author: LETTS, Chief Judge.

text:
    David DARDASHTI, Petitioner, v. Harold H. SINGER, Respondent.
    No. 81-2338.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 1982.

      Kenneth J. Scherer of Cohen & Scherer, P. A., North Palm Beach, for petitioner.
    Lake Lytal, Jr., of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for respondent.
   LETTS, Chief Judge.

Before us is a petition for common law certiorari, challenging the trial court’s order which denied a motion to compel sequestration of the Plaintiff’s wife during the taking of his deposition by the petitioner defendant. We grant certiorari and reverse.

To the unsophisticated, it all sounds deceptively simple. One would suppose that when a party seeks the deposition of the other side’s non-party witnesses, and is fearful that they will tailor their answers in support of each other, he simply “invokes the rule” whereupon all but the particular witness to be deposed are excused as a matter of course. However, such a supposition would be wrong because there is no precise rule written down in Florida and whether a witness need be excused has been by no means a matter of course and has remained within the province of a trial judge’s discretion. Spencer v. State, 133 So.2d 729 (Fla.1961) cert. denied 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962). Needless to say, the trial judge is seldom present at pre-trial depositions and uncertainty as to how he might later rule has sometimes been used as a strategem to discomfit the proponents of the sequestration. However, based on the record before us we find that, in this instance, the trial judge abused his discretion and that prejudice will result therefrom which cannot be remedied by plenary appeal. Malt v. Simmons, 405 So.2d 1018 (Fla. 4th DCA 1981).

We begin with an examination of the Spencer case first above cited. Therein the Supreme Court clearly stated that “ordinarily, when requested by either side, the trial judge will exclude all prospective witnesses from the courtroom” (Id. at 731, emphasis supplied). True, the Spencer court went on to hold that there was no abuse of discretion for failure to sequester witnesses in that case, but in so doing made much of the fact that the particular witnesses were police officers whose interest in the outcome was “not apt to be personal” Id. at 731. Moreover, the court explained that the reason why witnesses, other than impartial ones, are ordinarily excluded is to “avoid the coloring of a witness’s testimony by that which he has heard from other witnesses” Id. at 731. Such a shading of testimony is a definite present threat under the facts presented in this petition.

The complaint below sounds largely in breach of an oral contract which the petitioner defendant vehemently denies and affirmatively avoids. In the conduct of his defense, petitioner, inter alia, filed interrogatories upon the plaintiff husband seeking information pertinent to the alleged breach and requesting the names of all those who might bear witness against him. Replying to these interrogatories the plaintiff on no less than fourteen occasions names his wife as a witness who was present during the alleged negotiations, conversations or expenditures and who will presumably support his allegations. As such, her testimony may well be vital to the success of her husband’s claims and her testimony patently “apt to be personal.”

It is not enough to suppose that the average husband and wife will have long since dove-tailed their versions of the facts so that no prejudice can result. This is so because they can have little advance warning during a deposition of unexpected and oblique questions requiring instantaneous response. To permit the one to sit and absorb the answers of the other in a case such as this obviously facilitates the very “coloring of a witness’s testimony” frowned on by our Supreme Court in Spencer to the point where we find it carries the burden placed by Spencer on the complaining party to demonstrate an abuse of discretion. Moreover the result would be clearly prejudicial and not capable of remedy by plenary appeal. This is especially so when, as here, the trial judge’s order failed to make a finding as to why “no real prejudice would result from [failure to exclude]” as this very court suggested should be done in Thomas v. State, 372 So.2d 997, 999 (Fla. 4th DCA 1979). As we said in Thomas, supra:

To have it otherwise would emasculate the rule of exclusion and sequestration of witnesses and subject the trial courts to attack alleging collusion among witnesses.

It is surprising that the “rule” has never been crystallized in Florida as it has been, for instance, under Federal Rule of Evidence 615 which has made the exclusion mandatory upon request. In his treatise on Florida Evidence, Professor Erhardt reports that a similar provision to the Federal rule was considered for our new Evidence Code and found wanting as an incursion into the rule making procedure of the courts. See 5 Erhardt’s Florida Practice, Florida Evidence § 616.1.

Be that as it may, we now clarify the “rule” for the convenience of judges and lawyers in our district, by directing all to heed the language of Spencer which we repeat as follows:

Ordinarily when requested by either side, the trial judge will exclude all prospective witnesses from the courtroom .... to avoid the coloring of a witness’s testimony by that which he has heard from other witnesses who have preceded him on the stand. (Id. at 731)

Moreover since the Supreme Court “ordinarily” expects exclusion to take place upon request we see no distortion or expansion if we construe the flip-side of “ordinarily . . . exclude” to mean that failure to exclude upon request will only be countenanced in extra ordinary circumstance. We so hold. Likewise although Spencer’s particular facts involved exclusion at a criminal trial, there is no reason why its strictures should not pertain equally to pre-trial depositions in a civil matter and we so apply them.

Accordingly, we grant the petition and remand this cause with instructions that the proposed deposition proceed outwith the presence of the wife.

CERTIORARI GRANTED.

HERSEY and GLICKSTEIN, JJ., concur.

      . The “rule” we are discussing should not be confused with Florida Rule of Civil Procedure 1.280(c)(5) and no attempt was made by petitioner to seek its assistance either before us or in the trial court. The respondent is, therefore, in error in relying on it before this court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willie MONROE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2174.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1982.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on April 3, 1981 (396 So.2d 241) affirming in part and reversing in part the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 406 So.2d 1115, by its opinion and judgment filed November 25, 1981 and mandate now lodged in this court, disapproved in part and approved in part.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on April 24,1981 is withdrawn, the judgment of this court filed in this cause on April 3,1981, except as is affirmed by the judgment of the Supreme Court dated November 25, 1981, is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed in part and affirmed in part and the cause is remanded to the trial court for proceedings consistent with the Supreme Court’s opinion. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    HIALEAH, INC., Appellant, v. James BELL, Appellee.
    No. 81-389.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Rehearing Denied Jan. 18, 1982.
    Adams & Ward, Miami, for appellant.
    Horton, Perse & Ginsberg, Miami, Colod-ny & Fass, North Miami, for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Turner v. Lorber, 360 So.2d 101, 104 (Fla. 3d DCA 1978); Cuna Mutual Insurance Society v. Adamides, 334 So.2d 75 (Fla. 3d DCA 1976).


author: MARCUS, J.

text:
    Arthur MARQUEZ, Individually and as Administrator of the Estate of his Minor Son, Arthur Marquez, Jr. v. ALLSTATE INSURANCE COMPANY, Lois M. Davis, wife of/and O. W. Davis.
    No. 81-C-1871.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   Re: Allstate Insurance Company, Lois M. Davis, wife of/and O. W. Davis, applying for writs of Certiorari and/or Mandamus, Parish of Jefferson, Number 185-538.

Denied; the ruling of the trial judge was correct.

MARCUS, J.

concurs in the denial as to Allstate; however, record does not reflect that trial judge ruled on Allstate’s motion to dismiss as to the Davises. See Murphy v. Hurdle Planning and Livestock, Inc., 331 So.2d 566 (La.App. 1st Cir. 1976), writ denied.


author: LEMMON, J.,

text:
    Succession of Edna LaCROIX, Widow of Walter F. Poynot.
    No. 81-C-1755.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   Re: William M. Duett, Henry Guidry, Harry R. Cabral, Jr. and Arthur C. Reuter, applying for writs of Certiorari, or Review, to the Court of Appeal Fourth Circuit, Parish of Orleans, Number 12,415.

Granted. Judgment of the court of appeal, 400 So.2d 338, is reversed; case remanded to the court of appeal for determination on the merits.

LEMMON, J.,

concurs. The judgment of the trial court, couched in terms of maintaining an exception of no cause of action, really decided the merits of the motion. Amendment under CCP Art. 934 is not appropriate following a judgment on the merits.

On remand, La.App., 408 So.2d 1170.


author: DIXON, C. J.,

text:
    STATE of Louisiana v. Ricky W. DELONEY.
    No. 81-K-1838.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   Re: Ricky W. Deloney, applying for Writ of Certiorari and Review, Parish of Union, No. 26,133.

Granted. Conviction reversed. The motion to suppress first D.W.I. conviction should have been sustained. State ex rel. Bishop v. Blackburn, 384 So.2d 406. C.Cr.P. 514. Otherwise denied. Remanded for further proceedings.

DIXON, C. J.,

dissents. This Court now sets aside a prior final conviction for a mere statutory violation, and not for any constitutional deficiency. In addition, relator does not make any contention that he was indigent and entitled to a free lawyer.

LEMMON, J., dissents for the reasons assigned by DIXON, C. J.


author: GROVER L. COVINGTON, Justice Ad Hoc.

text:
    STATE of Louisiana v. Jack D. TATE.
    No. 81-KA-0908.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Rehearing Denied Nov. 27, 1981.
    Lewis 0. Unglesby, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Glen Peterson, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-respondent.
   GROVER L. COVINGTON, Justice Ad Hoc.

Jack D. Tate was charged by bill of information with the offense of possession of a controlled dangerous substance, methamphetamine (“speed”), with intent to distribute, in violation of La.R.S. 40:967(C). The defendant moved to suppress for use as evidence the drugs seized pursuant to the search warrant. After a hearing, the motion to suppress was denied. The defendant applied for a writ of certiorari which was granted by this court, 400 So.2d 681, and assigned as error the lack of probable cause in the affidavit.

At the hearing on the defendant’s motion to suppress, the following facts were adduced. On February 15, 1980, Special Agent Jesse J. Jones, Jr., United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, executed a search warrant at 1846 MeQuaid Street, Village St. George subdivision, Baton Rouge, Louisiana. At that address the officers seized a quantity of methamphetamine and marijuana. The marijuana was found in both the front bedroom and a living-room closet. The methamphetamine was found in a Tupperware bowl and a clear plastic bag in the kitchen. The officers also found numerous firearms. The special agent had also prepared an affidavit in connection with the search warrant. The reasons and facts for the request for the issuance of the search warrant were listed in the affidavit as follows:

“Paragraph 1. Within the past seventy-two hours Special Agent Jones, hereafter referred to as affiant received information from a reliable confidential informant as stated in paragraphs 2 thru 5. This reliable confidential informant has been proven reliable in that the confidential informant has provided information in the past to affiant which has been investigated thoroughly by affiant and has been proven accurate on a minimum of ten occasions.
Paragraph 2. The confidential informant stated to affiant that subjects known by the confidential informant to be Jack Tate w/m and Jerry Tate w/m had stated in the presence of the confidential informant to other individuals that a white powder substance in view of all persons present and further within the aforedescribed residence, was ‘crystal’ and was ‘speed’. The confidential informant further stated that the white powder was enclosed into clear plastic bags. The affiant, being a trained investigator with ten years investigations experience, knows that the common slang verbiage for crystal methamphetamine, a white powder, is ‘crystal’ or ‘speed.’
Paragraph 3. The confidential informant stated to affiant that at the same time confidential informant observed a green vegetable substance within the aforedescribed residence and heard Jack Tate and Jerry Tate w/m to state that the green vegetable substance was marijuana.
Paragraph 4. The confidential informant further stated to affiant that the occupant or occupants observed [in the] aforedescribed residence were involved in the sales of marijuana and methamphetamine and knew this from personal knowledge.
Paragraph 5. The confidential informant further stated that the occupants, Jerry Tate and Jack Tate, were known by the confidential informant to carry firearms on their person from time to time, and that Jack Tate had been heard by the confidential informant to state that he would use force in resisting arrest.
Paragraph 6. Due to facts stated in paragraph 5 it is requested that ‘no-knock’ entry be granted to affiant upon execution of the search warrant.”

We are satisfied that the affidavit, taken as a whole, contains sufficient facts for a magistrate to reasonably determine that probable cause existed for issuance of the search warrant in the instant case. State v. Baker, 389 So.2d 1289 (La.1980). In State v. Boudreaux, 304 So.2d 343 (La.1974), this court recognized that an affidavit is adequate if a common-sense construction of the face of the affidavit tends to establish that the information contained therein was current and not stale. We conclude that the information contained in the affidavit was sufficiently recent so as to justify a finding of probable cause at the time of the issuance of the search warrant. See State v. Ogden, 391 So.2d 434 (La.1980).

In the instant case the affidavit was presented to the issuing magistrate on February 15,1980. The affiant, Jesse J. Jones, Jr., was a credible person, being a special agent of the United States Treasury, Bureau of Alcohol, Tobacco and Firearms. The affidavit described the residence of the defendant by municipal number and by physical description, being described as bearing East Baton Rouge Parish municipal address 1846 McQuaid Street, Village St. George subdivision, and described as a single-story brick house with a white shingle roof and black shutters, with a single carport on the east side of the house, and being the ninth house on the south side of McQuaid from the intersection of McQuaid and Honey Drive. Furthermore, the affidavit described the substances to be searched for as methamphetamine and marijuana (and also asked for permission to seize any documents pertaining to the distribution, packaging, sale and resale of methamphetamine and marijuana and/or their derivative by-products).

The special agent, the affiant, then established probable cause for the magistrate. First, the agent had received information from a confidential informant (C.I.) within three days (within the past 72 hours) prior to his signing of the affidavit on February 15, 1980. (The search issued thereon was executed the same day, about one hour after the issuance of the warrant.) The reliability of the C.I. was established in the affidavit by the statement that he had previously furnished information which had proven accurate on a minimum of ten occasions. The C.I. informed the affiant that methamphetamine (speed) and marijuana were currently being offered for sale at the subject residence and that the C.I. had personal knowledge of such sales. The affidavit clearly shows that reasonable cause existed to believe that an illegal activity was occurring on the subject premises at the time the warrant was sought. The language of the affidavit indicates that the affiant is describing a course of conduct continuing to the date of the warrant. See State v. Boudreaux, supra.

Thus, we find the assignment of error taken to the denial of the motion to suppress to be without merit.

DECREE

For the foregoing reasons, we affirm the judgment of the district court denying the defendant's motion to suppress, and the case is remanded to the district court for further proceedings in accordance with law.

AFFIRMED AND REMANDED.

       Judges Covington, Cole and Watkins of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon, and Associate Justices Marcus, Blanche and Lemmon.

      . This is a companion case to State v. Jack D. Tate, 407 So.2d 1133, in which the State has appealed the judgment of the district court granting the defendant’s motion to suppress the evidence pursuant to a search under a search warrant for a U-Store and Lock warehouse storage room, which search resulted in a charge of felony theft against the defendant. The cases have been consolidated for purposes of argument.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Jack TATE.
    No. 81-K-0878.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Glen Peterson, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-relator.
    Lewis 0. Unglesby, Baton Rouge, for defendant-respondent.
   MARCUS, Justice.

Jack D. Tate was charged by bill of information with theft of a motorcycle having a value of five hundred dollars or more in violation of La.R.S. M^. Prior to trial, defendant filed a motion to suppress certain physical evidence seized from a storage room maintained by him at U-Store and Lock. After a hearing, the trial judge sustained the motion to suppress. Upon the state’s application, we granted a writ under our supervisory jurisdiction to review the correctness of that ruling.

The state contends the trial judge erred in granting defendant’s motion to suppress physical evidence seized from the storage room pursuant to a search warrant. The state argues that the affidavit supporting the search warrant recited facts sufficient to establish probable cause for issuance of the warrant.

The search warrant was issued to search storage room number A-64 located at U-Store and Lock # 2, 9530 Dawnadale Street, Baton Rouge, Louisiana, for the purpose of seizing stolen property described as “micro-wave ovens, kitchen stoves, motorcycles and motorcycle parts.” The warrant was issued based upon facts recited in an affidavit by Special Agent Jesse J. Jones, Jr. of the United States Treasury, Bureau of Alcohol, Tobacco and Firearms. The affidavit was signed and the warrant was issued and executed on February 16, 1980. The property seized pursuant to execution of the warrant included an outboard motor, a motorcycle and various motorcycle parts. The affidavit generally recited the following facts to establish probable cause for issuance of the warrant:

(1) Within the past 72 hours, affiant received information from a reliable confidential informant who has proven reliable in the past by providing information to affiant which after being thoroughly investigated by him has proven accurate on a minimum of ten occasions. The informant advised affiant that a white male, known as Jack Tate and also known as Larry Johnson, maintained at U-Store and Lock, 9530 Daw-nadale Street, Baton Rouge, Louisiana, storage room A-64 which he used exclusively to secret stolen property, to-wit: microwave ovens, kitchen stoves, motorcycles, and motorcycle parts.

(2) On November 22, 1979, affiant observed Jack Tate to arrive at storage room number A-64 at the U-Store and Lock, 9530 Dawnadale, Baton Rouge, Louisiana. Tate and another individual arrived in a 1979 Ford pickup truck bearing Louisiana license number T565760. A Harley-Davidson motorcycle, chopper-type, was in the truck. Tate opened the door to the storage room and placed the motorcycle inside. Tate then read a number from the engine of the motorcycle, laughed and said that he now owned a “57.” He also said that he needed to change the serial number on the motorcycle. Motorcycle parts and an outboard motor were also observed in the storage room.

(3) On February 13, 1980, the affiant observed Jack Tate to travel to the U-Store and Lock, 9530 Dawnadale Street, Baton Rouge, Louisiana. Tate went into the office where he stayed for approximately five minutes. He then left the office, got in his truck and left.

(4) On February 15, 1980, a state search warrant was executed on the Jack Tate residence which is located at 1846 McQuaid Drive, East Baton Rouge Parish. Found subsequent to the search warrant were a number of receipts, including a receipt dated February 13, 1980, for the rent on locker number A-64, bearing the name Larry Johnson. Also included were receipts showing payments on A-64, U-Store and Lock # 2.

Constitutional provisions insure a person from unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S. Const. Amend. IV; La.Const. art. 1, § 5. Conformably, our Code of Criminal Procedure in article 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Mena, 399 So.2d 149 (La.1981). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Mena, supra.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court set forth, in a “two-pronged test,” the criteria which a magistrate must follow in determining if an affidavit based upon hearsay has established probable cause for the issuance of a search warrant: (1) the affiant must articulate the basis for his belief that the information is trustworthy, and (2) the affidavit must indicate the underlying circumstances from which the informant concluded that the objects were where he contended they would be. Hence, the reliability of both the informant and his information must be demonstrated in the affidavit. State v. Wichers, 392 So.2d 419 (La.1980). Later, the Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), made the criteria more flexible by allowing an informant’s tip which is inadequate under Aguilar standards to be corroborated by independent sources. These rules were adopted by this court in State v. Paciera, 290 So.2d 681, 685-86 (La.1974):

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

The affidavit in the instant case satisfies the first Aguilar standard. It states that the informant has proven reliable in the past by providing information to affiant which after being thoroughly investigated by him has proven accurate on a minimum of ten occasions. State v. Tate, 407 So.2d 1131 (La.1981); State v. Humble, 309 So.2d 138 (La.1975); see State v. White, 368 So.2d 1000 (La.1979).

In addition, an affidavit must satisfy the second Aguilar standard by demonstrating the reliability of the informant’s information.

In the instant case, the information supplied by the confidential informant, standing alone, fails to satisfy the second prong of the Aguilar test. The affidavit states that the informant told the affiant that Jack Tate maintained at U-Store and Lock, storage room A-64 which he used exclusively to conceal stolen property. It fails to indicate the underlying circumstances from which the informant reached this conclusion.

The finding that the informant’s tip, standing alone, fails to satisfy the second prong of the Aguilar test does not, however, end our inquiry into the sufficiency of the affidavit supporting the warrant. State v. Baker, 389 So.2d 1289 (La.1980). Affidavits must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Williams, 338 So.2d 1365 (La.1976). The magistrate is obligated to render a judgment based upon a commonsense reading of the entire affidavit. Thus, when an informant’s statement fails to meet Aguilar’s two-pronged test, the affidavit may nevertheless be sufficient if corroborating facts from police observation permit “the suspicion engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” Spinelli v. United States, supra; State v. Williams, supra. An informant’s tip can be significantly buttressed if either independent observations by the affiant corroborate sufficient details of the tip (whether suspicious or not) to negate the possibility that the informant fabricated his report, or independent observations by the affiant contribute to a showing of probable cause by revealing not merely normal patterns. of activity but activity that reasonably arouses suspicion. Gonzales v. Beto, 425 F.2d 963, 969 (5th Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970), cert. denied, Acosta v. Beto, 400 U.S. 1001, 91 S.Ct. 476, 27 L.Ed.2d 452 (1971).

In the instant case, the affiant had observed defendant place a motorcycle inside a particular storage room at which time he heard him say that he now owned a “57 and would have to change the serial number on it. Motorcycle parts were also observed in the storage room at that time. Some two and a half months later, the affiant received a report from a reliable confidential informant advising him that defendant was concealing stolen goods, including motorcycles and motorcycle parts, in the same storage room. At about the same time, the affiant observed defendant going into the office of the storage facility where he remained for about five minutes and then left. Two days later when executing a search warrant at defendant’s residence, a number of receipts, including one dated two days earlier, for the storage room were found. The next day, the search warrant was obtained and executed.

Clearly, the independent observations by the affiant contributed to a showing of probable cause and corroborated sufficient details of the informant’s tip to negate the possibility that the informant fabricated his report. The fact that two and a half months elapsed between the earlier observations of the affiant at the storage room and the issuance of the search warrant is of no significance. Staleness is an issue only where the passage of time makes it doubtful that the object sought in the warrant will be at the place where it was observed. From the independent observations made by the affiant, the continued rental of the storage room by defendant, and the nature of the objects involved, it was reasonable to infer that defendant was engaged in a course of conduct continuing to the date that the search warrant was issued.

We are satisfied that the affidavit, taken as a whole, contains sufficient facts for a magistrate to reasonably determine that probable cause existed for issuance of the search warrant in the instant case. Hence, the ruling which suppressed the evidence obtained in the execution of the warrant was in error.

DECREE

For the reasons assigned, we reverse the ruling of the trial judge which suppressed the evidence and remand the case to the district court for further proceedings not inconsistent with this opinion.

       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, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . This is a companion case to State v. Tate, 407 So.2d 1131 (La.1981). In that case, defendant was charged by information with possession of methamphetamine in violation of La.R.S. 40:967. Defendant’s motion to suppress evidence seized from his residence pursuant to a search warrant was denied by the trial judge. On defendant’s application, we granted a writ to review the correctness of that ruling. After review, we affirmed the ruling of the trial judge and remanded the case to the district court for further proceedings. The search warrant used in the instant case was based in part on rent receipts for the storage room found during the search of defendant’s residence pursuant to the search warrant at issue in the other case.

      . 400 So.2d 681 (La.1981).


author: DOUCET, Justice Ad Hoc . CALOGERO, Justice,

text:
    STATE of Louisiana v. Rickey WASHINGTON.
    No. 80-KA-1896.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., B. Woodrow Nesbitt, Jr., James McMicheal, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    J. David Garrett of Blanchard, Walker, O’Quin & Roberts, Paul M. Cooke of Simon, Fitzgerald, Cooke & Reed, Shreveport, for defendant-appellant.
   DOUCET, Justice Ad Hoc .

Defendant Rickey Washington was charged by grand jury indictment with first degree murder, a violation of La.R.S. 14:30. Trial commenced on October 8,1979, and on October 12, 1979, the jury returned a verdict of guilty of first degree murder. A penalty hearing was held and, after deliberation, the jury was unable to unanimously agree upon a sentence recommendation. In accordance with the provisions of Code of Criminal Procedure Article 905.8, the trial judge, on October 29, 1979, imposed a sentence of life imprisonment, without benefit of parole, probation or suspension of sentence. Following sentencing, defendant filed a “Motion to Determine Effect of Appeal” and sought a Writ of Certiorari to review the trial court’s denial of the motion. The Louisiana Supreme Court granted defendant’s application for certiorari and rendered its opinion on the issue on February 6,1980, holding that the state may not seek the death penalty on retrial of a capital offense in cases where the defendant received a life sentence in the first prosecution. State v. Washington, 380 So.2d 64 (La.1980). Defendant is now appealing his conviction.

STATEMENT OF FACT

In the early morning hours, at approximately 1:00 A.M., on February 1,1979, Grady Haynes, owner and live-in manager of the YQ Grocery, located on the Cooper Road area of Shreveport, Caddo Parish, Louisiana, was shot to death behind the counter of his store. He was shot one time in the back of the head with a .32 caliber hand gun.

The store had been constructed so that the area of Mr. Hayne’s cash register was enclosed in a chicken wire fence, which had a gate or door in it with a lock. The obvious purpose of this fenced enclosure was to keep the public away from the cash register and “behind the counter” area. The lock on this door was broken and the cash register drawer was open and various papers and receipts usually kept in the drawer were strewn on the floor in the area of the cash register. One of the papers, a receipt found on the floor beneath the register, bore the fingerprint of Ricky Washington, and also on the floor in this area was a package of KOOL cigarettes, which Defendant had said he was going to the store to get.

Ricky Washington was arrested, on February 1, 1979, and the Caddo Parish Grand Jury subsequently indicted Washington for the First Degree Murder of Grady Haynes.

When arrested, Washington gave the investigating officers a statement, denying any knowledge of or involvement in the incident. When confronted with the fingerprint evidence, he admitted having been present in the grocery store on the evening of the murder, but attempted to blame first one other person, then changed his story to blame someone else for the death. Washington never admitted any involvement in the crime.

Several days after the arrest, officers of the Shreveport Police Department went to Washington’s home, where he lived with his mother, and conducted a search for a weapon. Mrs. Dorothy Washington eventually produced a gun for the officers, which was subsequently examined and found to have been the murder weapon.

Numerous motions were filed by defense counsel and arguments heard on the motions.

A motion was filed for the appointment of a Sanity Commission, which motion was granted. After the report of the Sanity Commission was submitted, the Defendant was found to be capable of understanding the nature of the charges against him and able to help in the preparation of his defense.

A motion to suppress evidence was also filed and the trial court overruled the motion.

Motions for discovery were filed, and the trial court ruled partly in favor of Defendant. Of particular interest was a discovery request for the criminal records, “rap sheets,” of virtually all of the state’s witnesses. The state supplied one such rap sheet and the trial court subsequently denied Defendant’s request for the other rap sheets.

Washington was brought to trial on the charge of First Degree Murder on October 8, 1979. The jury unanimously convicted him of this charge but was unable to unanimously agree upon a sentence recommendation. In accordance with the provisions of Code of Criminal Procedure Article 905.8, the trial judge, on October 29, 1979, imposed a sentence of life imprisonment, without benefit of parole, probation, or suspension of sentence.

Defendant first filed a “Motion to Determine Effect of Appeal” which was denied by the trial court. On the Writ of Certiora-ri to this Court it was held that the State may not seek the death penalty on retrial of a capital offense in cases where the Defendant received a life sentence in the first prosecution. State v. Ricky Washington, 380 So.2d 64.

After trial there was a recantation of a statement made to the prosecutor by Frank Wells, the only eyewitness to the event. Defendant moved for a new trial and the motion was denied.

Defendant perfected his appeal of this conviction and cited twelve (12) assignments of error. For the purpose of this discussion, the numbers assigned to the errors by Defendant, while not chronological, shall be used.

ASSIGNMENT OF ERROR NUMBER 1:

Defense counsel urges that the trial court committed reversible error by denying Defendant’s Motion to Suppress Inculpatory Statements.

The original motion filed by defense counsel on June 6, 1979, was to suppress what defense considered to be inculpatory statements made by the Defendant on February 1, (2 statements), February 2 and February 3,1979, on the grounds that these statements were inadmissible into evidence because the statements were not freely and voluntarily given, and/or without the Defendant having been properly advised of his right to remain silent and to have counsel appointed, and/or without a sufficient understanding of his rights in order to make an intelligent waiver of those rights. A supplemental motion to suppress these statements added as reasons to suppress, that the statements were obtained through the exploitation of an illegal arrest, made without probable cause.

One of the arresting officers, Detective Foster, testified that he and Detective Pittman had gone to Washington’s home in response to a telephone call from the Defendant’s mother advising the officers that the Defendant was at home. When Washington came from the back of the house, Detective Foster testified that he advised Washington that he was under arrest, put handcuffs on him, put him in the car and took him to their office. Detective Foster did not recall giving Washington his Miranda warnings at that time, but testified that neither he nor Detective Pittman attempted to question the Defendant during the ride to their office. Both officers testified that Washington appeared to be intoxicated, but not so much so that he did not understand what was being said to him. Washington asked the officers what he was arrested for and they told him the murder of Grady Haynes, to which the Defendant replied that he had not seen Grady Haynes for a long time.

After arriving at the detective office, Washington was advised of his rights by Detectives Pittman and Eason, and Washington signed the rights card. Following the rights advisement, and in response to questions asked by Detective Eason, Defendant told the officers that the last time he had been in Haynes’ store was on January 26, 1979 and that he had never been behind the counter. Detective Eason testified that these responses were articulated in a conversational manner, not simply yes or no answers to questioning.

On February 2, 1979, according to the testimony of Detective Nichols and Nixon, the Defendant was again advised of his Miranda rights and Defendant again signed the Miranda card. Two statements were made, one at 7:25 A.M. and a second approximately an hour later. The first, brief statement denied all knowledge of the incident. Defendant advised Detective Nichols that he had counsel, a Mr. Weinstein, and said, in response to the question of whether he wanted Mr. Weinstein present, “No, sir, I want to tell you about it.” The Defendant then gave a narrative account of the happenings of the night of the killing. Washington told the police that three other people had gone into the store while he remained outside and that he had seen Timothy Johnson shoot Grady Haynes. Defendant said that he then went into the store, went behind the counter and took $20.00 from the cash register. The detectives had told Washington about the fingerprints before this narrative.

On February 3, 1979, Washington was again read his Miranda rights and again signed the card in the presence of Detectives Lindsey and Olds of the Shreveport Police Department, at about 8:30 A.M., on that date. Some questions were asked, but later in the day, at about 1:30 P.M. Detectives Lindsey and Olds were advised by the city jailer that Washington wished to speak to them again. The detectives went to the city jail and again read Washington his rights. After that, Washington discussed the case again with the detectives. This time Washington indicated that one Frank Wells was the person who shot Grady Haynes, with all other details much the same as the statement made on February 2, 1979.

At the Motion to Suppress these statements, Dr. Jay Pennington, a psychiatrist who had examined Ricky Washington for the purpose of the sanity hearing, testified about the mental capacity and intelligence of the Defendant, but his testimony was inconclusive as to the Defendant’s capacity to understand the Miranda warnings. Dr. Pennington testified that Defendant may not have understood the rights but that he could have understood them, although Dr. Pennington did finally testify that in his professional opinion Ricky Washington did not have the capacity to understand the meaning of the words of the Miranda warnings.

In any case where the voluntariness of a confession or inculpatory statement is at issue, the burden of proving the volun-tariness is on the state, and it must do so beyond a reasonable doubt. State v. Glover, 343 So.2d 118 (La.1977). Also, the State must prove that a Defendant’s mental defect did not vitiate the voluntary nature of such statements. State v. Coleman, 369 So.2d 1286 (La.1979).

The trial judge, after hearing extensive evidence, concluded that the Defendant’s statements were, beyond a reasonable doubt, given fully and voluntarily by the Defendant, after having been advised of his rights, which he understood, and that the waiver of those rights was intelligent; therefore, the statements could be admitted into evidence.

The trial court had the benefit of the testimony of the many police officers who advised Ricky Washington of his rights and then heard his statements. It also heard the testimony of the expert, Dr. Jay Pennington. The Court then ruled that Ricky Washington had voluntarily, willingly, and knowingly waived his right to remain silent.

The admissibility of inculpatory statements is in the first instance a question for the trial judge, and his conclusions on the credibility and weight of testimony relating the voluntariness of inculpatory statements will not be overturned unless they are not supported by the evidence. State v. Siegel, 366 So.2d 1358 (La.1978).

ASSIGNMENT OF ERROR NUMBER 2:

Defendant contends that the trial court committed reversible error in denying Defendant’s motion to suppress evidence (a gun) obtained during a search of Defendant’s house.

The hand gun was seized on February 6, 1979, five (5) days after the arrest of Defendant. The State does not contend that it had a valid search warrant, but relies on one of the exceptions to the search warrant requirement, that there was a valid consent of the search.

It is well settled in the jurisprudence of the United States and this State, that a search warrant is required unless one or more of the narrowly drawn exceptions to that requirement is present. A valid consent to search is just such an exception. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1979); State v. Mitchell, 360 So.2d 189 (La.1978).

In this case, Defendant’s mother, with whom he lived, did sign a consent form giving her consent to the search. Further, when the officers failed to find a weapon in their search, they asked Mrs. Washington if there was a weapon in the house. She replied in the affirmative. Mrs. Washington then went to a locked storage room and got the gun, which was enclosed in a plastic bag and gave it to the officers. Subsequent examination indicated that this gun was the one used to kill Grady Haynes.

While there is conflict in the testimony as to when the consent form was signed, it is uncontroverted that Mrs. Washington got the gun for the officers from its hiding place, after the officers had failed to find it themselves. This court does not encourage law enforcement officers to circumvent the warrant requirement, particularly in instances such as this where no valid reason existed for not obtaining a warrant, but holds that on the facts of this case, the trial judge, correctly found this search to have been freely and voluntarily consented to, based on that court’s consideration of the totality of all the circumstances. Schneck-loth, supra.

ASSIGNMENT OF ERROR NUMBER 3:

Defendant contends that the trial court erred in refusing to require the State to provide Defendant with records of arrests and convictions of State witnesses as requested by Defendant in his Motion for Discovery and Supplemental Motion for Discovery.

Defendant filed an omnibus discovery motion on April 23, 1979.

Defendant requests the Court to order the District Attorney to furnish to the Defendant records of arrests and convictions of all witnesses which the state intends to call to testify at trial. Defendant specifically pleads that a denial of this request would violate Defendant’s constitutional rights under Article 1, Section 2 of the Louisiana Constitution of 1974 and the Fourteenth Amendment to the United States Constitution.

Argument was had on this motion on July 9, 1979. The Court instructed Defendant to rephrase his discovery request as to Article 2:

THE COURT: Rather than ruling on it at this point, would you restrict your — I would direct you to rephrase your request for discovery, eliminating people from it who I really don’t believe that you want rap sheets on, or I certainly wouldn’t require the State to respond to, I don’t think, after the showing, of detectives, the coroner, people like that that you know you’re not looking for that kind of information on, anyway. If you will restrict your — rephrase your request, then we’ll see what the State responds and then we’ll give a ruling on it.

On July 13, 1979, Defendant filed a Supplemental Motion for Discovery, stating with particularity the persons whose rap sheets he was requesting, insofar as Defendant was able, the Court having previously denied his request for a list of the State’s witnesses:

Defendant requests the Court to order the District Attorney to furnish to the Defendant records of arrests and convictions of all witnesses, other than personnel from the Coroner’s office, law enforcement personnel, crime lab personnel and other similar witnesses testifying in their official capacity, the State intends to call to testify at trial, including, but not limited to the following particular witnesses: Frank Wells, Timmy Leroy Johnson, John Wayne Morgan, Felton Hall, James Morgan, Anthony Henry, Arnold Tillman, Elizabeth Duncan, Dorothy Washington, Elizabeth Jackson, Diane Dotie, Sarah Owens, and Charles Dotie. Defendant specifically requests that records of arrests and convictions be obtained from the FBI or other similar sources which provide records of arrests and convictions from other jurisdictions. Defendant specifically requests all records of arrests and convictions presently in the possession of the District Attorney and all which the District Attorney has a means to obtain, whether or not presently in his possession. Defendant further requests that the Court order District Attorney to file in these proceedings the reasons for his inability to obtain the requested records for any such witness.

On July 23, and 24 argument was heard on this motion, consolidated with other motions. The Court then ruled that the State was not required to furnish rap sheets.

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) is the leading case on the prosecutor’s duty to furnish exculpatory materials to Defendant upon request. This duty placed on the State has been expanded and delineated in later cases, and is firmly grounded upon the due process rights of the Defendant.

This court, in State v. Harvey, 358 So.2d 1224 (La.1978) found that the state must “respond to a specific request of the defense by stating whether the state had knowledge or possession of the conviction records” and if so then the prosecutor must furnish them to defense or submit them to the court for determination as to whether the defense was entitled to them.

The trial court requested a narrowing of the request for rap sheets, which was done by defense counsel. The court then asked for a memorandum on the issue from both counsel, which both submitted. The court had ample opportunity to study both the request by defense counsel and this court’s ruling in State v. Harvey, 358 So.2d 1224 (La.1978). It was ascertained by the court that the state did not have in its possession any rap sheets except the one furnished to the defense and further that the state had no knowledge of any other rap sheets.

In Harvey, supra, this court required a specific request for prior convictions be made and that the state respond to the specific request of Defendant by stating whether or not the State had knowledge or possession of the requested records. The trial court followed the rule promulgated in Harvey, supra; therefore Assignment of Error Number 3 is without merit.

ASSIGNMENT OF ERROR NUMBER 4:

Defendant contends that the trial court erred in denying his Motion for Mistrial made at the end of the first day of voir dire, after an improper reference attributable to the State to charges of other crimes pending against the Defendant.

During the first day a venireman asked for clarification of the charges facing Defendant:

A. Let me ask — there is something in my mind has confused me right now. Is this subject being tried on one thing or two things? Is it first degree murder and armed robbery or just first degree murder?
Q The only charge before the jury, insofar as guilt or innocence of a crime, is first degree murder.
A. The reason that I was asking, that deal out there on the door shows it is first degree murder and armed robbery.
Q. That is a listing of the Clerk’s office which may have nothing to do with any case.

The question was asked in the presence of the entire venire.

To have been grounds for a mistrial, the reference, in accordance with C.Cr.P. Article 770(2) would have needed to be concerning another crime as to which evidence would not have been admissible.

Upon motion of a Defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
******
(2) Another crime committed or alleged to have been committed by the Defendant as to which evidence is not admissible.

In this case, evidence of the armed robbery would have been admissible as part of the res gestae. This court has held, on many occasions, that evidence of multiple crimes committed in a single course of conduct is admissible as res gestae at the trial of the accused for the commission of one or more, but not all of the crimes committed in his course of conduct. State v. Owens, 338 So.2d 645 (La.); State v. Curry, 325 So.2d 598 (La.1976).

Assignment of Error Number 4 is without merit.

ASSIGNMENT OF ERROR NUMBER 5:

Defendant submits that the trial court erred in denying Defendant’s challenge for cause to prospective juror Robert J. Jones.

After Mr. Robert J. Jones had indicated on voir dire some question as to the presumption of innocence. The trial court questioned the venireman closely and that Mr. Jones could accept the law from the court and apply it. Mr. Jones was peremptorily challenged by the Defendant and did not serve on the jury. However, all peremptory challenges were exhausted by Defendant, and so this issue is properly reviewable by this Court. State v. Monroe, 366 So.2d 1345 (La.1978).

The trial court is vested with broad discretion in ruling on a challenge for cause. This ruling will not be disturbed on appeal absent a showing of abuse of that discretion. Monroe, supra. There is no showing of abuse of that discretion and so Assignment of Error Number 5 is without merit.

ASSIGNMENT OF ERROR NUMBER 6:

Defendant submits that the .trial court erred in denying his motion for mistrial made during the testimony of the deputy coroner upon learning that the State failed to disclose medical reports requested by the Defendant in a pre-trial motion for discovery.

In response to the Defendant’s Motion for Discovery the state filed a one (1) page report of the Coroner. It failed, through oversight, to attach three (3) pages of the “medical notes” to the report. Defense counsel noticed the three (3) pages of the medical notes on the District Attorney’s desk during trial, and made a Motion for Mistrial based on the state’s failure to produce these notes in discovery. The trial judge gave defense counsel a recess from approximately 5:45 P.M. until 9:00 A.M. the following morning to study the medical notes, and counsel was clearly told if he could give reasons why more time was needed, such would be granted.

In his ruling on defense counsel’s Motion for Mistrial, the trial judge noted that he had offered defense counsel additional time to consult with medical experts of his own choosing; the medical notes in contention were given to defense counsel immediately following his Motion for Mistrial; and defense counsel did consult with the coroner who prepared the notes.

It is acknowledged by defense counsel that the trial judge’s offer of a continuance was one of the options available to him under La.C.Cr.P. Article 729.5, which provides the statutory sanctions for failure to comply with discovery. However, counsel states that such an offer is of little use in view of the fact that it was made at the close of the third day and beginning of the fourth day of trial. He claims he was forced to either proceed without further preparation, or to risk the prejudicial effect that an extended continuance would “certainly” have on a sequestered jury. Thus, counsel argues, he was required to cross examine an essential state witness without the preparation he was entitled to by law.

After reviewing that section of the record pertinent to this issue, it appears the failure by the State to include the medical notes with the coroners reports was a good faith omission. Defense counsel did not allege at trial, nor does he articulate in brief any reasons why Defendant was prejudiced by this good faith omission. It does not appear that Defendant was, in fact, prejudiced in any way.

For the reasons assigned above, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 7:

Defendant argues that the trial court erred in allowing, over Defendant’s objection, prejudicial hearsay testimony into evidence during the testimony of State witness, Arnold Tillman, Jr.

The Defendant contends that Mr. Tillman’s testimony concerning the events of the evening of January 31, 1979 was hearsay. The following exchange took place at trial.

Q. Why did you happen to be in the area of this store around 9:00 P.M., on this particular night?
A. I was coming to the 0 & J Grocery.
Q. 0 & J?
A. Yes, sir.
Q. Where is that located?
A. Right across the street from the Y.Q. Grocery.
♦ * # * * *
Q. Mr. Tillman, what did you see the Defendant doing when you saw him there at that time?
A. When I seen him he was out — I seen him telling him to leave the place, the premises.
Q. You saw who. telling who?
A. Grady Haynes telling Ricky Washington to—
MR. GARRETT: (Interrupting) Your Honor, I object to hearsay. Apparently he is stating that he overheard something.
THE COURT: Any response?
MR. NESBITT: Yes, sir, I do have a response. I think considering the time limitations we are dealing with that it should be admissible at this time. I have other response I would prefer not to make in the jury’s presence out of all caution.
THE COURT: Is the statement offered for the truth of the statement or for the fact of an utterance?
MR. NESBITT: No, sir, for the fact of the utterance.
THE COURT: All right. I am going to overrule the objection. And I state to the jurors that the statement is being allowed, even though it is an exception, even though it is hearsay — that is a statement of someone else — for the truth of what was said, but simply that an utterance was made. And you are to attach to it no other significance.
MR. NESBITT: Thank you,'sir,
BY MR. NESBITT:
Q. Mr. Tillman, if I could ask you whatever the conversation was between Mr. Haynes and Mr. Washington that directed your attention to the Y.Q. Grocery?
A. Yes, sir.
Q. What did you see Mr. Haynes do?
A. Just — he was asking him out the door. I didn’t see no licks or nothing passed.
Q. Now, Mr. Haynes was asking who out?
A. Ricky Washington.
Q. All right. And about what time was this?
A. About nine.
MR. NESBITT: Thank you, sir. That is all.

The witness at no time repeated any words exchanged between the victim and the Defendant, but if he had, the repeated conversation would have been admissible so long as it was admitted only for the purpose of showing that a statement was made. A witness can, of course, testify to what he observed.

Further, the res gestae exception allows the admission of testimony concerning utterances made before, during, or after a crime.

Thus, Assignment of Error Number 7 is without merit.

ASSIGNMENT OF ERROR NUMBER 12:

The trial court erred in refusing to charge the jury with defendant’s “Requested Special Charge No. 2.”

Defense counsel requested the following special charge be given to the jurors:

The testimony of an accomplice or co-conspirator must be weighed with great care and be scrutinized closely, carefully and cautiously. This testimony which is subject to great suspicion, must be viewed with distrust and acted on only after due and careful deliberation.

The trial court declined to give this charge because: (1) the trial court was of the opinion the charge did not accurately state the law and, (2) the trial court was of the opinion the charge constituted a comment on the evidence.

Defense counsel contends that the trial court should instruct the jury to treat accomplice testimony with great caution when the state’s case relies on the uncorroborated testimony of a purported accomplice. Defense counsel concedes that if there is corroboration of the accomplice’s testimony, such an instruction is not required. State v. Murray, 375 So.2d 80 (La.1979).

The state presented evidence that Defendant’s fingerprint was found on a receipt which was found directly below the cash register on the floor, which receipt was normally kept in the cash register; that the accomplice heard the Defendant order a package of “Kool” cigarettes and that detectives found a package of Kool cigarettes on the floor near the victim. In addition, the gun which experts testified had fired the fatal shot was found at the home of the Defendant.

The charge as given to the jury was in pertinent part as follows:

It is your duty to determine the weight and credibility of the evidence. You may take into consideration the probability or improbability of the statements of the witnesses, their opportunity for knowledge of the facts to which they testify, their reliability in noting and remembering facts, their demeanor on the stand, the interest or lack of interest they may have shown in the case, and every circumstance surrounding the giving of their testimony which may aid you in weighing their statement.
If you believe that any witness in this case has willfully and deliberately testified falsely to any material fact for the purpose of deceiving you, then you are justified in disregarding the entire testimony of such witness as proving nothing and as not worthy of belief. You have the right to accept as true or reject as false’the testimony of any witness in whole or in part as you are impressed with his veracity.

We find that the charge given the jury on the credibility of the witness was adequate to convey to the jury the necessity of treating the accomplice’s testimony with caution. Since there was a great deal of evidence corroborating the witness’ allegations, it was not necessary for the court to instruct the jury to use “great caution” in considering his testimony.

ASSIGNMENT OF ERROR NUMBER 13:

Defense counsel contends that the trial court erred in denying Defendant’s Motion to Continue Hearing on Defendant’s Motion for a New Trial.

Defendant, prior to the commencement of the hearing on the Motion for New Trial, made an oral motion to continue the hearing due to the absence of an essential witness, Frank Wells, Jr. Wells was one of the key witnesses for the state at the Defendant’s trial. It was Wells’ alleged recantation of his trial testimony that caused the Defendant to seek a new trial. Wells, however, did not appear at the hearing on the motion. Defense counsel did not discover until the time of the hearing that the Sheriff had been unsuccessful in serving Wells with the subpoena.

Although La.C.Cr.P. Article 707 provides for a Motion for Continuance to be in writing, this Court has held that where the occurrences that allegedly made the continuance necessary arose unexpectedly, and defense had no opportunity to prepare a written motion, then the trial judge’s denial of Defendant’s Motion for a Continuance was properly before this Court for review. State v. Parsley, 369 So.2d 1292 (La.1979). The circumstances of this case fall within the exception to the rule that a Motion for Continuance must be in writing, as in Parsley, supra. Therefore, the trial court’s ruling herein is properly before this court for review.

The Code of Criminal Procedure, Article 709 provides:

A Motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

Sub-paragraph (1) has been satisfied by Defendant. Attached to the Motion for New Trial was an affidavit of Frank Wells, Jr., disavowing his eyewitness account of the murder “as untrue and made only under the immediate threat of prosecution for events I held no responsibility for or to.”

A review of the testimony of Frank Wells, Jr., given at trial clearly demonstrates that his account of the events of the night of the offense was essential to the state’s efforts to prove Defendant guilty of First Degree Murder.

It does not appear that defense counsel satisfied Sub-paragraph (2) of Article 709. At the hearing, there was no showing of a probability that the witness would be available at the time to which the trial was deferred. The hearing on the Motion for New Trial had already been continued two or three times previously, due to the inability of the Sheriff to locate Wells and serve him with a subpoena. Defense attorney had apparently not uncovered any new information concerning Wells’ whereabouts since the last continuance was granted. Counsel did not come forth with any new information which would lead the court to believe he would be any more successful in locating Wells if the continuance was granted. In fact, defense counsel buttresses his argument for Assignment of Error Number 14 with the likelihood that Wells will not be available in the future.

From the limited information available in the record, it seems probable counsel for defense did satisfy the requirement of Article 709(3) that "due diligence be used in an effort to procure attendance of the witness.”

However, the decision to grant a continuance is placed in the discretion of the trial court and will not be distured absent an abuse of discretion. State v. Gordy, 380 So.2d 1347 (La.1980); State v. English, 367 So.2d 815 (La.1979).

Although sections (1) and (3) of Article 709 seem to have been satisfied, there still were no facts alleged in the motion, or produced at the hearing on the motion, showing a probability that the witness would be available to testify at some later date. Under these circumstances, it was not an abuse of discretion for the trial court to deny a motion for continuance. State v. Gordy, 380 So.2d 1347, 1354 (La.1980).

ASSIGNMENT OF ERROR NUMBER 14:

Defense counsel urges that the trial court erred in denying Defendant’s Motion for New Trial.

The basis of the Motion for New Trial was a statement made by Frank Wells, Jr., a key witness for the state, which Defense counsel urges is a recantation of Wells’ trial testimony. The text of the statement is as follows:

I Frank Wells do freely admit and attest that under the incomprehension, coercion, inducements, and/or threats, however, subtle or blatant; I did provide the Cad-do Parish District Attorney’s Office with inaccurate and incorrect information; concerning the shooting of one Grady Haynes on or about August 17, 1978; in or around the Cooper Road district, Shreveport, Louisiana. While my original statement made accusations against Ricky Washington, who was later convicted of the above mentioned shooting as First Degree Murder; I now retract and disavow my supposed eye-witness account, as untrue and made only under the immediate threat of prosecution for events I held no responsibility for or to. Having taken what I then considered the line of defense, which seemed in my best interest, but is now a far greater burden than I could then have imagined; I sincerely wish to unburden myself and the unjust and illegal sentence imposed upon Ricky Washington, as a result of my wrongful statement.
Signed: Frank Jr. Wells_
Frank Wells
SWORN TO AND SUBSCRIBED TO this August 6, 1980, at Caddo Correctional Institute, Keithville, La., before me, Notary Public, in and for the Parish of Cad-do.
Signed: Dennis E. McCray Signed: Notary Public s/ Georg G. Ester s/ Anthony Williams s/ Edward Tady s/ Sammy Ray

The trial court admitted the statement into evidence, but stated that no great weight would be given the statement, and that it was considered merely a recanting of a statement given to the District Attorney before trial, not of Wells’ trial testimony.

For Wells’ out-of-court statement to be admissible as an exception to the hearsay rule, two requirements must be satisfied:

(1) the declarant must be unavailable, and
(2) the statement must be against the declarant’s penal interest.
State v. Gilmore, 332 So.2d 789 (La.1976); and State v. Hudson, 361 So.2d 858 (La.1978)

It would appear the first requirement was satisfied in this case. In denying Defendant’s motion for continuance, the trial court ruled that the whereabouts of Frank Wells, Jr., was not known and there was no indication that he could be located in the future. However, the second requirement was not met. Wells did not implicate himself in the statement. In fact, he denies any responsibility for the crime.

Therefore, Wells’ out-of-court “recantation” was not admissible as grounds for a new trial.

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

AFFIRMED.

DIXON, C. J., concurs.

CALOGERO, J., concurs and assigns reasons.

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

CALOGERO, Justice,

concurring.

Because I believe that none of the assignments of error have merit, I concur in affirming defendant’s conviction and sentence. However, I am not satisfied that the majority’s treatment of Assignment of Error Number Three is wholly correct.

I do not agree with the statement, or implication, that due process requirements espoused in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) are not offended when, in response to a discovery motion by the defense, the state may simply disclaim any knowledge of rap sheets of key witnesses. Under such circumstances in my view, Brady would require that the state make an affirmative effort to obtain the requested materials on essential witnesses, if they are otherwise inaccessible to the defense.

Because of the broad and general nature of the discovery requests in this case (the defense sought rap sheets on thirteen state witnesses) and because the defense did not attempt to impeach the state’s witness whose rap sheet is the focus of our present attention (Frank Wells) by asking him about prior convictions, I am not prepared to hold that the trial court’s refusal to require the state to provide the defense, with Frank Wells’ rap sheet constitutes reversible error.

       Judges Thomas J. Kliebert and Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Justices Calogero, Dennis and Watson.