text:
    STATE of Louisiana v. Vincent F. FRANZONE. STATE of Louisiana v. Michael S. CENTANNI.
    Nos. 65492 to 65494 and 65525.
    Supreme Court of Louisiana.
    May 19, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, W. C. Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-appellant in Nos. 65492 to 65494 and for plaintiff-relator in No. 65525.
    Samuel W. Ethridge, Kenner, for defendant-appellee in Nos. 65492 to 65494.
    Michael Silvers, Silvers & Tanet, New Orleans, for defendant-respondent in No. 65525.
   DENNIS, Justice.

In these cases the state appealed from judgments below which quashed criminal prosecutions and declared unconstitutional, as invalid prior restraints of expression, criminal statutes which forbid property owners to knowingly lease or allow use of premises for obscenity. We affirm. Prosecution of property owners for leasing or allowing premises to be used for obscenity, in the absence of procedural safeguards designed to obviate the dangers of a system of prior restraint, tends to operate as an im-permissibly broad, permanent prior restraint upon dissemination of publications.

Defendants are owners of buildings located in the City of Kenner which have been leased to bookstore operators. As a result of the leases and the bookstore operations, each defendant was charged with letting premises for obscenity, La.R.S. 14:85.1, and letting a disorderly place for the purpose of obscenity, La.R.S. 14:105. After a hearing on defendant’s motions to quash, the district court declared the statutes unconstitutional and quashed the bills of information. The state appealed. La.Const.1974, Art. 5, § 5(D).

The statutes in question seek to punish an owner of property who knowingly leases his premises to anyone who intends to use it for the practice of obscenity, or an owner who knowingly allows the continued use of his premises for obscenity. They provide:

§ 85.1 Letting premises for obscenity
Letting premises for obscenity is the granting of the right of use or the leasing of any premises, knowing that they are to be used for the practice of obscenity as defined in R.S. 14:106 — Criminal Code Article 106, or allowing the continued use of the premises with such knowledge.
Whoever commits the crime of letting premises for obscenity shall be fined not more than five hundred dollars, or imprisoned for not more than six months or both.
§ 105. Letting a disorderly place
Letting a disorderly place is the granting of the right to use any premises knowing that they are to be used as a disorderly place, or allowing the continued use of the premises with such knowledge.
Whoever commits the crime of letting a disorderly place shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.

[Keeping a disorderly place is the intentional maintaining of a place to be used habitually for any illegal purpose. La.R.S. 14:104; See State v. Defrances, 351 So.2d 133 (La.1977)].

As we understand the oral reasons assigned by one of the district judges, he agreed with the defendants’ contentions that La.R.S. 14:85.1 (Letting premises for obscenity) is unconstitutional on its face and La.R.S. 14:105 (Letting a disorderly place) is unconstitutional as applied to obscenity, because they constitute an invalid system of prior restraint of expression. We conclude that the district judge was correct.

The chief purpose of the conception of the liberty of the press is to prevent previous restraints upon publication. As Blackstone maintained, “[t]he liberty of the press is indeed essential to the nature of a free state; but this consists of laying no previous restraints on publications, and not in freedom from censure for criminal matter when published.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1930). Accordingly, the Supreme Court repeatedly has said that “ ‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631 [639] 9 L.Ed.2d 584 (1963); see also Near v. Minnesota, [supra], [283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)]. The government thus carries a heavy burden of showing justification for the imposition of such a restraint. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, [1578], 29 L.Ed.2d 1 (1971).” New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822, 824 (1971). We are satisfied that our state constitution’s guarantee of these liberties was designed to serve the same purpose and provides at least coextensive protection. La.Const. 1974, Art. 1, § 7.

In passing upon the constitutional questions of whether the statutes in question operate as invalid prior restraints upon expression, this Court has regard to substance and not to mere matters of form, and for that reason, in accordance with familiar principles, the statutes must be tested by their operation and effect. See Near v. Minnesota, 283 U.S. at 708, 51 S.Ct. at 628, 75 L.Ed. at 1364. That operation and effect are clearly seen by the nature and wording of the statutes themselves.

The object of the statutes in prohibiting owners from letting or allowing use of premises for the purpose of obscenity is not merely the punishment of an offending landlord, but the suppression of offensive publications by forcing all property owners to refuse the use of their premises to potential distributors. Extending far beyond the target of the legislation, the statutes operate to discourage the letting of premises for dissemination of any materials which even arguably constitute obscenity and to encourage closing a bookstore if even a small part of its publications is obscene. Since a landlord may be charged without a judicial finding of probable cause that publications sold from his premises are obscene, the effect of the statutes is to force landlords and tenants to consult the local prosecutor with regard to leasing and publications, thus casting that official in the role of censor of these activities. In sum, the operation and effects of the statutes are manifold: the existence of the laws alone will discourage many landlords from letting premises for the sale of publications, obscene and otherwise; regulation of other property owners’ leasing policies, and the publications sold by their tenants, will result from de facto censorship by local law enforcement authorities; charges filed against those who fail to consult or heed the officials may compel bookstore closures. The prior restraint upon publication which results from any of these checks is apt to be broad and final, since the statutes do not provide for any procedural safeguards designed to obviate the dangers of a censorship system.

A system of prior restraint of expression is invalid unless (1) there is assurance the government official imposing the restraint will, within a specified brief period, either allow publication or proceed immediately in court to restrain publication; (2) any restraint imposed in advance of a final judicial determination on the merits is similarly limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution; and (3) the procedure assures a prompt final judicial decision to minimize the impact of possibly erroneous governmental action. See Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Heller v. New York, 413 U.S. 483, 37 L.Ed.2d 745, 93 S.Ct. 2789 (1973); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). The statutes at issue in the present cases, are therefore, invalid pri- or restraint systems because they tend to effectuate large-scale suppression of bookstores and book sales without providing any of the enumerated procedural safeguards. Accordingly, La.R.S. 14:85.1 is unconstitutional on its face and La.R.S. 14:105 is unconstitutional insofar as it applies to letting or allowing premises to be used for obscenity-

Even though a statute may be constitutionally applied to the activities of a particular defendant, that defendant may challenge it on the basis of overbreadth or as a prior restraint if it is so drawn as to sweep within its ambit protected speech or expression of other persons not before the court. Doran v. Salem Inn Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Freedman v. Maryland, supra. Accordingly, the property owner defendants in the present case had standing to attack the statutes at issue because of the danger of tolerating, in the area of First Amendment freedoms, the existence of penal statutes susceptible of application as a broad and permanent prior restraint upon the operation of bookstores.

For the reasons assigned the judgments quashing the bills of information are affirmed.

AFFIRMED.

       The Honorable PAUL B. LANDRY, Jr., participated in this decision as an associate justice pro tempore.


source: Caselaw Access Project

author:
WATSON, Justice.
     CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Richard D. KENNER, Jr.
    No. 66227.
    Supreme Court of Louisiana.
    May 19, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
    Michael S. Gallagher, Supervising Atty., William A. Roe, Student Practitioner, Loyola Law School Clinic, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant, Richard D. Kenner, Jr., was convicted of two counts of armed robbery. The trial judge imposed a sentence of 198 years at hard labor under the habitual offender law. LSA-R.S. 15:529.1 A(l). On appeal, defendant relies upon seven assignments of error.

FACTS

On September 15, 1978, Jerry Taylor, the husband of the owner of Marino’s Furniture Store, was answering business inquiries from two men when one of them drew a revolver and told Taylor to lie face down on the floor. Angela Marino, the owner, was working in the back of the store and was forced to lie down beside her husband.

Twenty dollars were removed from Taylor’s pocket. When one of the men threatened to kill him, Ms. Marino said she had money in her purse. One of the men accompanied Ms. Marino to her office, and emptied her wallet. He took approximately one hundred dollars and removed a gold Italian horn necklace with two diamonds in the chain from her person.

Ms. Marino, Taylor and a customer who had entered the store were all told to disrobe and remain in a bathroom until the robbers had left. Afterward Taylor called the police and reported a description, to-wit: two black males, one approximately five feet five, wearing khaki pants and a white sailor hat, and the other six feet tall, wearing blue jeans, a blue baseball cap, and a patterned blue shirt.

Officers Sanderson and Holland received the description over their radio. A few minutes later they observed Kenner running down the street, removing his shirt and stuffing it into a blue baseball cap. He was stopped and told he was under investigation for armed robbery. After being advised of his rights, he became violent. Defendant was taken to the crime scene, where he was identified by one of the victims and placed under arrest. When he was patted down, a gold Italian horn necklace with two diamonds was found, along with some money.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred at the hearing on the motion to suppress identification by prohibiting an exploration of whether the victims were shown the seized evidence prior to the identifications, a germane issue.

At the identification hearing, acting on the mistaken belief that there was a consolidated motion to suppress evidence, the State asked questions about the items seized from Kenner. After the court determined that no motion to suppress evidence had been filed, further questions about the evidence were forbidden. Thus, when defense counsel asked about the items retrieved from Kenner, the State’s objection was sustained. Defense counsel’s attempts to explain the reasons for his inquiry were limited by the court. When arresting officer Sanderson was asked whether the gold chain and money were shown to Taylor, one of the identifying victims, the State’s objection was sustained.

Darryl Jones, an acquaintance of Kenner who was present at the identification, testified that the two male victims did not identify Kenner until they were shown the gold chain.

Defense counsel was allowed to ask Angela Marino whether her identification was made before she was shown the stolen jewelry. She testified that she saw the stolen items after the identification. Specifically, she said she was not told about the gold chain prior to the identification.

Arresting officer Sanderson testified that three persons identified defendant as the perpetrator of the robbery, although none of them were prompted to do so. Sander-son denied that the victims were told the suspect presented for identification was the guilty party. Angela Marino confirmed that she was not told the man presented for identification was the robber. Defendant Kenner was not wearing his blue shirt and baseball cap when identified.

Under these circumstances, the victims could properly have been asked to identify the stolen jewelry as well as the perpetrator of the armed robbery shortly following the offense. Even if defense counsel had established what his questions sought to elicit, the subsequent identifications were valid.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the motion to suppress should have been granted because the crime scene identification was unconstitutionally suggestive and responsible for the in-court identification made later.

One-on-one confrontation identifications are not favored. However, when a suspect is apprehended shortly after commission of an offense, a return to the scene of the crime for identification is permissible under appropriate circumstances. State v. Dunbar, 356 So.2d 956 (La., 1978). A prompt confrontation can promote fairness “by assuring reliability and the expeditious release of innocent suspects.” State v. Maduell, 326 So.2d 820 at 825 (La.).

Defendant Kenner was taken to the crime scene immediately after his detention by the police officers. Ms. Marino viewed him from inside her store before coming out to the police car for a closer look. No statements were made by the arresting officers to prompt an identification. The three victims viewed Kenner one at a time. The procedure was justified under these circumstances.

At trial, both Ms. Marino and Taylor identified defendant in court as the robber. Defendant contends that these in-court identifications resulted from the prior tainted identifications. However even if the one-on-one confrontations were improper, the courtroom identifications were properly admitted if they had an independent source. Three factors are relevant in this determination:

“(1) the prior acquaintance of the witness with the accused;
“(2) the length of time the witness observed the perpetrator before, during, and after the commission of the offense;
“(3) the circumstances under which the observation was made, i. e., the illumination at the scene, the witness’s physical capacities, and the witness’s emotional state at the time of the observation.” State v. Frank, 344 So.2d 1039 at 1042 (La., 1977).

Neither victim knew the defendant prior to the robbery, but they had ample opportunity to observe him and favorable conditions for doing so.

Ms. Marino observed Kenner and his accomplice walk into the store. Since she was working and answering the phone, she paid no particular heed to them while they were at the front of the store. Ms. Marino did notice Kenner when he tapped her on the shoulder, and took her to her office at gunpoint. She described the gun in detail. Ms. Marino viewed defendant in a well-lighted store in full daylight. Although frightened by the gun, she was positive about her identification.

Taylor spoke with defendant’s accomplice for a few minutes before Kenner entered the store. Since the accomplice drew a gun and forced Taylor to lie on the floor, Taylor only saw Kenner when he was forced to disrobe and enter the bathroom. However, he made an unequivocal identification. No evidence was presented that Ms. Marino or Taylor had impaired vision.

The in-court identifications were apparently independent of the prior identifications.

This assignment is without merit.

ASSIGNMENTS OF ERROR NUMBER THREE AND FOUR

Defendant contends that the trial court erred at the hearing on the motion to suppress evidence by disallowing a question to the arresting officer about how he felt when he made the stop and other questions about the description used as a basis for the arrest.

Defense counsel asked: “Officer, when you stopped the defendant, what did you feel?” (Tr., Motion to Suppress Evidence, p. 20) The State’s objection to this question was designed to determine whether the officer reasonably suspected that defendant had committed a crime prior to the stop.

Defense counsel had previously asked the officer whether he thought defendant had committed, was committing, or was about to commit a crime when he was stopped. Questions had been posed about other details relating to the decision to stop defendant, which allowed defense counsel to ascertain whether there was a reasonable suspicion of criminal activity and probable cause for the stop. The trial court’s ruling on the vague question about the officer’s feelings at the time of the stop did not prejudice defendant.

Defendant also protests because he was prohibited from asking certain questions regarding the suspect’s physical description. Arresting officer, Holland, the only witness at this hearing, testified about the description broadcast on his radio. The suspects were stated to be: “two black subjects one of them wearing khaki pants with a white hat. The other one wearing blue jeans with a blue baseball cap.” (Tr. 4) The trial court later restricted “. requesting the man on the same lines.” (Tr. 13) When defense counsel subsequently asked for the complete description, the officer responded by adding another physical characteristic, height of approximately six feet. (Tr. 23) The court then ordered defense counsel not to ask any more questions concerning physical description.

The trial judge is afforded much discretion in controlling the cross-examination of witnesses. LSA-R.S. 15:275. Defense counsel elicited a complete physical description before being ordered to refrain from repetitious questions.

These assignments are without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends that his arrest was illegal and the trial court erred in denying his motion to suppress the evidence seized following his arrest.

Officer Frank Holland testified that he and his partner decided to stop Kenner because he fit the radio description. He was a black male, six feet tall, wearing blue jeans and stuffing a blue shirt into a blue baseball cap. He was observed approximately ten blocks from the crime scene, running. The robbery occurred only ten minutes before he was seen by the two policemen. Based on their observations, Holland and his partner decided to stop Kenner and make a further investigation.

Defendant was told that he met the description of an armed robbery suspect and was advised of his rights. Defendant was frisked, but no weapons were found. Ken-ner became violent and started shouting. Defendant was restrained and placed in the police car. Defendant was taken to the furniture store. Taylor saw Kenner in the police car and said he could have been one of the robbers. After Kenner was taken out of the police car, Taylor made a positive identification. Defendant was placed under arrest and searched. During the search, Ms. Marino came out of the store and identified Kenner. She told Officer Holland that he had taken some cash, a Dunhill lighter, a gold chain containing two diamonds and a gold Italian horn medallion. Officer Sanderson took a gold chain and a gold Italian horn out of defendant’s pocket.

Only reasonable suspicion is required to temporarily detain a suspect for questioning. LSA-C.Cr.P. art. 215.1.

Since defendant matched the description of the robber, and he was running close to the scene of the crime, reasonable cause existed to make an investigatory stop. Kenner’s violent reaction to the stop provided additional grounds to suspect his involvement in the crime.

A warrantless arrest must be based on the arresting officer’s reasonable belief that the person to be arrested has committed or is committing an offense. LSA-C.Cr.P. art. 218; State v. Phillips, 347 So.2d 206 (La., 1977). Although defendant was not formally arrested until after he was identified by the victims, he was in fact arrested when he was initially detained and placed in the police car in handcuffs by the officers. LSA-C.Cr.P. art. 201. Probable cause existed for his arrest at that time.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBER SIX, SEVEN AND EIGHT

Since these assignments were not briefed by defendant, they will be considered abandoned. State v. Bennett, 345 So.2d 1129 (La., 1977); State v. Blanton, 325 So.2d 586 (La., 1976).

ASSIGNMENT OF ERROR NUMBER NINE

This assignment contends there was error in failing to grant a motion for new trial based on a no evidence contention. It merely relies on the other assignments for the claim that the evidence and the identification were inadmissible and is without merit.

ASSIGNMENT OF ERROR NUMBER TEN

Defendant contends that the sentence imposed was excessive and unconstitutionally harsh, constituting cruel and unusual punishment. It is argued that the trial court failed to properly consider the sentencing guidelines of LSA-C.Cr.P. art. 894.1.

Defendant was convicted of two counts of armed robbery. Because of a prior conviction for attempted simple burglary, with a three year sentence, he was adjudicated an habitual offender. LSA-R.S. 15:529.1 A(l). Upon a first conviction for armed robbery, defendant could have received a sentence of imprisonment at hard labor for not less than five years and not more than ninety-nine years. LSA-R.S. 14:64 B. Under the habitual offender law, LSA-R.S. 15:529.1 A(l), defendant received the maximum sentence which could have been imposed, 198 years at hard labor, twice the maximum term for an armed robbery conviction.

LSA-C.Cr.P, art. 894.1, requires that a trial judge state the considerations and the factual basis for a sentence. When the reasons for an apparently severe sentence do not appear in the record, a sentence can be vacated and the case remanded for resentencing. State v. Cox, 369 So.2d 118 (La., 1979); State v. Jackson, 360 So.2d 842 (La., 1978); State v. Scarborough, 359 So.2d 982 (La., 1978); State v. Sepulvado, 359 So.2d 137 (La., 1978).

A review of this sentencing hearing transcript shows only the following comments by the court relative to the sentence:

“The law prohibits my giving you a suspended sentence. The court also knows that you are in need of correctional treatment in a custodial environment, and that a commitment to an institution for a long, long time is the only way to rehabilitate you. A lesser sentence than the one which I am about to impose would deprecate the seriousness of the offense.”

The court’s comments trace LSA-C.Cr.P. art. 894.1 A(2), (3) almost verbatim, but there is no statement of the factual basis for imposing the maximum sentence, and the trial judge’s statement is an inadequate articulation under the law. The sentence is vacated and the matter remanded for re-sentencing in accordance with the guidelines of LSA-C.Cr.P. art. 894.1 and a full articulation of the considerations taken into account and the factual basis for the sentence imposed.

For the foregoing reasons, the conviction is affirmed and the matter is remanded for resentencing.

CONVICTION AFFIRMED: REMANDED FOR RESENTENCING.

CALOGERO, J., concurs with reasons.

CALOGERO, Justice,

concurring.

While I concur in affirming defendant’s conviction, I don’t entirely agree with the majority’s treatment of assignments of error Nos. 1 and 5.

In assignment of error No. 1 defendant contends that the trial judge erred in the pre-trial motion to suppress the identification hearing in limiting defendant’s questioning of the victim when defendant attempted to show that the victim was unable to identify defendant until a police officer showed her some jewelry found on defendant. Although the trial judge’s limitation of defendant’s questioning was erroneous, no reversible error resulted because later on defendant got to ask the victim the very same question. Furthermore, defendant was allowed to present witnesses who testified that the victims could not identify defendant when he was returned to the scene of the crime.

Defendant’s argument in assignment of error No. 5 that he was illegally arrested is without merit because the police did have probable cause to arrest him. Ten minutes after the robbery took place defendant was spotted in an area about ten blocks from where the robbery occurred running down the street while attempting to remove his shirt and stuff it into a blue baseball cap. Defendant’s appearance and clothing closely matched the reported attire of the suspect.

However, the fact that a young black man who is stopped by the police becomes angry and hostile is no real indication that he has committed a crime and adds little or nothing to the sufficiency of the evidence supporting probable cause to arrest.

       Honorable FREDERICK STEPHEN ELLIS participated in this decision as Associate Justice Ad Hoc.


author: ELLIS, Justice Ad Hoc.

text:
    STATE of Louisiana v. David DENIS.
    No. 66228.
    Supreme Court of Louisiana.
    May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Steven Lemoine, New Orleans, for defendant-appellant.
   ELLIS, Justice Ad Hoc.

Defendant David Denis was found guilty of simple burglary in violation of R.S. 14:62.2 on April 12,1979, and he has appealed. He assigns as error the failure of the trial judge to instruct the jury that evidence of a witness’s prior inconsistent statement may be considered only to impugn his credibility and not as evidence of the guilt of the accused.

Arthur Francois, the defendant’s brother-in-law, was called as a witness for the defense. Francois had been charged with the same burglary as defendant, and, prior to the trial herein, had pled guilty thereto. At the trial, Francois testified that defendant had not participated in the burglary, although he was with Francois later in the day. On cross examination, Francois was questioned about a statement allegedly made to the arresting officer that defendant had been a participant. Francois denied having made such a statement. The arresting officer took the stand on rebuttal and testified that Francois had told him that defendant was a participant in the burglary. All of the above testimony was admitted without objection by the defendant.

At the conclusion of the officer’s testimony, the defense requested that the court instruct the jury that the effect of the officer’s testimony be limited to impeaching Francois’s credibility, and not as an indication of defendant’s guilt. The trial judge refused to give the requested instruction.

It is clearly the law of this State that prior inconsistent statements by a witness may be considered for impeachment purposes only, and not as substantive evidence of defendant’s guilt. The failure to so instruct the jury, when requested to do so, constitutes reversible error. State v. Kimble, 375 So.2d 76 (La.1979); State v. Ray, 259 La. 105, 249 So.2d 540 (La.1971).

The State argues that the evidence of defendant’s guilt is overwhelming, and that any error committed by the trial judge is harmless, .under C.Cr.P. article 921. That article, as it read at the time of the trial herein, provides:

“A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”

There can be no doubt that a substantial right of the defendant was violated in this case when the judge refused to give the requested instruction. Under that circumstance, we cannot examine the “overwhelming” nature of the evidence of guilt. See State v. Michelli, 301 So.2d 577 (La.1974); State v. Herman, 304 So.2d 322 (La.1974); State v. Lemelle, 353 So.2d 1312 (La.1977).

The conviction and sentence herein are therefore set aside, and the case remanded to the trial court for a new trial in accordance with law.

Reversed and remanded.

MARCUS, J., dissents.

BLANCHE, J., dissents being of the opinion that the error was harmless.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Jerry DYE.
    No. 66262.
    Supreme Court of Louisiana.
    May 19, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Kenneth A. Rains, Asst. Dist. Atty., for plaintiff-appellee.
    Paul Henry Kidd, A Professional Law Corp., Monroe, for defendant-appellant.
   MARCUS, Justice.

Jerry Dye was charged by bill of information with theft of cattle in violation of La.R.S. 14:67.1. After a bench trial, defendant was found guilty as charged and sentenced to serve six years at hard labor. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in allowing the state, after commencement of trial, to amend the information by changing the date on which the offense occurred (Assignment of Error No. 1) and in denying his motion for a continuance (Assignment of Error No. 2) and thereafter in refusing to permit him to withdraw his waiver of a jury.

On February 13, 1979, defendant waived his trial by jury and elected to be tried by the court. Trial began on March 21, 1979. After the state had asked its first witness several questions, it moved to amend the information to correct a typographical error by changing the date of the offense from October 7,1977 to October 7,1972. Defendant’s objection to the amendment was overruled and the amendment was allowed. Defense counsel then moved for a continuance stating that he was surprised by the amendment as discovery had caused him to believe that the offense had occurred in 1977. Accordingly, he was not prepared to defend his client on an alleged offense occurring in 1972. Defendant’s motion for a continuance was denied; however, the trial judge granted a recess until the next day. The following morning, defendant moved that his previously entered waiver of a jury trial be withdrawn on the ground that the amendment of the information “would significantly change the nature of the defense.” The trial judge denied the motion. In brief to this court, defendant states that he “does not suggest nor will he argue that Jerry Dye did not voluntarily waive his right to a jury trial.”

The date or time of the commission of an offense need not be alleged in the indictment unless the date or time is essential to the offense. La.Code Crim.P. art. 468. The court may cause an indictment to be amended at any time with respect to a defect of form. A mistake respecting the date on which the offense occurred has been held to be such a defect of form when not essential to the offense. State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979); State v. McCoy, 337 So.2d 192 (La.1976); State v. Sharp, 321 So.2d 331 (La.1975); State v. Hubbard, 279 So.2d 177 (La.1973); State v. Pickett, 261 La. 237, 259 So.2d 307 (1972); State v. Martin, 255 La. 961, 233 So.2d 898 (1970).

At the time of the instant offense, La.R.S. 14:67.1 provided in pertinent part:

Theft of cattle, horses, mules, sheep, hogs, or goats is the misappropriation or taking of such cattle, horses, mules, sheep, hogs, or goats belonging to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representations. An intent to deprive the other permanently of the cattle, horses, mules, sheep, hogs, or goats is essential.

The date of the offense is not essential to the offense of theft of cattle. Therefore, the mistake respecting the date on which the offense occurred was one of form, which may be amended at any time. Hence, the trial judge did not err in allowing the state to amend the information.

La.Code Crim.P. art. 489 provides:

If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. If it becomes necessary to discharge the original jury from further consideration of the case, the trial before a new jury will not constitute double jeopardy.

Defendant bears the burden of establishing that amendment to the indictment prejudiced the defense. State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Strother, 362 So.2d 508 (La.1978). The defendant must show in what respect his defense was prejudiced by the amendment before the court will grant a continuance. State v. Hammontree, supra; State v. de la Beckwith, 344 So.2d 360 (La.1977); State v. Brown, 338 So.2d 686 (La.1976). A mere allegation that the defense will be affected by the amendment is not sufficient. State v. Sharp, 321 So.2d 331 (La.1975). In determining whether defendant has been prejudiced in his defense upon the merits, the court must consider all the circumstances of the case and the entire course of the prosecution. La.Code Crim.P. art. 489; State v. Wagster, 361 So.2d 849 (La.1978). Finally, the trial court has great discretion when deciding whether to grant a continuance, and its decision not to grant a continuance should not be disturbed unless there was arbitrary and unreasonable abuse of discretion. State v. Hammontree, supra; State v. Harvey, 358 So.2d 1224 (La.1978).

In the instant case, defendant merely alleged that he was surprised by the amendment. He made no showing of prejudice to his defense. Defendant called no witnesses and presented no evidence on his behalf at trial. Moreover, the record reveals that defendant had in fact been apprised of the correct date of the offense prior to trial. A warrant for defendant’s arrest, issued on October 7, 1977, correctly stated that the offense was committed on or about October 7, 1972. In a response filed on May 4, 1978 to defendant’s motion for discovery, the state advised defendant that it would introduce in evidence a check payable to defendant dated October 7,1972. Likewise, pretrial statements filed in the record deal with cattle theft occurring in October 1972. Hence, we find no showing of prejudice or surprise. Moreover, in view of the fact that defendant was advised of the correct date of the offense prior to trial and was granted a one-day recess after the amendment to the information, he has no cause to complain. The trial judge did not abuse his discretion in denying defendant’s motion for a continuance.

Finally, defendant contends in brief to this court that the trial judge erred in refusing to permit him to withdraw his waiver of a jury trial. This alleged error was not assigned as one to be urged on appeal a required by La.Code Crim.P. art. 844 and hence is not properly before us for review. State v. Thomas, 329 So.2d 704 (La.1976). In any event, it is of no merit. Defendant had knowingly and intelligently waived a trial by jury and elected to be tried by the court. Trial had commenced. Moreover, defendant was in fact informed prior to trial of the correct date of the offense with which he was charged. Hence, the ruling of the trial judge was correct.

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant contends the trial judge erred in failing to comply with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 (Assignment of Error No. 4) and in imposing an excessive sentence (Assignment of Error No. 5).

La.Code Crim.P. art. 894.1 provides:

A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

At the sentencing hearing, the trial judge sentenced defendant to serve six years at hard labor. He made no other comment concerning the sentence except to inquire whether defendant had any objection to the contents of the presentence report. Clearly, the trial judge erred in failing to state for the record the considerations taken into account and the factual basis therefor in imposing sentence, as required by La.Code Crim.P. art. 894.1(C).

In State v. Sepulvado, 367 So.2d 762 (La.1979), we stated that the statutory criteria legislatively provided by La.Code Crim.P. art. 894.1 provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentence alternatives. We further noted that the trial judge’s reasons in imposing sentence, as required by this statute are “an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive.” Absent compliance with La.Code Crim.P. art. 894.1, as in the instant case, we lack appropriate criteria by which to measure whether the sentence imposed is excessive. Accordingly, we must vacate defendant’s sentence and remand the case to the trial court with instructions to properly consider the sentencing guidelines in the statute before imposing sentence.

DECREE

For the reasons assigned, defendant’s conviction is affirmed but the sentence imposed is vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant in accordance with law.

       The Honorable RICHARD H. GAUTHIER participated in this decision as Associate Justice Ad Hoc.

      . Defendant has neither briefed nor argued Assignment of Error No. 3; therefore, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . Defendant did not object on this ground at the time of sentencing. However, we have held that, even without formal objection at the time of sentencing, where the trial judge imposes a sentence without adequate compliance with the mandatory requirements of La.Code Crim.P. art. 894.1, this court may vacate a sentence and remand for resentencing when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Gist, 369 So.2d 1339 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).

      . Defendant did not object on this ground at the time of sentencing. However, we have held that no objection is required as to excessiveness at the time of sentencing to preserve the issue for appellate review when raised by assignment of error to this court. State v. Gist, supra; State v. Cox, supra.

      .The entire transcript of the sentencing hearing is as follows:
      Mr. Rains: Your Honor, also, on the docket, for sentencing, number twenty-seven-o-ninety-one (27091) Jerry Dye.
      The Court: Mr. Dye, you were tried and found guilty by this Court of Theft of Cattle. Are you ready to be sentenced at this time? Sir?
      Mr. Dye: Yes, sir.

        The Court: Miss Snyder, did you have an opportunity to review the pre-trial [pre-sen-tence] report?
      Miss Snyder: Yes, sir, I did.
      The Court: I’m sorry, the pre-sentence report. Do you have any objections to voice at this time as to the contents of the report?
      Miss Snyder: No, sir, we have no objection.
      The Court: It is the sentence of this Court that he be sentenced to six (6) years at hard labor.
      END OF SENTENCING.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Earl BROWN.
    No. 66263.
    Supreme Court of Louisiana.
    May 19, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Robert L. Menuet, Napoleonville, for defendant-appellant.
   CALOGERO, Justice.

Defendant Earl Brown was charged by bill of information with armed robbery in violation of R.S. 14:64. After a jury trial he was found guilty as charged and was sentenced to sixty years at hard labor without benefit of parole. The only issue raised on this appeal is whether the trial court erred in denying defendant’s motion to suppress his confession. Defendant contends that the state failed to show affirmatively that the confession was freely and voluntarily given.

According to the testimony at the hearing on the motion to suppress, defendant was arrested shortly after Antoinette Landry, owner of Landry’s Grocery Store in Napoleonville, was robbed at gun point. Defendant was found a short distance from the store, hiding in weeds. Defendant was handcuffed, then given Miranda warnings. Approximately ten minutes after the arrest, the sheriff arrived and again read defendant the Miranda warnings. Defendant was then taken to the parish jail and, after again being advised of his Miranda rights, made an oral inculpatory statement to Chief Deputy Leonce Caballero. On August 28, 1979 two days after his arrest defendant repeated the substance of this inculpatory statement in a tape-recorded confession. After he completed the taped statement defendant was asked to give a written statement. Defendant refused and asked that he be appointed an attorney. It is the tape-recorded confession which was the object of defendant’s motion to suppress.

There is no contention that defendant was not fully and adequately advised of his Miranda rights. Defendant’s only argument is that the state failed to show that the defendant knowingly and intelligently waived these rights after having been informed of them. Defendant argues that because the state failed to show that defendant acknowledged his understanding of these rights and explicitly waived them, the confession should have been suppressed.

When a statement made during custodial interrogation is sought to be introduced into evidence the state bears a heavy burden to show that the defendant knowingly and intelligently waived his right against self-incrimination and the right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), the United States Supreme Court reiterated that the state’s burden is great and that the courts must presume that a defendant did not waive his rights. However, in Butler the Court also held that the waiver of Miranda rights need not be explicit but may be inferred from the circumstances surrounding the statement — the words and actions of the person interrogated:

“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” 99 S.Ct. at 1757.

At the hearing on the motion to suppress, defendant’s tape-recorded statement was played into the record. At the beginning of the tape, Chief Deputy Caballero read defendant the Miranda rights. At the end of the statement of rights, defendant responded “Uh-huh.” Deputy Caballero then asked defendant if he would like to give a statement as to what occurred on the afternoon of August 26, 1979, the date of the instant offense:

“. . . I’m asking you if you would like to give us a statement and tell us the particulars of what happened on — that was Saturday afternoon, and that was August 26th, right at darkness; right? Right at, late in the evening, there, right about at, right after sunset.”

To this defendant responded, “Right,” and then proceeded to answer questions about the instant offense.

Later in the tape, defendant was asked about the voluntary nature of his statement:

By Chief Deputy Cabellero:
“You know like I told you before, I’m not forcing you or threatening you to make any statements, or promising you anything.”
By Mr. Brown:
“Uh-huh.”
By Chief Deputy Cabellero:
“You voluntarily told me that you would give me a statement and that you know you were wrong in doing it, and you wanted to just give us a statement on the whole facts; is that right?”
By Mr. Brown:
“Right.”

Near the end of the taped conversation defendant was asked to give a written statement. He responded that he would not at that time and requested the appointment of counsel:

By Mr. Brown:
“No. Not at this time, you know. I’d rather wait and see and talk to my attorney, you know.”
By Chief Deputy Caballero:
“Okay. That’s up to you.”
By Mr. Brown:
“And I’d rather for y’all to appoint me an attorney, because I can’t afford one at this time, you know.”

Questioning terminated with defendant’s request for the appointment of counsel. The deputy then told defendant that he would be taken before a judge and an attorney would be appointed to represent him.

Although the record in this case does not show that defendant was specifically questioned as to his understanding of the rights delineated in Miranda or that he explicitly waived those rights, a knowing and voluntary waiver of those rights may be inferred from the circumstances surrounding the statement. After having been given the Miranda warnings, defendant reiterated the substance of his earlier statement. The taped statement indicates that when defendant was read the Miranda rights, he acknowledged them with a response of “Uh-huh” and proceeded to answer questions as to the offense. When questioned as to the voluntary nature of the statement, defendant agreed that his statement was not made under force, threats, or promises and that the statement was voluntary. Furthermore defendant’s understanding of his Miranda rights seems clear in his refusal to give a written statement and in his request for the appointment of counsel. When asked if he would give a written statement, defendant replied that he would prefer to wait until he spoke with an attorney and requested that an attorney be appointed since he could not afford one. Under these circumstances, we find that at the time he gave his taped confession, defendant had been adequately informed of his rights, understood those rights and chose to waive them. Therefore the trial court did not err in denying defendant’s motion to suppress the confession.

Decree

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

AFFIRMED.

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

      . The transcript of the playback of the taped confession at the hearing on the motion to suppress indicates that defendant was read the following statement of rights:
      “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.”


text:
    STATE of Louisiana v. Karl CUSTARD.
    No. 66295.
    Supreme Court of Louisiana.
    May 19, 1980.
    Michael S. Gallagher, Supervising Atty., James E. Stewart, Student Practitioner, Loyola Law School Clinic, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Karl Custard was charged by bill of information with attempting to obtain a controlled dangerous substance, phenmetrazine, by fraud, deceit, misrepresentation, or subterfuge in violation of R.S. 40:971 and 979. After trial defendant was found guilty as charged. Thereafter he was found to be a multiple offender and was sentenced to two and one-half years in Orleans Parish Prison. The only issue raised on this appeal is whether the trial court erred in denying defendant’s motion for a new trial in which he contended that the state failed to prove that defendant possessed the requisite knowledge or intent to commit the crime charged.

At trial the state adduced the following evidence. Defendant presented a prescription in the name of Mary Sherman to the pharmacist at a New Orleans drugstore. Suspecting that the signature of the physician on the prescription might be a forgery, the pharmacist telephoned the physician to verify the signature. The pharmacist learned that the physician had not issued the prescription, whereupon he notified the New Orleans Police Department. Two plainclothes narcotics officers were sent to the drugstore to investigate.

The pharmacist was instructed to return the prescription unfilled, and through a prearranged signal to identify defendant to the officers. After defendant returned to pick up the prescription and it was returned to him unfilled, he walked to the front of the store and entered a check-out line. Through the windows of the store front, defendant saw the two narcotics officers talking with a uniformed policeman regularly stationed at the drugstore. Defendant then left the check-out line, walked to the back of the store and handed the unfilled prescription to a friend employed at the store, asking him to keep the prescription until later that evening. Defendant was then arrested by the officers and searched. When the search failed to produce the prescription, the uniformed officer obtained the prescription from the employee to whom defendant had earlier passed it. Expert testimony indicated that the forged signature on the prescription was not in the defendant’s handwriting.

Defendant contends that the state failed to prove an essential element of the crime— that defendant intentionally and knowingly attempted to obtain the drugs with a forged prescription. Defendant argues that under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence presented by the state was insufficient for a rational trier of fact to find beyond a reasonable doubt every essential element of the crime. Alternatively, defendant contends that even under this Court’s “some evidence” standard, there was no evidence that defendant knew the prescription was forged or that he intentionally attempted to obtain the drugs through a forged prescription. The state contends that under any standard, it presented sufficient circumstantial evidence that defendant possessed the requisite knowledge or intent.

The Louisiana Constitution of 1974 limits this Court’s appellate review of criminal convictions to questions of law. La. Const, art. 5, § 5(C). Consequently, this Court has long held that it is only when there is a total lack of evidence of an essential element of a crime that a question of law is presented (State v. Main Motors, 383 So.2d 327 (La.1979) and that sufficiency of the evidence is a matter to be decided by the trier of fact (State v. Marcal, (La.1979) No. 64,318). However, when the state relies upon circumstantial evidence to prove an essential element of a crime, the standard of review is whether there is some evidence from which the trier of fact could reasonably conclude that beyond a reasonable doubt the accused had committed every essential element of the crime with which charged. State v. Matthews, 375 So.2d 1165 (La.1979).

The standard of review for a conviction based on circumstantial evidence is closely similar to, but perhaps slightly narrower than the Jackson v. Virginia standard. See State v. Matthews, supra. In Jackson the Supreme Court held, at least for federal habeas corpus relief under the due process clause, that on review of the sufficiency of the evidence the “relevant inquiry is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in the original.) This Court has yet to fully embrace Jackson v. Virginia.

We need not determine whether the standard announced in Jackson is applicable in the instant case for under either the “no evidence” or the Jackson standard, the state presented sufficient evidence that defendant knowingly and intentionally attempted to obtain the drugs with a forged prescription. Although intent is a question of fact, it need not be proven as a fact and may be inferred from the circumstances of a transaction. R.S. 15:445; State v. Procell, 365 So.2d 484 (La.1978); State v. Carter, 363 So.2d 893 (La.1978). Consequently, the state may rely on circumstantial evidence to prove this element of a crime. At trial the state introduced evidence that defendant presented a forged prescription to the pharmacist to be filled. After it was returned to him and he observed two narcotics officers talking with a uniformed policeman outside the drugstore, defendant attempted to rid himself of the forged prescription by handing it to an acquaintance who worked at the store.

State v. Brown, 352 So.2d 690 (La.1977), upon which defendant relies to contend that the state produced no evidence, is distinguishable from the instant case. In Brown this Court reversed a conviction for possession of phenmetrazine and forgery of a prescription for phenmetrazine on the basis that there was no evidence that defendant knew that the prescription was forged. The only evidence presented in that case was that the prescription given the pharmacist was forged, that defendant appeared at the pharmacy to pick up the prescription, and that upon defendant’s arrest, the pills were scattered on the seat of her car. In the instant case in which defendant is charged with attempting to obtain drugs by fraud, misrepresentation, deceit or subterfuge, the state presented evidence of defendant’s evasive acts after the prescription was returned to him unfilled.

Under this Court’s traditional “no evidence” standard, there is clearly some evidence that defendant knew that the prescription was forged and that he intentionally attempted to obtain the drugs illegally. And even under the standard in Jackson, the evidence of defendant’s evasive acts upon seeing the officers after the prescription was returned was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant knew the prescription was forged.

Decree

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

AFFIRMED.

MARCUS, J., concurs.

       Honorable Frederick Stephen Ellis participated in this decision as an Associate Justice Pro Tempore.

      . Defendant was charged under R.S. 40:971 which provides in pertinent part:
      “B. (1) It shall be unlawful for any person knowingly or intentionally:
      * * * * * H«
      (b) To acquire or obtain possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge. . .

      . R.S. 15:438 provides as follows:
      “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

      . Although this Court in State v. Matthews, supra, and State v. Abercrombie, 375 So.2d 1170 (La.1979) suggested in dicta that it would follow Jackson, following those cases the Court has been less than explicit about which standard applies to this Court’s review on direct appeal. It remains for future cases for this Court squarely to confront the question of whether it will follow Jackson or persist in the “no evidence” standard of review.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Neely CALDWELL.
    No. 66370.
    Supreme Court of Louisiana.
    May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Leon A. Cannizzaro, Asst. Dist. Atty., for plaintiff-relator.
    Bernard Jack Usprich, New Orleans, for defendant-respondent.
   WATSON, Justice.

In defense of a charge that he had possessed stolen property in violation of LSA— R.S. 14:69, defendant, Neely Caldwell, filed a motion to suppress evidence seized in a search of his residence on October 23, 1979. After a hearing, the trial court sustained defendant’s motion, and a writ of certiorari was granted to review this ruling.

The only issue is whether the trial court erred in granting the motion to suppress because the affidavit contained an incorrect statement. The affidavit stated that a confidential informer had provided information in the past to the New Orleans Police Department “which has led to many arrests and convictions in the area of felony arrests.” However, testimony at the suppression hearing revealed that the informer’s past information had produced arrests but not convictions.

The State contends that the trial court should have determined whether the affiant made the error intentionally. It is argued that it was made in good faith, and the trial court should have excised the error, judging the remainder of the affidavit for probable cause.

Defendant counters that all of the information provided by the informer should be excluded from the warrant, because the error taints his reliability and all his information.

The State’s position is correct.

The trial court prematurely suspended its consideration. If an affidavit has an error, the court must then decide whether the affiant intentionally tried to mislead the magistrate. Intent determines the effect of the inaccurate information on the constitutionality of the search.

In State v. Rey, 351 So.2d 489 (La., 1977) this court stated that when there is unintentional inclusion of incorrect information in a search warrant’s supporting affidavit:

“. . . the preferred approach is to excise the inaccurate statements and then examine the residue to determine if it supports a finding of probable cause.” 351 So.2d at 492.

No warrant, however, can survive the intentional deception of a magistrate by an affiant. State v. Rey, supra; State v. Lamartiniere, 362 So.2d 526 (La., 1978).

The only witness at the suppression hearing, the officer who had prepared the affidavit, stated, without contradiction, that the error occurred because “we were tired, and we were in a rush and we were in a hurry.” (Tr. 9) There is no indication that the affiant intended to deceive the magistrate when he wrote that the informer’s information had led to numerous convictions. The error in the affidavit was unintentional.

Defendant challenges only the statement establishing the reliability of the informer. Without the reference to convictions, his trustworthiness rests on the fact that his information had in the past resulted in numerous felony arrests.

Reference to arrests alone is sufficient to establish the trustworthiness of a confidential informer’s information. “No requirement exists, as defendant contends, that the arrests must have resulted in convictions.” State v. Richards, 357 So.2d 1128 (La., 1978).

Since the trustworthiness of the informer is established and since the affidavit is otherwise sufficient, the search warrant was properly issued.

Accordingly, the ruling of the trial court is reversed, and the motion to suppress is denied. The case is remanded for further proceedings according to law.

REVERSED AND REMANDED.

       Honorable FREDERICK STEPHEN ELLIS participated in this decision as Associate Justice Ad Hoc.

      . “On the trial of a motion to suppress . the burden of proof is on the defendant to prove the grounds of his motion.” LSA-C. Cr.P. art. 703.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Morris E. HARDY.
    No. 66414.
    Supreme Court of Louisiana.
    May 19, 1980.

      D. Milton Moore, III, Banks & Moore Law Offices, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Nancy F. Gilliland, Asst. Dist. Atty., for plaintiff-respondent.
   BLANCHE, Justice.

The defendant was charged by bill of information with possession of an illegal weapon in violation of R.S. 40:1785. Defendant, present with counsel, waived formal arraignment and pleaded not guilty to the charge. On December 12, 1979, the trial court denied defendant’s motion to suppress the evidence. The defense applied to this Court for supervisory writs, which were granted.

Evidence adduced at the hearing on the motion to suppress showed the following: On the night of October 1, 1979, the police received a report of an armed black man walking about the Tanglewood subdivision. While various officers were responding to the report, Morris Hardy arrived at 725 Tanglewood Drive to check on the progress being made on his home, still under construction. He parked his car facing the wrong way on the street and walked inside. While roaming around therein, the police arrived on the scene, observed the defendant, and ordered him out of the house in the belief that defendant was their suspect. In the course of the officers’ investigation, defendant managed to get himself arrested for resisting arrest.

Deputy Pat Willis, also responding to the initial report, arrived just as defendant emerged from the side of his house, hands raised on order of the police. While defendant was being arrested by another officer, Willis proceeded to search defendant’s car and, as luck would have it, found a .410 gauge sawed-off shotgun in the locked trunk. He also made arrangements to have defendant’s car towed, although he could not recall whether he did so before or after his search. In the officer’s account, the search was justified “. . .to protect any items that [defendant] might have that were in the vehicle after it was towed in. It was for his protection. * * * [W]e inventory every vehicle that we have towed in * * * [o]n a standard form that the Sheriff’s Department uses.” Willis later found out that defendant had been seized out of his own home.

Defendant’s account is much different. He testified that Willis did not ask for his consent to search the car and failed to inquire whether he kept anything of value in it or whether alternative arrangements for the car were available. When questioned why he hadn’t told the officers that the house was his, defendant replied, “[t]hey didn’t ask me was the reason I didn’t tell them.”

The defense contends that the trial court erred in denying defendant’s motion to suppress the evidence because the search of defendant’s car was not part of a valid inventory search pursuant to the guidelines set down by this Court. Additionally, defense argues that even if we concluded that his arrest for resisting an officer was legal, it was not necessary to impound his vehicle because he could have left the car properly parked in front of his home. The defense concludes that the impoundment in his case was an unnecessary requirement and an overbroad exercise of police power.

Recently, in State v. Killcrease, 379 So.2d 737 (La.1980), we considered the purpose and justification for an inventory search and reiterated the rule that where the conduct of the police was inconsistent with their contention that the search was conducted for true inventory purposes, we have found the search to be unlawful.

The facts that we have considered as bearing upon whether the so-called inventory search was merely subterfuge are: (1) that formal impoundment procedures were not followed; (2) that the search was conducted in the field without asking whether any valuables were in the automobile and before a tow truck was even called; (3) that the defendant/owner was not asked for his consent to search or whether he would waive such a search; (4) that the defendant/owner was not asked whether he could, within a reasonable amount of time and with reasonable effort, make other arrangements to have someone else secure his automobile. Each search will depend upon its own peculiar facts and circumstances, and the facts as considered hereinabove are not all-inclusive.

The record in this case reveals that the search of defendant’s car was not a true inventory search. Although a standard inventory form was used, other indicia of a valid inventory search appear lacking. Willis made the search “in the field”, in front of defendant’s home (as he learned later), not at the stationhouse. The officer could not recall whether he had called the tow truck before or after his search; defendant, for one, placed the arrival of the wrecker after the search was completed. Willis agreed with defendant that he had not asked for consent, inquired whether any valuables remained in the vehicle, or checked on alternative arrangements before going into the car. Moreover, defendant had parked his car beside the road (although pointed in the wrong direction) in a residential area. Willis testified that it had been raining that night, and that the driveway had not been built. He did not believe one could have pulled off the roadway. However, when challenged by counsel whether in that area it was customary for some vehicles to be parked on the side of the roadway rather than in a driveway or garage, the officer answered in the affirmative. There is evidence that there was no necessity to impound the vehicle considering its location and the probability of defendant’s making bond on a misdemeanor charge.

Although Willis at the least followed standard departmental procedure in securing the car, this Court has cautioned that custom alone cannot validate a search. In State v. LaRue, 368 So.2d 1048 (La.1979), this Court re-emphasized the following observation made in State v. Jewell, 338 So.2d 633, 640 (La.1976):

“The claim is made that the search was conducted pursuant to a departmental regulation. If so, a police inventory procedure of this nature — which permits arresting police officers unlimited discretion and without probable cause to make on-the-spot searches of vehicles at the scene of an arrest — cannot (however standard it may be with a local department) supersede the provisions of our state constitution restricting all agents of government from making unreasonable searches and seizures. Unconstitutional searches cannot be constitutionalized by standardizing them as a part of normal police practice.”

Stripped of its inventory rationale, the search in this case lacks any other justification. The initial report to the authorities may have given the officers reasonable cause to question defendant, who was seen moving about at night in a house still under construction. The report certainly did not give the officers probable cause to arrest defendant, but even assuming that the circumstances of the defendant’s refusal to cooperate with the officers generated probable cause to arrest him for resisting an officer under R.S. 14:108, the subsequent search of his vehicle far exceeded the proper scope of a search. See State v. Blanchard, 374 So.2d 1248 (La.1979). According to defendant’s undisputed account, he had been removed from the immediate vicinity of his vehicle where he had been initially questioned and placed in the parked patrol car by the time Willis began his search. Here, as in Blanchard, supra, the area which was searched was not within defendant’s immediate control so as to have presented even the possibility that he could have gained access to a weapon or destroyed evidence.

The conduct of the police in this case thus indicates that the authorities did not conduct a true inventory search of defendant’s car but, instead, set out on a warrantless search of the vehicle without probable cause.

For these reasons, the writs of certiorari, prohibition and mandamus granted herein are made peremptory and the judgment of the trial court denying the motion to suppress is reversed and set aside. It is further ordered that the prosecution herein be and the same is hereby remanded to the district court for further proceedings in accordance with law.

REVERSED AND REMANDED.

       Honorable RICHARD H. GAUTHIER participated in this decision as Associate Justice Ad Hoc.


author:
MARCUS, Justice.
     BLANCHE, Justice

text:
    Jennings Jack DOFFLEMYER v. Gary D. GILLEY et al.
    No. 66432.
    Supreme Court of Louisiana.
    May 19, 1980.

      Gregory P. Massey, Jones, Patín, Tete, Nolen & Hanchey, Lake Charles, for defendant-respondent.
    David A. Fraser, Brame, Bergstedt & Brame, Lake Charles, for American Indemnity Co.
    Robert L. Hackett, Lake Charles, for plaintiff-applicant.
   MARCUS, Justice.

Jennings Jack Dofflemyer filed this suit against Gary D. Gilley, Frederick R. Moore, Sr., individually and as the administrator of the estate of his minor son, Frederick R. Moore, Jr., American Indemnity Company (American), and Government Employees Insurance Company (GEICO), seeking damages for personal injuries sustained by him when he was struck by a car driven by Gilley and owned by Moore, Jr. American is the liability insurer of the automobile owned by Moore, Jr., and GEICO is the homeowner insurer of Moore, Sr. Moore, Jr. was a passenger in the automobile at the time of the collision. Plaintiff alleged that Gilley and Moore, Jr. intentionally injured him. Alternatively, he alleged that his injuries were caused by the negligence of Gilley and Moore, Jr. Defendants generally denied the allegations of the petition and affirmatively set forth the defenses of assumption of risk and contributory negligence. Gilley filed a third party demand seeking indemnity from American. Moore, Sr. filed a similar third party demand against GEICO.

After a trial by jury, a special verdict was rendered in the form of a special written finding on each issue of fact. In accordance with these findings, the trial judge rendered judgment in favor of defendants and against plaintiff dismissing his suit. It was further ordered that the third party demand of Gilley against American and that of Moore, Sr. against GEICO be dismissed. Plaintiff appealed and defendants answered the appeal. The court of appeal affirmed. Upon plaintiff’s application, we granted certiorari to review the correctness of this decision.

FACTS

On June 26, 1976, at about 4:00 p. m., a group of approximately thirty persons was gathered in one of the parking areas at the Civic Center in Lake Charles, Louisiana. They were on the south side of Bord du lac Drive, a four-lane road with two lanes for travel in each direction. Plaintiff was in the crowd.

After arriving at the Civic Center, plaintiff asked two young girls to drive and pick up something to eat. When the girls returned, the car driven by Gilley pulled up behind them, and the girls told plaintiff they had been harassed by Gilley and Moore, Jr., the passenger in the car. Plaintiff approached the car and recognized Gil-ley. The two had served time together in the parish jail where plaintiff had befriended Gilley and protected him from the homosexual threats of another prisoner. Plaintiff told Gilley and Moore, Jr. to stop harassing the girls. After a brief exchange of words, Gilley suddenly and quickly drove off.

Gilley then proceeded to drive the car back and forth down the road and around the curve at the western end of the Center, attracting everyone’s attention by driving at an excessive speed and in a reckless manner. On one of these passes, plaintiff yelled for Gilley to stop. Gilley stopped but sped away when plaintiff approached. On another pass, Gilley almost hit several children. The crowd became upset and there is testimony that a tire tool was thrown at the car on one of its passes. Also, there is testimony that Moore, Jr. threw a bottle out of the car at the crowd and the occupants of the car yelled obscenities at the crowd.

Plaintiff decided to stop the Gilley vehicle. According to plaintiff and his witnesses, plaintiff left the parking area, walked into the road across the center line and stood in the inside westbound lane waving his hands at the Gilley car, which was approaching from the west in the outside eastbound lane. Plaintiff testified that, as the Gilley car rounded the curve and came nearer, it left the eastbound lanes and crossed into the inside westbound lane where he was standing. He stated that he tried to jump out of the way but to no avail.

Gilley testified that immediately before the accident, he was driving in the inside eastbound lane and plaintiff was standing in his lane of travel waving his hands and telling him to stop. Gilley stated that he continued driving thinking that plaintiff would move out of the way as he had been walking across the roadway. He denied any intention to strike plaintiff. After impact, Gilley continued on without stopping and subsequently turned himself in to the police. He said he was afraid to stop at the scene of the accident for fear of the angry crowd.

ISSUES

The issues to be resolved in this litigation are: (1) whether Gilley intentionally struck plaintiff; (2) if not, whether Gilley and/or Moore, Jr. were negligent; (3) if either was negligent or if the collision was intentional, whether plaintiff’s action is barred by either the defense of assumption of risk or that of contributory negligence; (4) if plaintiff is entitled to recover, the amount of damages; (5) if so, whether American and/or GEICO are liable for those damages under their respective insurance policies; and (6) if Gilley and Moore, Sr. are cast in the main demand, whether they properly preserved their rights of indemnity, if any, under their third party demands against American and GEICO.

I.

The jury found that the accident was an intentional act on the part of Gilley. The standard of review of an appellate court of such a finding of fact is that the appellate court should not disturb the finding unless it is clearly wrong. The appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Here, the jury was clearly wrong in finding the collision to have been an intentional act on the part of Gilley. Such a conclusion is not supported by the record. Not only did Gilley deny an intention to strike plaintiff, but his actions are not indicative of such an intention. Nor does the record support any motive that would have induced Gilley to strike plaintiff. On the contrary, there was testimony that plaintiff had been Gilley’s friend in prison and that just prior to the accident Gilley expected plaintiff to continue walking across the roadway. Accordingly, we conclude that the collision was not intentional.

II.

The jury found that the accident was caused by the negligence of both Gilley and Moore, Jr. Gilley was observed driving at an excessive speed, forcing other vehicles off of the road and almost hitting several children. Moreover, he continued to drive without slowing down or stopping after observing plaintiff in the roadway. Moore, Jr., a passenger in the car which he owned, apparently made no attempt to restrain Gil-ley during the course of the numerous passes they made. Also, there was testimony that Moore, Jr. threw a bottle at the crowd. Under the circumstances, there can be no serious doubt of their joint negligence. The record fully supports the jury’s findings of negligence. Furthermore, Moore, Sr. is responsible for the negligence of his minor son. La.Civ.Code art. 2318.

III.

Having concluded that Gilley and Moore, Jr. were negligent, we next consider the defenses of assumption of risk and that of contributory negligence. We stated in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971):

The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard.

It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger because of the risk. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976); McInnis v. Fireman’s Fund Insurance Co., 322 So.2d 155 (La.1975); Brantley v. Brown, 277 So.2d 141 (La.1973); Langlois, supra. Assumption of risk is an affirmative defense that must be specially pleaded. La. Code Civ.P. art. 1005. The burden of proving this defense is upon the defendant. Langlois, supra.

In the instant case, the defense of assumption of risk is based on the contention that plaintiff “voluntarily participated” in interfering with a moving vehicle, “with full knowledge that serious injuries could result.” The jury concluded that plaintiff assumed the risk of injury by placing himself in the known position of danger.

In our view, the jury was clearly wrong. The record contains a factual dispute as to whether plaintiff was located in the inside eastbound or westbound lane when he was struck. Even assuming he was slightly in the eastbound lane as Gilley maintains, there is no proof in the record that plaintiff knew or understood the risk of being struck by the car or that he accepted the risk as well as the inherent possibility of danger because of the risk. On the contrary, the record shows that plaintiff believed himself to be a friend of Gilley and that the roadway was more than wide enough to allow Gilley to drive around him. Furthermore, plaintiff testified that the visibility was excellent and that he had observed the Gilley car several hundred yards away before being struck; hence, he had every reason to believe that Gilley would see him in the roadway and would avoid him. Therefore, it was not obvious or apparent to plaintiff that Gilley would hit him. Under the circumstances, we conclude that defendants failed to carry their burden of proving that plaintiff assumed the risk.

Contributory negligence is also an affirmative defense that must be specially pleaded. Defendant bears the burden of proving it by a preponderance of the evidence. Contributory negligence is objectively determined under the reasonable man standard. McInnis v. Fireman’s Fund Insurance Co., supra. Here, the jury determined that plaintiff was not guilty of contributory negligence. The record adequately supports this finding. In any event, plaintiff’s alleged contributory negligence would not bar his claim because Gilley had the last clear chance to avoid the collision. See Dufrene v. Dixie Auto Insurance Co., 373 So.2d 162 (La.1979).

CONCLUSION

In sum, we find that the accident was caused by the joint negligence of Gilley and Moore, Jr. Moore, Sr. is liable as the father of Moore, Jr., who was a minor at the time of the accident. Furthermore, plaintiff’s action is not barred by either the defense of assumption of risk or that of contributory negligence. Hence, the court of appeal erred in dismissing plaintiff’s action.

As previously noted, if plaintiff is entitled to recover, we must determine (1) the amount of damages, if any, (2) whether American and/or GEICO are liable for these damages under their respective policies; and (3) if Gilley and Moore, Sr. are cast in the main demand, whether they properly preserved their rights of indemnity, if any, under their third party demands against American and GEICO. As the court of appeal affirmed the judgment of the trial court dismissing plaintiff’s action, it did not address these issues. We therefore consider it more appropriate to remand the case to that court for it to determine and decide these issues.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the court of appeal for further proceedings consistent with the views expressed herein.

DENNIS, J., concurs.

BLANCHE, J., dissents.

BLANCHE, Justice

(dissenting).

I respectfully dissent.

The plaintiff admonished defendant, Gil-ley, who thereafter, for reasons unexplained by the record, began driving up and down the road in the civic center in a wanton and reckless manner. His actions were in such extreme disregard of the safety of himself and of others that he was afraid to stop after the accident due to fear of the crowd at the center. Surely anyone who would do other than stay in a place of safety under these exaggerated circumstances should be held to have assumed the risk. One might ask what prompted plaintiff to walk out in the road to stop the defendant. Evidently, he believed defendant would have had less courage than he had, and would have avoided the accident. He guessed wrong.

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

      . 378 So.2d 440 (La.App. 3d Cir. 1979).

      . 379 So.2d 1102 (La.1980).


text:
    STATE of Louisiana v. Mitchell G. VARNADO.
    No. 66694.
    Supreme Court of Louisiana.
    May 19, 1980.
    John F. Rau, Jr., Harvey, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, W. C. Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-respondent.
   BLANCHE, Justice.

Defendant, Mitchell G. Varnado, was charged by bill of information with attempted murder in violation of R.S. 14:27 (14:30). Pursuant to a plea bargain, defendant entered a guilty plea to aggravated battery, R.S. 14:34. Defendant was sentenced to three years, suspended on the condition that he serve one year in the Jefferson Parish Community Correctional Center, and placed on active probation for two years. While serving the first year term in Jefferson Parish Community Correctional Center, defendant was charged with and pleaded guilty to possession of marijuana in violation of LSA-R.S. 40:967. Defendant’s probation was revoked based upon this conviction. By writ of certiorari to this Court, defendant argues one assignment of error.

Assignment of Error Number 1

By this assignment, defendant contends that the trial court erroneously revoked his probation because the guilty plea used to support the revocation was uncounseled and made without waiver of counsel.

As a condition of his probation, defendant was to refrain from criminal conduct. Defendant’s probation officer informed the court that defendant, while incarcerated at the Jefferson Parish Community Correctional Center, was arrested for the charge of illegal possession of marijuana and that defendant entered a plea of guilty to this charge. In the formal notice of revocation, the Department of Probation and Parole specified that defendant had violated the first condition of his probation: that he refrain from criminal conduct. At the revocation hearing, the state did not attempt to prove the underlying marijuana offense but relied exclusively upon the fact that defendant had pleaded guilty to it. To this extent, the validity of defendant’s revocation rides or falls on the validity of the marijuana conviction.

At the probation revocation hearing, defense counsel challenged the use of this guilty plea, alleging that it had been without counsel and without defendant waiving counsel. The state merely offered the minute entry of Varnado’s guilty plea on May 31, 1979, which reads:

“The defendant appeared before the bar of the court this day represented by (proper person).”

The state made no effort to prove representation by counsel or either a waiver of the same.

Defendant correctly states that the controlling law in this area is found in the case of State v. Harris, 312 So.2d 643 (La.1975), in which this Court stated:

“In remanding this case for further proceedings, we note an additional contention of the defendant. At the revocation hearing defendant’s guilty plea to the charge of possession of marijuana was introduced. Defendant contended that he had pleaded guilty without the benefit of counsel; a copy of the minutes introduced at the hearing is silent on this point. The State failed to demonstrate that defendant’s plea had been made with the benefit of counsel or that defendant had freely and intelligently waived his right to counsel.
“[3] The use of such a guilty plea was in conflict with our decision in City of Monroe v. Fincher, 305 So.2d 108 (La.1974), applying Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), to situations in which imprisonment was imposed or enhanced on the basis of prior uncounseled convictions. In City of Monroe v. Fincher, supra, we held that a prior uncounseled conviction could not be used to subject the accused to prosecution and imprisonment as a repeat offender, whether or not his sentence following that prior conviction included imprisonment. As the defendant’s plea of guilty used in the instant case had been made without benefit of counsel or a waiver of the right, it could not be used as the basis for revoking defendant’s probation. However, this is not to hold that the underlying facts or evidence (as opposed to the conviction or plea itself), on which the prior conviction or plea is based can not be introduced at a probation revocation hearing to prove that defendant has in fact been guilty of misconduct which might constitute a violation of his probation.” 312 So.2d at 644.

However, the state did not exercise it right to introduce evidence to prove the crime of possession of marijuana. It relied entirely upon the plea of guilty and conviction as a result thereof, and then rested its case without proving any underlying facts. Therefore, the only evidence before the judge was the uncounseled guilty plea which was inadmissible and could not serve as a basis to revoke relator’s probation. Harris, supra.

It is therefore ordered, adjudged and decreed that the writs of certiorari, prohibition and mandamus issued herein be made peremptory and that there be judgment rendered in favor of relator, Mitchell G. Varnado, reversing the judgment of the 24th Judicial District Court for the Parish of Jefferson revoking defendant’s probation and sentencing him to three years at hard labor, and that the rule for probation revocation be hereby dismissed.

REVERSED.

       Honorable RICHARD H. GAUTHIER participated in this decision as Associate Justice Ad Hoc.