author: GARRISON, Justice ad hoc.

text:
    STATE of Louisiana v. Martin J. NICHOLAS and Lindy Roland.
    No. 80KA2346.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns and Thomas Chester, Asst. Dist. Attys., for plaintiff-appellee.
    Jasper N. Pharr, Michael Gallagher, Supervising Atty., New Orleans, Marilyn Cohen, Student Practitioner, Loyola Law School Clinic, for defendants-appellants.
   GARRISON, Justice ad hoc.

In the early morning hours of October 12, 1978, New Orleans police officers were conducting a surveillance from J.D.’s Bar on Canal Boulevard. This stakeout had been established in response to a series of armed robberies on similar establishments in the area. As a result of the stakeout, the two defendants were apprehended. The apprehension was the result of the police officers’ observation of two vehicles — one a brown car and the other a white car — repeatedly passing in front of the barroom which was serving as their observation post.

When the defendants were arrested, in the white car, they were in possession of a pistol, cash, jewelry' and other evidence which was introduced at trial to prove that the defendants had robbed another bar, the Privateer Lounge, three days earlier. When the arrest was made of the two subjects (one Cleveland Tate and one John Wricks) in the brown car, which the white car had been following they had in their possession a sawed-off shotgun and pistol. In both instances the described evidence was readily perceivable from outside the car.

At the robbery of the Privateer Lounge, witnesses testified, three men had burst into the bar brandishing weapons, including a sawed-off shotgun, and robbed the cash register, the bartender and five customers. Although the robbers wore red bandanas some of the victims positively identified the defendants both at pre-trial line-up and at the trial.

The defendants, Martin J. Nicholas and Lindy E. Roland, were charged by Bill of Information with five counts of armed robbery, violations of La. R.S. 14I64. Defendants were tried jointly on four counts before a jury of twelve. The jury found Nicholas guilty of attempted armed robbery on all four counts and Roland guilty as charged on all counts. Roland was sentenced to 35 years on each count and Nicholas 30 years on each count. Their sentences were to run concurrently.

I

THE ARREST OF THE DEFENDANTS

One of the principal issues of this case concerns the motion to suppress evidence which was filed by defendants. At the hearing on the motion to suppress, the following facts were brought forth. Officer Difrisco testified that he had partial descriptions of the suspects prior to the observation of the two automobiles from the stakeout. He further testified that they were believed to be using a large, late model brown car.

Before arriving at J.D.’s Bar, Officer Difrisco had interviewed the bartender of the lounge next door, Smokey’s, an establishment which, it was testified, had also been robbed by the suspects a few days before. While in J.D.’s Bar, Detective Rice received a telephone call from the bartender at Smokey’s telling him that the men who had robbed Smokey’s had just passed. Before and as he spoke on the phone the detective observed a large brown car pass by the bar three times and, after the call, a fourth time. The witness stated that the vehicle was traveling very slowly and that there was no other traffic except for a large white car which appeared to be following the brown one closely, turning as it did, and it too was passing back and forth in front of the barroom with precisely equal regularity. The police officers promptly left J.D.’s and entered their respective unmarked vehicles. As Officer Difrisco headed toward his vehicle he passed Smokey’s and, as he did, the bartender of that bar told him that “the white car is with the brown car.” The police in their two unmarked units followed the brown and white cars. When the brown car went one way and the white another, one police vehicle followed each.

Officer Difrisco, who followed the white vehicle, testified that he trailed the car for a few blocks and radioed for a marked unit nearby to block the road ahead. The white vehicle, which was said not to have been speeding nor committing any other traffic violation, was then stopped and the occupants, the defendants, were ordered out of the car. Officer Difrisco then testified as follows:

“I asked them to get out of the car, keep their hands where I could see them. I was standing in front of my car in the middle of the street with the blue and white police car of them, (sic) And they got out of the car, put their hands on the top of the car.”

When the examination continued, Officer Difrisco stated:

“I patted the subjects down and I was standing on the side of Martin, which was on the passenger side door. And I observed the pistol and red bandana laying on the floor board of the car. I verbally advised the subjects of their rights and of their rights to counsel, that they didn’t have to tell me anything. I advised that they were suspects in an armed robbery.”

However, upon later cross-examination by defense counsel the witness gave a version of the arrest with some slight variation:

Q. “Okay. When you looked in there and saw a bandana and the gun, then that’s when you advised them of their rights?
A. “I advised them of their rights after I patted them down.
Q. “You advised them of their rights after you patted them down that they were suspects?
A. “Right.
Q. “Okay. Then you went and looked in the car, is that correct?
A. “I looked in the car from where I was standing.
Q. “You looked in the car?
A. “Right.
Q. “You saw the gun on the floor and the bandana?
A. “Yes sir.
Q. “Alright. Then you looked on the seat and saw a coat with some money in it, is that correct?
A. “From the passenger side I could only see a coat and a hat. I walked over to the neutral ground and when I looked in the car from that side, I could see money sticking out of the pocket of the jacket. When I walked to the driver’s side from the passenger side which was the neutral ground side of the street.
Q. “When did you notify them that they were under arrest for armed robbery?
A. “When I recovered the property that was described as being taken from a robbery.”

This version of the facts indicates that the defendants were arrested when their vehicle was stopped and they were ordered to get out. The officer’s later clarification of the arrest here at the suppression hearing is also more consistent with the testimony he gave at the trial wherein he described stopping of the vehicle, ordering the defendants out, making them assume the positions with their hands on the car, and then his viewing the evidence.

The brown car was also stopped, but by Detective Rice, who testified that as he exited his vehicle to apprehend the occupants who had stopped at a traffic sign, a passenger bolted and ran but was apprehended after a chase on foot. The driver of the car also was arrested and from the front seat of that vehicle a pistol, sawed-off shotgun, and other evidence was seized.

II

PROBABLE CAUSE

The arrests in this case were made without benefit of the issuance of an arrest warrant. Consequently, inasmuch as restraint on liberty is clearly involved and inasmuch as it appears that the defendants, once having been stopped and ordered from their car, were not free to leave, the initial point of inquiry in considering the legality of the consequent seizure of evidence is the determination as to whether there existed probable cause to arrest the defendant. In State v. Thomas, 349 So.2d 270, 272 (La.1977), this court set forth the principles applicable to an arrest without benefit of warrant:

“A warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on probable cause. State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976); State v. Scott, 320 So.2d 538 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975); State v. Odom, 292 So.2d 189 (La.1974). Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Marks, 337 So.2d 1177 (La.1976); State v. Randolph, 337 So.2d 498 (La.1976); State v. Gilmore, 323 So.2d 459 (La.1975); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). While the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest. State v. Ranker, supra; State v. Randolph, supra.

The arresting officers in this case were in possession of the following facts: (1) armed robberies had taken place earlier at other bars in the area (including one a few days before); (2) a general description of the suspects and a vehicle used in one of the robberies, the vehicle being described as a large brown car; (3) a statement by an earlier victim (the bartender of Smokey’s) that the perpetrators of the earlier robbery were passing in front of J.D.’s Bar; (4) their own observation that the brown car was closely followed by the defendants’ white car, had driven by the bar slowly several times at 2:00 a. m. in an area otherwise without traffic and (5) the statement of the earlier victim that the white car “was with” the brown one.

With regard to the arrest made of the defendants in the white car, Officer Difrisco’s knowledge of these facts and circumstances appears to satisfy a basic standard for probable cause.

True, the white car had not been described in any statement of any witnesses prior to its being observed when it began its own cruise back and forth in front of J.D.’s. However, the officers had observed the consistent manner in which the defendants’ white vehicle shadowed the brown one, following it, driving slowly, turning when the brown car turned and passing the bar four times at 2:00 a. m. This pattern, most suspicious to say the least and hardly harmonious with innocent pursuits, amounted to a degree of consistency which established a relationship on the part of the white car to the brown car, concerning which the stake-out officers had a description at the outset. An especially compelling factor, further supporting the existence of probable cause, was Officer Difrisco’s knowledge that other robberies had been committed. As discussed in State v. Collins, 378 So.2d 928 (La.1979):

“One of the most important elements in determining whether probable cause existed is satisfied when the police know a crime has actually been committed. When a crime has been committed and the police know it, they only have to determine whether there is reasonably trustworthy information to justify a man of ordinary caution in believing the person to be arrested has committed the crime. In many cases the police do not know that a crime has been committed. When the arrest or search is made when the police do not know that a crime has been committed, more and better evidence is needed to prove that probable cause exists for the arrest than is the case when the police know a crime has been committed. State v. Johnson, supra.” 378 So.2d at 930.

Furthermore, the owner of Smokey’s had not confined his report to the passing brown car but had indicated generally to Difrisco that the suspects were in the process of driving by again.

Given the officer’s awareness of the earlier crimes, his observations and the statements made to him, as a man of average caution he was justified in believing that those arrested had committed an offense. In any case, the requisite probable cause to suspect the defendants of an armed robbery clearly formed when Officer Difrisco peered into their car and saw the fruits and instrumentalities of the offense.

Similar to the foregoing would be an analysis applicable to the halting of the brown vehicle, and to the evidence seized from it which was used against the defendants. However, that was the vehicle actually described to the policy by witnesses to the earlier armed robbery. Furthermore, before the occupants of the brown vehicle were arrested one of them sought to flee. While it is true that an individual’s apparent flight does not indicate guilt in and of itself, it is a factor to be considered in ascertaining the existence of probable cause. State v. Franklin, 353 So.2d 1315 (La.1978).

In any event, as with the stop of the white vehicle, the officers clearly had reasonable suspicion to detain the brown car. And in both instances, once the evidence inside came into view, that suspicion flowered into probable cause.

Nevertheless, the question of whether probable cause existed to arrest having been answered affirmatively, the question remains as to whether the warrantless search of the vehicles was permissible.

The search and seizure of the evidence from both cars was made without a warrant as required by the Fourth Amendment to the United States Constitution and the Louisiana Constitution, Art. 1, Section 5 (1974). A search conducted without a warrant is per se unreasonable unless it falls within one of the specific exceptions to the warrant requirements. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Packard, 389 So.2d 56 (La.1980). In a case such as this the burden is on the State to show that a search is justified by some exception to the warrant requirement. State v. Pomes, 376 So.2d 133 (La.1979); State v. Franklin, 353 So.2d 1315 (La.1977).

In that regard it is apparent that the plain view doctrine is applicable. In State v. Edsall, 385 So.2d 207 (La.1980), it was held:

“In order for the ‘plain-view’ doctrine to be applicable there must have been a prior justification for an intrusion into a protected area, in the course of which evidence was discovered inadvertently, or an officer must have inadvertently observed evidence of a crime from a vantage point without intrusion upon a protected area, and it must have been immediately apparent without close inspection that the items were evidence or contraband. When an officer observes evidence of a crime before entering a protected area, he may not seize the evidence without first obtaining a warrant, absent exigent circumstances or another exception to the warrant requirement. State v. Brown, 370 So.2d 525 (La.1979); State v. Parker, 355 So.2d 900 (La.1978).”

The record of the hearing on the motion to suppress reveals that Officer Difrisco saw the .25 caliber pistol and other evidence upon the seizure of the vehicle. The seizure thus appears to have been inadvertent and the evidentiary character of those items seized immediately obvious. Additionally, as indicated earlier, the probable cause to arrest the occupants for the apparent commission of armed robbery also would give the officer probable cause to search the vehicle for the fruits and instru-mentalities of the crime. Furthermore, Officer Difrisco’s entry appears justified by exigent circumstances. Exigency here may be found in the fact that the vehicle could have been moved or the evidence lost or destroyed. The officer’s search was reasonable under those circumstances.

The search here may also be justified as one incident to a lawful arrest, another exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This justification for a warrantless search of a person arrested for a crime is within the conceptual scope of removing any weapons from within the possible reach of the arrested person. Chimel, supra; State v. Blanchard, 374 So.2d 1248 (La.1979).

The foregoing analysis, as applied to the white car, would be applicable to the search of the brown vehicle in view of Detective Rice’s testimony that the evidence seized was in plain view on the seat of the vehicle and under circumstances indicating that at least one of the occúpants remained near the vehicle with its interior under his immediate control.

In resolving the basic question concerning the existence of probable cause, it should be noted that such a determination is, in the first instance, a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). His conclusion here that probable cause was present is entitled to great weight by this court.

It is the conclusion of this court that the officers had probable cause to arrest and that the consequent search of the vehicles was justified, as indicated, by exceptions to the warrant requirement.

Ill

MOTION TO SUPPRESS IDENTIFICATION BECAUSE OF THE POLICE LINE-UP

Here the defendant argues that the trial court committed error in denying his motion to suppress identification. The argument is made that the line-up to which he was subjected on October 20, 1978 was “suggestive and prejudicial”. At the defendant’s trial, evidence of this line-up was presented.

At the hearing on the motion to suppress the State presented the testimony of Police Detective Ronald Richards, who conducted the line-up which defendant finds objectionable. The officer testified that the two defendants were placed in the line-up with seven prisoners from the House of Detention, who apparently had been selected on the basis of their resembling both of the accused. All of the line-up participants wore House of Detention jumpsuits and had numbers around their necks. The witness stated that the defendants did not have an attorney present but that he had contacted the indigent defender’s office, informed them of the line-up and after waiting an hour, proceeded to conduct the investigation.

At the police line-up four victims of the armed robbery at the Privateer Lounge were brought to see it. They were instructed to be seated away from each other and not to talk to nor to signal anyone. Then the line-up of the nine men was brought onto a stage in the police department viewing room. Each participant, individually, was instructed to walk and was positioned at various angles in order to afford the victims a full view. Following the line-up the victims, who had remained separated, were individually interviewed. Four of the witnesses positively identified defendant Nicholas and two positively identified defendant Roland. One witness made a tentative identification of Nicholas and also of a third participant.

Detective Richards testified that it was neither indicated nor suggested in any way to any of the victims whom they should identify. ■ Each of the four victims was called at the hearing on the motion and testified that their decisions were made entirely of their own free will, that they followed police instructions to sit apart and remain silent and that no one influenced their decisions.

With regard to the question of suggestiveness, State v. Robinson, 386 So.2d 1374, 1377 (La.1980) held that:

“A line-up is unduly suggestive if the identification procedure displays the defendant so that the witness’ attention is focused on the defendant. For example distinguishing marks on the photographs may single out defendant. State v. Guillot, 353 So.2d 1005 (La.1977). A line-up can also be suggestive if a sufficient resemblance of physical characteristics and features of persons in the line-up does not exist to reasonably test the identification. State v. Guillot, supra; State v. Gray, 351 So.2d 448 (La.1977); State v. Anthony, 347 So.2d 483 (La.1977). Even if an identification procedure is suggestive, it will not result in reversal of a conviction if it is demonstrated that the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, supra.

A photograph of the line-up in the instant case (State’s Exhibit 10) is provided in the record. A review of the nine subjects photographed in the line-up offers no support whatsoever for the defendant’s allegation of suggestiveness. Neither defendant stands out from the other seven men. There appears to have been an adequate matching of basic physical appearance. In any case, as indicated above, even if the identification procedure used here is determined to have been suggestive, that alone would not render the identification inadmissible nor result in reversal. State v. Davis, 385 So.2d 193 (La.1980).

Due process is violated by the substantial likelihood of misidentification, not merely suggestiveness. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Even if suggestive, the identification is admissible if the totality of the circumstances demonstrate that the identification was reliable. State v. Guillot, supra.

With regard to the reliability of an identification the factors to be considered include:

“. .. the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.”

Manson v. Brathwaite, supra; State v. Guillot, supra.

In the instant case the trial judge limited inquiry at the hearing to suggestiveness. Nevertheless, applicability of the above standards of reliability to the facts at hand is possible. In spite of the limitation, the record of the hearing does indicate that the victims were able to view the defendants for several minutes, although they were offered only a limited view because of partial masks worn by the armed robbers during the holdup.

More light is shed on what the victims saw by an examination of the record of the trial itself. One of the victims, Arthur Simmons, made a positive identification of both defendants at the line-up and at the trial. This witness testified that despite the bandanas around the armed robbers’ lower faces, he had a full opportunity to view the defendants in the well-lit bar as they held up each of the six patrons. He testified, furthermore, that the robbers stayed in the bar for five to ten minutés. Similar accounts of the original incident and the chance they had to view the armed robbers were given at the trial by the other three victims who participated in the identification.

Consequently, applying the Manson reliability standards, it is apparent that the victims at the bar had from five to ten minutes to view the defendants in a well lighted room at very close range. Furthermore, these were victims, caught in a dangerous situation and confronted by men capable of killing them instantaneously, and not merely passersby nor mere observers. These individuals, who undoubtedly were filled with a high degree of attention at the time, were positive in their identifications (with the exception of one tentative identification of Ms. Alderman) and the firmness of their identification.

Considering the totality of the circumstances dealing with the reliability of the victims’ identification and the line-up in the instant case, it certainly does not appear that there existed any substantial likelihood of misidentification. Consequently, even if it should be determined from viewing the photograph that the line-up was suggestive (in point of fact, the photograph actually underscored the fact that the line-up was far from suggestive), the introduction of this out-of-court identification does not appear to have violated due process and the trial court does not appear to have erred in denying the motion to suppress the identification.

Thus, as indicated at the outset of this portion of this opinion, it should be quite apparent that this particular objection by the defense was utterly groundless. To say that this claim of error lacks merit is a pronounced understatement.

IV

THE CLAIM OF ERROR DURING THE VOIR DIRE

The defendant contends that the trial court committed error in his refusal to allow prospective jurors to be questioned as to the verdicts of juries on which they previously served.

During voir dire of a prospective juror, defense counsel asked her “[wjhat was the verdict” in the second degree murder case in which she had been a juror earlier in the month. The State objected and the trial judge sustained the objection. Defendant asserts that this was the erroneous ruling by which he was prejudiced.

In State v. Holmes, 347 So.2d 221, 223 (La.1977) this court, in overruling prior jurisprudence, held that

“. .. it is permissible for defendant to ask prospective jurors during voir dire questions such as: (1). Have you ever served on a criminal jury before? (2) What was the charge in that case? (3) What was the verdict in the case?, etc.”

In light of this decision, the trial court’s restriction here appears to have been error. However, as set forth in State v. Vinet, 352 So.2d 684, 687 (La.1977):

“Undoubtedly the defense is entitled to wide latitude in examining prospective jurors. This right is, however, to be exercised within the discretion of the trial judge who determines the scope of the examination under the prevailing facts and circumstances. La.Code Crim.Pro. art. 786. And when the question arises whether voir dire examination has been unduly restricted, the disallowance of a proper question is not automatically reversible. In evaluating the fairness of the ruling the entire examination must be considered. State v. Monroe, 329 So.2d 193 (La.1976); State v. Jones, 315 So.2d 650 (1975). (Emphasis supplied)

In the instant case the record does not provide the entire voir dire of this nor any other juror. Only the questioning that was subject to the objection is provided in the record. Lacking a full record of voir dire, a determination of the nature and seriousness of the trial judge’s error in restricting the defendant’s examination appears premature.

In any case, counsel makes no allegation that the trial court otherwise curtailed voir dire, and the restriction here, standing alone, does not appear to deprive defendant of his right to full voir dire under LSA-Const., Art. I, § 17. Indeed, against the background of the facts of this case and considering the extensive evidence against the two defendants, it is virtually impossible to conceive of any response by the juror to the blocked question which, under any reasonable consideration, would have made a jot or a tittle of difference in the possible outcome of the case. If there was error, therefore, it essentially was harmless error.

The argument of substantial error with regard to the voir dire does not support any claim of denial of due process.

Y

THE CLAIM OF ERROR UNDER THE BOYKIN CASE

The defendant urges that the trial court erred in allowing the introduction of prior convictions for impeachment purposes without proof of “Boykinization.”

In State v. Roland, 379 So.2d 721 (La.1977), a case involving the same defendants, this court determined that:

“... the use for the impeachment purposes of a prior conviction void for failure to afford defendant his right to counsel, or otherwise so involuntary that the reliability of the conviction is impaired, deprives an accused of due process of law. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); State v. Bernard, 326 So.2d 332 (La.1976); Cf. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The burden of proof rests with the defendant. See Loper v. Beto, supra; State v. Bernard, supra.
“Our recent decisions in State v. Lewis, supra, and State v. Holden, 375 So.2d 1372 (La.1979), relative to the use of prior convictions to enhance subsequent penalties, were not intended to change the rules of law applicable to impeachment nor to shift any burden of proof in such situations to the state.” (Emphasis supplied)

Defendant asserts that he has met the requisite burden of proof by entering into a stipulation with the State that a search of the records of his prior convictions revealed no forms to indicate that he made a knowing and affirmative waiver of his constitutional rights. Defendant urges that the trial court’s refusal to accept this proof of “non-Boykinization” and the consequent admissibility of his prior conviction resulted in his being unable to take the stand on his own behalf.

As recently set forth by this court in State v. Lafleur, 391 So.2d 445 (La.1980):

“It is now well established that a guilty plea is constitutionally valid only if the record clearly shows that the defendant was informed of his constitutional rights, including the right to jury trial, the right to confront accusers, and the privilege against self-incrimination, and then knowingly and voluntarily waived these rights. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial judge cannot rely on an assertion that the rights were explained to the defendant out of court; he must independently determine, through a direct colloquy with the defendant, whether the defendant fully understands the connotation and consequences of the guilty plea. State v. Williams, 384 So.2d 779 (La.1980).” (Emphasis supplied)

Though the guilty plea here was used to impeach the defendant not to enhance his sentence, as is often the case when dealing with a Boykin question, there appears no justification, nor decision by this court, to require that a lesser standard of proof of defendant’s knowing and affirmative waiver be utilized. Here, the defendant has failed to meet his burden of affirmatively showing that he was not properly “Boykin-ized ”. Defendant has not demonstrated an absence of the critical direct colloquy required by Boykin. Since the proof is inadequate, the trial judge’s ruling that evidence of the conviction could be introduced appears correct.

There is no showing in the trial judge’s ruling of error substantially prejudicial to the defendant.

VI

THE ADMISSION INTO EVIDENCE OF THE SHOTGUN AND TWO HANDGUNS

In this particular claim by the defense claiming error in the trial it is contended that the court seriously prejudiced the defendant’s position by admitting into evidence a shotgun and two handguns which — it is argued — had not been “sufficiently identified as connected to the charged offense.”

Here it should be sufficient response to cite the recent case of State v. Lawson, 393 So.2d 1260 (La.1981):

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the trier of fact. State v. Paster, 373 So.2d 170 (La.1979); 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).” (Emphasis supplied)

Furthermore, this issue has in essence been disposed of in the initial issue treated by this opinion wherein the factual and legal support of the probable cause to arrest the defendants and the justification for the seizure of the weapons as evidence were treated at length.

There is no merit here to this contention made in behalf of the defendants.

VII

OTHER CLAIMS OF ERROR MADE BY THE DEFENSE

The defendant contends that the trial court erred in allowing the State to introduce evidence and make statements that referred to other crimes. In point of fact, an examination of the record reveals that this is simply not the case. Inasmuch as this statement is factually incorrect it would be redundant to attempt to cite any law to the effect that factually incorrect statements do not justify consideration.

Defendant also finds error in the trial court’s sustaining the State’s objection to the testimony of defense witness, Stacey Hirstius. That witness, apparently a criminal court minute clerk, was to testify concerning the court minutes as to who was originally charged with the armed robbery. The State objected on relevancy grounds and the trial judge agreed. The trial judge’s decision to exclude the evidence here, especially since it hardly could bear upon this defendant’s own guilt, does not appear to have been an abuse of discretion in any sense of the phrase that would justify overturning the trial court’s decision not to admit.

Inasmuch as the irrelevancy of this contention of error should be as apparent to any layman as to a member of the bar, it would seem unnecessary to have to cite supporting law. However, in order to underscore that a trial judge’s ruling concerning the relevancy of evidence will not be disturbed on appeal in the absence of a clear abuse of discretion, the following cases are cited: State v. Alford, 384 So.2d 761 (La.1980); State v. Echols, 376 So.2d 1244 (La.1979); State v. Weems, 358 So.2d 285 (La.1978); State v. Winston, 343 So.2d 171 (La.1977). Neither of the foregoing claims of error possesses any merit.

Finding no reversible error, we affirm the conviction and sentence.

AFFIRMED,

CALOGERO, J., concurs.

       Judges Garrison, Chehardy, and Barry of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Blanche, and Lemmon.

      . Charges as to a third defendant, Cleveland Tate, were nolle prosequied on March 8, 1979, apparently in return for a guilty plea on two counts of violations of La. R.S. 14:95.1.

      . In his brief, counsel for the defendant Nicholas argues only the issue of possible suppression of the evidence — the initial issue treated in this opinion. Consequently, the discussion of the other issues herein relate only to defendant Roland.

      . The defendants were charged on November 3, 1978 and the line-up held on October 20, 1978. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that the presence of counsel at a pre-indictment line-up was not a requirement of due process. This court has followed Kirby in a number of decisions. State v. Hargrove, 330 So.2d 895 (La.1976); State v. Johnson, 327 So.2d 388 (La.1976).


source: Caselaw Access Project

author: CHEHARDY, Justice Ad Hoe.

license: Public Domain

text:
    STATE of Louisiana v. Doug RUSSELL and Oscar Prock.
    No. 80-KA-2142.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearings Denied May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, William W. Hall, Kenneth Sanders, Asst. Dist. Attys., for plaintiff-appellee.
    W. Glenn Burns, Stephen B. Murray, Murray, Murray, Ellis, Braden & Landry, James H. Looney, New Orleans, for defendants-appellants.
   CHEHARDY, Justice Ad Hoe.

Defendants, Doug Russell and Oscar Prock, and four others were charged by bill of information on April 13, 1978, with receiving stolen things, a violation of La.R.S. 14:69. Though the bill of information charged five counts, these defendants were charged only with count number one. Defendants were tried jointly before the judge alone and were found guilty as charged on May 15, 1979. On May 23, 1979, defendant Prock was sentenced to imprisonment at hard labor for a term of six years. Defendant Russell was sentenced on June 7, 1979, to three and one-half years at hard labor. Russell appeals his conviction on the basis of five assignments of error and Prock his conviction and sentence on eight assigned errors.

Defendants were arrested after they participated in a “sting” operation conducted in Jefferson Parish. The defendants participated in the “sale” of a Ford dump truck and a Case bulldozer to undercover agents on August 24, 1977. The owner of the dump truck was called and testified that the truck “sold” by the defendants to the undercover agents was positively his and had been stolen from his place of business in Nashville, Tennessee, in August of 1977.

Detective John Morse of the New Orleans Police Department, and a member of the Metropolitan Crime Strike Force conducting the undercover fencing^ operation in a Jefferson Parish, Louisiana, warehouse, expressed a willingness to purchase the Ford dump truck and Case bulldozer, after being advised of their availability for sale.

The record discloses that subsequently on August 24, 1977, defendant Doug Russell arrived by air in Jefferson Parish and was met by Detective Morse. Officer Morse testified that he had been contacted by unnamed individuals in Tennessee to meet the defendant Russell and take him to the “store” to negotiate the sale. Russell and Morse than drove to a gravel lot near Causeway Boulevard and met defendant Prock and other individuals who had the truck with the bulldozer on its bed. All the men then went to the Jefferson Parish warehouse where the strike force was conducting its undercover fencing operation. Eventually defendants agreed to sell the truck and bulldozer for $4,500.00 and the sale was consummated. All five defendants were present at this sale of the property.

Officer Morse also testified that prior to the day of the sale, he had spoken to one of the men involved and learned that they were afraid to cross the Louisiana/Mississippi state line with the truck and bulldozer. After making arrangements with the Mississippi and Louisiana State Police, the witness contacted one of the men and assured them that a bribe of weigh station attendants would allow them to make the crossing safely. All the transactions at the warehouse in the phony store were recorded on video tape and were introduced at trial. The defendants did not take the stand and presented no evidence on their behalf.

Defendant Russell by assignment of errors numbers one and two and defendant Prock by assignment of errors numbers one and six argues that the trial court committed error in denying their motion to quash based on alleged lack of jurisdiction and venue. Defendants contend that, as required by La.R.S. 14:69, they never procured, received or concealed anything in Jefferson Parish and argue in support of this contention that the record reveals the truck and bulldozer were stolen in Tennessee and procured there without receipt or concealment of either vehicle in Jefferson.

La.R.S. 14:69 provides in pertinent part:

“Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.”

In State v. Crum, 255 La. 60, 229 So.2d 700 (1969), the Court re-examined its decision in State v. Ellerbe, 217 La. 639, 47 So.2d 30 (1950), and clarified the definition of concealment given in that case. Noting one of the cases cited in Ellerbe, the Court stated that the word “conceal” is not to be given its literal construction limited to hiding. It further explained that concealment may be found where the stolen property was handled in such a manner that would throw the owner off his guard in his search for it:

“A determination of whether stolen property is concealed depends upon the facts of the particular case as they affect the ability of the owner to search for and find it. ‘Concealing’ such property includes hiding, secreting, and keeping it from sight, but also includes conduct which will assist the possessor in converting the property to his own use and enjoyment or which may prevent or hinder its discovery by the owner. See 45 Am. Jur., Receiving Stolen Property, § 3; 76 C.J.S. Receiving Stolen Goods § 7; 2 Brill, Cyclopedia of Criminal Law, § 921; 2 Wharton’s Criminal Law and Procedure, § 570 (Anderson’s ed.). The commingling of a stolen aútomobile with other vehicles on the public thoroughfares of a city foreign to and removed from the owner is an effective hinderance to the owner’s discovery of it.” 229 So.2d at 701.

It was then concluded that the removal of the stolen automobile in that case from Mississippi to Louisiana, and particularly to populous New Orleans, and its use for the defendants’ own benefit and purposes “were calculated to hinder or prevent the owner’s discovery and recovery of it, and constituted ‘concealing’ within the statute.”

In the instant case, the record reveals that the dump truck, stolen in Tennessee, was transported interstate to Louisiana and brought to Jefferson Parish. While there was no evidence that the truck was hidden or otherwise concealed from public view, it can be seen as in State v. Crum, supra, that the defendants handled the truck in such a way as to assist in the conversion of it to their own use and, especially in light of evidence that they performed some alterations on the vehicle, hindered its discovery by its real owner. Since this concealment clearly occurred in Jefferson Parish, prosecution of this charge in that parish is correct. Accordingly, the trial judge’s denial of the motions to quash and motions for acquittal is proper and this assignment is without merit.

Defendant Russell by assignment of error number three and defendant Prock by assignment of error number four assert that the trial court erred in denying their motions for acquittal which had been based on an allegation of insufficiency of evidence as to essential elements of the offense.

Defendants urge that there was no evidence the property involved was stolen or that they were aware of its being stolen. Defendants also assert that since the bill of information describes a 1977 Ford dump truck, and the one “sold” to the agents was a 1974 model, the state failed to prove that they had committed the charged offense. However as noted, the truck’s owner positively identified the truck “bought” from the defendants as his own. This error as to dates would not void defendants’ conviction since it worked no prejudice on the defendants. Clearly, the bill of information adequately informed both of the accused so that their preparation of a defense was not hindered. At trial, as noted, the owner of the dump truck that was “sold” to the undercover agents positively identified it as the one stolen from him in Tennessee. There was, however, no similar testimony regarding the bulldozer, but that vehicle was also involved in the sale, accounted for part of the purchase price, and was resting on the bed of the dump truck. At trial, New Orleans Police Officer John Morse testified that were both vehicles had been reported stolen, were on the “stolen list” and that they were both later recovered by their rightful owners. This witness also testified regarding negotiations with the defendants about the sale of the property including their telling him that they were afraid to bring the vehicles into the state for fear of being caught with stolen goods. Officer Morse related the conversations with the defendants about avoiding the weigh stations and, once the property arrived in Jefferson Parish, the lengthy negotiations for its sale. The officer testified that the defendants agreed to sell the merchandise for drastically below its market value and had threatened to blow it up if they did not get as much as they wanted.

The standard used in reviewing the sufficiency of evidence as enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant is guilty. State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Hartman, 388 So.2d 688 (La.1980). The evidence presented to the court in the instant case, seen in the light most favorable to the prosecution, is adequate under Jackson, supra, to justify the trial judge’s conclusion beyond a reasonable doubt that the truck and bulldozer were stolen and that the defendants knew of that fact.

In State v. Walker, 350 So.2d 176 (La.1977), this Court in analyzing the defendant’s conviction for receiving stolen things for sufficiency of evidence of essential elements noted that proof of possession, receipt or concealment does not alone suffice to constitute the offense. Also, the Court determined that mere possession of stolen property does not create a presumption that the person in possession of it received it with the knowledge that it was stolen by someone else. While the Court found the evidence in State v. Walker, supra, inadequate, the instant case is distinguishable since the defendants here not only were in possession of the property but also attempted to conceal it, transport it interstate, alter it and sell it far below its value.

This assignment is without merit.

Defendant Prock urges that the trial court erred in granting the state’s oral motion for a continuance in his assignment of error number two. According to the trial minutes, on May 14, 1979, the day trial was apparently scheduled to begin, the district attorney requested and was granted a continuance. Objections by counsel were noted, and trial was reset for May 18,1979. A copy of the transcript of the proceeding held on May 14, 1979 is not provided in the record. The defendant alleges that since the motion was oral it should not have been granted under La.C.Cr.P. Art. 707, which provides:

“A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based, and when made by a defendant, must be verified by his or his counsel’s affidavit. It may be filed at any time prior to the commencement of trial.”

Defendant argues that since there was no written motion, the continuance was improperly granted and was error. He also insists that since the statute was explicitly violated there was no need to show prejudice, but that in any event prejudice did result because of the expensive imposition of having to wait four days for trial.

In State v. Parsley, 369 So.2d 1292, 1294, n. 1 (La.1979), this Court noted:

“We are aware that La.Code Crim.P. art. 707 provides that an application for a continuance shall be by written motion whereas, here, the motion was oral. However, due to the fact that the occurrences that allegedly made the continuance necessary arose unexpectedly, defense counsel had no opportunity to prepare a written motion. Moreover, the record reflects that the trial judge was fully aware of the grounds upon which defendant’s motion was based and ruled thereon. Under the circumstances, we consider that the trial judge’s denial of defendant’s motion for a continuance is before us for review.”

The same rationale should apply to this situation where the state made the oral motion.

A per curiam prepared by a district court judge, other than the trial judge, asserts that the continuance was justified because:

“ * * * [I]t is common procedure in this jurisdiction to set the entire criminal docket for the Monday of each week and select a day within that week for the trial of the matter. The record reflects that the trial was continued from Monday to Thursday. Surely, a four day continuance cannot be deemed to be an abuse of the discretion vested in the trial court.
* * * *y

This Court has consistently held that the granting of a motion for a continuance is a matter committed to the trial judge’s discretion and that a denial of the motion will not be reversed unless an abuse of discretion is demonstrated. State v. Parsley, supra; State v. Benson, 368 So.2d 716 (La.1979); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Johnson, 343 So.2d 155 (La.1977).

The defendant has failed to demonstrate any more prejudice to his defense than the cost of several days’ wait incurred by him before the new trial date, and according to Prock’s counsel in their assignment of this error:

“The Trial Judge informed the defendants that he had been informed by the assistant district attorney who would be trying the case the prior week that this case was being postponed until May 18. The purpose was to facilitate the state, who needed to bring in the victim from Tennessee. Such a trial setting would allow the state to fly in the witness for one day, rather than having to risk housing him for several days.”

Continuing their argument in support of this assignment of error attorneys for defendant also state:

“The Court and the district attorney were well aware that the defendants had sought and received permission to leave the jurisdiction to return home to await the trial. * * * The defendant Russell had waived his presence for the pretrial hearings, appearing only through counsel. Thus the defendants were forced to either stay in town for four days or return home to make the trip again in four days. Either option was an expensive imposition on the defendants, presumed innocent at the time.”

Since the decision of whether or not the granting of a continuance is justified is dependent upon the reasonableness of the trial judge’s use of discretion and considering the failure of defendant to show any abuse of that discretion or prejudice to defendant’s defense we find this assignment of error to be without merit.

By assignment of error number five defendant Prock asserts that the trial court erred in failing to quash a defective bill of information.

Defendant asserts that the bill of information charging him did not contain the phrase “contrary to the law of Louisiana and against the peace and dignity of the same.” Review of the record indicates that the phrase in question, as well as the spaces for the complaint number and district attorney’s signature, were obliterated on the first page of the five-count information, but were retyped on the second page after the final count. Even if the phrase had been completely omitted, the official revision comments to Articles 463 and 462 state that such an omission, a formal defect, is waived if not raised at the arraignment by a motion to quash. The record shows no such motion was made by this defendant. Accordingly, this assignment lacks merit.

By assignment of error number seven defendant Proek asserts that the sentence imposed on him was excessive. On May 23, 1979, defendant was sentenced by the trial judge to six years at hard labor; a maximum of ten years was possible.

Defendant asserts in brief that his allegedly excessive sentence is a violation of La.Const. Art. I, § 20, which prohibits the imposition of excessive punishment. This Court has held that imposition of a sentence, though within statutory limits, may in fact violate a defendant’s constitutional rights against excessive punishment that is enforceable by this Court on appellate review. State v. Spencer, 374 So.2d 1195 (La.1979). However, the trial judge has wide discretion in the imposition of sentences, given compliance with La.C.Cr.P. art. 894.1, and sentences imposed will not be set aside in the absence of manifest abuse of discretion. State v. Molinario, 383 So.2d 345 (La.1980); State v. Spencer, supra; State v. Gist, 369 So.2d 1339 (La.1979).

Before pronouncing sentence, the trial judge stated his awareness of defendant’s prior record and then stated:

“Despite this, you became involved in what you knew to be a car theft. I frankly don’t understand it, why you did it. I don’t know whether you do or not.
“The Court feels that you must pay a penalty for your involvement. You knew you were stealing things that belonged to somebody else, that they worked for.
“You’re not a candidate for probation, anyway, under our law since you have a prior felony conviction. However, I would not give you probation anyway under the circumstances.”

The defendant was then sentenced. There was no explicit application of the sentencing guidelines of La.C.Cr.P. art. 894.1, either the aggravating or mitigating factors.

The trial judge’s reasons for imposing sentence as required by Article 894.1 are an essential aid to this Court when reviewing a sentence for excessiveness and abuse of discretion.

In the instant case, though there was no specific application of Article 894.1, the trial judge was aware of defendant’s prior record. This knowledge was implicit in his finding that there was an undue risk of defendant’s further criminal activity and the need for a continued correctional environment. The judge further found that a lesser sentence would deprecate the seriousness of the offense. We do not find that there has been an inadequate particularization of the defendant’s sentence to his crime and therefore a remand for resen-tencing is not warranted. We reach this conclusion with awareness of what this Court determined in State v. Cox, 369 So.2d 118, 121 (La.1979), that it “ * * * may vacate a sentence and remand for re-sentencing, 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.” (Emphasis supplied.) Moreover, this Court has held that a sentence is excessive and unconstitutional if it is grossly out of proportion to the crime or it is nothing more than the needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). In the instant case the sentence is neither severe nor grossly out of proportion to the crime.

This assignment is without merit.

Lastly we consider defendant Russell’s assignment of error number four that the court erred when it sentenced defendant Russell to three and one-half years imprisonment at hard labor.

Defendant Russell contends that the trial judge did not state for the record, as required by La.C.Cr.P. art. 894.1, the underlying factual basis for the considerations used in imposing sentence. We do not agree with defendant that his role was that of a bystander — despite which of the five defendants, all participants in the negotiation for sale of the stolen property, actually handled the negotiation. Nor do we agree that the seriousness of this crime, as contended by defendant, is debatable.

Based on all of the evidence in the record, the trial judge in sentencing Russell made the following statement:

“Mr. Russell, you came up yesterday for sentencing, as you are aware, and I postponed it simply because I had not come to a decision. I have come to a decision in the matter now. I cannot suspend your sentence. It appears to the Court that your principal regret is that you were caught and there can be no doubt in the Court’s mind, after the trial, of your participation in the crime with which you are charged and stand convicted. The evidence was clear and overwhelming from a factual standpoint. I realize that you have a legal defense that you are. urging, which you have a perfect right to do. Nonetheless, the Court feels that your principal regret is having been caught in connection with this. You were a central figure involved in this particular thing, as was revealed by the evidence, the obvious purpose of negotiating that which you knew to be stolen. There were sizeable sums of money involved in the cost of the vehicles which were being stolen from the rightful owners and transported down here. It’s a very serious crime. I know the people that get hurt the worst in connection with this sort of thing are the people who are not involved, your family and others. Considering the seriousness of the crime, all of the other circumstances that I have stated, I cannot suspend your sentence. I’m going to sentence you to serve three and a half years at hard labor and will remand you to the Department of Corrections for the imposition of that sentence.”

The sentence of defendant Russell is neither severe nor grossly out of proportion to the crime and it certainly is not a needless imposition of pain and suffering. This assignment is without merit.

For the foregoing reasons, the conviction and sentence of Oscar Prock and the conviction and sentence of Doug Russell are affirmed.

      . Judges Garrison, Chehardy, and Barry of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Blanche and Lemmon.


author: CHEHARDY, Justice Ad Hoc.

text:
    STATE of Louisiana v. Amanda SMITH.
    No. 80-K-2546.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 18, 1981.

      Roy V. Ladner, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty,, David J. Cortes, Asst. Dist. Atty., for plaintiff-respondent.
   CHEHARDY, Justice Ad Hoc.

On January 9, 1980, officers of the New Orleans Police Department obtained a search warrant authorizing the search of a residence located at 1821 Carondelet Street in New Orleans. On the face of the warrant, the typewritten address is partially crossed out (“Ave.” is changed to “St.”) and the phrase “Bottom, right door” is added. The record does not disclose if these potentially crucial amendations were casual notes by counsel or if they were corrections made by the affiants and authorized by the issuing magistrate. See, State v. Welsh, 371 So.2d 1314 (La.1979), address change proper were authorized by issuing magistrate. Since- the legitimacy of these additions to the warrant is not made clear by the record we will treat the warrant as if these alterations were never made. In any event, in our opinion, the legitimacy of these alterations is not dispositive on the issue of the warrant’s validity.

The application for the search • warrant describes the structure in which the residence is located as a “ * * * Two (2) story wooden framed house, with three white columns in front, picture window in front of residence * * The application also repeats the 1821 address and notes that no apartment number is applicable. In execution of the warrant, however, police officers searched defendant’s residence at 1819 Car-ondelet, the second of the two units in the structure at 1819-1821 Carondelet. Several pistols and a variety of narcotics were obtained in the search. Consequently the defendant, a convicted felon, was charged by bill of information with possession with intent to distribute phenmetrazine (prelu-din), pentazocine (talwin), propoxyphene (darvocet), and flurazepam (dalmane). Defendant was also charged with being a felon in possession of a firearm, violations of La. R.S. 40:967 (one count), La.R.S. 40:969 (three counts) and La.R.S. 14:95.1 (one count). Phenmetrazine is a schedule II drug; pentazocine, propoxyphene, and flu-razepam are schedule IV.

Defendant was arraigned and pleaded not guilty on all counts on February 7, 1980. On April 22, defendant filed a motion to suppress. The trial court ruled and denied the motion on October 17, 1980. The matter is now before this Court on a writ by the defendant seeking review of this ruling.

In assignment of Error No. 1 defendant contends that the trial court’s ruling was in error because the description of defendant’s residence contained in the warrant lacked the requisite particularity.

Both the United States and Louisiana Constitutions provide that no warrant shall issue unless based on probable cause, supported by oath or affirmation “and particularly describing the place to be searched * * *.” United States Constitution, Amendment IV; Louisiana Constitution, Article I, § 5; see also, La.C.Cr.P. art. 162; State v. Cobbs, 350 So.2d 168 (La.1977).

The object of the particularity requirement is to prevent the search of the wrong premises. As this Court said in State v. Cobbs, supra at 171:

“ * * * If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probabili-. ty that the police will not search the wrong premises, the description is sufficient. * * *”

Hence, “a minor error in a portion of the description of the premises to be searched does not invalidate the search.” State v. Korman, 379 So.2d 1061, 1063 (La.1980); cf., State v. Manzella, 392 So.2d 403 (La.1980) (where warrant authorized search of apartment at 6176 Ponchartrain Boulevard and executing officers knocked on that door first, error in description so great as to invalidate search of accused’s apartment at 6178 Ponchartrain Boulevard).

In some instances this Court has found that information contained in the affidavit may serve to “particularize” an otherwise general or misleading description in the warrant such that the warrant description is sufficient. In State v. Hysell, 364 So.2d 1300 (La.1978), this Court reviewed the sufficiency of a description which designated a street address but did not indicate which of two apartments at that address was to be searched. Observing that in the affidavit the officers identified the place to be searched as “on the east side above Alice’s Beauty Salon closest to [the street]” and that an informant had pointed out the east side apartment, this Court stated: “Under these circumstances we find that the description in the warrant was sufficient to insure that the officers who in fact were to search the apartment would not search the wrong apartment.” 364 So.2d at 1305.

In the case at bar, the executing officers received word from a confidential informant that a “Mandia Smith” was trafficking in narcotics; the informant also apparently indicated the two-unit building at 1821-1819 Carondelet. Setting up surveillance, the officers observed activity which experience might indicate was typical of narcotics distribution. Of particular importance is that they were able to observe unknown persons approach “the front door,” knock, and gain admittance. The officers also noted “ * * * only one municipal number visible that being 1821 Caronde-let located on a white column to the left of the front door as you face the residence * * [and] a picture window on the right side of the front door.”

Photographs introduced at the motion to suppress plainly show two separate street numbers affixed to the structure at 1819 and 1821 Carondelet. These exhibits also show, however, that the building has one street level apartment and one upper apartment. The upper unit is reached by means of an interior stairway; the photographs reveal no street level door to this stairway. In fact, a close examination of one of the photographs reveals what may be a nonfunctional door hinge on the lower left portion of the stairway door frame. This doorway has a column to the left bearing 1821; to the right, a door to the street level apartment. The street level apartment, on the other hand, has a visible door, a column to the left bearing 1821, and to the right a picture window.

Reasonableness would dictate that the warrant, after being excised of the error, would lead a reasonable police officer to search the bottom residence (1819 Caronde-let). The warrant application shows that the house was mistakenly thought by the police to contain only one residence, i. e., 1821 Carondelet. But reading further the warrant application states, with verification by references to photographs submitted in evidence by the defendant, that “there is a picture window on the right side of the front door.” Clearly this designates “the front door” as the point of entry to the residence to be searched. This, of course, is the defendant’s residence on the bottom floor. There are no columns on the second floor and this of course disposes of any argument that the warrant’s description could just as reasonably refer to the door on the second floor, which is also to the left of a picture window. The door described in the warrant is that which is located to the right of the column bearing 1821. Since there are no columns on the second floor, “the front door” necessarily refers to one of the two entrances on the bottom floor.

We next must determine which of the two entrances on the bottom floor is to be considered as the front door of the residence to be searched.

An examination of defendant’s photographs establishes that there is only one door and that is the door to defendant Smith’s residence. The entrance at the extreme left in the photograph is an entrance to a staircase leading to the second floor residence from the inside of the building. Looking at the description of the residence to be searched, absent the erroneous address, we have no hesitancy in concluding that the defendant’s premises was still described in sufficient detail to enable the officers to locate and search the premises with reasonable certainty.

Under these circumstances, this case is more analogous to State v. Hysell, supra, than State v. Manzella, supra. Like Manzella the warrant authorized the search of the wrong apartment: 1821 instead of defendant’s 1819. Unlike Manzella, however, and similar to Hysell, the affidavit contains additional information which makes it clear that the officers observed suspected activity at 1819: the affidavit indicates the door with the 1821 column to the left and the picture window to the right. Finally, again like Hysell, the affiants were executing officers. Thus, the description in the warrant was sufficient to insure that the officers who in fact were to search the apartment would not search the wrong apartment. That 1819 Carondelet was searched was not due to “lucky happenstance.” Cf. State v. Manzella, supra. We find no merit in this assignment of error.

By assignment of Error No. 2 defendant contends that the application for the search warrant contains intentional misrepresentations, rendering the warrant invalid.

Defense exhibits filed at the motion to suppress clearly indicate that the structure containing defendant’s apartment bears two separate municipal numbers — 1819 and 1821. These numbers are black metal attached to white columns. The affidavit to the warrant, however, indicates that after surveilling this structure for approximately one hour, commencing at 7:30 p. m. and ending sometime after 8:15 p. m., the affi-ants observed “only one municipal number visible that being 1821.” Defendant contends that, under the circumstances, this statement evidences an intentional misrepresentation rendering the warrant invalid. In the alternative, defendant argues that if the misrepresentation was accidental, the erroneous statement must be read out of the warrant, destroying the requisite particularity of description.

State v. Rey, 351 So.2d 489 (La.1977), is the seminal Louisiana case on the effects of misrepresentation in the search warrant affidavit. In Rey, this Court observed:

“Because the invasion of home and privacy cannot be justified by misrepresentations, and in order to insure that the magistrate, and not the affiant, determines probable cause, this court has recognized on numerous occasions the defendant’s right to traverse the allegations made by the affiant. State v. Melson, 284 So.2d 873 (La.1973); State v. Giordano, 284 So.2d 880 (La.1973); State v. Cox, 330 So.2d 284 (La.1975); State v. Tassin, 343 So.2d 681 (La.1977). We have held that minor inaccuracies in the affidavit may not affect the validity of the search warrant (e. g. State v. Thomas, 329 So.2d 704 (La.1976); State v. Chaffin, 324 So.2d 369 (La.1976).
“The Fifth Circuit Court of Appeals was faced with this problem in U. S. v. Thomas, 489 F.2d 664 (5th Cir. 1973), cert. denied, 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975). That court noted that when faced with an affidavit containing inaccurate statements the preferred approach is to excise the inaccurate statements and then examine the residue to determine if it supports a finding of probable cause. If, however, the misrepresentations were intentionally made, a different result is required. Because these distorted statements constitute a fraud upon the courts and represent impermissible overreaching by the government, a warrant based on an affidavit containing intentional misrepresentations must be quashed.” 351 So.2d at 491-492.

This Court concluded by adopting the approach described by the Fifth Circuit. See e. g., State v. Ogden, 391 So.2d 434 (La.1980), No. 67,608; State v. Paster, 373 So.2d 170 (La.1979); State v. Huckaby, 368 So.2d 1059 (La.1979).

This Court has recognized, however, that the defendant bears the burden of going forward on the allegation of misrepresentation. See, State v. Ogden, supra; State v. Paster, supra; see also, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). If he proves by a preponderance of the evidence that the affidavit contains false statements, then the burden shifts to the state to prove the allegations in the affidavit are true. State v. Paster, supra. After both parties have presented their evidence, the trial court must decide whether the statements are false, and, if so, whether the misrepresentation was intentional on the part of the affiant. If intentional, the warrant should be quashed; if unintentional, then the warrant is tested for probable cause without reference to the incorrect facts. State v. Paster, supra.

The record does not support a finding that the statements made were intentional falsehoods but apparently unintentional errors. Therefore, examining the warrant without reference to the incorrect facts it is our determination that there is sufficient description of the premises to be searched and the warrant meets the test of probable cause. The issue is whether the affiants were truthful, not whether the informant was truthful. This is because if the informant lied but the affiants reasonably believed him, it cannot be said that the officers acted without probable cause. State v. Paster, 373 So.2d at 174, n. 1. The surveillance was conducted after sundown in January from an unspecified distance at the corner of Carondelet Street and St. Mary Street. It is quite possible that at that time, under those circumstances, the only number visible was 1821. However, even a mere “misleading implication” must be excised from the warrant affidavit. See State v. Koncir, 367 So.2d 365 (La.1979). Therefore, the only misleading implication is that the structure bore only one number. Excising that error, the warrant still identifies the apartment building as bearing at least one number — 1821. Accordingly, the affidavit is substantially intact despite this excision. The description is adequate. Probable cause is not vitiated.

The ruling of the trial court is affirmed.

      . Judges Garrison, Chehardy, and Barry of the Court of Appeals, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Blanche, and Lemmon.


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

text:
    STATE of Louisiana v. Jerry L. BATES and James L. Washington.
    No. 80-KA-2298.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearings Denied May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Sonia D. Peters & Jim McMichaels, Asst. Dist. Attys., for plaintiff-appellee.
    Jeanette G. Garrett, John T. Cox, Leon Emanuel, Howard M. Fish, Shreveport, Office of Public Defender, for defendants-appellants.
   BARRY, Justice Ad Hoc.

Defendants Jerry L. Bates and James L. Washington were charged and found guilty of simple burglary, a violation of La.R.S. 14:62; Bates was sentenced to six years and Washington to eleven years at hard labor. A third defendant, James Douglas, pleaded guilty and was sentenced to three and one-half years at hard labor and testified for the State. On this appeal Bates presents five assignments of error and Washington six assignments of error.

Police in Shreveport were alerted by a silent alarm in a Montgomery Ward warehouse which had been closed several hours earlier. The officers entered the warehouse, conducted a search, and found the three men hiding inside the building. The record shows that a number of television sets and clock radios had been removed from their normal storage location- and placed near an exit. Douglas admitted his participation in the burglary with Bates and Washington. He testified that the three men had entered the building and began collecting the merchandise with the intent of removing it from the warehouse when police arrived. Bates and Washington presented no evidence or witnesses and did not testify.

ASSIGNMENT OF ERROR NO. 1— Bates

ASSIGNMENT OF ERROR NO. 3 — Washington

Defendants contend that the trial judge erred in denying their challenge for cause of a prospective juror.

The record reveals that Bates had exhausted his six peremptory challenges, whereas Washington had used only five of his peremptory challenges. A defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him unless his peremptory challenges have been exhausted before completion of the panel. State v. Lewis, 391 So.2d 1156 (La.1980); La.C.Cr.P. Art. 800. Accordingly, Bates is entitled to appeal the trial judge’s ruling but Washington’s assignment of error is without basis for consideration.

Bates relies upon La.C.Cr.P. Art. 797(2) as his basis to challenge the juror for cause:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

During voir dire the juror was questioned about her understanding of a defendant’s right to remain silent. After initially stating she would not presume there was a reason for a defendant’s failure to testify on his own behalf, she later stated she felt that an accused should testify; however, as a result of counsel’s explanation the juror said she realized it was a defendant’s constitutional right to remain silent and she would not hold that silence against the defendant.

During the State’s examination of the juror the following exchange occurred involving the defendant’s right to remain silent:

State: Ms. Corbett, you indicated earlier that the defendant, if he did not put on any evidence or any testimony, would you have some problems with that?
Juror: Briefly I did, just temporarily.
State: Can you explain what problems you were having with that?
Juror: Well, I just couldn’t understand why he wouldn’t get up and take the stand, why he wouldn’t want, a person who, either one of these gentlemen. I thought, you know, I just felt like that they should get up and testify.
State: Well, do you—
Juror: They don’t have to, though, is what you explained.
State: Well, you have to understand the law.
Juror: Right.
State: And as we all understand our constitutional rights is the right to remain silent.
Juror: Okay.
State: And so doing, if the State makes an allegation against the person, that person is not in a position or does not, is not obligated to explain himself.
Juror: Well, I really didn’t know that.
State: Do you have any problem or personal problems that accepting a—
Juror: No, I’ll accept it. I’m sure I can.

These answers require no explanation and we are satisfied that this juror did accept the defendant’s constitutional right to remain silent.

This same juror stated that she understood all the elements which constitute a burglary and if each element was not proven beyond a reasonable doubt, it was her duty to vote not guilty. She reiterated that understanding when examined by the defense. The following exchange then occurred with defense counsel:

Q That if the State only proves by evidence that there was unauthorized entry, that does not mean that the other two elements have been proven.
A Okay.
Q Can you accept that proposition?
A Yes.
Q You have any problems with that?
A A little.
Q Could you explain, articulate?
A Well, they wouldn’t be there if they weren’t there to steal something.

The juror showed her comprehension that unauthorized entry, standing alone, was not sufficient to prove intent, but raised doubt as to her understanding of the element of intent. ' At this point the trial judge questioned the juror and determined to the court’s satisfaction that she would accept the law as provided by the court.

Court: All right, sir. Ms. Corbett, can you accept the law as given to you by the court? In other words, what I will explain to you the law is?
Juror: Yes, I can.
Court: Do you understand that the fifth amendment of the constitution states that a man cannot be made to testify against himself?
Juror: Yes.
Court: Which means he can’t be put on a witness and required to testify.
Juror: Okay. Uh-huh.
Court: Do you feel that you could render an impartial verdict according to the law as I give you the law and the evidence as heard from the witness stand?
Juror: Yes, I can.
Court: All right. The court will not challenge Ms. Corbett for cause.

A trial court is vested with broad discretion in ruling on a challenge for cause and that ruling will not be disturbed on appeal absent a showing of an abuse of that discretion. State v. Lewis, supra; State v. Drew, 360 So.2d 500 (La.1978). A review of the entire voir dire is essential to determine if the trial court’s discretion has been arbitrary or unreasonable and resulted in prejudice to the accused. State v. McIntyre, 381 So.2d 408 (La.1980); State v. Dickinson, 370 So.2d 557 (La.1979).

The ideal juror would be a person free of any bias, who could fully comprehend the law as provided by the court, and would be capable of assimilating and weighing all of the facts and applying the law in an intelligent and impartial manner. When bias of a juror is questioned we are required to carefully scrutinize the entire voir dire process in order to insure that an accused received a fair jury.

We have said that bias can be removed by rehabilitation. State v. McIntyre, supra; La.C.Cr.P. Art. 797. However, this court has noted instances in which the totality of the circumstances made it unreasonable for the trial court to conclude that a prospective juror could be impartial despite the juror’s manifestations that he could. State v. Monroe, 366 So.2d 1345 (La.1978).

The defendant urges a parallel between this juror and the juror in State v. Nolan, 341 So.2d 885 (La.1977), but the voir dire examination in Nolan shows confusion and a lack of comprehension of the propounded questions. The Nolan juror lacked the capacity to understand and only after considerable coaching by the trial court and the State was abuse of discretion found and reversal required.

We do not find any evidence that this juror was confused as a result of questioning by counsel or the court. Her answers were responsive, candid, and resulted in explanations caused by her layman’s lack of knowledge of the law.

We conclude that a challenge for cause is not warranted where a juror has volunteered an opinion seemingly prejudicial to the defense, but subsequently upon further inquiry or instruction by the court has demonstrated the ability and willingness to decide the case impartially according to the law and evidence.

The totality of the voir dire examination of this juror convinces us that there was no abuse of discretion by the trial court and no basis to sustain a challenge for cause. This Assignment of Error is without merit.

ASSIGNMENT OF ERROR NO. 2— Bates

Defendant Bates contends that the trial court erred in admitting into evidence State exhibit 2, a photograph, without establishing a proper foundation. The photograph showed an aisle of the warehouse with two men sitting on the floor and the leg of a third person behind a row of crates.

An employee of Montgomery Ward’s testified that this photograph was of the back portion of the warehouse. Another employee testified that the picture was an accurate depiction of the scene inside the warehouse as he remembered seeing it on the evening of the alleged burglary. A police officer testified that he could identify the photograph as showing the three defendants as he saw them when he arrived on the scene the evening of the alleged burglary.

The State introduced into evidence five photographs which are numbered one through five. During examination of a police detective on identity of State exhibit 2, the prosecutor inadvertently referred to the photograph as State exhibit number 6. Whereupon the detective identified the original three defendants as the men shown in the photograph and that the photograph represented the scene he saw upon his arrival at the warehouse the night of the alleged offense.

There is no question that a photograph need not be identified by the person who took it to be admissible into evidence. State v. Robertson, 358 So.2d 931 (La.1978).

We conclude that the record shows the guidelines for admissibility have been met, i. e., the photograph is accurate and a correct representation of the subject it depicts and tends to shed light upon the matter before the court. See State v. Legget, 363 So.2d 434 (La.1978).

Accordingly, a proper foundation was made for admissibility of State exhibit 2. This Assignment of Error is without merit.

ASSIGNMENT OF ERROR NOS. 3 & 4 — Bates

ASSIGNMENT OF ERROR NO. 5 — Washington

Defendants contend that the trial court erred in allowing into evidence all five of the State’s photographs asserting that they were irrelevant and not the best evidence.

The photographs consisted of five warehouse scenes where the alleged burglary occurred. Photograph number one showed items including radios and a billiard table sitting in front of a freight door which was identified during trial as the door observed to have opened and closed shortly before the police arrived. Photograph number two was discussed in the second assignment above. Photograph number three shows a television set. Photograph number four is the back of the television set. Photograph number five is a view of the television set and radios on top of the billiard table.

The warehouse manager for Montgomery Ward’s testified that the pictures accurately depicted the inside of the warehouse. He also testified that the items shown near the warehouse exit had not been in that location when the building was locked and secured shortly before the alleged burglary. The manager insisted that the items, all property of Montgomery Ward’s, had been in a designated location on the other side of the warehouse when he left work. His certainty stemmed from having conducted a routine daily inventory check prior to closing. In addition, a police lieutenant testified that he was present when each photograph was taken and the photos reflect the placement of the merchandise at the time the defendants were arrested.

The defendants’ reliance upon relevancy is governed by La.R.S. 15:441:

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

The state introduced these photographs to show that the defendants were on the premises and that placement of the merchandise showed the intent to commit a burglary. It is now settled that a trial judge’s determination regarding the relevancy of evidence will not be over-turned absent a clear abuse of discretion. State v. Stramiello, 392 So.2d 425 (La.1980); State v. Alford, 384 So.2d 761 (La.1980); State v. Echols, La., 376 So.2d 1244; State v. Weems, 358 So.2d 285 (La.1978).

Defendant Bates further urges that the photographic evidence should not have been admitted because they were not the best evidence. The best evidence rule in La.R.S. 15:436 provides:

The best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced.

We fail to see how the defendant was prejudiced under the best evidence rule. If the defendant was, in fact, impaired by introduction of the photographs, it was because of the reality of the photographs and not due to any procedural defect. Further, there is no showing of prejudice by introduction of the photographs in lieu of the actual items depicted in the photographs. Under La.R.S. 15:436.1 a photograph of property alleged to be the object of a theft, which is otherwise admissible may be admitted into evidence without regard to the availability of the property itself.

We find no merit in these Assignments of Error.

ASSIGNMENT OF ERROR NO. 5 — Bates

ASSIGNMENT OF ERROR NO. 4 — Washington

Defendants contend that the trial court erred in over-ruling their objection to use of a portion of a requested State’s special jury charge.

The State requested the following special jury charge:

“The slightest asportation of anything of value, the slightest deprivation for the slightest period of time, the slightest segregation of the property moved the slightest distance is sufficient to satisfy the elements of a theft. A theft occurs, when the thing is taken, although it may remain in possession of the thief for only seconds.”

The trial judge denied the first sentence but included the second sentence in his jury charge. Defendants contend that inclusion of the second sentence was error because it was adequately covered in the general charge.

La.C.Cr.P. Art. 807 provides in pertinent part:

A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

The adopted portion of the State’s requested charge is a correct statement of the law. It did not require explanation or qualification, nor did it concern a matter or concept which was adequately covered in the general charge. Most importantly, the trial court did instruct the jury that although a theft may occur as soon as the thing is taken, an essential element of that offense was the intent to permanently deprive as provided under La.R.S. 14:67.

We therefore hold that the jury was properly instructed and this Assignment of Error is without merit.

ASSIGNMENT OF ERROR NO. 6 — Washington

Defendant Washington contends that his sentence of eleven years at hard labor is excessive under La.Const. Art. I, § 20.

This court has held that a sentence within statutory limits may in fact violate a defendant’s constitutional right against excessive punishment. State v. Spencer, 374 So.2d 1195 (La.1979). Our concern is compliance with La.C.Cr.P. Art. 894.1 and the wide discretion afforded a trial judge in this statutory guideline.

The trial judge had requested a pre-sen-tence investigation report and conducted a hearing before pronouncing sentence. When afforded an opportunity to speak the defendant asked for probation but presented no mitigating circumstances on his behalf. The trial judge examined and noted the defendant’s past criminal record plus the fact he was on probation for first degree assault in the State of Washington. The trial judge then stated he was applying the guidelines of La.C.Cr.P. Art. 894.1, but concluded that the sentence was predicated primarily on the defendant’s prior criminal record.

It appears the trial judge’s specific application of the sentencing guidelines were minimal; however, he reviewed the pre-sen-tence investigation report and noted the lack of any mitigating circumstances. We feel the trial judge adequately articulated a basis in support of the defendant’s sentence and that there was an implicit finding of an undue risk of further criminal behavior, a need for continued correctional environment, and that a lesser sentence would deprecate the seriousness of the charged offense.

Considering this particular offender and the offense for which he was convicted, we fail to find the sentence severe nor is it grossly out of proportion. See State v. Cox, 369 So.2d 118, 121 (La.1979); State v. Bonanno, 384 So.2d 355 (La.1980).

This Assignment of Error lacks merit.

DECREE

For the foregoing reasons the conviction and sentence of each defendant is affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

The prospective juror, Sadie Corbett, expressed a problem in understanding that the state was required to prove intent to steal when the circumstances raised an inference of that intent. No one specifically explained to her the legal effect of circumstantial evidence, but the trial judge did determine that she would accept and apply the law that would be outlined in his instructions. Under those circumstances I cannot say that the trial judge erred in refusing to excuse the prospective juror for cause.

       Judges Jim Garrison, Lawrence A. Chehardy and Denis A. Barry of the Fourth Circuit participated in this decision as Associate Justices Ad Hoc, joined by Justices Calogero, Marcus, Blanche and Lemmon.
      Lemmon, J., concurs and assigns reasons.