source: Caselaw Access Project

author:
      WATKINS, Justice Ad Hoc.
     DIXON, Chief Justice

license: Public Domain

text:
    STATE of Louisiana v. Paul M. KROLOWITZ.
    No. 81-KA-0374.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jack Rowley, Dist. Atty., Glenn Diaz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Ronald S. Ruiz, New Orleans, for defendant-appellant.
   WATKINS, Justice Ad Hoc.

Defendant, Paul M. Krolowitz, has appealed from a conviction for armed robbery (a violation of LSA-R.S. 14:64). He was tried before a jury and sentenced to fifty years hard labor without benefit of parole, probation, or suspension of sentence. We affirm the conviction and sentence.

On March 26, 1979, at 6:30 a. m. two armed men (one found to be Paul M. Kro-lowitz) entered a food store owned by Dennis Acosta in St. Bernard Parish, robbed him of approximately $43.00 and fled. In carrying out the robbery, the men beat Acosta with a pistol, stepped on his leg, and shot him in the knee with a Smith & Wesson .357 magnum revolver which one of them was carrying. Two bullet fragments were found in Acosta’s leg after he was discovered at the store and received medical attention. Acosta died of his injuries some weeks later. A pistol identified by ballistics experts as having fired the bullet, the fragments of which were removed from Acosta’s leg, was found in Krolowitz’s trailer in the execution of a search warrant. Krolo-witz was tried for armed robbery, not murder, in the case now before us on appeal.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the search warrant in the execution of which the Smith & Wesson revolver was seized was granted under an improper affidavit.

The following facts underlie the issuance of the affidavit. On the night of May 2, 1979, law enforcement officers in St. Bernard Parish were called to a trailer park in which pistol shots had been fired. When they arrived at the scene, certain law enforcement officers saw one Juanita Tyson run out of a trailer owned by Krolowitz and drop certain objects under the trailer. These objects were found to be narcotic drugs and narcotics paraphernalia. Miss Tyson was arrested and after having been arrested told the law enforcement officers that the pistol that had been fired was in “the” (meaning Krolowitz’s) trailer.

Upon the issuance and execution of the affidavit, a Smith & Wesson .357 magnum pistol was found hidden in the trailer. A motion to suppress evidence (the pistol) was filed by Krolowitz together with a motion not here pertinent, and after hearing, the motion to suppress evidence was denied. The lower court’s action on this motion was sought to be brought before us by application for writs, which were denied. (See No. 67,173, April 8, 1980).

When the state attempted to introduce the revolver in the trial for armed robbery, the defense objected, the objection was overruled, and the revolver was introduced. To this introduction the present bill of exceptions was reserved. Defendant contends the search warrant under which the revolver was seized was unconstitutionally obtained in violation of Amendment IV of the United States Constitution as rendered applicable to the states by Amendment XIV.

The affidavit for issuance of the warrant reads as follows:

“At 23.38 hrs. on May 2nd, 1979 under Item Number E-00116-79, the St. Bernard Parish Sheriff’s Office received numberous phone calls reporting that a female who was identified as Juanita Tyson was firing a gun. D. R. 75 manned by Deputy Bonura and Dr. R 25 manned by Deputy Larry Ferand answered the call and observed a white female running out the rear door of the trailer, carrying an object in her hand, and when she saw the deputies she threw said object under the trailer. After the subject was apprehended, Deputy Bonura retrieved said object which had been thrown under trailer by Juanita Tyson and found it to contain a brownish green vegetable matter which is thought to be hashish, a bag containing a green vegetable matter which appears to be marijuana, several syringes and a 2 oz bottle containing a clear liquid.
“After the subject, Juanita Tyson was arrested for Illegal Firing of a Weapon, Possession of Narcotics, and a J. P. Warrant for Simple Kidnapping, she was advised of her rights and she stated before Deputies Spicuzza, Bonura, Stohlmann and R. D. Carreras that the gun she had been firing was hidden inside said trailer.”

The two affiants were Officers Stohl-mann and Bonura.

Many of the statements contained in the affidavit are somewhat in error. Defendant concedes these errors were made unintentionally. It is not true that Miss Tyson was firing a gun. In fact, one Elsie Bass fired the gun. Although the report to Officer Stohlmann was that Miss Tyson was firing a gun, the report received by Officer Bonura was that a man was firing a gun. Neither Officer Bonura nor Officer Stohl-mann saw Miss Tyson throw an object under the trailer, although Officer Bonura saw Miss Tyson running out of the trailer. The only object found by Officers Stohl-mann or Bonura was a purse belonging to Miss Tyson, which was found by Officer Bonura. It is true that the other stated objects were found, but not by Officers Bonura or Stohlmann.

Furthermore, Miss Tyson never said that the gun she had been firing was inside the trailer as she did not say she had fired the gun. She did, however, say that the gun was inside the trailer.

If unintentional misstatements are made by the affiants seeking to obtain a search warrant, these misstatements must be excised and the remainder used to determine whether or not the affidavit sets forth probable cause for issuance of a warrant. State v. Rey, 351 So.2d 489 (La.1977).

We have deleted the items from the affidavit that are inaccurrate, and find with the inaccuracies (which the defendant admits are unintentional) deleted, the affidavit reads as follows:

“At 23.38 hrs. on May 2nd, 1979 under Item Number E-00116 — 79, the St. Bernard Parish Sheriff’s Office received numerous phone calls reporting that a female . . . was firing a gun. D. R. 75 manned by Deputy Bonura . . . observed a white female running out the rear door of the trailer. . .. After the subject was apprehended, Deputy Bonura retrieved [an] object which had been thrown under trailer by Juanita Tyson....
“After the subject, Juanita Tyson was arrested for Illegal Firing of a Weapon, Possession of Narcotics, and a J. P. Warrant for Simple Kidnapping, she was advised of her rights and she stated before Deputies Spicuzza, Bonura, Stohlmann and R. D. Carreras that the gun [that was fired] was hidden inside said trailer.”

Officers Bonura and Stohlmann as affiants were swearing to hearsay so far as Miss Tyson’s statement, that the pistol was in the trailer, is concerned, and Miss Tyson stands in the role of an informant. Hearsay may be used as the basis for the issuance of a search warrant, if there are corroborating circumstances of which the affiants have personal knowledge. State v. Paciera, 290 So.2d 681 (La.1974); State v. Turner, 337 So.2d 1090 (La.1976); State v. Gilbert, 354 So.2d 508 (La.1978). Also, if the informant is identified in the affidavit, rather than permitted to remain anonymous, greater reliability is attached to the informant’s alleged assertion, as the informant, if identified, is subject to questioning by the magistrate. State v. Paciera, supra. Here, reliability to Miss Tyson’s assertion in the expurgated affidavit that the gun was in the trailer is lent by the fact that Officer Bonura saw Miss Tyson running from the trailer where she stated the gun was to be found. Also, the fact that Miss Tyson was arrested for the Illegal Firing of a Weapon (even if a groundless charge) lent credibility to her assertion that the gun was in the trailer. Furthermore, her statement comes close to being a declaration against interest, as she admitted that she knew where a gun that had been illegally discharged was located (and, as another part of the expurgated affidavit asserts, she was seen running out of the trailer where the gun was located), although she herself did not fire the gun. The informant is named and is stated to be under arrest, so a magistrate, if he doubted the veracity of the reported assertions, could easily bring Miss Tyson before him for questioning.

Affiants to search warrants generally are not accomplished in the law, and although they are expected to make a conscientious effort to tell the truth, we cannot expect perfection from them in preparing a document that is comparable to a legal pleading. Proof beyond a reasonable doubt is not necessary to support an affidavit for a search warrant; all that is necessary is that there be probable cause for the issuance of the warrant. State v. Lehner, No. 81-KA-0034, September 8, 1981. Only unreasonable searches fall within the constitutional prohibition. Probable cause must not be interpreted hyperteehnically in such a fashion as to prevent a reasonable search. State v. Guidry, 388 So.2d 797 (La.1980). The affidavit, with the inaccuracies striken, still would lead a magistrate to believe that probable cause existed to issue a warrant to obtain the pistol, and that is all the constitutional guarantees require.

We find no merit in Assignment of Error No. 1.

ASSIGNMENT OF ERROR NO. 4

One Harry Christoff discovered Acosta lying on the floor of his store in a pool of blood shortly after he was robbed, beaten, and shot. Acosta said “they” had robbed and beaten him. Christoff left the store to call authorities. When he returned, Acosta made the following statement to him:

“He told me that two men had came into the store and one guy was tall with light brown hair, kind of long, almost to the shoulder, and the other shorter with a moustache, and he said one of them ordered something, a box of matches or something and when he went to get them to him or open the cash register drawer the tall guy reached over the counter and hit him in the head with a pistol and he fell down and then the guy jumped over the counter and grabbed the money and think they broke his legs because he couldn’t move it.”

Officer Stohlmann arrived on the scene shortly thereafter. Acosta made the following statement to him:

“He told me two men came in the store and one man asked for matches and when he reached down there one of the subjects hit him on the head with what appeared to be a gun and as he went down from the blow they jumped over the counter and continued to take him and beat him severely. He kept saying, ‘Don’t hurt me, take what you want, but, they evern (sic) stomped on my leg.’ He said that twice, ‘Even stomped on my leg.’ ”

At trial, over defense counsel’s objections, both Christoff and Stohlmann testified to these statements. In argument supporting defense’s assignment of error concerning the admission of the testimony as to these statements by Acosta, defendant makes the argument that any testimony as to these statements was hearsay and, therefore, inadmissible.

However, the hearsay rule has many exceptions, among them the excited utterance rule. If an utterance is made by a startled person who has not had sufficient time to reflect on the events that have transpired to fabricate a false account, in certain circumstances, these statements are admitted as falling within the excited utterance exception to the hearsay rule.

The factors that are to be considered in determining whether or not a statement constitutes an excited utterance are set forth at length in State v. Henderson, 362 So.2d 1358, 1362 (La.1978), as follows:

“Many factors enter into determining whether in fact the second requirement has been fulfilled and whether a declar-ant was at the time of an offered statement under the influence of an exciting event. Probably the most important of these is the time factor. In this connection the trial court must determine whether the interval between the event and the statement was long enough to permit a subsidence of emotional upset and a restoration of a reflective thought process. Several additional factors which may indicate that the statement was the result of reflective thought, but which do not automatically justify exclusion, are as follows: Evidence that the statement was self-serving or made in response to an inquiry. Expansion of the excited utterance beyond a description of the exciting event into past facts or the future; Proof that the declarant performed tasks requiring reflective thought processes between the event and the statement. See, State v. Smith, 285 So.2d 240 (La.1973); C. McCormick, Evidence, § 297 at 705, et seq. (2d ed. 1972); G. Pugh, Louisiana Evidence Law, at 515 (1974), at 208 (Supp.1976); Comment, Excited Utterances and Present Sense Impressions as Exceptions to the Hearsay Rule in Louisiana, 29 La.L.Rev. 661 (1969).”

In the present case the robbery occurred at approximately 6:30 a. m. Chris-toff arrived at the scene at approximately 6:40 a. m. and discovered the victim. Acosta made the first statement (to Christoff) immediately after Christoff had telephoned authorities, the telephone call having taken only a brief time. Officer Stohlmann arrived at the scene at approximately 6:50 a. m. He asked Acosta, “Man, what happened?” This brief question obviously was not sufficient to alter Acosta’s continuous state of excitement. In the same state of excitement Acosta proceeded to make his second statement (to Stohlmann). The statement that Stohlmann asserts was made to him merely corroborated Chris-toff’s testimony as to the earlier statement (to Christoff). The statements of Acosta were not self-serving. The testimony indicates Acosta was in great pain, the victim of a pistol whipping, broken leg, beating and shooting, was but half sitting up, and could not have engaged in reflective thought.

The statements clearly fell within the excited utterance exception to the hearsay rule. The fourth assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 6, 7, 8, 9, AND 10

By these assignments, the defense argues that the trial court erred in allowing references to the arrest of the co-defendant Jerald Nuccio, in permitting the introduction of two exhibits allegedly unconnected with the case, and in instructing the jury with regard to the law of principals.

Defendant was charged alone by bill of information with the armed robbery of Acosta. Nevertheless, from Christoff’s and Stohlmann’s accounts of the victim’s statements, it was clear that two men had participated in the offense. According to a Detective Ralph Carreras, on the night of May 27, 1979, he had arrested one Jerald Nuccio on an unrelated charge of narcotics distribution. Over defense counsel’s objection to “. . . anything concerning him. He is not on trial today,” Carreras testified that at booking he took $57.00 from Nuccio, mostly in coins, and “. . . a red handkerchief that he had wrapped around his hand ... his hand was cut across the knuckles.” With defense counsel protesting as to the “immaterial, inflammatory and prejudicial” nature of the testimony, Carreras added that the coins had aroused his suspicion “[bjecause they just had an armed robbery that occurred in the lower part of St. Bernard Parish at a small grocery store [i.e., Acosta’s] ... a little over a hundred dollars was taken . . . and the cash drawer itself was taken...” According to the officer, “. . . the investigation continued and it was learned that Jerald Nuccio and [defendant] had been hanging around together quite often. And, from the description given at the time of the armed robbery, the description fit pretty close to [defendant] and Jerald Nuccio.” Carreras identified a photograph of Nuccio, and the handkerchief and money taken from his prisoner at the time of booking. Over defense’s objection, the state then introduced the exhibits into evidence.

Defendant argues that neither the red handkerchief nor the stack of coins had ever been positively linked to the Acosta robbery, a fact conceded by Carreras under cross-examination. Defendant maintains that apart from this lack of connexity, the exhibits appeared extremely prejudicial, as they bolstered the hearsay accounts given of the victim’s statements by Christoff and Deputy Stohlmann, and lent credence to Carreras’ “suspicions” of Nuccio’s participation in the offense with defendant.

As set forth in State v. Drew, 360 So.2d 500, 518 (La.1978), this Court has repeatedly held that “[f]or the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case.” Lack of positive identification goes to the weight of the evidence, not its admissibility, and, ultimately, connexity is a matter for the trier of fact to decide. State v. Haarala, 398 So.2d 1093 (La.1981). In this case the state’s evidence adequately established at least the probable connexity of the red handkerchief. Victor Alphonso, Jr. testified that at approximately 6:30 on the morning of May 27, 1979, he stopped by Acosta’s grocery and picked up a sandwich for lunch. As he walked out of the store, he noticed defendant walking toward him. At the time, defendant wore his hair “kind of brunette ... about not-quite shoulder length, but down below his ears.” According to Alphonso, when defendant saw him, he turned and walked back to a solid black, late model car with chrome rims, occupied by a second person in the front seat. The companion, described by Alphonso as shorter than defendant, with dark hair and a moustache, got out of the car as defendant approached, “. .. bent over under the front seat and grabbed a piece of red cloth and handed it to him and he stuck it in his pocket.” Alphonso then got into his own car and drove off, leaving the two men standing outside Acosta’s. Minutes later, Mark Bartnesky drove by on his way to work. He noticed the black car parked outside the grocery, “... and when I went past I seen two boys running out and I know one had like a red handkerchief around his face, but I didn’t think nothing of it.” Bartnesky recalled that one of the men had “. . . kind of sandy hair and one dark hair.”

According to Harry Christoff, the victim had given him a description of his assailants: “. . . one guy was tall with light brown hair, kind of long, almost to the shoulder, and the other shorter with a moustache. ...” For his part, Carreras told the jury that his investigation had determined that defendant owned a black, 1977 Buick with “[m]ag-type wheels and whitewall tires.” He also described Nuccio as approximately four inches shorter than defendant, with darker hair. At the time of his arrest, Nuccio wore a moustache.

The evidence at trial thus disclosed that Nuccio matched the general description of the second perpetrator given by three separate witnesses, including the victim. The state therefore had more than Carreras’ unsupported suspicions to connect the two men together, and with the Acosta robbery. On this record, the prosecution had established at least a probability that the red handkerchief taken from Nuccio at the time of booking (and covering raw knuckles) appeared connected with the Acosta robbery. As Haarala, supra, indicates, the matter was ultimately for the jury to decide.

With regard to the money taken from Nuccio, Christoff testified that when he walked into the grocery, he found Acosta slumped on the floor, the cash register above him opened, and loose change scattered over the floor. He also testified that the victim claimed his assailants had taken his money as well. According to Carreras, over one hundred dollars, and the cash register drawer, had disappeared. The state could not, however, establish the amount actually taken, although it alleged $43.00 in the bill of information. The state had demonstrated the connexity of the handkerchief, and the amount of money taken from Nuccio at the same time was thereby not wholly irrelevant to the case. The matter again was for the jury to decide. State v. Holmes, 354 So.2d 1282 (La.1977); State v. Haarala, supra.

Defendant also argues in brief that the trial court erred in instructing the jury on the law concerning principals under LSA-R.S. 14:24. The trial judge evidently decided to include the charge “... on the basis that [counsel for defendant] brought up the matter during his argument which necessitated the state’s reply which I feel I must charge to make the matter straight in the jury’s mind. ...” The transcript of closing arguments does not appear in the present case. In any event, the trial court rejected the state’s special requested charge on the matter and gave an instruction on its own, one which tracked the language of R.S. 14:24 exactly. Defendant now maintains that the instruction expanded the scope of the case beyond the notice provided by the bill of information under which defendant alone was charged with the offense.

As set forth in State v. Marse, 365 So.2d 1319, 1323 (La.1979), LSA-C.Cr.P. art. 802 imposes on the trial judge a “... basic obligation to charge the jury as to the law applicable to the case, under which he is required to cover every phase of the case supported by the evidence whether or not accepted by him as true.” In this case, the testimony of Alphonso and Bartnesky, and Christoff’s hearsay account of Acosta’s statements, made clear that two men had been involved in the armed robbery. From the description provided by the victim, it appears that defendant wielded the pistol, and used it to club the victim, while his companion Nuccio leaped over the counter for the cash register. In any event, under art. 802 the trial court was clearly correct in advising the jury that under the law concerning principals to a crime, both men were guilty of the offense, no matter who carried the gun or who went into the cash register. LSA-R.S. 14:24 provides in this regard that all persons “. . . concerned in the commission of a crime ... whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” See State v. McAllister, 366 So.2d 1340 (La.1978).

Defendant’s argument that he was unprepared for an allegedly sudden expansion of the case to include the actions of Nuccio flies in the face of the record. After his arrest on the night of May 27, 1979, defendant gave a statement to the authorities naming Nuccio as the perpetrator of the Acosta robbery. In that statement he attempted to discount his role in the offense entirely. On the basis of that statement, the police then arrested Nuccio, already in jail for the narcotics charge. The next day Nuccio gave the authorities a statement of his own. Defendant moved to suppress both statements, arguing that Nuccio’s identity had been learned by the police only as the result of a prior, and allegedly coerced, confession of defendant. Defendant therefore had actual notice well in advance of trial that the state’s evidence would indicate the involvement of two men in the offense, and that testimony concerning Nuccio would almost certainly be introduced. Moreover, while LSA-C.Cr.P. art. 494 authorizes the joinder of two or more defendants in a single indictment, it does not compel such a joinder. As defendant cannot convincingly demonstrate that he was misled by the indictment, or surprised by the state’s evidence at trial, these assignments are without merit.

The remaining assignments of error (Nos. 3 and 5) were withdrawn by defendant.

We, therefore, affirm Krolowitz’s conviction and sentence.

DIXON, C. J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent from the treatment of the hearsay issues.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the First Circuit Court of Appeal participated in this decision as Asso-dates Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . In fact, the state did not introduce defendant’s confession at trial.


author:
ROBERT J. KLEES, Justice Ad Hoc.
     CALOGERO, Justice, DIXON, Chief Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Wallace ISTRE.
    No. 81-KA-0943.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Jack D. Miller, Asst. Dist. Atty., for plaintiff-appellee.
    Timothy Jones, Lafayette, for defendant-appellant.
   ROBERT J. KLEES, Justice Ad Hoc.

Defendant, Wallace Istre, was charged by indictment with the crime of aggravated rape, a violation of La.R.S. 14:42. After defendant pled not guilty, and not guilty by reason of insanity, he was tried on September 19, 1980 before a twelve, person jury which found him guilty as charged. Thereafter, the court sentenced him to life imprisonment without benefit of parole, probation or suspension of sentence. The defendant now appeals on the basis of four assignments of error which revolve around the admissibility of defendant’s inculpatory statement made while in custody.

FACTS:

Defendant, a 19-year-old borderline retar-date, was arrested on April 18, 1980 for aggravated rape of his three year old niece. On this date, the victim’s mother had left her at home with her uncles as babysitters for the day. Some time during the morning a neighbor, hearing the child crying outside, found her bleeding from the vagina. The neighbor brought the child to the hospital where she was examined and treated. The defendant was subsequently picked up and questioned concerning the child’s injuries. His confession, given at this questioning, resulted in his arrest and conviction.

The three-year-old victim did not testify at trial. Apart from medical testimony relating to her injuries, defendant’s custodial confession thus formed the heart of the state’s case against him.

The confession was taken subsequent to the defendant’s arrest, and conducted by Detective Louis Robbins and Police Officer Walter Harrington of the Acadia Parish Sheriff’s Department in the presence of the defendant’s sister-in-law, Betty Istre. The defendant gave a confession at this interrogation which was the subject of a motion to suppress on August 29, 1980. The defendant objects to the denial of this motion on the grounds that there was insufficient explanation of his rights and the consequences of their waiver which vitiated a knowing and intelligent waiver. Defendant also objects to the introduction of the confession on the grounds that as an arrestee in a custodial interrogation it was made out of fear and duress produced by the interrogating officer’s statement.

Assignment of Error No. 1

This argument relates to the defendant’s capacity to waive his constitutionally guaranteed rights as set forth in the Miranda decision. As a borderline retardate the state must show that he understood the rights being read to him and that he could appreciate the possible consequences of waiving those rights. State v. Anderson, 379 So.2d 735 (La.1980).

In support of his arguments, defendant relies on trial testimony of Dr. H. P. Wyatt, Detective Louis Robbins, Officer Walter Harrington, Betty Istre, and Wallace Is-tre.

Dr. Wyatt was a court-appointed clinical psychiatrist who examined the defendant whom he classified as a borderline retardate with a verbal I.Q. of 68 and a performance level of 71. The defendant relied on Dr. Wyatt’s testimony that due to defendant’s mental retardation, the stress inherent in a custodial interrogation situation would compound his inability to cope and understand the nature and consequences of that type of proceeding. He indicated that defendant could understand technical words in a situation where, such as his examination, he took the time to stop and discuss whatever the defendant did not understand. This testimony was used to support the defendant’s position that he could not understand the rights read to him under the stress of a custodial interrogation where additional time and explanations were not available.

Detective Robbins testified that he was aware of the defendant’s mental incapacity and asked the defendant’s sister-in-law, Betty Istre, to attend the interrogation. The waiver of rights form was read, without explanation or review, in approximately five minutes. The only responses made by the defendant were noddings of his head. Neither the defendant, nor Betty Istre, read the waiver form. Officer Robbins hand wrote the voluntary statement in response to questions given defendant which was completed in ten minutes. Robbins recalled that the defendant did not speak until he was informed that he did not have to talk if he did not want, but he would just be taken upstairs and booked. The record reflects that Robbins said:

A. I asked, first I filled out the date, then I filled out the place, then I put down the time and then his name, which I knew, on this form, and then when I got to his age, I asked him how old he was, and he didn’t say anything. So, I looked up at him and said, ‘Wallace, how old are you?’ He didn’t say anything. I said, ‘what is your date of birth?’ and he still didn’t say anything. So, I said, ‘now, Wallace, I read you your rights, if you don’t want to give a statement, that’s fine’, I said, ‘that’s your right’, and I said ‘I’ll just take you up to the jail and book you which is what we do when people don’t want to talk.’ And that’s when Mrs. Istre jumped in and she said ‘you don’t understand, he doesn’t know his age’ and this and that, so, she gave me a little bit of information.

The testimony of Officer Harrington and Betty Istre supported that of Robbins.

Counsel argues that, considering the medical and factual testimony herein, there is substantial doubt as to defendant’s knowingly and intelligently waiving his rights to make the confession. Counsel contends that defendant’s mental incapacities combined with the stressful situation of the custodial interrogation made a knowing and intelligent waiver of his constitutional rights impossible.

This Court has addressed the issue of a mentally retarded person waiving his constitutional rights in State v. Anderson, supra, at 736 when it said:

[1] We have held that moderate mental retardation and low intelligence or illiteracy do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Collins, 370 So.2d 533 (La.1979); State v. Neal, 321 So.2d 497 (La.1975); State v. Nicholas, 319 So.2d 361 (La.1975); State v. Edwards, 257 La. 707, 243 So.2d 806 (1971). The critical factor in all such cases is whether or not the defendant was able to understand the rights being explained to him.

The defense relies heavily on Anderson, supra, in brief as a case on point since the facts are similar to the case at bar. In Anderson, the defendant was a mentally retarded 17-year-old with an I.Q. between 50 and 69. He had the mental age of an eight-year-old, and although he was educable, he could not read but only print his name. The testimony of the police officers who took Anderson’s statement was ambiguous as to whether the defendant understood the rights which they attempted to explain to him. This Court ruled that Anderson did not understand his rights and did not appreciate the possible consequences thereof, and thus was incapable of knowingly and intelligently waiving his Miranda rights. The confession was suppressed.

The defense distinguishes this case and Anderson, supra, from one of the leading cases on mental capacity to waive rights, State v. Collins, 370 So.2d 533 (La.1979). In Collins, the defendant was a 24-year-old, had an I.Q. of 68, he earned a living and supported a wife and two children, he had been subjected to interrogation before when his rights were explained to him extensively. In Collins, two psychiatrists testified that defendant had the ability to understand if his rights were explained.

Here, there is ample testimony herein to support the trial judges’ holding that the defendant was mentally capable of waiving his rights at the time of interrogation.

At the sanity hearing Doctor Wyatt and Doctor Me Manus testified that the defendant was mentally competent to stand trial. Dr. Wyatt during the trial was specifically shown the waiver of rights form (S — 1) and written statement form (S — 2) and asked whether the defendant could understand what was on them. His reply is as follows:

A. Yes, I’ve seen this.
Q. Can Wallace Istre or could he understand what is on that document?
A. Yes sir, I think he could.
Q. That’s not the legal testimony that you were talking about, is it?
A. No, these are rather short sentences.
Q. In fact, it says you have the right to remain silent, he can understand that?
A. Yes sir.
Q. And anything you say can be used against you in Court?
A. Yes sir.
Q. That’s a lot better than saying you have a right or privilege against self-incrimination, that’s what you were talking about, isn’t it?
A. Yes sir.
Q. This form is fine, isn’t it?
A. Yes.
Q. Now let me show you document marked and introduced as S2. You are familiar with that document, too I believe.
(Thereupon the witness reviews the document)
A. Yes sir, I’ve seen this.
Q. And would the same go with S2 as it did with SI, this would be a document that, that the defendant could understand?
A. Yes sir.
Q. Now the words that are written in on the statement portion of the exhibit, are those words consistent with the, with the verbalizing that the defendant could do or is capable of doing? In other words, can he make those statements, words like that?
A. Yes. I think this is in keeping with his vocabulary.
Q. That’s more in line with his vocabulary that that of Detective Robbins, isn’t it?
A. Yes.

Dr. Wyatt also testified at trial that the defendant was capable of marriage, raising a family and paying his bills.

The state has the burden to prove that defendant’s mental defect did not preclude him from giving a voluntary and free confession with a knowledgeable and intelligent waiver of his rights. State v. Coleman, 369 So.2d 1286 (La.1979); State v. Trudell, 350 So.2d 658 (La.1977). As set forth in Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980), the Supreme Court restated the principles from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that govern a custodial statement once the required warnings have been given:

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694. .

The trial testimony of Officers Robbins and Harrington indicated that the inculpa-tory statement was freely and voluntarily given and that the defendant nodded “up and down” in response to the reading of his constitutional rights.

Although the sanity hearing record reflects that the defendant is a borderline retardate; he had completed the sixth grade and additionally worked off shore. Both officers admitted that they knew the defendant and the defendant’s mental deficiencies and lack of education and knowing him in his community setting, they accepted a nod of defendant’s head as an indication of his understanding, as they felt that he understood.

We have thoroughly reviewed the testimony in this case and find the evidence supports the trial court’s findings that the confession was freely and voluntarily given.

This assignment is without merit.

Assignments of Error Nos. 2, 3 and 4

By these assignments, defendant argues that the trial court erred in denying his motion to suppress the confession since there was insufficient evidence to support that decision. Furthermore, the state did not meet its burden of proof that the statement was freely and voluntarily given since there was evidence of fear and duress by threats.

Defendant points to the testimony of three witnesses; Officer Robbins, Officer Harrington, and Betty Istre, who stated that the defendant did not make any statements prior to the time that Officer Robbins told him in effect, “You do not have to say anything if you do not want to, we will just take you upstairs and book you.” Defendant urges that this was a threat to him since there was no further explanation of booking or of his alternatives.

As set forth in State v. Fisher, 380 So.2d 1340, 1343 (La.1980), this Court has repeatedly held that:

Before a confession may be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and was not made under the influence of fear, duress, intimidation, menaces, inducements or promises. La.R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the vol-untariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977); State v. Ross, 343 So.2d 722 (La.1977).

According to the trial transcript, Officer Robbins said to the defendant, “So, I looked up at him and I said, ‘Wallace, how old are you?’ He didn’t say nothing. I said, ‘What’s your date of birth?’ and he still didn’t say anything. So I said, ‘Now Wallace,’ I said, T read you your rights, if you don’t want to give a statement, that’s fine’, I said, ‘that’s your right,’ and I said, ‘I’ll just take you up to the jail and book you,’ which is what we do when people don’t want to talk.”

It was after this that Wallace Istre gave his confession. Robbins testified that he never explained to the defendant what he meant by upstairs and booking him. The testimonies of both Officer Harrington and Betty Istre corroborate Robbins’ version of this statement. But, both officers claim that it is customary to tell an arrestee that he will be taken upstairs and booked if he doesn’t want to talk. The above statement may be of no consequence to a person of average intelligence and here the trial court found that there was no threat made. We agree.

Both Detectives Robbins and Deputy Harrington testified that they requested Miss Betty Istre to sit in on the questioning of the defendant. Detective Robbins testified that although the defendant was 19-years-old he did that as a precaution, since he knew the defendant’s education and that he couldn’t read or write.

Additionally both officers indicated that although defendant did not give a yes or no answer he shook his head affirmatively when read the various forms and they felt that he understood.

The defendant argues lastly that the trial court failed to hold the state to the burden of proof required by La.R.S. 15:451 and La.C.Cr.P. Art. 703(C) and denied the motion to suppress on insufficient evidence to support the state’s burden. The argument spans not only the present claim of a threat used to induce the statement but also the question of defendant’s mental capacity to make a knowing Miranda waiver discussed above.

After reviewing the trial transcript the only evidence to support the state’s burden of proving that the confession was free and voluntary are the officer’s testimony that there was no threat or coercion.

Since this defendant was a borderline mental retardate the state had a burden to make sure the defendant’s waiver was knowingly and intelligently made.

Here, as discussed in the previous assignments of error, the record does reflect sufficient evidence to find the state has met its burden to insure that the inculpatory statement and waiver of rights were made freely and voluntarily.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

CALOGERO, J., concurs and assigns reasons.

DIXON, C. J., and DENNIS, J., dissent with reasons.

CALOGERO, Justice,

concurring.

I agree that defendant’s statement was properly admitted into evidence. As the majority notes, one member of the sanity commission testified at trial that defendant could understand the waiver of rights form and the written statement form which were read to him prior to his making the challenged statement. These forms express the Miranda rights in simple language.

According to the sanity commission, defendant was capable of marrying, raising a family and paying his bills. Furthermore, defendant had worked offshore. The ability to carry on these activities has led.us in the past to conclude that an accused was mentally capable of waiving his right to counsel and giving a statement which could be admitted into evidence against him. State v. Jolla, 384 So.2d 370 (La.1980); State v. Collins, 370 So.2d 533 (La.1979).

I respectfully concur in affirming defendant’s conviction and sentence.

DIXON, Chief Justice

(dissenting).

I respectfully dissent, not understanding how a nineteen year old mentally retarded person, who did not know his own age, accused of aggravated rape, could intelligently waive the assistance of counsel.

DENNIS, Justice,

dissenting.

I respectfully dissent.

It does not appear that the state carried either its heavy burden to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel, Tagne v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980), or its burden of proving beyond a reasonable doubt that the confession was free and voluntary. State v. Glover, 343 So.2d 118 (La.1976).

       Judges Ned E. Doucet, Jr., Court of Appeal, Third Circuit, and Judges Thomas J. Kliebert, and Robert J. Klees, Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc joined by Chief Justice John A. Dixon, and Associate Justices Pascal F. Ca-logero, Jr., James L. Dennis and Jack C. Watson.

       The defense argument in brief relies on the testimony taken at trial, and not at the motion to suppress. This Court has indicated on several occasions that it will consider the record as a whole, including trial testimony, in determining the correctness of a trial court’s ruling on a motion to suppress. State v. Gould, 395 So.2d 647 (La.1981); State v. Chopin, 372 So.2d 1222 (La.1979); State v. Schmidt, 359 So.2d 133 (La.1978); State v. Dunbar, 350 So.2d 956 (La.1978).


author: PER CURIAM. CALOGERO, Justice,

text:
    STATE of Louisiana v. Lionel JENKINS.
    No. 81-KA-0251.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
   PER CURIAM.

Affirmed.

CALOGERO and DENNIS, JJ., dissent.

CALOGERO, Justice,

concurring in part, dissenting in part

I concur in the majority opinion insofar as it affirms defendant’s conviction, but dissent from the affirmance of the sentence for the reasons expressed in my partial concurrence/partial dissent in State v. Poree, 404 So.2d 248 (La.1981).


author: DENNIS, J.,

text:
    STATE ex rel. Dalton PREJEAN v. Frank C. BLACKBURN.
    No. 81-K-2802.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   Re: Dalton Prejean applying for Supervisory and other Writs and A Stay Order, Parish of Lafayette, Number Unknown, venue changed to Ouachita Parish.

Denied. Stay order extended for 30 days to permit relator to apply to the federal court.

DIXON, C.J., would grant the writ.

DENNIS, J.,

dissents. The applicant raises a serious question which will soon be decided by the United States Supreme Court — whether a person under the age of 18 at the time of his offense may be executed. For this reason I believe this Court should stay the applicant’s execution only until the United States Supreme Court has decided the question.


author: DENNIS, J., LEMMON, J.,

text:
    Sherry PENALBER, v. Kirby BLOUNT, Livingston Parish Police Jury and the Town of Livingston.
    No. 81-C-2860.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   Re: Sherry Penalber, applying for Writ of Certiorari, or Review, First Circuit Court of Appeal, Parish of Livingston, No. 14335.

Denied.

DENNIS, J.,

concurs in the denial of the writ, 405 So.2d 1378 (La.App.). The only issue raised by this application is whether a writ of mandamus may be used to force a political subdivision to honor a compromise of a judgment. In the absence of a valid compromise agreement, we are not called upon to exercise our supervisory jurisdiction with respect to other possible errors.

LEMMON, J.,

concurs in the denial, based on the sole assignment of error. However, this action should not be taken as approving the appellate court’s implicit holding that a judgment creditor cannot petition the court to compel a political subdivision to take action on the appropriation of funds for payment of the judgment. The hackneyed expression that mandamus doesn’t lie to compel performance of a ministerial duty does not address the visceral problem.

CALOGERO, J., concurs. The only assignment is without merit.


author: PER CURIAM.

text:
    In re Application of Jane DOE.
    No. 81-0-3137.
    Supreme Court of Louisiana.
    Dec. 10, 1981.
    Samuel B. Stephens, Gretna, for plaintiff-applicant.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., for respondent.
   PER CURIAM.

The judgment of the trial court is reversed.

The trial court ruled that the statute, La.R.S. 40:1299.35.5, is unconstitutional solely because it provided an alternate procedure whereby authorization for an abortion can be obtained by a minor without parental consent. The trial court was clearly wrong. As the United States Supreme Court concluded in Bellotti v. Baird, 443 U.S. 622, 643, 99 S.Ct. 3035, 3047, 61 L.Ed.2d 797 (1979) “if the state decides to require a pregnant minor to obtain one or both parents’ consent to an abortion, it must also provide an alternate procedure whereby authorization for the abortion can be obtained.”

Remanded to the Juvenile Court for the Parish of Jefferson for further proceedings.


author:
      PATRICK M. SCHOTT, Justice Ad Hoc.
     LAURENCE R. CHEHARDY, J. Ad Hoc, LEMMON, Justice, LAURENCE R. CHEHARDY, Justice Ad Hoc,

text:
    STATE of Louisiana v. Barry STERLING.
    No. 80-KA-2270.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald Foret, Louise S. Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Dwight Doskey, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PATRICK M. SCHOTT, Justice Ad Hoc.

Defendant was charged by grand jury indictment with first degree murder of Roosevelt Slack in violation of LSA — R.S. 14:30. He was convicted of second degree murder and sentenced to life imprisonment.

An eye witness testified that he heard a disturbance down the hall of a housing project where he lived and saw the victim pleading for mercy as one subject shot him several times. As the victim was trying to run away he collapsed and the defendant stood over him and shot him several more times.

Defendant relies on three assignments of error but since the first is dispositive we need not address the other two. The first assignment is based on the proposition that the jury could not properly convict defendant of second degree murder as a lesser included offense of first degree murder on the facts of this case.

This case is indistinguishable from State v. Booker, La., 385 So.2d 1186. Here the offense took place in February, 1979, while, in Booker, it took place in January, 1979, so that the statutory scheme was the same for both cases. Here, as in Booker, there was no proof of an underlying felony to support a conviction of second degree murder.

Accordingly, the conviction is reversed and the case is remanded to the district court for further proceedings.

WATSON, J., dissents. See State v. Booker, 385 So.2d 1186.

LEMMON, J., concurs and assigns reasons.

LAURENCE R. CHEHARDY, J. Ad Hoc,

I dissent, dissent attached.

LEMMON, Justice,

concurring.

This is one of a series of cases affected by the confusion resulting from the numerous revisions of the first and second degree murder statutes following Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). See State v. Williamson, 389 So.2d 1328 (La.1980); State v. Morris, 397 So.2d 1237 (La.1981); State v. Payton, 361 So.2d 866 (La.1978); State v. Perkins, 375 So.2d 1179 (La.1979).

At the. time of the offense charged in this case second degree murder included only felony murder (an unintentional killing committed during the commission of certain enumerated felonies). Thus, although legislatively designated a responsive offense by C.Cr.P. Art. 814 second degree murder was not then a lesser and included offense of first degree murder (then defined to include all specific intent killings). The problem is that the legislatively authorized responsive verdict of second degree murder, which was returned by the jury, was not truly a lesser and included offense and was not supported by the evidence.

In State v. Dauzat, 392 So.2d 393 (La.1980), this court set aside an aggravated battery verdict returned by a jury following a trial on an indictment charging attempted murder. The evidence presented at the trial would have supported a guilty verdict of attempted murder. However, the evidence did not support a verdict of aggravated battery, because the state did not prove that a battery was committed. This court reversed, effectively rejecting the logic of some of our earlier cases which implied that a legislatively authorized responsive verdict (under C.Cr.P. Art. 814) would be affirmed if the evidence supported a conviction for the offense charged. See State v. Peterson, 290 So.2d 307 (La.1974). As was noted in Dauzat, such cases involved responsive verdicts of true lesser and included offenses. See State v. Cooley, 260 La. 768, 257 So.2d 400 (1972).

In Dauzat Chief Justice Dixon, writing for the majority, stated:

“In Booker we declined to overturn State v. Cooley, supra, and the cases which held that if there is some evidence in the record to support a conviction for a greater offense, the evidence will also support a conviction of the lesser offense which has been made responsive by the legislature. However, we added the proviso ‘so long as the elements of the lesser offense are included in the greater offense.’ State v. Booker, supra, at 1190. We must now hold that in some cases evidence offered to support a conviction for a greater offense will not necessarily and automatically support a conviction for a lesser offense which has been made responsive by legislative action. Where the definition of the greater crime does not necessarily include all the elements of the lesser, we will have to determine whether there is any evidence to support the conviction for the lesser offense even though it is a legislatively designated responsive verdict. Where there is a total lack of evidence to prove the presence of an element contained in the lesser crime, but not in the greater, the conviction must be reversed.” (Emphasis supplied.)

As did Dauzat, this case involves a legislatively authorized responsive verdict which was not truly a lesser and included offense and which was not supported by the evidence. Here, as in Dauzat, we must reverse the conviction and discharge the defendant both as to the greater offense of first degree murder (from which there was an implied acquittal by virtue of the verdict returned under C.Cr.P. Art. 598) and as to the statutorily responsive offense of second degree murder (because the insufficiency of evidence necessitates a discharge.) On remand a new trial may be held on any lesser offense (such as manslaughter) supported by the evidence.

LAURENCE R. CHEHARDY, Justice Ad Hoc,

dissenting.

Concerning assignment of Error No. 1, I do not agree that this case is on all fours with Booker. On the contrary there is no reason not to find from the facts that defendant was engaged in perpetration of a major felony. The facts suggest armed robbery — -this despite the fact the state impliedly admitted in the middle of the voir dire that no aggravating circumstances existed which would make the death penalty possible.

Assignment of Errors 2 and 3 are without merit.

      .Judges Schott, Chehardy and Barry of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Justices Calogero, Dennis, Watson and Lemmon.

      . See Acts 1976 No. 657; Acts 1977 No. 121; Acts 1978 No. 796; and Acts 1979 No. 74.

      . All of the elements of second degree murder were not included in the greater offense of first degree murder, because second degree murder required proof of an underlying felony. See State v. Booker, 385 So.2d 1186 (La.1980).

      .The evidence in Dauzat showed that the defendant shot at the victim, missing him and striking his automobile. Therefore, there was no proof that the defendant used force or violence upon the person of the victim, as required by R.S. 14:33 and 14:34.

      . See Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

      . This was the approach taken in Dauzat. Our decree should not be misinterpreted as barring further prosecution for the lesser offense, such as manslaughter. See State v. Tompkins, 403 So.2d 644 (La.1981).


author:
FRED W. JONES, Jr., Justice Ad Hoc.
     MARCUS, Justice

text:
    STATE of Louisiana v. Jeff LEE, Jr.
    No. 80-KA-2704.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Richard A. Swartz, Margaret A. Coon, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-relator.
    Max Mercer, Slidell, for defendant-respondent.
   FRED W. JONES, Jr., Justice Ad Hoc.

On June 5, 1980, the defendant was charged by bill of information with operating a motor vehicle while intoxicated, third offense, in violation of La.R.S. 14:98(D). Prior DWI convictions cited and relied upon by the State were dated September 8, 1976 and March 15, 1977. Defendant filed a motion to quash the bill of information, asserting that the two prior convictions were invalid because defendant was not represented by counsel and the trial judge failed to explain the possible collateral consequences of the charges to him. Following a hearing on the motion to quash, the trial judge took the matter under advisement and later sustained the motion, quashing the bill of information, but gave no reasons for his ruling. This court granted the state’s application for review of that ruling.

The issue before this court is whether a misdemeanor conviction, based upon a guilty plea accepted without a prior “boyk-inization” of the defendant, may be used to convert a later misdemeanor charge into a felony. We hold that it may not.

The U. S. Supreme Court, in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), held that it was reversible error for a trial judge to accept a defendant’s guilty plea without an affirmative showing that the plea was intelligent and voluntary. This court construed Boy-kin to require an express and knowing waiver of the accused’s right to a jury trial, the right to confront his accusers and the privilege against compulsory self-incrimination. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

This court held, in State v. Lewis, 367 So.2d 1155 (La.1979), that a conviction could not be used to enhance punishment in a multiple-offender proceeding unless the record affirmatively disclosed that the Jackson requirements were met. Also see State v. Martin, 382 So.2d 933 (La.1980).

While prior decisions of this court requiring “boykinization” of the accused as essential to a valid guilty plea involved felony charges the rationale of Lewis has been extended to misdemeanor guilty pleas that may increase the grade of a subsequent offense. In State v. Jones, 404 So.2d 1192 (1981), this court made the following statement:

Accordingly, whenever a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where it is applicable; (c) his right to confront his accusers, and to make sure that the accused has a full understanding of what the plea connotes and of its consequence. See State ex rel. Jackson v. Henderson, supra, 260 La. at 101, 103, 255 So.2d 85.

It is obvious in this case that the defendant was charged with a felony (DWI 3rd) only because of the prior misdemeanor convictions. In Jones, we also announced that the decision would be fully applicable to any case filed and presently pending before this court, as this case is.

The colloquies between the judge and the defendant, before his guilty plea to the prior DWI charges on August 26,1975 and June 20, 1978 , as disclosed by the minute entries, simply recite that the defendant was advised of his right to trial and the trial judge was satisfied that defendant was “fully aware of his rights.” They do not affirmatively show that the accused had a full understanding of what the plea connotes and of its consequences as Boykin requires. The record should have shown, at least, that the trial judge advised the defendant of his right to confront his accusers and of his right against self-incrimination, and that the defendant expressly waived those rights. Since the minute entries do not comply with even this limited “boykini-zation,” the guilty pleas to the two prior DWI charges may not be used as the basis for a DWI third offense charge. Consequently, the bill of information was properly quashed.

The judgment of the district court is affirmed. AFFIRMED.

MARCUS, J., concurs and assigns reasons.

WATSON, J., dissents for reasons assigned dissention’s in State v. Jones, 404 So.2d 1192.

G. WILLIAM SWIFT, Jr., J. Ad Hoc, dissents.

MARCUS, Justice

(concurring).

In State v. Holden, 375 So.2d 1372 (La.1979), we restricted the application of State v. Lewis, 367 So.2d 1155 (La.1979, to Louisiana convictions subsequent to December 8, 1971 (the date Jackson v. Henderson, 260 La. 90, 255 So.2d 85, became final). Lewis and Holden both involved habitual offender proceedings under La.R.S. 15:529.1. State v. Jones, 404 So.2d 1192 (La.1981), involved a prosecution under La.R.S. 14:98 (operating a vehicle while intoxicated). Our decision in Jones was made applicable to only those cases “presently pending in this court.” In all other cases, it applied to guilty pleas entered “after this decision became final.” As Holden restricted Lewis to Louisiana convictions subsequent to Jackson, I consider that under the rationale of Holden, Jones should be restricted to Louisiana guilty pleas after the finality of Jones (Sept. 10, 1981).

Accordingly, I respectfully concur.

       Judges O. E. Price of the Court of Appeal, Second Circuit, G. William Swift, Jr., of the Court of Appeal, Third Circuit, and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., James L. Dennis, and Jack C. Watson.

      . The record of the hearing on the motion to quash shows that defense counsel argued that the two prior convictions were invalid because the trial judge failed to “boykinize” the defendant. Therefore, this issue was before the trial judge on the motion to quash. The trial judge assigned no reasons for his ruling on the motion.
      In his brief submitted in connection with this writ, the defendant concedes that the defendant was advised of and effectively waived counsel before pleading guilty to the two prior convictions. Consequently, the thrust of his argument is that the trial judge correctly quashed the bill of information because of the lack of “boykinization” in the two predicate proceedings.

      . “The defendant being present in open Court and being charged with driving while intoxicated and his right to trial and representation by an attorney having been fully explained to him by the Court, he having signed a waiver of attorney herein, and after reading to him the Bill of Information charging him with unlawfully did operate a motor vehicle on a public highway while under the influence of alcoholic beverages in violation of R.S. 14:98, entered a plea of guilty and the Court being satisfied that the defendant is fully aware of his rights, accepted the plea of guilty and the following sentence was imposed: ...”

      . “The defendant being present in open Court and being charged with driving while intoxicated and his right to trial and representation by an attorney having been fully explained to him by the Court, he having signed a waiver of attorney herein, and after reading to him the Bill of Information charging him with unlawfully did operate a motor vehicle while under the influence of alcoholic beverages in violation of R.S. 14:98, this being a second offense, entered a plea of guilty and the Court being satisfied that the defendant is fully aware of his rights, accepted the plea of guilty and the following sentence was imposed: ...”


author: LEMMON, Justice.

text:
    STATE of Louisiana v. John A. RIVES.
    No. 81-KA-0054.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., G. Michael Grosz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Ralph Barnett, Gretna, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from convictions of forcible rape and aggravated crime against nature. On appeal defendant principally challenges (1) the sufficiency of the evidence supporting the convictions and (2) the exclusion of expert testimony on the effects of phencyclidine and of evidence of defendant’s lack of violent propensities. Facts

During the early morning hours of May 30,1979 a 17-year old girl was awakened by a knock on her apartment door. Expecting her mother’s return from an evening out, the young girl arose, unlatched the door, and returned to bed. When she again heard knocking sounds on her door, she called out, “It is open; come in”. She heard someone enter her darkened bedroom and turned, thinking she would greet her mother, but was confronted by a man whom she had never seen before. She asked who he was and where her mother was. He responded that his name was John and that her mother was not here, adding that he had come “from your dreams”. The man then walked over to her bed, seized her arms and held her in the bed. When she struggled to free herself, the man threatened to break her arm if she did not remain still. When she attempted to call out, he held his hand over her mouth and nose, making it difficult for her to breathe. The man began to kiss her and eventually removed his shoes and trousers. Despite her efforts to resist, the man had sexual intercourse with her and then performed an act of cunnilingus. After again having intercourse, the man lapsed into unconsciousness.

The terrified young girl struggled free from beneath his dormant body and ran into the hall. As she did, her mother appeared, having just returned. Although the girl was hysterical, her mother ascertained from her that she had been raped and that her assailant was still in the apartment. Her mother immediately notified the apartment security officer, who called the police. Both fled to a neighbor’s apartment for safety.

Shortly thereafter police arrived and found defendant sleeping without shoes or trousers in the girl’s bed. He was arrested and taken to Jefferson Parish jail. Urine samples revealed the presence of phencycli-dine, a hallucenogenie drug capable of producing psychic abnormality, even when taken in relatively small quantities.

Defendant was indicted for forcible rape and aggravated crime against nature. Represented by counsel, he waived trial by jury and was tried by the court. His principal defenses were involuntary intoxication and insanity at the time of the commission of the offense.

Defendant claimed no recollection of the events. He testified that he had smoked marijuana about a week before the incident with no adverse effects. He denied taking phencyclidine, adding that the last thing he remembered was having a drink in a bar located less than half a mile from the apartment. He claimed to have a total loss of memory of the intervening events until he realized he was being examined by a doctor at the Jefferson Parish jail.

The trial court, after hearing the testimony of the victim, her mother, the investigating officer, defense experts and defense character witnesses, rejected the insanity and intoxication defenses. The judge found defendant guilty on both counts and sentenced defendant to three years imprisonment at hard labor for forcible rape and to a concurrent three-year term for aggravated crime against nature. The trial court also ordered that defendant serve at least two of the years on the forcible rape count without benefit of parole.

Sufficiency of Evidence

The evidence was clearly sufficient to convince a reasonable factfinder beyond a reasonable doubt of defendant’s guilt on both counts. See State v. Byrd, 385 So.2d 248 (La.1980); State v. Parish, 405 So.2d 1080 (La.1981) (No. 80-KA-1769). Despite the absence of scientific evidence of sexual intercourse, the testimony of the victim was sufficient to establish “sexual penetration”. R.S. 14:41 provides that “emission is not necessary” and that “any sexual penetration, however slight, is sufficient to complete the crime”. The victim’s testimony also established she was prevented from resisting the act by force and threats of physical violence. R.S. 14:42.1.

As to the intoxication defense, forcible rape and aggravated crime against nature are both offenses requiring only a general criminal intent. R.S. 14:10, 11; State v. Michel, 225 La. 1040, 74 So.2d 207 (1954). Thus, voluntary intoxication is not a defense unless it is of such a degree as to render defendant both unconscious of his actions and physically unable to act. See State v. Boleyn, 328 So.2d 95 (La.1976). Further, although there was defense testimony in this case regarding amnesia, there is ample direct evidence of defendant’s behavior on the evening in question from which a reasonable trier of fact could find that defendant was conscious of his actions and physically capable of acting. The fact that he may not remember his behavior does not constitute a defense to the offenses charged.

Involuntary intoxication is a defense if the “condition is the direct cause of the commission of the crime”. R.S. 14:15. Without addressing the burden of proof on this issue, and assuming for purposes of this case that the state must prove that the intoxicated condition was voluntary if the defense is raised, the state’s proof here is sufficient. The trial judge, who obviously rejected the defense, was not required to believe defendant’s self-serving testimony, nor was he required to find that the intoxicated condition directly produced defendant’s desire to quench his lustful appetites by forcibly sexually assaulting this sleeping young girl. A reasonable factfinder could easily have concluded that defendant became “high on drugs”, lost his normal inhibitions, and forced himself upon this unfortunate young person whom he happened to encounter.

Insofar as his insanity defense is concerned, defendant clearly has the burden of proof. C.Cr.P. Art. 652; State v. Lee, 395 So.2d 700 (La.1981); State v. Roy, 395 So.2d 664 (La.1981). Under the evidence presented here a reasonable factfinder could have concluded that defendant failed to establish by a preponderance of evidence that, as a result of a mental disease or defect, he was incapable of distinguishing right from wrong with respect to the conduct in question. See State v. Roy, above; State v. Lee, above.

In the first place the evidence merely tended to show his drug-related intoxication and not a mental defect in the nature of insanity. The experts who examined him found no evidence of mental defects at the time of the examination. Whether his drug-intoxicated condition precluded his normal moral inhibitions (and his normal fear of prosecution) from deterring his sexual assault upon an unconsenting female is not pertinent to the insanity issue.

In the second place a rational factfinder need not have concluded from the evidence that defendant was unaware of the “wrongfulness” of his actions. See State v. Abercrombie, 375 So.2d 1170 (La.1979). He was obviously aware of her resistance and threatened bodily harm if she did not submit to his advances. His “passing out” following his bizarre sexual assault did not preponderate^ establish his lack of awareness of the wrongfulness of his actions. See State v. Abercrombie, above; State v. Price, 403 So.2d 660 (La.1981).

Limitation on Right to Present Defense

Defendant contends that the trial court erred in denying him the opportunity to elicit from Dr. Samuels an opinion regarding whether phencyclidine could have been the “direct cause" of the commission of a criminal act and whether phencyclidine could have rendered defendant incapable of distinguishing right from wrong.

The trial court is generally vested with great discretion regarding the competency of experts to venture opinions within their specialized fields. That discretion will be upheld absent a manifestly erroneous decision. State v. Walker, 394 So.2d 1181 (La.1981). Here, we find no abuse of discretion.

The physician testified that his field of expertise was not psychiatric medicine, but rather toxicology and pathology. He specifically disclaimed any expertise concerning the psychiatric attributes of phencycli-dine and only claimed to be expert in the toxicological effects of the drug. Moreover, since defendant was fully able to explore the psychiatric effects of phencyclidine with Dr. Richard Gorey, an expert on the psychiatric effects of the drug, he was not prejudiced by the trial court’s ruling.

More disturbing are defendant’s complaints regarding the refusal of the trial court to permit him to offer character evidence to establish his good reputation as to character traits pertinent to the offenses charged. Defendant contends that he was prevented from offering expert and lay testimony to the effect that he was a person who lacked violent propensities.

Lack of the propensity for violence was a pertinent character trait in the present case. A defendant is permitted to offer testimony as to his good reputation regarding “such moral qualities as have pertinence to the crime with which he is charged”. See R.S. 15:479,480. See also State v. Dawson, 392 So.2d 445 (La.1980).

Here, defendant wanted to offer the testimony of a psychiatrist and four lay witnesses concerning defendant’s good moral character as to any propensity toward violence. The psychiatrist was asked whether tests he had conducted on defendant showed “a propensity for violence”. The lay witnesses were each asked about defendant’s reputation for violence. Upon state objection the witnesses were not permitted to answer.

The trial court’s rulings were arguably erroneous. However, in light of the evidence which was presented, the rulings did not prevent defendant from presenting his defense. The cumulative effect of all of the evidence adduced was to portray defendant’s actions on the evening of the rape as totally “out of character”. The lay witnesses were permitted to testify concerning defendant’s good reputation for truthfulness and honesty and concerning his general good character. The effect of their testimony was to portray defendant as an upstanding, law-abiding young man who himself became a victim of drug stimulated (if not directly induced) misbehavior. The experts all testified concerning the bizarre effects which phencyclidine may have on the behavior of one who ingests the drug. The trial judge, in rejecting the defenses of insanity and involuntary intoxication, had before him an abundance of evidence from which he could clearly see that defendant’s attack on the victim was not “in character”.

Furthermore, identity was not a true issue in this case. Defendant was apprehended at the scene of the crime, and there was no indication or suggestion that defendant was not the perpetrator. If identity had been an issue, then defendant’s lack of propensity for violence could have been important evidence bearing on that issue. But in this case the evidence was offered only to support the insanity and involuntary intoxication defenses. The exclusion of this cumulative evidence did not significantly prejudice the presentation of these defenses.

Therefore, the rulings complained of were clearly harmless beyond a reasonable doubt. See C.Cr.P. Art. 921; State v. Gibson, 391 So.2d 421 (La.1980).

Defendant’s conviction and sentence are affirmed.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the Court of Appeal, First Circuit participated in this decision as Associate Justices ad hoc along with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Defendant’s other assignments of error involve only settled principles of law and are treated in an unpublished appendix attached to this opinion.

      . The mother recognized defendant from having seen him about two or three weeks before the rape. He was the same man she had discovered attempting to open the door of a neighbor’s apartment. She knew the neighbors were out of town and challenged his being there. He claimed to be looking for a friend. When she told him his friend didn’t live in that apartment, he smiled, thanked her and left.


author:
BARRY, Justice Ad Hoc.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Eugene JONES.
    No. 81-KA-0578.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Judith Lombardino, Madeleine Slaughter, Asst. Dist. Attys., for plaintiff-appellee.
    Calvin Johnson, and Matthew B. Collins, Jr., of Collins, Johnson & Volk, Dwight Doskey, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   BARRY, Justice Ad Hoc.

Eugene Jones was found guilty of armed robbery, LSA-R.S. 14:64, and sentenced to sixty years at hard labor. On appeal he presents one assignment of error urging that a defense witness was improperly impeached by use of inadmissible evidence.

The victim of the robbery, Raymond Robin, testified that while selling hot tamales from the corner of Orleans and Galvez Streets in New Orleans a man wearing a straw hat and brown floral shirt approached arid placed an order. After Robin filled the order the man pointed a gun at him and demanded that he place his money in the bag with the tamales. Robin complied and placed $25.00 in the bag. The robbery occurred at night but Robin said the streetlights provided sufficient illumination for him to recognize the robber whom he had previously seen two or three times in the neighborhood. The police were called and given a description which was similar to the defendant’s appearance. Shortly thereafter the victim again called the police advising the wanted subject was named “Deeney”. This name was checked in the police files where the defendant’s picture was located and presented in a photographic lineup to the victim who identified the defendant as his assailant. At a later date Robin again identified defendant from a physical lineup.

The defense called Sharon Simmons who testified that the victim was drinking “either wine or some kind of hard liquor” on the evening of the offense. This contradicted Robin’s earlier testimony that he had not been drinking and was clear-headed when he was robbed. The following cross-examination of this defense witness and rebuttal testimony is the basis for defendant’s assignment of error:

Q: Do you know Off. Johnson by any chance, Off. Duan Johnson?
A: Do I know him?
Q: Uh huh.
A: Not personally.
Q: Not personally. Do you know who he is?
A: Yeah, I know who he is.
Q: How do you know him?
A: How do I know him?
Q: Uh huh.
A: He stops around the corner where I work at. He eats there sometimes.
Q: Do you know him any other way?
A: Yeah, he done came to my house before.
Q: He came to. your house before?
A: Uh huh.
Q: I have no further questions.

Officer Duan Johnson had testified concerning his investigation of the robbery. On rebuttal the State recalled Officer Johnson and elicited the following allegedly objectionable testimony:

Q: Officer, would you state your name again?
A: Police officer Duan Johnson.
Q: Officer, do you know a person by the name of Sharon Simmons?
A: Yes, I do.
Q: Okay. Now, Officer, have you ever known Sharon in capacity with her work — through her work?
A: I don’t know where she works at. I’ve never—
Q: All right. Have you ever eaten lunch, or eaten dinner, or any meal at the Quality Inn Motel?
A: No.
Q: Do you usually eat lunch, dinner, or any of your meals at any hotels?
A: No.
Q: Do you know Sharon Simmons though?
A: Yes.
Q: Well, how do you know her?
BY THE DEFENSE:
Your Honor, before the officer answers that question, may we approach the bench?
BY THE COURT:
Yes, sir.
REPORTER’S NOTE: Counsels approached the bench and conferred with the court.
BY THE STATE:
Q: Let me ask you this. Is the Sharon Simmons that you know, is she the same Sharon Simmons that you’ve seen in here today?
A: Yes. I saw her enter the courtroom. She was out in the back hallway.
Q: Okay. Now is it your testimony, that you never knew her from eating dinner at a place that she worked, or anything like that, is that correct?
A: No, I’ve never eaten at a hotel where she worked.
Q: Well, could you explain, and tell the ladies and gentlemen how you do know her?
A: I executed a search warrant at her residence, at 639 North Galvez.
BY THE DEFENSE:
Your Honor, not only will I object to this — now, this is — this testimony is the mentioning of another crime, Your Honor. He issued a search warrant at the lady’s house.
BY THE COURT:
Under Article R.S. 15:492, she has the right to impeach that witness’s testimony.
BY THE DEFENSE:
Your Honor, that’s not impeachment. Sharon sat there and said she knew him because he came to her house. She, herself, said that. He hasn’t impeached her at all.
BY THE COURT:
Well, that’s a question of fact for the jury to determine. I cannot comment on that.
You’re overruled. Proceed.
BY THE STATE:
Q: How many occasions have you been to her house?
A: I’ve been to 639 North Galvez, her residence, twice.
Q: Twice. I have no further questions.
BY THE DEFENSE:
I have no questions, Your Honor.
BY THE COURT:
All right. Step down, Officer. You’re excused from your subpoena—

Defense counsel then changed his mind and cross-examined Officer Johnson:

Q: Was the search warrants you issued at that residence, had those search warrants, did they have any relationship at all to this trial, to this matter that’s before the court today?
A: The search warrants that I issued at her residence?
BY THE COURT:
That you executed at her residence.
BY THE WITNESS:
The search warrants which I executed at her residence was not for this case. I arrested her brother.
BY THE DEFENSE:
Okay, Your Honor. I have no further questions.

The defendant timely objected to the State’s attempt to impeach this witness by the inference that she was personally associated with the search warrant, but the trial judge erroneously permitted the testimony. Defendant’s assignment is based on LSA— R.S. 15:495 which provides that a witness’s credibility cannot be attacked with evidence of an arrest, indictment, or prosecution not resulting in a conviction.

The cross-examination of Officer Johnson by defense counsel clarified that the two search warrants were not related to this case. The police officer was specific in stating that the warrants he executed at her residence “was not for this case” and that he arrested the witness’s brother. If there was any initial doubt as to the witness’s credibility it should have been removed and the trial court’s error in admitting this improper testimony was harmless error.

We do not condone the State’s prosecuto-rial misconduct in knowingly pursuing prejudicial testimony. However, the defendant’s assignment of error fails to establish reversible error and we find no substantial prejudice which deprived the defendant of a fair trial. C.Cr.P. art. 921.

The conviction and sentence are affirmed.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

Critical to defendant’s alibi defense was impeachment of the hot tamale vendor, whose identification evidence was the sole proof linking defendant to the crime.

Sharon Simmons testified that the victim was drinking while selling tamales on the evening of the robbery, directly contradicting the victim’s testimony. Thus, if the jury credited Simmons’ testimony, then substantial doubt would have been cast on the victim’s credibility.

With the case in this posture, the prosecutor was allowed to proceed with a totally improper means of impeachment. The prosecutor asked Simmons if she knew Officer Johnson (an inquiry not relevant to any issue in this case) as a basis for showing that the officer had executed a search warrant at her residence, thus improperly suggesting to the jury that she was involved in criminal activity and was not worthy of belief. This deliberate prosecutorial misconduct could have no other purpose than to destroy, with irrelevant and unnecessary suggestive references, the credibility of the witness, who had given substantial testimony discrediting the victim’s identification of the defendant.

If there were other evidence of defendant’s guilt, I might view this impropriety as harmless (although reversal arguably is the only way to deter such misconduct). But since this record contains only the shaky and questionable identification that the defense might have successfully impeached, but for this improper questioning, basic fairness and substantial justice require that defendant be retried before a jury that can decide fairly whether to credit the hot tamale vendor or the defense witness.

       Judges Patrick M. Schott, Lawrence A. Chehar-dy and Denis A. Barry of the Fourth Circuit participated in this decision as Associate Justices Ad Hoc, joined by Justices Calogero, Dennis, Watson and Lemmon.

      . The trial judge (probably incorrectly) excluded other evidence that the victim had the habit of drinking on the job.


author: SCHOTT, Justice ad hoc.

text:
    STATE of Louisiana v. Lester J. BOURG.
    No. 81-KA-1316.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Thomas Cowan, John H. Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Robert B. Sharp, New Orleans, for defendant-appellant.
   SCHOTT, Justice ad hoc.

Defendant was convicted of armed robbery of Majesti’s Drug Store at 4 PM on February 16, 1980, and sentenced to 15 years imprisonment. He pleaded guilty, reserving his right to appeal from a denial of his motion to suppress evidence. The issue is whether the evidence was properly admitted against defendant under one or more recognized exceptions to the general rule that evidence obtained in a warrantless search is inadmissible.

At about 5 PM police were summoned to Greg Laffauillere’s home on a complaint that a firearm had been discharged. On arriving there they saw an individual on the front porch and a kicked in front door. After Laffauillere invited them in one of the officers went in while the other interrogated the individual on the porch. The officer who went inside was told by Laf-fauillere that there was a weapon under a pillow on the sofa, but the officer found that this weapon had not been fired. About that time someone knocked at the back door. Laffauillere said that it was his dog, but the officer could see the silhouette of a man at the door and accompanied Laffauillere through the second room (bedroom) to the kitchen to open the door. The officer noticed on the kitchen table a bag with Majesti’s Drug Store printed thereon. It turned out that defendant was at the back door and as the officer was returning to the front of the house with defendant he heard Laffauillere ruffling the bag behind him. He turned to find him throwing the bag on the bed, whereupon a number of pills spilled out. This evidence was crucial to defendant’s conviction of the robbery of Majesti’s Drug Store.

Laffauillere testified that he had invited the officers in for a limited purpose and insisted that they leave right after they recovered the weapon from under the pillow on the sofa. The officer testified otherwise, i.e., that Laffauillere’s invitation to his home was unlimited and was never retracted. The officer further testified that he was in fear of his own, as well as Laf-fauillere’s safety, when, knowing a weapon had been fired and the one on the sofa was not the weapon, someone began knocking at the back door. It was quite reasonable for him to accompany Laffauillere to the back door under the circumstances.

Defendant’s four assignments of error can best be summed up in his contention that the evidence should have been suppressed because the search leading to the discovery of the bag was without Laffauil-lere’s consent, that the encounter between the police and Laffauillere was concocted by them in order to carry out an unlawful search, and that the officers, even if given limited permission to enter the premises, went beyond the scope of that permission.

These specifications have no merit. In the first place, they depend in large measure on the testimony of Laffauillere which the trial court rejected. Accepting the officer’s testimony as true, the evidence was properly admitted under the plain view doctrine especially considering the exigencies of the circumstances in which the officer found himself after being invited into the premises by Laffauillere. State v. Gibson, 391 So.2d 421 (La.1980); State v. Sanders, 374 So.2d 1186 (La.1979).

The motion to suppress was properly denied and the conviction and sentence are affirmed.

      . Judges Schott, Chehardy and Barry of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Justices Calogero, Dennis, Watson, and Lemmon.