she had told the victim how happy she was that the victim was planning to return to her husband. This testimony implied not only that the victim had declared to the witness her intention to abandon her boyfriend for her husband, but also that the victim subsequently communicated this intention to her boyfriend, providing him with a motive for the killing. Again, we found that the evidence was inadmissible. Weedon and Johnson differed from the instant case in that the defendants in those cases denied killing the victims. Here, Doze admitted the killing but claimed that it was justifiable because done in self-defense. The fundamental issue in both situations is that of motive, however, and hearsay evidence of a victim’s declaration of intention may not be introduced to prove a defendant’s motive, when there is no evidence to show that the victim’s intention was actually communicated to the defendant.

Although it was error to admit this testimony, such error warrants reversal only if it probably resulted in a miscarriage of justice, was prejudicial to the substantial rights of the accused, or constituted a substantial violation of a constitutional or statutory right. C.Cr.P. 921. Admission of this testimony could have been prejudicial to defendant only if it led the jury to reject his justifiable homicide defense solely because the evidence was inconsistent with that defense. Actually, however, an inference that the victim tried to evict Doze would have been quite consistent with his self-defense theory: the jury could have found that her animus toward her lodger, coupled perhaps with his reluctance to leave, caused her to attack him with a kitchen knife in an attempt at self-help. In fact, without this evidence of the victim’s angry state of mind and antagonistic intention, it might have been more difficult for the jury to believe in an initial attack by a small, elderly woman upon a much bigger and younger man. The jury could well have found that even though the confrontation began with an attack upon the defendant, the ensuing homicide was not justifiable because the defendant could not reasonably have believed, in light of these differences in size and strength, that he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary to save himself from that danger. R.S. 14:20(1). If, on the other hand, the jury rejected the self-defense theory from the onset, it is very possible that it did so because of the disparity in the physical strength of the protagonists, not because of the evidence of motive. We therefore cannot find that the defendant was prejudiced by the erroneous admission of this testimony.

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

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority treats the admission of the victim’s statements merely as evidence of her intention to evict the defendant, concludes that the statements were inadmissible hearsay evidence, but finds this error harmless in view of the defendant’s self-defense argument. This ignores the crux of the evidence presented here, which is not the victim’s declaration that she intended to evict the defendant, but rather, her alleged reasons for wanting to do so. The state’s witness was permitted to state that the victim told her the defendant “had come in drunk and . . . had fallen over the table and broke the punch bowl, and . was using the bathroom in the bed.” Whatever the merits of the declaration of intention to evict the defendant, these further elicited answers regarding the victim’s reasons exceeded the scope of the “state of mind” exception to the hearsay rule.

As we pointed out in State v. Weedon, 342 So.2d 642 (La.1977), evidence to prove the existing state of mind of the declarant, if relevant to show that the defendant acted upon this state of mind, “includes within its scope such declarations to do an act, introduced to prove that the declarant subsequently did the act” (emphasis is added). Weedon, at 646; McCormick On Evidence § 295 (2d ed. 1972). The introduction of the victim’s statements that the defendant broke her punch bowl and went to the bathroom on her bed went beyond the scope of the state of mind exception as put forward by Weedon. These statements were hearsay — “testimony in court, or written evidence of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” State v. Martin, 356 So.2d 1370, 1373 (La.1978). Coming within none of the recognized exceptions to the hearsay rule, the evidence was inadmissible in this trial.

The admission of the evidence that the defendant committed unsavory acts against the victim was not harmless. The jury was permitted to infer from this inadmissible evidence that the defendant was a bad character, clearly a prejudicial consideration.

       Honorable RICHARD H. GAUTHIER, Judge, Thirty-fourth Judicial District, participated in this decision as an Associate Justice Ad Hoc.

      . If not introduced for this purpose, this portion of the testimony was inadmissible as evidence of prior bad acts or as opinion evidence of character. Even when introduced to rebut a defendant’s proof of good character, which was not the case here, both types of character evidence are inadmissible. R.S. 15:479-483.

      . In Sheppard, hearsay evidence concerning a statement by the victim was admissible to show that he had no intention to attack the defendant, thus rebutting the defendant’s theory of self-defense. The state of mind of the declarant, the victim, was at issue because the defense was attempting to prove that the victim was the aggressor, and this evidence was introduced by the state to contradict that allegation. In the instant case, the defense also alleged that the victim was the aggressor. But the state introduced the hearsay evidence to show that the defendant had a motive for attacking the victim, not to show that the victim had no intention of attacking the defendant. The victim’s state of mind was not at issue.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Joseph V. BONANNO.
    No. 66232.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.

      Henry C. Walker, Shreveport, Richard V. Burnes, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Patrick G. Quin-lan, Asst. Atty. Gen., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Joseph Bonanno was convicted of distribution of cocaine in violation of R.S. 40:967B(1) in May, 1978 and was sentenced to twenty-one years imprisonment. Defendant appealed, contending among other things that the trial court failed to adhere to the sentencing guidelines of C.Cr.P. art. 894.1 and that the sentence was excessive. This Court found that the trial court had not adhered to the requirements of C.Cr.P. art. 894.1, vacated the sentence and remanded the case to the trial court for resen-tencing. The Court reserved judgment pending resentencing in compliance with C.Cr.P. art. 894.1 on defendant’s claim that the penalty was excessive.

On September 24, 1978, defendant appeared for resentencing and was again sentenced to twenty-one years imprisonment. On this appeal of his sentence, defendant relies on five assignments of error. The first three assignments present defendant’s contention that C.Cr.P. art. 894.1 has still not been complied with, and the other two assignments present defendant’s contention that his sentence was excessive and that he was denied equal protection of the law. Upon our review of the sentencing transcript, we are now satisfied that the requirements of C.Cr.P. art. 894.1 were satisfactorily complied with and therefore will not further discuss defendant’s first three assignments, but rather will turn our attention to the other two.

ASSIGNMENT OF ERROR NO. 4

By this assignment of error defendant argues that the twenty-one year sentence imposed violates Article I, Section 20 of the 1974 Louisiana Constitution because it is excessive.

Article I, Section 20 of our Constitution provides in pertinent part: “No law shall subject any person ... to cruel, excessive, or unusual punishment.” In State v. Sepulvado, 367 So.2d 762, (La.1979), we held that a sentence may violate a defendant’s constitutional right against excessive punishment even though that sentence is within the statutory limit, and that this Court could review a defendant’s sentence for excessiveness on appeal. In general we have held that a sentence is excessive and unconstitutional if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Goode, 380 So.2d 1361, (La.1980). More specifically we have held that the statutory guidelines provided by Article 894.1 of the Code of Criminal Procedure furnish criteria by which this Court can measure whether a sentence within the statutory limits is nevertheless excessive. State v. Cox, 369 So.2d 118 (La.1979), and State v. Ortego, 382 So.2d 921 (La.1980).

In compliance with C.Cr.P. art. 894.1 the trial judge discussed all the factors that were considered in arriving at defendant’s sentence. While conceding that defendant had no history of prior delinquency or criminal activity and had not threatened serious bodily harm to anyone by his actions, the trial judge still felt that giving defendant a lesser sentence would deprecate the seriousness of the defendant’s crime because of the magnitude of defendant’s planned distribution operation.

Defendant argues on appeal that there was no factual basis for a finding that he was a major dealer or that any of the statements he made to police agents were true. We find this argument to be without substance. Testimony in the record evidences that the intended effect of this operation, as expressed by Bonanno himself, was to open a large new cocaine market in the Shreveport area. One narcotics agent testified at trial that negotiations for the cocaine were opened by another officer’s demand to field test a sample of the cocaine. According to the agent, Bonanno responded with assurances that the drug was eighty percent pure, from “one of the two families in the Florida region which were responsible for ninety-five percent of the cocaine that is smuggled into the United States.” Bonanno then launched into an account of his plans for the operation: that he normally dealt in kilograms of cocaine, at $42,000.00 per kilo; that “he wanted to establish a new outlet for the produce in Shreveport if we would be interested in continuing business with him later;” that he delivered cocaine to a variety of cities throughout the United States; and that he could supply the agents cocaine on a regular basis but preferred to meet in Northern Florida “to cut down on his expenses." Defendant’s claims of such a large operation draw strong support from the size of the transaction involved herein — one pound of cocaine valued at about $22,000.00 wholesale. Other evidence introduced at trial also showed defendant to be the one who actually found the person necessary to invest the money, purchased the cocaine for resale, and did most of the talking to the Drug Enforcement Administration agent involved. Furthermore, there was some evidence that defendant enticed another person to become involved in this drug transaction.

On the basis of the above evidence and testimony, we conclude that the trial court’s finding that defendant intended to develop a Shreveport based operation was adequately supported by the evidence. Considering the size of the instant transaction and the defendant’s evident intent to open a new cocaine market, it is difficult to say that the twenty-one year sentence for distribution of cocaine represented a “manifest abuse of discretion” by the trial court. State v. Spencer and Johnson, 374 So.2d 1195 (La.1979). We therefore conclude that this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

By this assignment, defendant contends that Louisiana’s penalty for distribution of cocaine is excessive per se for the reason that said penalty derives from the incorrect classification of cocaine as a narcotic (with a penalty range of 5-30 years) rather than as a non-narcotic (with a penalty range of 0-10 years) and further contends that this misclassification of cocaine as a narcotic, with the higher penalty, deprives the defendant of equal protection of the law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Section 3 of the 1974 Louisiana Constitution.

Adopting the format of the Uniform Controlled Substances Act, Louisiana’s Law classifies dangerous substances according to five schedules, listed in descending order of toxicity and abuse potential. See R.S. 40:961-964. Cocaine is classified as a Schedule II substance for regulatory purposes. Those controlled substances listed under Schedule II are grouped together under R.S. 40:967 for penalty purposes, the only distinction in penalty being based on the additional classification of the substance as a narcotic or a non-narcotic. The statutory definition of a narcotic drug is contained in R.S. 40:961, which provides in pertinent part as follows:

“(23) ‘Narcotic drug’ means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
(a) Opium, coca leaves, and opiates;
(b) A compound, manufacture, salt, derivatives, or preparation of opium, coca leaves, or opiates;
(c) A substance and any compound, manufacturer, salt, derivative, or preparation thereof which is chemically identical with any of the substances referred to in Subparagraphs (a) and (b) of this Paragraph, except that the words ‘narcotic drug’ as used in this Part shall not include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecgo-nine.”

Cocaine falls within this statutory “narcotic drug” classification since it is produced from coca leaves. Inclusion within the “narcotic” classification subjects a person upon conviction to a maximum penalty of thirty years and a minimum penalty of five years. By contrast, those Schedule II drugs which are not defined as narcotic carry a maximum penalty of ten years and no minimum penalty.

Defendant contends that the classification of cocaine as a narcotic substance is erroneous, having resulted from misinformation. Defendant contends that under pharmacological classifications, cocaine is classified as a stimulant, the antithesis of a narcotic, which is a depressant. Therefore, defendant contends, the higher penalty for cocaine distribution is excessive per se.

As stated previously, to determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. State v. Goode, supra. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Beavers, 382 So.2d 943 (La.1980).

The Legislature has determined that distribution of cocaine presents a high potential of danger to society. We are not here to determine whether the Legislature acted wisely in that respect or not, only whether it acted constitutionally. We can not say that a penalty range from five to thirty years for distribution of cocaine is so disproportionate to the crime as to shock our sense of justice. Therefore, we do not find the penalty range of the statute to be unconstitutionally excessive per se.

Defendant further contends that he has been denied equal protection of the law in violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 3 of the 1974 Constitution. He bases this contention upon the claim that cocaine has been arbitrarily and irrationally classified as a narcotic drug for penalty purposes, thereby exposing him to a harsher maximum penalty than that prescribed for medically comparable drugs listed in Schedule II. Defendant makes a persuasive un-contradicted showing in this record (which we assume correct for present purposes) that cocaine is not, in the pharmacological sense, a narcotic drug. Yet the penalty classification is not so devoid of rationality as to warrant our finding the statute unconstitutional.

Defendant contends that since cocaine is not a narcotic in the pharmacological sense, it should have been classified by the Legislature along with substances exhibiting like characteristics as a non-narcotic drug for penalty purposes. The Legislature’s not choosing to so classify cocaine as a non-narcotic is alleged to be the result of misinformation and outdated drug mythology. Since the Legislature acted upon insufficient or erroneous information, defendant claims that there exists no actual rational basis underlying the present penalty classification and therefore the harsher penalty for cocaine, as compared with similar drugs which have lesser penalties, violates defendant’s guaranties of equal protection.

It is well settled that the Legislature is afforded wide latitude in making statutory classifications affecting the public health, safety and welfare. It is equally well settled that these statutes will be upheld upon a showing of some rational relationship to a legitimate legislative purpose. Williamson v. Lee Optical, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); United States v. Castro, 401 F.Supp. 120 (1975); and State v. Bell, 377 So.2d 303 (La.1979). Therefore, in the present case, we must determine whether the harsher penalty provision for distribution of cocaine is rationally related to some legitimate state purpose.

The study of the effects of cocaine on individuals are far from settled. Cocaine is however known to be extremely euphorogenic, and its use appears to be on the increase in the United States. There is also conflict among authorities as to the drug’s potential for physical as well as psychological addiction. The drug is quite expensive, easy to conceal because of its powdery nature and more difficult for our law enforcement officers to control. In view of the above, and the fact that it is the attacking party’s burden to clearly establish that there is no rational basis for the classification, we cannot conclude that defendant has met that burden and that there is no rational reason for the Legislature to provide a higher penalty for cocaine distribution than for distribution of other non-narcotic drugs. We, therefore, conclude that the statute is constitutional and does not violate defendant’s equal protection guaranties.

In view of the foregoing, we find that C.Cr.P. art. 894.1 has been complied with, that defendant’s imposed sentence is not excessive, that the penalty range provided by the Legislature for distribution of cocaine is not excessive per se, and that the imposition of a harsher penalty for cocaine distribution than for distribution of other non-narcotic drugs does not violate the Equal Protection Clause of the Louisiana Constitution or the United States Constitution.

Decree

Accordingly, defendant’s sentence which is the subject of this appeal is affirmed.

AFFIRMED.

       Honorable RICHARD H. GAUTHIER participated in this decision as an Associate Justice Pro Tempore;

      . Defendant contends that under Article I, Section 20 of the 1974 Louisiana Constitution he has the right to be free from excessive punishment. He further argues that this right is of a fundamental nature and that we should therefore apply a strict scrutiny analysis to the issue presented, the appropriate test when a fundamental area of protection has been invaded, rather than the minimum rationality test. Since we have already concluded that neither the sentence actually imposed on the defendant nor the Legislatively provided penalty range is unconstitutionally excessive, we find this argument of defendant’s to be unpersuasive. Defendant’s asserted fundamental right has not been invaded.


author:
DIXON, Chief Justice.
     MARCUS, Justice BLANCHE, Justice EDWARD A. de la HOUSSAYE, III, Justice Ad Hoc

text:
    STATE of Louisiana v. Marlin ZIELMAN and Michael Zielman.
    No. 66330.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals, Asst. Dist. Atty., for plaintiff-respondent.
    Anderson, Toledano & Courtney, Rykert O. Toledano, Jr., John A. Cvejanovich, Cov-ington, for defendant-relator.
   DIXON, Chief Justice.

Marlin and Michael Zielman were charged by bill of information with possession of marijuana with intent to distribute in violation of R.S. 40:966. The defendants filed a motion to suppress evidence and oral statements, which was denied by the trial court. This court granted writs to review that denial.

The incident from which the charges against the defendants arose occurred in the early morning hours of December 26, 1978. At that time the defendants were traveling through St. Tammany Parish on Louisiana Highway 41. At approximately 5:45 a. m. the defendants, driving a dark blue van, stopped at Jim’s Feed Store to purchase gasoline, but found the store closed. They were observed by Mark Simon whose family runs Simon’s Gulf Station, located a short distance down the highway from Jim’s Feed Store. Mark had his father call the St. Tammany Sheriff’s office to report the presence of the van at the feed store. The defendants left Jim’s and proceeded down the highway to the Simon station, where they remained twenty or thirty minutes waiting for the station to open. When the station failed to open at 6:00 a. m. as indicated on its door, they continued down Highway 41 to Po Boy’s Service Station. Simon called the sheriff’s office and reported that the van had left the Simon station and proceeded down the highway.

The defendants were at the Po-Boy gasoline pumps when the police arrived. Marlin was outside the van, while Michael was inside. The record indicates that one marked police car pulled up behind the van, while another parked in front or to the side, thus effectively blocking the van’s egress. Both cars had their flashing lights on, and, in addition, the driver of the car to the rear switched his spotlight on the van. Sergeant Casnave asked defendants for identification, interrogated them, and radioed for a computer check on the van. He testified that the defendants were not free to leave. Casnave said that he then looked through the windshield of the van and saw several sacks in the back. He inquired as to their contents and was told that they contained sawdust. Casnave asked if he could look into the van, whereupon Marlin Zielman walked to the front of the van, got the key from the ignition, and opened the rear door. Casnave testified that when the door was opened he saw a “vegetable type object” lying on the back floorboard.

The defendants were then told that they were under arrest, and the van was moved to another parkingiot and searched. Some 3800 pounds of marijuana were seized.

Marlin Zielman testified that while the van was being filled with gasoline one police car pulled in front and another in the rear. The officers got out and Casnave attempted to see into the van through the windows but was unable to do so. After being told by Casnave that there were reports of a burglary at the feed store, Marlin assured the officer that the van did not contain stolen property. Casnave stated that he wanted to look inside the van. Marlin replied that the van was locked. The officer insisted and again Marlin replied that the van was locked. Marlin testified that the officer then ordered him to get the key and that he felt that he had no choice but to obey. He got the key and opened the rear door. Casnave looked into the van with his flashlight but still could not make out the contents which were covered by sleeping bags. He reached in and attempted to lift one of the sleeping bags, at which point Marlin took hold of his hand and pulled it out of the van, and closed the door. He told the officer that he would have to get a warrant.

Casnave then called Marlin a dumb “son of a bitch” and told him that they would have “to do it the hard way.” He then ordered the brothers to get into the van and follow him. Further search and interrogation followed.

The justification advanced by the state for the warrantless search of the defendants’ van was Marlin’s compliance with Casnave’s instructions to open the rear of the van, interpreted as consent. In arguing that the officers acted properly in their approach and investigation of defendants, the state cites State v. Shy, 373 So.2d 145 (La.1979), in which this court stated that police officers “do not need probable cause to arrest or reasonable cause to detain each time they attempt to converse with a citizen. The mere fact that the police approach a citizen and address him does not compel that citizen to respond to the inquiries or comply with their requests; legally, nothing prevents his choosing not to answer and walking away.” 373 So.2d at 147. See also State v. Neyrey, 383 So.2d 1222 (La.1979). If, then, the officers in approaching the defendants were merely instituting a non-custodial encounter, which the defendants were free to avoid or terminate by driving away, the consent given by Marlin would be untainted by any prior police impropriety.

The record indicates however that the defendants, while stopped to get some gasoline, were virtually surrounded by police officers in marked patrol cars. One car pulled in behind the defendants’ vehicle while another came to a stop in front or to the side. Both patrol cars had their lights flashing; in addition, the driver of the patrol car to the rear fixed a powerful spotlight on the van. Sergeant Casnave, the ranking officer on the scene, testified that the defendants were not free to go and that they were being detained. Under the circumstances, the defendants could not reasonably have believed that they were free to avoid or terminate the encounter by driving away, nor could they have in fact done so without risking a dangerous confrontation with the armed officers. The actions of the officers clearly amounted to much more than an effort to simply “converse with a citizen.” State v. Shy, supra. Those actions amounted to an effort to inhibit the defendants’ freedom of movement and, from the circumstances, appear to have been designed for the very purpose of preventing the defendants from avoiding the officers by driving away.

When the officers took the actions described above, the defendants were in fact placed under arrest. The statutory definition of arrest in Louisiana is keyed to the concept of restraint. C.Cr.P. 201 provides:

“Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.”

This court has held that the circumstances indicating an intent to effect a restraint on the liberty of a suspect, and the actual restraint determine when an arrest has been made. State v. Tomasetti, 381 So.2d 420 (La.1980); State v. Mendoza, 376 So.2d 139 (La.1979); State v. Rawls, 376 So.2d 117 (La.1979). The circumstances here show that when the officers pulled into the gas station with lights flashing and began to question the defendants, they had the intent to effect such a restraint of the defendants until they determined whether the defendants had been engaged in any wrongdoing. Therefore, the defendants were under arrest prior to the time the “consent” to search the van was given.

A warrantless arrest must be based on probable cause. State v. Tomasetti, supra; State v. Mendoza, supra. Probable cause to arrest exists when facts and circumstances within the officer’s knowledge and of which he has reasonable information are sufficient to justify a man of average caution in believing that the person to be arrested has committed or is committing an offense. State v. Tomasetti, supra; State v. Simms, 381 So.2d 472 (La.1979). In the instant case the officers did not have probable cause to arrest the defendants pri- or to the discovery of the marijuana. The police claimed that they were checking out “suspicious” vehicles in the vicinity of businesses that had been burglarized in the past, but there were no facts known to the officers that would have indicated to a man of average caution that the defendants were engaged in illegal activity. In fact, the officers were not aware of any particular instance in which the businesses in the area had been broken into. Because the defendants’ course of conduct prior to being arrested was entirely consistent with innocent pursuits, the officers’ knowledge of those actions did not constitute probable cause to believe that the defendants had been engaged in criminal activity.

The issue then presented is whether the illegality of the arrest so tainted the consent that was later given by Marlin Ziel-man as to require the suppression of the evidence seized in the search pursuant to that consent. We conclude that it did. Such a consent to search, even if voluntary, is valid when made after an illegal detention only when made under circumstances which show no exploitation of the illegality. State v. Mitchell, 360 So.2d 189, 191 (La.1978); State v. Baker, 338 So.2d 1372 (La.1976). In State v. Mitchell, this court stated:

“In these circumstances, in determining whether evidence should be suppressed, the issue is whether the defendant’s post-arrest act (here, his consent) was the product of his free will rather than the result of an exploitation of his illegal arrest. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In deciding this issue, the court should take into account not only whether the governmental officers adequately informed the accused that he need not comply with their request, but also the temporal proximity between the arrest and the act (consent) alleged to be coerced, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Brown v. Illinois, at 422 U.S. 603-04, 95 S.Ct. 2261-62.”

In the instant case the consent'was inextricably linked to the initial illegal arrest. The consent occurred at the scene of the arrest shortly after the arrest took place. The defendants were not informed of their right to refuse consent. The record discloses no intervening circumstances between the arrest and the consent. The officers’ actions amounted to a clear violation of the right to be left alone and to be free from unwarranted police interference. The officers undertook to restrain the defendants and to question them while under restraint for no better reason than that there allegedly had been, at some unknown time in the past, burglaries in the area. In light of the factors just reviewed the consent to search must be considered to have been obtained as a result of the exploitation of the original illegal arrest. Since the war-rantless search of the defendants’ van is not supported by any grounds apart from that invalid consent, the evidence obtained through that search should have been suppressed by the trial court.

The record indicates that at the time that he was formally told that he was under arrest, Michael Zielman was searched and found to have in his possession a “small quantity of marijuana.” The only possible justification that appears from the record for that search was that it was incident to the arrest. At the time of the search, however, the officers had no evidence, legally obtained, that indicated that Michael Ziel-man had engaged in criminal behavior. As noted above, the initial arrest was not justified by probable cause. The officers’ action in formally placing the defendants under arrest was based on the illegal discovery of the marijuana, and for that reason cannot be considered a valid arrest. The search of the person, therefore, was not justified as incident to a valid arrest, and the evidence obtained by the search should have been suppressed by the trial court. State v. Mendoza, supra.

The admissibility of the oral statements made by the defendants must be determined under much the same analysis that was used in determining if the consent was valid. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the United States Supreme Court held that confessions, as well as physical evidence, obtained as a direct result of an arrest unsupported by probable cause must be suppressed. In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the United States Supreme Court held that Miranda warnings alone do not make a confession following an illegal detention sufficiently a product of free will so as to break the causal connection between the illegality and the confession. The court enumerated the factors listed by this court in State v. Mitchell, supra, as relevant in determining if an oral statement was obtained by exploitation of the illegal arrest. Therefore, the length of time between the statement and the arrest, the presence of intervening circumstances and the purpose and flagrancy of police conduct, as well as the Miranda warnings, must be considered in determining if the confession was so attenuated that it should not be considered a fruit of the illegal arrest. State v. Giovanni, 375 So.2d 1360 (La.1979); State v. Grogan, 373 So.2d 1300 (La.1979); State v. Scott, 355 So.2d 231 (La. 1977).

The record indicates that the defendants were given their Miranda warnings after the marijuana was found in the van and they were told they were under arrest. It further indicates that while Sergeant Casnave was searching the van, Marlin Zielman made a statement indicating that all of the sacks in the van contained marijuana. Marlin also stated, according to the police officers, that he had been paid money to drive the van to Michigan and leave it in a parking lot. He also allegedly offered the officers the van and its contents, along with all the money in his possession, if they would let him go. The defendants were then transported to the sheriff’s office in Slidell where, according to the state’s answer to the defendants’ motion for discovery, Michael Zielman made a statement to Sergeant Hermann to the effect that he had been paid to drive the van to Michigan and leave it in a parking lot where it would be picked up by unknown persons. These statements, as well as the consent to search the van, were obtained by exploitation of the illegal arrest.

In this case, the defendants were initially approached by the officers at around 6:00 a. m. The defendants arrived at the sheriff’s office where Michael Zielman made his statement to Sergeant Hermann by 7:00 a. m. or shortly thereafter. The statements were made in close temporal proximity to the illegal arrest and subsequent invalid search, without any intervening circumstances that would indicate that the statements were an exercise of the defendants’ free will. The arrest of the defendants and the search of the van were made in clear violation of the defendants’ rights and were unjustified by any activities on the part of the defendants. The statements made by the defendants were obviously made in response to the fact that the officers had obtained (illegally) evidence that could be used against them. The statements, made soon after the unjustified arrest, must be considered the fruits of the initial illegal detention and subsequent invalid search, and therefore the statements should have been suppressed by the trial court.

For the reasons assigned, the trial court’s judgment on the motion to suppress is reversed, and the motion is sustained; the case is remanded to the trial court for further proceedings.

BLANCHE, J., concurs and assigns reasons.

MARCUS, J., dissents and assigns reasons.

EDWARD A. de la HOUSSAYE, III, J. Ad Hoc dissented and separately assigned reasons.

MARCUS, Justice

(dissenting).

I agree that the actions of the police officers amounted to more than an effort simply to “converse with a citizen.” On the other hand, I do not agree that the officers had placed defendants under arrest. Rather, I consider that they, having reasonably suspected defendants of possible criminal conduct, were momentarily detaining them to seek their names, addresses and explanation for their actions. La.Code Crim.P. art. 215.1. Hence, the subsequent consent to search the vehicle was valid and the incul-patory statements were legally obtained. Accordingly, I respectfully dissent.

BLANCHE, Justice

(concurring).

A “strange” vehicle, a van, was seen waiting for a gas station to open in a rural area. As the photographs in the record depict, it was just an ordinary van. No evidence was introduced in this record concerning previous burglaries, which was the purported basis of the officers’ so-called “suspicions”. Even so, people driving vans in small towns or communities have a right to be left alone in the absence of some valid probable cause. Having failed to convince me of their suspicions so as to even talk to defendants, I am not too impressed with the state’s claim of consent. Here is a case of police interference with two persons whose conduct was entirely innocent and was, therefore, unwarranted.

The lingo for such conduct is called “hassling”.

EDWARD A. de la HOUSSAYE, III, Justice Ad Hoc

(dissenting).

I respectfully dissent from the majority opinion.

At issue in this case is the right of the police to question defendants concerning their activities in the area of Jim’s Feed Store and Simon’s Gulf Station. The right of the police to temporarily detain a suspect for investigatory purposes exists only when the officer has reasonable cause to believe that the suspect is committing, has committed, or is about to commit a crime. La.C. Cr.P. Art. 215.1(A). The officer has to have adequate articulable knowledge of particular facts, enough to warrant infringement upon the individual’s constitutional right to be let alone. State v. Neyrey, 383 So.2d 1222 (La.1979); State v. Shy, 373 So.2d 145 (La.1979); State v. Wilson, 366 So.2d 1328 (La.1978).

In the instant case, the police officers did not have an adequate basis for a reasonable belief that defendants were engaged in criminal activity. Police, therefore, would not have been justified in temporarily detaining defendants. ' However, police officers do not need probable cause to arrest, or reasonable cause to detain, in order to talk with a citizen. State v. Neyrey, supra; State v. Shy, supra, at 147. The mere fact that a police officer approaches a citizen and addresses him or her does not compel that citizen to respond. Legally, a citizen may walk away or not respond. State v. Neyrey, supra; State v. Shy, supra; State v. Brown, 370 So.2d 547 (La.1979).

In the case at bar, the police were responding to a call indicating that individuals were engaged in suspicious activity in an area which had been the scene of crimes in the past. There is no doubt that these officers had the right, as well as the duty, to check out this report. When the police units drove up to defendants’ van, defendants had the right to drive away. The defense has asserted that the form of approach taken by the officers indicated that some form of detention was imminent. See State v. Chopin, 372 So.2d 1222 (La.1979); State v. Saia, 302 So.2d 869 (La.1974). Evidence exists in the record, however, to reasonably support the trial court’s apparent conclusion that defendants should not have feared detention. There is testimony which indicated that Officer Casnave pulled in behind defendants’ van and Deputy Wal-dron pulled in alongside him. The testimony seemed uncontroverted that it was still dark at that time and the fact that a searchlight was turned on defendants may have been merely for the convenience of all of the parties involved in the incident. The Police officers were justified in approaching defendants to ask them some questions.

The search of defendants’ van was conducted without a search warrant. War-rantless searches and seizures are per se unreasonable under the Fourth Amendment of the United States Constitution and Article 1, Section Five of the Louisiana Constitution of 1974, unless they fall within the scope of a limited number of exceptions to the warrant requirement. The exception to the warrant requirement when consent to search is given is applicable to the case at bar. A search conducted pursuant to a valid consent is constitutional. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Johnson, 380 So.2d 32 (La.1980); State v. Linkletter, 343 So.2d 452 (La.1977). To determine whether or not consent was voluntary, the facts and circumstances of each case must be analyzed. Schneckloth v. Bustamonte, supra; State v. Johnson, supra.

There were two searches of defendants’ van, both of which the state contends were conducted with the consent of defendants. The first search was conducted at the pumps of the Po-Boy Service Station and the second one was conducted in the parking lot of the Po-Boy Supermarket. There is evidence in the record from which a reasonable trier of fact could conclude that valid consent was given to both searches. It should be noted that defendants were placed under arrest after the first search, and therefore, were in custody'at the time of the second search. The fact that a defendant is in custody is a factor to be considered in determining the voluntariness of a defendant’s consent. The test is whether the police took unlawful advantage of the arrest or used coercive tactics in order to obtain consent. See State v. Johnson, supra. At the hearing, Officer Cas-nave testified that such tactics were not used in this case. Furthermore, consent can be given to search a vehicle already impounded by police officers. State v. Linkletter, supra.

The second search of the van fell into the “automobile emergency” exception to the warrant requirement. Because of the mobility and imminent disappearance of automobiles, a warrantless search of the vehicles . may be justified by necessity. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Lewis, 378 So.2d 396 (La.1979). There are two requirements which must be met before a warrant-less search based on this exception will be upheld: (1) there must be probable cause to believe the vehicle contained contraband or evidence of a crime and (2) there must be exigent circumstances requiring a warrant-less search, i. e. a possibility that the car would be moved by someone while the officers were obtaining a warrant. Chambers v. Maroney, supra. In the instant case, probable cause existed for the officers to believe the vehicle contained contraband: they had already viewed the marijuana in the van. The defense argues that the requisite exigent circumstances were not present, because once the defendants had been arrested, no evidence could have been removed from the vehicle. Defendants’ argument is without merit. The search in the Po-Boy Supermarket parking lot was conducted pursuant to a valid exception to the warrant requirement.

The trial court did not abuse its discretion in finding that defendants had consented to the searches of their vehicle.

       Honorable EDWARD A. de la HOUSSAYE, III participated in this decision as an Associate Justice Ad Hoc.

      . Once again, it is noted that defendants would have been equally justified in refusing to answer any questions.

      . Although Officer Casnave testified that he did see the bags in the back of the van through the front, the “plain view” exception is not applicable here. Officer Casnave saw plastic bags in the van, which are not clearly contraband. See State v. Pomes, 376 So.2d 133 (La.1979).


author: ELLIS, Justice Ad Hoc. DENNIS, Justice,

text:
    STATE of Louisiana v. Robert TRANUM.
    No. 66410.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.
    Frederick J. King, Jr., New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Victor Ortiz, Asst. Dist. Atty., for plaintiff-relator.
   ELLIS, Justice Ad Hoc.

We granted a writ application by the State to review a ruling of the district court judge who granted defendant’s motion to suppress evidence which was obtained pursuant to a search and seizure conducted under the authority of a search warrant.

On October 9, 1979, defendant Robert J. Tranum was charged by bill of information with possession of marijuana, in violation of La.R.S. 40:967. Subsequent to his arraignment, defendant filed a Motion to Suppress Evidence, requesting the suppression of the seized marijuana because of the alleged invalidity of the search warrant authorizing the search. It is contended that the affidavit supporting the request for the search warrant failed to show probable cause, within its four corners, that a crime was being committed or that evidence of any crime might be found within the premises sought to be searched therein. The trial court granted defendant’s motion to suppress the evidence and the State has filed an application for writ of certiorari, assigning as error the granting of the Motion to Suppress the Evidence.

The search warrant application in this case consists of two pages of information obtained from a confidential informant’s tip and police investigation. The affidavit alleges that this reliable informant entered defendant’s apartment and observed a quantity of marijuana and pills in the residence. The informant observed the sale of these substances by defendant whom he knew only as “Bobby.” The informant provided the officers with the address where he had observed the drugs, gave the officers the suspect’s telephone number, and described the suspect’s cars. He told the officers that papers he observed in the residence bore the name James R. Tranum.

Based upon this information the officers drove to the indicated address and observed the two vehicles described by the informant as belonging to “Bobby.” A check of the license plates revealed that the cars belonged to a James R. Tranum and Richard B. Tranum. A telephone call to the number provided by the informant confirmed that “Bobby” lived at the residence they had called. These efforts served to partially corroborate some of the information provided by the informant.

A forty-five minute surveillance was then conducted of the residence where the drugs were observed. During this time, an unknown person approached the apartment carrying a paper bag folded underneath his arm. The person was admitted to the apartment and left a short time later with the paper bag then full. Approximately ten minutes later, the same person returned to the apartment and was again admitted. A short while later he left the apartment, carrying another bag, accompanied by another unknown subject. Based upon the above information, the officers applied for the search warrant.

Article 1, § 5 of the Louisiana Constitution of 1974 requires that a search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of the judge issuing the warrant. La.C. Cr.P. Art. 162. To establish probable cause, the affidavit must state facts and circumstances within the knowledge of the affiant based on reasonably trustworthy information which would be sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Morgan, 376 So.2d 99 (La.1979); State v. Boksham, 370 So.2d 491 (La.1979); State v. Koncir, 367 So.2d 365 (La.1979).

In State v. Paciera, 290 So.2d 681 (La.1974) this Court recognized the following standard to be applied in evaluating affidavits based on an informant’s tip:

“.. . . The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the creditability of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.”

See also Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Nelson, 381 So.2d 477 (La.1980). The magistrate’s probable cause determination must be based solely upon the information contained within the four corners of the affidavit. State v. Wells, 253 La. 925, 221 So.2d 50 (1969); State v. Daniel, 373 So.2d 149 (La.1979).

The trial court found the warrant to be based solely on the informant’s tip. The judge concluded that the forty-five minute surveillance was insufficient to corroborate the information from the unidentified informant. Defendant argues that the affidavit fails the “two-pronged test” which the U.S. Supreme Court set forth in Aguilar, supra. In Aguilar, the Court held:

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, [11 L.Ed.2d 887,] was ‘credible’ or his information ‘reliable.’ ”

The “tip” was used upon personal observation by the informant of the sale of illicit drugs at 4219 Dumaine Street. The affidavit alleges that the unnamed informant had provided information in the past which was instrumental in the arrest and conviction of narcotics violators. State v. Hysell, 364 So.2d 1300 (La.1978). Thus the warrant application provides factors which support the credibility of the informant, a requisite for the issuance of a warrant. La.C.Cr.P., Article 162. Additionally, the officers did make independent corroboration of the accuracy of the report, by verifying that the vehicles at the apartment met the informant’s description and were registered in the name of Tranum; and verifying by phone call that a “Bobby” lived at the apartment.

This case has met the test under Aguilar. Under the tenets of La.C.Cr.P., Article 162, the requirements of probable cause have thus been established. It is unnecessary to reach defendant’s claim that corroboration by the forty-five minute surveillance was insufficient to aid in laying a foundation for probable cause.

The ruling of the trial court is therefore reversed and set aside and the case remanded to the trial court for further proceedings in accordance with law.

REVERSED AND REMANDED.

DENNIS, Justice,

additional concurring reasons.

I join in the majority opinion but feel that we should also address the defendant’s argument that the information presented by the informant was too stale to support a finding of probable cause. The basis of the argument is that the warrant application states that the informant had seen drugs in the residence “within several days” of the time that the warrant was issued. According to the defense argument, this language presents the possibility of too long a time elapsing between the time that the informant saw the drugs in the residence and the time the warrant was applied for.

If there is too great a time lag between the observations of the informant and the time that the warrant is applied for then the information is said to be stale and will not support a finding of probable cause. State v. Thompson, 354 So.2d 513 (La.1978); State v. Bastida, 271 So.2d 854 (La.1973). The issue of staleness must be decided under the facts of each particular case. State v. Chaffin, 324 So.2d 369 (La.1976). The warrant application here recites that the informant saw quantities of drugs at the residence of defendant; that he heard the defendant tell one buyer that he could return any time to purchase more; that the defendant told the informant that any time he wanted to buy drugs all he had to do was ask; that police observed suspicious activity, of the sort often connected with drug distribution, prior to making the warrant application. In view of the circumstances the defense argument of staleness is without merit.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Leon and Annie Lee JOLLA.
    Nos. 66638, 66724.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.

      Anthony J. Marabella, Jr., App. Counsel, Alton T. Moran, Director, Baton Rouge, for defendants-relators in No. 66724 and for defendant-respondent in No. 66638.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., J. Michael McDonald, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-respondent in No. 66724 and for plaintiff-relator in No. 66638.
   DENNIS, Justice.

We granted both the defendants’ and the state’s applications for writs of review to consider the trial judge’s pretrial rulings on the defendants’ motions to suppress incul-patory statements and evidence in connection with this prosecution for two counts of cruelty to juveniles. The trial judge suppressed inculpatory statements made by defendants at their house prior to their arrest and others made at the station house following the Jollas’ arrests; but he refused to suppress evidence obtained pursuant to a warrantless search of the Jollas’ house. We find that the judge erred in suppressing the statements. The statements at the Jollas’ house were not made in response to custodial interrogation and the station house statements were made after defendants were advised of their Constitutional rights. The judge, on the other hand, properly denied the motion to suppress the evidence taken at the Jollas’ house, because the Jollas consented to the investigatory search.

FACTS

A case worker, Ms. Maggiore, for the Baton Rouge Child Protection Center received a complaint from an unidentified member of the Jolla family on May 28, 1979. The informant told her that Mr. and Mrs. Jolla, a middle-aged couple with sixteen children, were keeping a pair of seven-year old twins in total isolation. The informant described the conditions in which the twins lived as being deplorable, with the twins being severely malnourished and in need of medical attention.

Ms. Maggiore was skeptical of the truth of the report, but, pursuant to routine procedure, she called the Baton Rouge sheriff’s office to obtain assistance. She spoke to Lieutenant McCastle, who happened to know the Jollas personally, and he drove Ms. Maggiore out to the Jolla residence to investigate the complaint. Lieutenant McCastle was likewise incredulous, for he had known the Jollas and their children but was not aware of the existence of seven-year old twins.

Ms. Jolla answered the door at her home and invited the officer and Ms. Maggiore inside. The lieutenant advised Ms. Jolla of the nature of the visit and asked if she had seven-year old twins in the house. She said that she did but that they were asleep. The officer then changed the subject briefly, inquiring about some of the other children in a friendly manner. After this exchange, the officer asked Ms. Jolla if he could see the twins, but she refused, saying that they were asleep and that he should return the next day if he wanted to see them. He told her he just wanted “to peep in on them” and promised not to disturb their sleep. Ms. Jolla expressed her reluctance to let him do this, but following a few more requests by the officer, she relented and agreed that he could see the children. However, she said that her husband would have to approve of the officer’s entry into the room.

Ms. Jolla went down the hall to get Mr. Jolla out of another part of the house. He came into the kitchen and was told by Lieutenant McCastle that a complaint had been received concerning the seven-year old twins and he wanted to see the children. Mr. Jolla told him that he should come back another day to see the children. The lieutenant expressed his desire to see the children without delay. He further told Mr. Jolla that he had a right to refuse permission to go back into the bedroom to see the twins, but if he refused, a search warrant might be obtained. Lieutenant McCastle, still speaking to the Jollas in a calm tone of voice, informed Mr. Jolla that he would rather see the children without a search warrant so as to “do it as peaceful as possible.” At this, Mr. Jolla offered to bring the children out of the room so that the officer could see them. McCastle reiterated his desire to see them inside their room. Mr. Jolla then shook his head and stated that the officer could go into the room.

Mr. Jolla led the lieutenant down the hallway to the twins’ bedroom. At the door, however, he had a change of heart. He told McCastle that the twins were inside the room, but the officer would not be able to go inside because the room was “filthy.” McCastle again gently expressed his wish to peer into the room without disturbance and Mr. Jolla finally acquiesced. While McCas-tle opened the door to the room, Mr. Jolla dropped his head, walked outside the house, and sat under the carport.

The lieutenant found the twins in the bedroom in a state of desolation. They appeared to have been confined for a long period of time, seemed severely malnourished, and filth covered the floor. He called for assistance, and when Deputy Wright arrived, the Jollas were placed under arrest for cruelty to juveniles. Deputy Wright advised them of their Miranda rights at their arrest but no further statements were taken until a few hours later at the station. There, McCastle and Wright advised the defendants of their rights again, then took a taped statement from the Jollas.

The defendants moved to suppress the evidence taken from the home, including pictures of the scene of the twins’ bedroom. They moved to suppress all the statements they made to Lieutenant McCastle during his questioning of them before he went into the twins’ room and the statements taped later at the police station. The trial judge found that the Jollas consented to the search of the house and therefore the war-rantless search was lawful. He decided to suppress all the statements, however, because the officer should have given the Jollas their Miranda rights when he entered the house; and that the taped statements at the station were tainted by the earlier questioning.

SUPPRESSION OF THE EVIDENCE

The search of the Jollas’ house which produced the evidence of the conditions under which the twins lived was made without a warrant. A warrantless search, unless it falls within one of the specifically delineated exceptions, is per se unreasonable under the Fourth and Fourteenth Amendments to the Constitution. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Guzman, 362 So.2d 744 (La.1978). One of the specifically delineated exceptions to the warrant requirement is a search conducted after the defendant has consented voluntarily to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The state has the burden to show that the consent was in fact voluntarily given, with voluntariness to be determined from all the circumstances surrounding the incident. Schneckloth, supra; State v. Carthan, 377 So.2d 308 (La.1979).

We find that the trial judge did not abuse his discretion in holding that the state met its burden of showing that the Jollas consented to the search of the twins’ bedroom. In examining the circumstances of Lieutenant McCastle’s investigation prior to his entry into the room, we find that the atmosphere was non-coercive. The Jollas were neither under arrest nor detained when they consented to the search. When the lieutenant spoke with Ms. Jolla in the kitchen, Mr. Jolla was in another part of the house and the officer was unconcerned about his whereabouts. Even after Mr. Jol-la assented to the officer's entry into the room, he was free to, and did in fact, leave the house.

Lieutenant McCastle knew the Jollas personally. Ms. Jolla let Ms. Maggiore and him into her home freely and voluntarily, and the record suggests no compulsion. The officer at one point, after informing Ms. Jolla of the nature of his visit, asked about the well-being of some of the other children with whom he was personally acquainted.

The defense argues that the Jollas acquiesced to a claim of lawful authority and therefore their consent is invalid. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). However, this argument lacks merit in view of the circumstances of this search. The officer never engaged in unfair ruses to obtain the Jollas’ consent nor did he assert any authority to enter the room without their consent and without a search warrant. He informed the Jollas initially of the nature of his visit, of the complaint he had received; he told them that he could get a warrant (which he had a lawful right to seek) but that he would prefer to have their consent to search in order to avoid the compulsive remedy of a search warrant. He made it clear to both of the Jollas that they did not have to let him into the room, that they lawfully could refuse permission.

We cannot consider the officer’s persistent requests as indicative of coercion. The Jollas never told Lieutenant McCastle to leave their house firmly and categorically. The lieutenant, in repeating his requests to see the twins, did not exploit his position as a police officer to overcome the Jollas’ will. Lieutenant McCastle exercised a concerned but non-coercive investigation of a complaint involving people he knew personally. Throughout the questioning he was calm and straightforward with the Jollas and ultimately he succeeded in convincing them that, although they had a right to tell him to leave, it was in the best interests of the twins and themselves that they allow him to enter the bedroom.

The trial judge correctly sustained the search of the house on the basis of free and voluntary consent.

SUPPRESSION OP THE STATEMENTS

The defense asserts, and the trial judge agreed, that all the statements made during the investigation from the time the officer entered the house to the arrests should be suppressed because no Miranda warnings were given. Although it is not clear whether anything the Jollas said during this period was inculpatory, we will treat the statements as evidence against the Jollas for the sake of our examination here. The trial judge suppressed the taped statements made by the Jollas at the police station as being tainted by the earlier, inadmissible statements.

We find that there was no necessity for Miranda warnings prior to the discovery of the twins’ living conditions. When an accused has not been taken into custody or otherwise deprived of his freedom of action in any significant way, there is no requirement that a police officer give the Miranda warnings prior to his questioning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Corey, 339 So.2d 804 (La.1976); State v. Roach, 322 So.2d 222 (La.1975). Miranda applies only when an accused is subjected to “custodial interrogation,” i. e., when he has been taken into “custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, supra, 86 S.Ct. 1602, 1612; State v. Yates, 357 So.2d 541 (La.1978). It is clear that the Jollas were not in custody and their freedom of movement was not restricted in any significant manner. Ms. Jolla let the officer into her home because she knew him personally, not because she was compelled to do so. Lieutenant McCastle gave the Jollas no indication that he would not let them leave the house; and in fact, Mr. Jolla did leave the house after the deputy went into the twins’ bedroom, when he went outside to sit under the carport. Furthermore, until McCastle saw the twins in the room, he had no probable cause to believe a crime was being committed. The questioning was conducted in a non-custodial setting.

Given the admissibility of the earlier statements, we find that the trial judge erroneously concluded that the taped statements taken at the station were tainted. Cf., Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The Jollas were arrested at their residence shortly after the twins were found in the room. Deputy Wright arrived and gave the Jollas their oral Miranda rights. At the station, the deputy again gave the Miranda warnings and the Jollas signed a waiver form. When the Lieutenant McCastle arrived a short while later, the Jollas received Miranda yet a third time and signed another waiver form, then gave the taped statements. During this period at the station, the Jollas were not handcuffed, nor were they confined to a cell. They were in the interview room free, as Deputy Wright testified, to walk around the station. We find that the Jollas effectively waived their Miranda rights and freely made the taped statements.

The defense argues, finally, that the Jollas had such a reduced mental capacity that they could not intelligently waive Miranda. At the motion to suppress the defense submitted evidence that the Jollas each had an intelligence quotient of 67 on the Wechsler Adult Intelligence Scale. The psychological report, however, indicated that the Jollas, although below normal in intelligence, did not suffer from any mental disorders. Ms. Jolla had completed the tenth grade and Mr. Jolla, the eighth. Mr. Jolla has maintained regular employment as a carpenter, supporting his family. The evidence does not indicate that the Jollas were incapable of understanding and waiving Miranda. See State v. Collins, 370 So.2d 533 (La.1979). We find that the Jol-las understood and freely waived their rights and gave a voluntary statement at the station.

For the foregoing reasons, we reverse the trial judge’s suppression of the statements and affirm his denial of the defense motion to suppress the evidence.

REVERSED in part;

AFFIRMED in part.

      The Honorable RICHARD H. GAUTHIER participated in this decision as an Associate Justice Pro Tempore.