text:
    STATE of Louisiana v. Gregory SMACK.
    No. 82-KA-0394.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Carey T. Schimpf, Catherine Estopinal, Anne Goodman, Asst. Dist. Attys., for plaintiff-appellee.
    Timothy Fischer, Frances Jack, Shreveport, for defendant-appellant.
   MARCUS, Justice.

Gregory Smack was charged in the same information with four counts of forgery in violation of La.R.S. 14:72. Subsequently, the state filed an amended information in which one of the counts was dropped, pursuant to a plea bargain, defendant withdrew his former plea of not guilty and entered a plea of guilty to one count of forgery. The state agreed to a sentence limitation of five years and dismissal of the two remaining counts. The sentencing hearing was held in conjunction with the hearing in which defendant entered his guilty plea. Defendant was sentenced to serve five years at hard labor with credit for time served. On appeal, defendant relies on one assignment of error for reversal of his sentence.

Defendant contends the trial judge erred in imposing an excessive sentence. This issue is before us for review. State v. Pearson, 425 So.2d 704 (La.1982); State v. Bell, 412 So.2d 1335 (La.1982). Defendant’s plea bargain was not for a specific sentence, but for a maximum sentence limitation. Therefore, State v. Hicks, 403 So.2d 676 (La.1981), and State v. Curry, 400 So.2d 614 (La.1981), are inapposite.

On June 14,1981, defendant, an employee of the Shreveport Alarm Company, was assigned as a security guard for William Wolfe Bakery in Shreveport. In the course of his work, he had access to the office where the company checks and check protector were kept. While on duty, defendant appropriated twenty-eight checks, made them payable to himself, and used the bakery’s check protector to fill in the amounts. Twelve checks were fixed in the amount of $950 and sixteen in the amount of $224.98. Defendant then signed the name of Jean M. Patton, the authorized signature for William Wolfe Bakery, as the maker of each check.

On June 18, 19 and 22, defendant opened a checking account at three different banks, National Bank of Bossier in Bossier Parish, and Louisiana Bank and Trust and Pioneer Bank in Caddo Parish. Each account was opened by depositing two checks, one for $950 and one for $224.98, less cash, for a total deposit of $50. In all, defendant cashed ten checks at National Bank of Bossier, eight checks at five or more of the Louisiana Bank and Trust branches in Cad-do Parish, and two checks at Pioneer Bank in Caddo Parish, for a total of twenty checks. He used an additional check as a deposit on a car in Bossier Parish. The seven remaining checks were recovered from his vehicle.

At the time of his arrest, defendant was in the city jail for disturbing the peace. His arrest in the present case was for only those checks, seventeen in all, either cashed or recovered from his car in Caddo Parish. Of the ten checks cashed in Caddo Parish, six were in the amount of $950 and four in the amount of $224.98. Shortly after his arrest, defendant admitted the details of the offense. He also stated that he had used $6,000 of the money to acquire a 1979 Mercury Cougar and spent $2,000 at the racetrack; he claimed that $1,286 had been stolen from him while sleeping in his car.

Defense counsel, while first advising defendant not to plead guilty with a five-year limitation on the sentence, made it clear that, if he did plead guilty, he should require at least a five-year limitation because of his background and being a first offender. He also advised defendant to wait until a pre-sentence investigation could be made. However, defendant preferred to enter a plea and be sentenced without delay because of medical and personal reasons. While the trial court was at first reluctant to “bind itself to a five-year limitation” before presentation of all the facts, upon assurance by the state that it was aware of defendant’s criminal background, the court agreed to proceed with a “five-year limitation” on the sentence.

Defendant testified at the hearing. He stated that he was forty-four years old and had been married three times and had nine children, two still under the age of eighteen. He had served twenty years in the Army, including about five years in Vietnam. He retired as a “Command Sergeant Major, E9” and receives a monthly pension of $1,186. According to defendant’s testimony, he has nine years of higher education and is presently working on a doctorate in child psychology. He stated that he had taken the checks in question because he was under pressure from a “loan shark” who, he feared, might harm his wife and ex-wife if the loan was not paid. He further stated that he intended to make restitution for the losses occasioned by his conduct. Defendant admitted that, while in the Army, he had been charged with AWOL but after serving in jail for fourteen days the charge was dropped. He also stated that several months prior to his arrest on the present charges, he had been incarcerated for forty-one days on an arrest warrant from Georgia but was released on a finding that he had been detained on an improperly issued warrant and an insufficient charge.

After defendant had testified, the trial judge pointed out that defendant “actually had ten [forgery offenses]” which were reduced to three because some of them took place on the same occasion. He further noted that forgery carries a maximum sentence of imprisonment of ten years at hard labor and, absent the plea bargain, defendant would have been exposed to a far greater penalty. The judge did not consider defendant’s good military record and medical problems sufficient reason to release him on a suspended sentence and probation, given the extent of the financial loss which he had caused and the need to protect society from such losses. Because of the seriousness of the offense and the surrounding circumstances, the judge was of the opinion that defendant “must have some correctional treatment” and sentenced him to five years at hard labor. The judge recommended that the Department of Corrections take into consideration defendant’s “excuse [and] his prior record, with regard to how long a sentence he ought to serve” before parole.

La. Const, art. 1, § 20 prohibits the imposition by law of excessive punishment. In State v. Sepulvado, 367 So.2d 762 (La.1979), we held that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable by this court on appellate review of his conviction.” Given compliance with La.Code Crim.P. art. 894.1, a sentence will not be set aside as excessive absent manifest abuse of the trial judge’s sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, supra. The penalty imposed must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980).

We do not consider the penalty imposed in the instant case so disproportionate to the crime committed as to shock our sense of justice. Defendant was employed in a position of trust. The record shows that he appropriated twenty-eight checks, made them payable to himself, filled in the amounts, and forged the signature of the maker of each check. Thereafter, he cashed twenty of the checks at numerous branches of three different banks on three separate dates. While claiming that he stole the cheeks because of pressure from a “loan shark,” his statement to the police shortly after his arrest was that he had used $6,000 to buy a car and spent $2,000 at the racetrack; he claimed that the rest of the money had been stolen from him while sleeping in his car. Defendant elected to enter a plea bargain whereby he pleaded guilty to one of the three counts of forgery for which he was charged. The state agreed to dismiss the remaining two counts and the parties agreed to a five-year limitation on the sentence. The trial judge properly noted that, absent the plea bargain, defendant would have been exposed to a far greater penalty. While not controlling, we consider that the plea bargain should be considered as a factor in determining whether the sentence imposed in accordance therewith is excessive. Under the circumstances of this case, we are unable to say that the trial judge abused his discretion in sentencing defendant to five years at hard labor. Hence, we do not find defendant’s sentence excessive.

DECREE

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

      . Defendant testified that he had an ulcer and asthma and wanted to plead guilty and be sentenced so that he could be sent to another institution where he could get proper medication and food for his health. He also stated that he believed that once he was sentenced his new wife of twenty years of age would feel free to divorce him.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Paul Mark ARCENEAUX.
    No. 82-K-1543.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Eugene Bouquet, Asst. Dist. Atty., for respondent.
    Steven Broussard, Lake Charles, for relator.
   MARCUS, Justice.

Paul Mark Arceneaux was charged by bill of information with simple burglary in violation of La.R.S. 14:62 and theft of property in excess of $500 in violation of La.R.S. 14:67. Prior to trial, defendant filed a motion to suppress certain physical evidence and inculpatory statements on the ground that they were unconstitutionally obtained. After a hearing, the trial judge denied the motion. Upon defendant’s application, we granted a writ under our supervisory jurisdiction to review the correctness of that ruling.

Defendant contends the trial judge erred in denying the motion to suppress his incul-patory statements. He argues that there was no probable cause for his arrest; therefore, the arrest was illegal and the statements obtained from him as a result thereof were inadmissible as “fruit of the poisonous tree.” In addition, he argues that the second statement (confession) was taken in violation of his sixth amendment right to counsel.

The facts adduced at the suppression hearing are generally not in dispute. At about 5:30 a.m. on February 8,1982, Officer Miles of the Sulphur Police Department was on routine patrol. While driving east on Highway 90, he saw a parked vehicle on the north side of the railroad tracks with its headlights on. The vehicle was on a one-way dirt path which ran parallel to the railroad tracks. Miles, aware of complaints of criminal damage to property, trespassers, and people throwing rocks at trains in the area, turned around and drove north onto the property of a concrete plant, which was located south of the railroad tracks. He pulled up behind a rock pile and shined his spotlight on the vehicle, whereupon the vehicle, which had two people in it, started to back up. Knowing that the only public access to the path was Prater Road, Miles radioed Officer Decker to head off the vehicle. Decker responded and proceeded along the “path” with his spotlight on. Decker testified that he saw "... the doors were open on the vehicle ... two subjects were getting into the vehicle, and the doors closed, and the vehicle started backing out towards me.... ” When the vehicles got within thirty feet of each other, Decker got out of his vehicle and ordered the driver (Arceneaux) to stop the car. At this time, Miles arrived on the scene and the officers began identification procedures on Arcen-eaux and the passenger (Raymond A. Walker). When Decker noticed a train coming, all parties drove to a nearby parking lot at the Red Top Grocery. There, Lieutenant Moss and two units from the Calcasieu Parish Sheriff’s Department arrived. Arcen-eaux was once again requested to produce identification. Although Arceneaux was not “formally” arrested at this time, Miles testified that he would have restrained him if he had tried to leave. Five or ten minutes later, Miles and Moss left the parking lot to search the area near the railroad tracks. Upon finding an electric guitar in a water-filled ditch or hole, they radioed Decker to arrest Arceneaux. Decker formally arrested defendant for trespassing on Southern Pacific Railroad property, advised him of his Miranda rights and transported him to the Sulphur Police Department where he was booked on the charge of trespass. At 6:50 a.m., defendant, after being advised of his Miranda rights by Officer Doucet, signed a waiver of rights form. At 7:02 a.m., Officer McCann of the Sul-phur Police Department took over and again advised defendant of his rights. McCann asked Arceneaux: “[W]here did the items recovered come from?” Defendant replied that they “had come from the mini-warehouse.” McCann intended to ask more questions but at that point defendant stated that he wanted to “talk to an attorney first.” Defendant’s request for an attorney is not disputed. Questioning then ceased. Subsequently, defendant was taken across the street to the Sulphur substation. Meanwhile, Officer Steach, a burglary and theft investigator with the Calcasieu Sheriff’s Office, had been called to assist in the case by the Sulphur Police Department. Steach, after investigating the area near the railroad tracks, arrived at the sub-station at about 10:30 a.m. Thereafter, at about 11:30 a.m. (some four hours after Arceneaux had requested counsel), Steach, unaware of defendant’s request for counsel, proceeded to interrogate him about the break-in after advising him of his Miranda rights and having him execute a waiver of rights form. Defendant orally confessed to his involvement in the crime. However, defendant refused to give a written statement stating that “he wanted to talk with an attorney.” Questioning then ceased and defendant was placed under arrest for burglary and theft.

In order to ascertain the admissibility of these inculpatory statements, we must first determine whether defendant’s arrest was based upon probable cause to believe that he had committed a crime.

La.Code Crim.P. art. 213 provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer. ...

Reasonable cause, which we have treated under this article as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Drew, 360 So.2d 500 (La.1978). Probable cause may be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Drew, supra. Compliance with these standards 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); State v. Drew, supra.

In the instant case, Officer Miles was on routine patrol when he saw a parked vehicle with its headlights on. The car was on a path that extended from a public road (Prater Road). There were no barricades, fences, or posted signs to put the defendant on notice that he should not enter the area. There was no testimony that Arceneaux knew that he was trespassing. In fact, defendant’s only response to questioning before he was arrested was that he was just checking to see where the road went. Officer Decker only saw the two subjects get into the ear and back up. \Moreover, when Miles found the guitar in the ditch, there was no evidence at the time of the arrest of any relationship between the guitar and Arceneaux. No one saw Arceneaux unload the items from the ear to the ditch. Although the officers were aware of previous complaints of theft, vandalism, and trespassing in the area, the officers did not have probable cause to believe that the defendant had committed any crime. Hence, defendant’s arrest was illegal.

Confessions obtained through custodial interrogations after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is “sufficiently an act of free will to purge the primary taint.” Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In Brown, the United States Supreme Court identified several factors that should be considered in determining whether a confession has been purged of the taint of the illegal arrest: “the temporal proximity of the arrest and the confession, the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct.” Brown, supra, 422 U.S. at 603-604, 95 S.Ct. at 2261-2262. The state bears the burden of proving that a confession is admissible. Ibid.

Defendant’s statement to Officer McCann that the items recovered had come from the mini-warehouse was made less than two hours after he had been arrested. There were no intervening events of any significance. Moreover, defendant was arrested without probable cause in the “hope that something might turn up.” Taylor v. Alabama, - U.S. -, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, supra. Clearly, the causal connection between the unlawful conduct and the statement did not become so attenuated as to dissipate the taint of the primary illegality. Hence, the state failed to sustain its burden of proving the statement admissible.

Defendant’s second statement admitting his involvement in the burglary and theft to Officer Steach at about 11:30 a.m. (some four hours later) likewise may not have been so attenuated as to dissipate the taint of the illegal arrest; however, we pretermit this question finding the confession inadmissible on another ground.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless the accused is first advised of, and subsequently waives, his right to remain silent and right to the presence of an attorney. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, decided on May 18, 1981, the Supreme Court held that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. The Court further held that an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. State v. She a, 421 So.2d 200 (La.1982) (on rehearing); State v. McCarty, 421 So.2d 213 (La.1982).

Since the confession in the instant case was obtained after Edwards, the new rule of Edwards is applicable. It is uncon-troverted that Arceneaux invoked his right to counsel while being interrogated by Officer McCann at about 7:15 a.m. Counsel was never made available to him nor did defendant initiate further communication with the police. To the contrary, the police (Officer Steach) reinitiated further conversation with Arceneaux. Moreover, it is of no moment that Steach did not know of defendant’s request for counsel. Good faith is not relevant because once the defendant has expressed his desire to deal with the police only through counsel, all successive officers who deal with the defendant are held to have knowledge of this fact. State v. West, 408 So.2d 1114 (La.1981). Hence, the second statement (confession) made to Officer Steach is inadmissible.

In sum, the trial judge erred in denying defendant’s motion to suppress the inculpa-tory statements made by him to Officers McCann and Steach. We must reverse.

DECREE

For the reasons assigned, the ruling of the trial judge denying defendant’s motion to suppress is reversed and set aside. The case is remanded to the district court for further proceedings.

      . The property consisted of a turntable and stereo, an electric guitar, a television, three albums and assorted equipment.

      . It was stipulated at the hearing that since the physical evidence was abandoned prior to defendant’s stop by the police, there was no constitutional violation in the seizure of the evidence.

      .416 So.2d 938 (La.1982).

      . It was stipulated that if Deputy Steach were called as a witness to testify, his testimony would be substantially the same as that previously given at the preliminary examination with reservation of the right to each party to call the witness for additional questions. Ultimately, he was called to testify at the hearing.

      . The path, located in the City of Sulphur, Cal-casieu Parish, was part of a railroad right-of-way owned by Southern Pacific Railroad.

      . The motion to suppress concerns only Arcen-eaux.

      . Officers Miles and Moss also found another guitar, a portable television, stereo equipment and automobile equipment in the ditch.

      . It is not clear whether defendant was arrested under Section 10-43 (criminal trespass) of the Code of Ordinances of the City of Sulphur or La.R.S. 14:63 (criminal trespass). This charge was later rejected by the district attorney’s office.

      . See State v. Shea, 421 So.2d 200 (La.1982), as to the non-retroactivity of Edwards.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Julian CHAISSON.
    No. 81-KA-2293.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      William J. Guste, Jr. Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., P. Michael Cullen, Abbott J. Reeves, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    Robert T. Garrity, Jr., Harahan, Kathleen Hughes, New Orleans, for defendant-appellant.
   DENNIS, Justice.

Defendant, Julian Chaisson, was convicted by a jury of armed robbery, La.R.S. 14:64, and attempted second degree murder, La.R.S. 14:27, 30.1, arising out of the same incident. Defendant moved for a new trial on grounds that (1) the joint trial of the two offenses had confused the jury and denied him a fair trial and (2) dual sentences based on both convictions would constitute multiple punishment for the same offense and thereby subject him to double jeopardy. The trial court denied defendant’s motion for a new trial, but quashed his armed robbery conviction and underlying indictment because it found merit in his double jeopardy claim. Defendant was sentenced to twenty years at hard labor because of his second degree murder conviction. The state did not seek review of the ruling adverse to it. The defendant appeals and assigns five errors. We find no merit in defendant’s assignments and affirm his conviction and sentence.

Milton Jenkins, the victim of the crime, gave the following account of the incident in his trial testimony. On February 20, 1980, Jenkins was sitting in his purple Cadillac parked outside of a Time Saver store at 351 Gretna Boulevard. At about 8:00 p.m. the defendant, Julian Chaisson, walked up to him, pointed a gun in his face and told him to get into the trunk. Jenkins hesitated and was “slapped” in the mouth with the butt of a .45. Jenkins attempted to flee after using the car door to knock the defendant off-balance. However, as he ran from the vehicle, Chaisson shot him once in the upper left arm and three times in the back. Jenkins was rushed to a hospital and successfully treated. The treating physician’s testimony corroborated that Jenkins had been shot in the back.

An employee of the Time Saver observed the scuffle, heard the gunshots and saw Chaisson leave the scene in Jenkins’ car. Lawrence Parks was waiting for Chaisson at a Shell Station nearby when he heard the shots. Parks fled in his own car, and later picked up Chaisson, who was at that time driving the Cadillac. Parks testified that Chaisson later told him that he had gotten in an argument with a man and shot him. Parks also testified that when he picked up Chaisson on Gretna Boulevard, Chaisson had papers with him and a ten dollar bill.

Chaisson took the witness stand and testified that he shot Milton Jenkins in self-defense. Chaisson claimed that Jenkins agreed to sell him drugs, and that Jenkins took thirty dollars from Chaisson. Instead of delivering drugs, however, Chaisson said that Jenkins shoved him off-balance with the car door, armed himself with a tire iron from the trunk, and advanced menacingly. Chaisson contends he was forced to pull out his pistol and fire in self-defense. The defendant also advanced intoxication as a defense, and his drunken condition was corroborated by the testimony of his brother.

Shortly after the shooting, Lawrence Parks was arrested in the 1600 or 1700 block of Gretna Boulevard. The defendant, however, escaped and was not arrested until May 30, 1980 in Mobile, Alabama. The charges against Parks were dropped in exchange for his testimony.

Assignments of Error Numbers One, Three and Nine

In these assignments, defendant contends that the trial court committed reversible errors by denying his motions to sever the offenses, quash the indictment, and grant him a new trial. Defendant argues that each of these motions should have been granted because a joint trial of the attempted murder and armed robbery charges subjected him to double jeopardy and denied him a fair trial by confusing the jury-

The defendant was not subjected to double jeopardy. The double jeopardy clause provides three separate constitutional protections: it protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and, it protects against multiple punishments for the same offenses. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In the present case, the defendant was not prosecuted a second time for the same offense after acquittal or conviction and, due to the action of the trial judge in quashing one conviction before imposing sentence, the defendant did not receive multiple punishment for the same offense. See State v. Doughty, 379 So.2d 1088 (La.1980).

A presumption that the defendant was prejudiced by jury confusion resulting from the joinder of offenses is not warranted. The same violent misappropriation served both as an essential element of the attempted murder charge and as basis for the independent charge of armed robbery. The joinder of these offenses in the present case did not violate the statutory rule prohibiting joinder of dissimilar or unrelated offenses designed to prevent juror confusion or distraction. C.Cr.P. art 493. Nor does it violate the constitutional prescription against double jeopardy. State v. Doughty, supra; State v. Beavers, 364 So.2d 1004, 1008 n. 4 (La.1978). Consequently, there is no justification for a legal presumption that the jury in this case rendered an improper verdict due to confusion.

Additionally, a review of the record reveals no grounds for finding any actual prejudice due to jury confusion. The jury returned three times during its deliberations to request additional instructions on pertinent crime definitions and on the order in which it should consider the possible verdicts. On the last occasion, the foreman informed the judge that he had prematurely marked the verdict form to indicate a finding of “guilty of armed robbery” and requested a new form. The trial judge, however, instructed him to scratch out that verdict and to write on the same form whatever verdict the jury decided upon after further deliberations. When the jury returned the final time, it returned verdicts of guilty of attempted second degree murder and guilty of armed robbery. Upon polling all the jurors and receiving confirmation from the number of jurors required by law to support each verdict, the jury was discharged.

We cannot infer from this that the jury was confused. A juror is free to ask for additional instructions and to change his mind during deliberations in the light of such further charges. C.Cr.P. art. 808. The defense counsel did not object to any of the proceedings or instructions given when the jury returned to the courtroom. If counsel was aware of any cause to believe that the jury was confused, it was his duty to object or request further clarifying instructions from the judge. Under these circumstances, we will not speculate about the jury’s verdict. Cf. State v. Stewart, 400 So.2d 633 (La.1981).

Assignment of Error Number Two

By this assignment, the defendant contends that the trial court committed reversible error by assigning to the prosecution counsel a table nearer the jury than that assigned to the defense. A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders. It has the authority and duty to require that its proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done. La. Const.1974, Art. 5 § 1; C.Cr.P. art. 17. Of necessity, the physical arrangement of tables, chairs and other objects in a courtroom during a trial must be left to the discretion of the trial judge. In the absence of a showing of a misuse of his discretion injurious to a fair trial, this court will not substitute its judgment on such matters for that of the trial judge. See State v. Brown, 410 So.2d 1043 (La.1982). In the present case, there has been no such showing because the defendant has not alleged or proved any facts which indicate that he could not present an effective defense by use of the table assigned to him and his attorney.

Assignments of Error Numbers Five and Six

By these assignments, defendant first complains that the trial court erred by failing to strike the testimony of Officer Folse that items and photographs of items found in the vicinity of the crime were the victim’s personal property and that some of them had been taken from his wallet. However, the defendant’s attorney did not object to any of the officer’s testimony. On cross-examination, the defense elicited candid admissions from the officer that he could not verify that the items belonged to the victim but assumed it to be true because of what other officers told him. At the close of Folse’s testimony, the defense moved unsuccessfully to strike it from the record and to admonish the jury to disregard it.

This borders on being a frivolous assignment. A motion to strike is unknown to the criminal law of Louisiana. State v. Kirsch, 363 So.2d 429 (La.1978). Once a witness testifies, his testimony cannot be removed from the record. State v. Provost, 352 So.2d 661 (La.1977). The motion to admonish the jury was nothing more than an improper invitation for the judge to comment on the evidence. La.C.Cr.P. art. 772. Furthermore, the victim and other witnesses testified that the personal property items were his; considering this with Folse’s frank admission as to the source of his information, the introduction of his testimony was of little consequence.

Defendant next complains of the trial court’s failure to strike the testimony of Officer Hintz to the effect that he found a $10 bill along with some of the victim’s personal property items scattered on the side of a street down which the defendant had driven the victim’s car following the shooting. But, the defendant did not make a contemporaneous objection and his motion to strike does not preserve his right to raise an objection on appeal. State v. Kirsch, supra; State v. Provost, supra. The defendant did object to the introduction of photographs of these items but a proper foundation for their introduction had been laid. The state had proved that they were relevant to the charged offense. State v. Haarala, 398 So.2d 1093 (La.1981).

Assignment of Error Number Seven

The defendant argues that the evidence was insufficient for a reasonable trier of fact to conclude that he was guilty of each element of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). His argument is without merit.

Dr. Francois Guimond of the West Jefferson Hospital testified that on the night of February 20, 1980, Milton Jenkins was brought into the emergency room for gunshot wounds. He further testified that the trajectory of the wounds indicated that the bullets had entered Jenkins from the back and exited through his chest. Julian Chais-son was positively identified as the man who shot Jenkins by both Jenkins and Mark Perry, an employee of the Time Saver and an eyewitness. Co-defendant Parks testified that Chaisson told him that he had “argued” with a man and “shot him.” Car-nie Burcham, the arresting officer, testified that the defendant told him he was “mad” at the victim and that the victim “turned and ran.” Burcham further testified that the defendant told him he shot Jenkins four times, that he didn’t like black people, and that if he had not recently changed from hollow-point ammunition, he would have “splattered” him.

The evidence fully supports a finding of guilt for every element of the offense of attempted second-degree murder. The assignment lacks merit.

Assignment of Error Number Eight

By this assignment of error, the defendant complains that the trial court erred in sustaining a state objection to the testimony of a defense witness who would have established that the victim, Milton Jenkins, had a reputation for being a drug dealer. From his remarks, it is evident that the trial judge precluded admission of the evidence because it was completely irrelevant.

The trial judge did not abuse his discretion in excluding this evidence. The defendant had the opportunity to question Jenkins directly about whether or not a drug transaction was in progress at the time of the incident, but during his cross-examination he declined to do so. While we cannot say that the evidence that Jenkins was a drug dealer was entirely irrelevant, its probative value was slight because it does not necessarily show that he was dealing’ at the time, reneged on a sale, or became aggressive. Such evidence hardly mitigates the overwhelming proof that the victim was not the aggressor, because it does not help to explain how he could have been both the aggressor and shot in the back while fleeing from the scene. The judge correctly determined that the slight probative value of such evidence was substantially outweighed by the risk that its admission would consume too much time, unnecessarily confuse the jury concerning the issues to be determined, and tend to excite the emotions of the jury to the undue prejudice of the opponent. State v. Ludwig, No. 81-K-1318, Nov. 29, 1982.

Nor was this evidence admissible as general reputation impeachment evidence. While evidence of general reputation for truth or moral character is admissible to impeach a witness, La.R.S. 15:490, such reputation evidence cannot be about particular acts, vices or courses of conduct. La.R.S. 15:491. The general American rule is even more limited in that reputation evidence for impeachment is restricted entirely to reputation for truth or veracity. 3A Wigmore, Evidence § 923 (Chadbourn rev. 1970). Evidence that the witness has a reputation for being a drug dealer is evidence of a specific vice or course of conduct, and is therefore inadmissible for this type of impeachment. Cf. State v. Marshall, 359 So.2d 78 (La.1978).

Lastly, this evidence was not admissible under La.R.S. 15:482, which allows the defendant to introduce evidence of the victim’s dangerous character or his threats against the accused. Had the defendant proffered evidence of Jenkins’ dangerous character, we would be confronted with a different case because a judge has virtually no discretion to exclude such evidence after an appreciable showing of an overt act against the defendant. State v. King, 347 So.2d 1108 (La.1977). Evidence of a reputation for having dealt in drugs, however, is not equivalent to evidence of dangerous character or threats against the accused. These categories are strictly construed in order to avoid the possibility .that the bad character of the deceased or injured person will be put forward to serve improperly as a mere excuse for the killing or injury, under the pretext of evidencing his aggression. 1 Wigmore, Evidence, § 63 (3rd ed. 1940).

DECREE

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

LEMMON, J., concurs.


author: DENNIS, Justice. BLANCHE, Justice LEMMON, Justice, MARCUS, Justice

text:
    STATE of Louisiana v. Cecil GODEJOHN.
    No. 82-KA-0661.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Ted Brett Brunson, Lowther & Boone, Many, for defendant-appellant.
   DENNIS, Justice.

Defendant, Cecil Godejohn, pleaded guilty to simple burglary, La.R.S. 14:62, and was sentenced to three years at hard labor. He appealed and filed two assignments of error. '

In his brief in this court, defendant calls our attention to the trial court’s failure to perform his duty to determine that defendant expressly and knowingly waived his constitutional rights in entering his guilty plea. Article 920(2) of the Code of Criminal Procedure permits consideration on appeal of “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” This article is an embodiment of the rule to be found in State v. Stanford, 248 La. 630, 181 So.2d 50 (1965) where this court said:

The record in a criminal case for the purpose of considering whether there is error patent on the face of the record * * includes the caption in the case, a statement of time and place of holding the court, the indictment or information with the endorsement, the arraignment, the plea of the accused, the mention of the impanelling of the jury, verdict, and judgment of the court. (Emphasis Added.)

The court went on to say, “testimony not attached to or made a part of a bill of exception cannot be considered by this court even though the testimony is included in the transcript.” State v. Palmer, 251 La. 759, 206 So.2d 485 (1968).

The colloquy which occurs when the court canvasses the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences is a part of the plea of the accused. It is in the nature of a pleading or proceeding, rather than testimony or evidence. Therefore, a review of it for error on appeal constitutes a mere inspection of the pleadings and proceedings without inspection of the evidence.

At the plea proceeding, the trial court questioned the defendant on the following topics: whether he understood that restitution would be a condition if probation were granted; whether there were any other agreements, conditions or promises attached to his plea; whether anyone had forced him to plead; whether he understood the nature of the offense and the maximum allowable sentence; and whether he was satisfied with the work and advice of his attorney.

The trial court did not advise the defendant of his right to a jury trial, his right to confront his accusers, and of his privilege against self-incrimination or make any inquiry as to his understanding of these rights and that by pleading guilty he was waiving them. The plea of the defendant and the proceedings, therefore, do not disclose that the defendant waived these constitutional rights. Accordingly, the due process requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) require that the guilty plea be vacated, the conviction and sentence reversed, and that the defendant be permitted to plead anew. State v. Williams, 384 So.2d 779 (La.1980). See also, State ex rel. Jackson v. Kenderson, 260 La. 90, 255 So.2d 85 (1971).

REVERSED AND REMANDED FOR DEFENDANT TO ENTER A NEW PLEA.

BLANCHE, LEMMON and MARCUS, JJ., dissent and assign reasons.

BLANCHE, Justice

(dissenting).

I must respectfully dissent. Failure of the trial judge to Boykinize a defendant is not a patent error. In my opinion, defendant’s only remedy is to seek post-conviction relief.

LEMMON, Justice,

dissenting.

The decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), only prohibited the presuming of a voluntary and knowledgeable plea from a silent record. That decision did not establish a per se rule that the plea is invalid unless the trial judge specifically articulates the three rights mentioned in the opinion.

The record in the present case is not silent on the nature of the plea. Rather, the record establishes that defendant entered his guilty plea voluntarily and knowingly, despite the trial court’s failure to parrot the three rights noted in State ex rel. Jackson v. Henderson, 260 La. 90, 260 So.2d 90 (1971).

MARCUS, Justice

(dissenting).

Defendant pled guilty to simple burglary and was sentenced to serve three years at hard labor. On appeal, he relies on two assignments of error for reversal of his sentence, that is, that the trial judge erred in failing to comply with the sentencing guidelines and in imposing an excessive sentence. In brief to this court, defendant raises for the first time that he was not properly Boykinized at the time he entered his plea of guilty in the trial court.

La.Code Crim.P. art. 920 provides:

The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

La.Code Crim.P. art. 844 provides that a party appealing shall designate in writing those errors to be urged on appeal. The assignment of errors shall be furnished to the trial judge who may submit such per curiam comments as he desires.

Defendant did not designate the error (failure of proper Boykinization) in his assignment of errors as required by art. 920(1). In order to reach the error on appeal, the majority finds it to be an error discoverable by mere inspection of the pleadings and proceedings and “without inspection of the evidence.” In my view, testimony taken at the guilty plea hearing is “evidence” that must be inspected; therefore, the issue of whether defendant was Boykinized is not a patent error and is not before us on appeal since it was not included in the assignment of errors. In State v. Williams, 384 So.2d 779 (La.1980), relied on by the majority, the issue of proper Boykinization was raised on appeal as an assigned error. In State v. Henderson, 260 La. 90, 255 So.2d 85 (1971), also relied on by the majority, the issue of lack of Boykinization was raised via post-conviction relief.

In the instant case, while the transcript of the guilty plea proceedings does not reflect that defendant waived his Boykin rights, the minutes of court do reflect that he was properly Boykinized. Had defendant designated the lack of Boykinization as an assigned error, the trial judge would have been afforded an opportunity to submit a per curiam comment as the law permits. He may or may not have been able to explain the discrepancy. I am unable to accept the majority’s explanation of the use of “boilerplate type minutes of court.”

Not having initially designated the error (lack of Boykinizatiori) as an assigned error did not and does not leave defendant without a remedy. First, he could have amended his assignment of errors prior to hearing before this court rather than merely submitting a new argument in his brief. Since defendant raises a due process issue, his remedy now is by application for post-conviction relief (La.Code Crim.P. arts. 924 and 930.3) which must be addressed to the district court for the parish in which defendant was convicted (La.Code Crim.P. arts. 925 and 926).

While procedural rules are technical, they usually have a valid purpose. The assignment of errors procedure is designed to insure that issues will be raised for review in an orderly manner. I do not consider that the proper procedure was followed here. Accordingly, I respectfully dissent.

       The boilerplate type minutes of court indicate that the defendant was properly Boykinized, but the minutes are obviously incorrect in light of the record of the guilty plea proceedings, and the state does not contend otherwise.

      . After insuring that the plea was voluntary, the trial judge informed defendant of the elements of the crime and the range of possible sentences. The district attorney then stated the factual basis on the charge, and the defendant agreed that the statement of facts was accurate.

      . The state’s brief on this issue simply states that: “After extensive Boykinization, the Court found a factual basis for the guilty plea, and accepted it.” Otherwise, argument was limited to the assigned errors.


author: BLANCHE, Justice.

text:
    Allen A. NEWMAN v. The DEPARTMENT OF FIRE.
    No. 82-C-1536.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      Salvador Anzelmo, City Atty., Galen S. Brown, Deputy City Atty., Charles J. Wil-loughby, Asst. City Atty., for applicant.
    Louis L. Robein, Jr., Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for respondent.
   BLANCHE, Justice.

We granted writs to review the action of the court of appeal, 413 So.2d 225, in modifying the disciplinary action taken by the appointing authority and affirmed by the New Orleans Civil Service Commission against a former captain with the New Orleans Fire Department. Captain Allen Newman received a 60 day suspension without pay and was demoted to the rank of firefighter and transferred to another station after leaving his post for an hour and forty-five minutes, during which time his unit was required to respond to an alarm. The court of appeal maintained the 60 day suspension and transfer but reversed the demotion, being of the opinion that the punishment was excessive. We also wanted to examine whether the court of appeal had exceeded its authority in modifying the penalty imposed without remanding the matter to the Commission for reimposition of the proper disciplinary measures. We find it unnecessary to address squarely this latter issue, however, because the action of the court of appeal in reversing the imposed penalty was contrary to the law and the evidence. In our opinion, because the plaintiff never met the threshold requirement of showing that the penalty had been imposed arbitrarily and capriciously, the penalty should not have been modified on appeal. Accordingly, we need not determine whether the matter should have been remanded to the Commission.

These proceedings arose out of the following set of circumstances: Allen Newman, a nineteen year veteran of the force with the rank of captain, left the Algiers firehouse where he and two other firemen were on duty as a “ladder unit” in the early morning hours of October 5, 1980 in order to obtain a meal. He was accompanied by another fireman, and the two were gone for approximately an hour and forty-five minutes. The two remaining unit members were sleeping at the time and did not discover Newman’s absence until they prepared to “roll” on an alarm. A superior officer discovered Newman’s absence when the under-manned unit became involved in a traffic accident on the way back to the station. Fire Superintendent William McCrossen subsequently disciplined Newman by suspending him from the force for 60 days, demoting him to the rank of firefighter, and transferring him to another fire station.

The appropriate standard of appellate review of actions by the Civil Service Commission is to determine whether the conclusion reached by the Commission was arbitrary or capricious. Merchant v. Department of Finance, 391 So.2d 587 (La.App. 4th Cir.1980); cf. LSA-R.S. 49:964(G)(5). Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. The appointing authority (Superintendent) must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficiency and orderly operation of the public service. La. Const, art. X, § 8; Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962); Thornton v. Dept. of Health and Human Resources, 394 So.2d 1269 (La.App. 1st Cir.1981); Rodriguez v. Board of Commissioners, Port of New Orleans, 344 So.2d 436 (La.App. 4th Cir.1977). As in other civil matters, deference should be given on appellate review to the factual conclusions of the Commission. Sanders v. Dept. of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir.), writs denied, 399 So.2d 602 (La.1981). We are of the opinion that the appointing authority demonstrated by a preponderance of the evi-denee that the conduct of Newman did in fact impair the efficient and orderly operation of the fire department. Therefore, the action of the Commission in imposing such disciplinary measures may not be characterized as arbitrary and capricious, and the court of appeal erred in so finding.

In its reasons for reversing Newman’s demotion, the court of appeal relied heavily on the testimony of Newman that men from other companies or units were routinely interchanged to fill a vacancy on a short-manned unit should a member of that unit have become absent. The court believed Newman’s “primary mistake [to have been] leaving the company house without notifying the other members of his unit....” In our opinion, this factual determination, which formed the principal basis for the court of appeal decision, is erroneous and contrary to the evidence.

Our review of the record shows that the basis for the disciplinary measures against Newman was not solely the fact that he was absent without notifying the other members of his unit. He was specifically charged with violating the following provisions:

Section 6:01 — CAPTAIN’S RULES — this position is one of the utmost importance in the enforcement of discipline and the promotion and maintenance of efficiency. The captain shall consider it his duty to set a good example and require that his command measure up to Departmental requirements.
Section 11:16 — GENERAL RULES — No person shall leave quarters without permission except when response is made to an alarm.
Section 11:29 — GENERAL RULES — Absence or tardiness without proper notification and permission shall be considered as absent without leave and the offender shall be penalized accordingly.

Newman’s absence must be viewed in a context larger than mere absence without permission or notification. His dereliction was compounded when his unit was required to answer an alarm in his absence. His rank of captain carried with it considerably more responsibility than mere participation as a member of a ladder unit. See section 6:01, supra. As a captain, Newman was commander of the unit with front-line responsibility for promoting discipline and efficiency of operation.

Further, contrary to Newman’s contentions, the great weight of the testimony indicated that members of other companies or units were not routinely interchanged with under-manned ladder units short of personnel. If such interchanges had ever occurred, they were not effected pursuant to normal practice or policy of the department. Safety provisions in the bargaining agreement with the firefighters’ union and departmental regulations require that ladder units be operated with a minimum complement of three firefighters. The only time a ladder unit could be operated with less than three members would be a situation where one member was enroute to the station house when the unit was called out, or where appropriate permission had been obtained from the proper authority. Still further, under departmental regulations, captains do not have the authority to grant permission for their own absence. Under no circumstances are captains allowed to leave the station for food without the express permission of the district chief.

The actions of Newman in leaving the station reduced dangerously the manpower level and efficiency of his ladder unit in violation of department policy and his duty as a fire captain and unit commander. We are of the opinion that only refusing to fight an actual fire had he been present to respond to the alarm could be considered a greater dereliction of duty. Testimony of high-ranking officers in the fire department rated a two-man ladder unit as “useless”, even dangerous if it unnecessarily impeded access to the fire by other working units. The job of the ladder unit is to arrive at the scene before other firefighting units in order to ventilate the building and facilitate the access of units whose job is to actually put out the fire. Newman’s dereliction therefore had far broader implications than mere absence and could have endangered the safety of the public.

Therefore, in view of all of the departmental rules and regulations governing such matters and in view of the added responsibilities attendant the rank of captain, it was improper for the court of appeal to down-play the action of Newman in this case by characterizing it as simply “absent without notification.” The public puts its trust in the fire department as a guardian of its safety, and it is important that the department be allowed to set appropriate standards of conduct for its employees sworn to uphold that trust. The action of the Commission in demoting Newman to the rank of firefighter is not arbitrary or capricious since it was proved by the Superintendent, by a preponderance of the evidence, that Newman’s dereliction substantially impaired the efficient and orderly operation of the fire department. Leggett v. Northwestern State College, supra; Thornton v. DHHR, supra; Rodriguez v. Board of Commissioners, supra.

DECREE

For the foregoing reasons, the judgment of the court of appeal reversing the demotion of the plaintiff, Allen Newman, from the rank of captain to the rank of firefighter is reversed, and the judgment of the New Orleans Civil Service Commission is reinstated. The judgment of the court of appeal is affirmed in all other respects.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

LEMMON, J., concurs, believing there was sufficient cause to warrant the demotion.


author: BLANCHE, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Tommy WREN. STATE of Louisiana v. Vincent ORLANDO.
    No. 82-K-1619.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Charles J. Yeager, Kennedy & Yeager, B. Dexter Ryland, Garrett, Ryland & Nunnally, Alexandria, for relators.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., for respondent.
   BLANCHE, Justice.

Defendants Tommy Wren and Vincent Orlando were charged by grand jury indictment with aggravated kidnapping, a violation of LSA-R.S. 14:44, and first degree murder, a violation of LSA-R.S. 14:30, for the abduction and killing of Harold Austin. The defendants moved to suppress the testimony of Rapides Parish Sheriffs Deputy Bruce Vanderhoeven, an eyewitness who had seen the defendants on the night of the incident, because he had undergone hypnosis. It was hoped that the hypnosis would “refresh” Vanderhoeven’s memory so that he would be able to identify a woman whom he had seen with the defendants that night. Vanderhoeven had positively identified Wren and Orlando on two occasions prior to the hypnosis; nevertheless, the defendants assert that Vanderhoeven’s recollection has become so tainted by the hypnosis that his testimony is no longer reliable and should therefore be inadmissible. The trial court denied the motion, and we granted writs to examine the'propriety of that ruling.

The facts of this case developed as follows: In the late evening of January 17, 1982, Deputy Vanderhoeven was on routine patrol in Tioga, Louisiana, a small community a few miles north of Alexandria/Pine-ville. He stopped his patrol car across the street from a Shop-Mor convenience store and observed a car in the parking lot about fifty yards from where he had come to a stop. There were four persons in the car, and a fifth person at the front of the store, apparently locking the door. The man then hurried away and entered the right rear door of the car. Vanderhoeven was able to see the man’s face for a few seconds and believed him to be Michael Ebey.

The car drove off, and Vanderhoeven followed, radioing a request that another unit check the store. The other patrol car reported the store to be locked for the evening, and Vanderhoeven broke off his surveillance. He described the five occupants as follows: the driver was an elderly white male with a receding hairline and glasses; in the right front seat was a white woman with a short, full hairdo; in the left rear seat was Tommy Wren, a white male who Vanderhoeven knew from a previous arrest; in the right rear seat was the white male he had believed to be Michael Ebey; in the middle rear, slumped low, was an unidentified passenger. A license check showed the car to belong to Avery Moore of Tioga. Still troubled by the incident, Vanderhoe-ven returned to the Shop-Mor and found the cash drawer open and the car of the store proprietor parked at the far end of the lot with the driver’s door open. A short time later, the body of Harold Austin, the proprietor of the Shop-Mor, was discovered alongside a rural road not far from Tioga. Austin had been shot once in the chest.

Later, at about 2:15 a.m., Vanderhoeven was called to the Tioga substation to aid in the investigation and gave the above statement of facts to the investigating officers. Vanderhoeven and several other deputies then went to Michael Ebey’s residence, where they discovered that Ebey had a beard and was on crutches from recent knee surgery. This did not comport with Van-derhoeven’s prior identification, and he told the other officers that it was not Ebey who he had observed running from the store to the car. The officers did discover that Tommy Wren was Ebey’s roommate, and further investigation revealed that Avery Moore, the owner of the car in which all the suspects were riding, lived with a man named Vincent Orlando. The focus of the investigation turned to Wren, Moore, and Orlando as the primary suspects. The next morning, at about 6:00 a.m., Vanderhoeven was shown pictures of Vincent Orlando, who he identified as the man he had seen hurrying from the store to the car, and Avery Moore, who he identified as the driver. At the time of the identifications, Van-derhoeven was aware that the two were suspects in the murder.

On January 29, 1982, Vanderhoeven gave an additional statement which was largely repetitive of the first and identified photographs of the car belonging to Avery Moore. He also selected photographs of Wren and Orlando out of a photographic lineup. Much later, on March 6, 1982, Van-derhoeven was hypnotized by a state trooper in an attempt to identify the woman passenger. While under hypnosis, Vander-hoeven described the man who had run from the store to the car as about 40 years old, tall, slender, and dark complected with kinky hair. He was able to describe the female passenger as white, slim, with full short hair and wearing a white sweater.

At the hearing on the motion to suppress, Vanderhoeven testified that the hypnosis did not make any contribution to his ability to identify the occupants of the car. His identifications after hypnosis were substantially the same as they were before. He stated that he was certain that Orlando, Wren, and Moore were three of the persons in the car that night. The defendants’ motion urged that Vanderhoeven be declared incompetent to give any testimony, relying principally on their expert witness, Dr. Bernard Diamond, who testified extensively concerning the increased tendency of persons who have been hypnotized to be susceptible to suggestion and “confabulation.”

Dr. Diamond testified that a photographic lineup conducted before or after a hypnotic session impaired what would otherwise be a reliable and trustworthy identification because the hypnosis would render the witness uncertain as to whether the identification imprinted in his mind had its origins in the original visual memory or was merely a memory of the photograph which had been imprinted by the hypnosis. Dr. Diamond believed that the confusion wrought by the hypnosis had transformed Vanderhoeven from an honest and forthright witness to one who had become intransigent in his belief as to the accuracy of his identification because the identification had become “frozen” in his memory due to the hypnosis.

However, on cross-examination, Dr. Diamond did admit that Vanderhoeven’s statements prior to the hypnosis and those adduced during and after the hypnosis were essentially the same. He also admitted that repeated interrogation or repeated photographic lineups could have the same suggestive effect on an identification as hypnosis could. Finally, Dr. Diamond did concede that the reliability of eyewitness testimony was always open to question, whether hypnotically induced or not.

In denying the motion to suppress, the trial judge assessed Vanderhoeven as being straightforward and direct. In his view, any contamination of Vanderhoeven’s testimony by the hypnosis was a factual issue going to the weight to be accorded his testimony rather than to its admissibility. We are of the opinion that Vanderhoeven has not been rendered by the hypnosis as incompetent to testify as to his observations on the night of the incident. Since Vander-hoeven’s original identification of the defendants had been certain and was not enhanced in any way by the hypnosis, we find it unnecessary to assess squarely the admissibility of hypnotically-induced testimony in criminal cases, i.e., where facts are elicited under hypnosis which were otherwise unknown or not previously revealed by the witness prior to the hypnosis.. Here, the hypnosis produced no facts which were not already known to the investigating officers. Accordingly, we affirm the ruling of the trial court.

The defendants argue that there is no objective scientific criteria by which one can distinguish between Vanderhoeven’s true memory and what may have been inserted under hypnosis; therefore, there will always exist some degree of contamination of his memory. On the other hand, the state maintains that even if the hypnosis tainted Vanderhoeven’s testimony, there does exist an independent basis to establish the accuracy of his identification of Orlando and Wren, since nothing was obtained through the hypnotic session that was inconsistent with any of Vanderhoeven’s prior statements. The state further asserts that skillful cross-examination of Vanderhoeven could highlight any inconsistencies in his testimony and cast doubt on his credibility due to the hypnosis. We agree with the state’s assessment.

This issue is res nova in this state; however, the issue has been litigated extensively in other courts. Many of those courts have held that hypnotically induced testimony is admissible. The courts have generally reasoned that testimony of a witness whose memory has been revived through hypnosis should be treated like any other “recollection refreshed.” That the witness had his memory enhanced or refreshed through hypnosis or by other suggestive means should be a matter affecting credibility, not admissibility. The courts have presumed that skillful cross-examination will enable the jury to evaluate the effect of the hypnosis on the credibility of the witness. United States v. Adams, 581 F.2d 193 (9th Cir.1978), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683; State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981).

The defendants have cited a legion of cases which they assert stand for the proposition that the hypnosis of Vanderhoeven renders him incompetent to testify at trial and renders all of his testimony inadmissible. See State v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982); State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981); State v. Mack, 292 N.W.2d 764 (Minn.1980). These particular cases have reasoned that the testimony of a witness who has undergone hypnosis to refresh his memory should be per se inadmissible in a criminal trial unless the hypnotic procedure used satisfies the standard for the admissibility of scientific evidence as set out in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

In our opinion, those cases are distinguishable from the present case. As we noted earlier, we are not required to directly consider whether hypnotically-induced testimony is admissible in criminal trials because Vanderhoeven’s hypnosis caused him to give no information which he had not already given. Therefore, under these circumstances and the Adams line of reasoning, supra, the issue of Vanderhoeven’s hypnosis should go to the question of the proper weight to be accorded his testimony rather than to the question of its admissibility. We agree with the assertion that skillful cross-examination will enable the trier of fact to evaluate the effect of the hypnosis on Vanderhoeven’s credibility. Additionally, since Vanderhoeven’s first two statements provide an independent basis for corroboration of his hypnotic and post-hypnotic statements and identifications, any of the feared risks of “confabulation” and undue suggestion become insignificant. The defendant may always counter the proffered evidence with expert testimony highlighting any questions as to the reliability of Vanderhoeven’s testimony due to the hypnosis, thereby casting doubt on his credibility.

DECREE

For the foregoing reasons, the judgment of the trial court denying the defendants’ motion to suppress the testimony of Bruce Vanderhoeven is affirmed. These consolidated cases are hereby remanded to the trial court for further proceedings in accordance with the law.

AFFIRMED.

CALOGERO, J., concurs in part, dissents in part and assigns reasons.

CALOGERO, Justice,

concurring in part and dissenting in part.

I concur in the majority opinion insofar as it allows the witness, who has been hypnotized, to testify at trial to what he remembered and related prior to the hypnosis. This seems to be the emerging consensus of other jurisdictions which have considered the issue, even those jurisdictions which exclude hypnotically-induced testimony. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982); People v. Wallach, 110 Mich.App. 37, 312 N.W.2d 387 (1981); State v. Koehler, 312 N.W.2d 108 (Minn.1981); Commonwealth v. Taylor, 294 Pa.Super. 171, 439 A.2d 805 (1982).

However, insofar as the majority opinion permits a witness to testify to knowledge he acquired after the hypnosis or by virtue of the hypnosis, I dissent. While the majority says that it is not addressing the question of hypnotically-induced information, they nevertheless hold that the witness can testify concerning an identification he made of the defendants after the hypnosis and he can give at trial the more detailed description which only after the hypnosis he was able to recite.

Therefore, while I agree that Deputy Vanderhoeven should be able to testify concerning the identifications he made and the descriptions he gave prior to the hypnosis, I do not agree that he should be able to testify concerning post-hypnosis identifications or descriptions.

For these reasons, I concur in part and dissent in part.

      . Cf. United States v. Awkward, 597 F.2d 667 (9th Cir.1979), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116; United States v. Miller, 411 F.2d 825 (2nd Cir.1969); United States v. Narciso, 446 F.Supp. 252 (E.D.Mich.1977); Chapman v. Wyoming, 638 P.2d 1280 (Wyo.1982); Clark v. State, 379 So.2d 372 (Fla.App.1980); People v. Smrekar, 68 Ill.App.3d 379, 24 Ill.Dec. 707, 385 N.E.2d 848 (1979); People v. Hughes, 99 Misc.2d 863, 417 N.Y.S.2d 643 (1979); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); Creamer v. State, 232 Ga. 136, 205 S.E.2d 240 (1974); State v. Jorgensen, 8 Or.App. 1, 492 P.2d 312 (1971); Harding v. State, 5 Md.App. 230, 246 A.2d 302 (1968), cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969).

      . See also Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Polk v. State, 48 Md.App. 382, 427 A.2d 1041 (1981); People v. Tait, 99 Mich.App. 19, 297 N.W.2d 853 (Md. App.1980); People v. Blair, 25 Cal.3d 640, 15 Cal.Rptr. 818, 602 P.2d 738 (1979); People v. Hangsleben, 86 Mich.App. 718, 273 N.W.2d 539 (1978); Greenfield v. Robison, 413 F.Supp. 1113, (D.Va.1976); Rodriguez v. State, 327 So.2d 903 (Fla.1976); Jones v. State, 542 P.2d 1316 (Okla.Cr.App.1975); Emmett v. State, 232 Ga. 110, 205 S.E.2d 631 (1974); State v. Pierce, 263 S.C. 23, 207 S.E.2d 414 (1974); Greenfield v. Commonwealth, 214 Va. 710, 204 S.W.2d 414 (1974); People v. Harper, 111 Ill.App.2d 204, 250 N.E.2d 5 (1969); State v. Harris, 241 Or. 224, 405 P.2d 492 (1965).

        .Frye would require that in order for hypnotically-induced testimony to be admissible in criminal trials, it must be sufficiently established that the reliability of such testimony has gained “general acceptance” in the scientific community.


author: WATSON, Justice. BLANCHE, Justice

text:
    STATE of Louisiana v. Marvin L. TANNER.
    No. 82-K-1581.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      Dennis R. Whalen, Baton Rouge, for relator.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Bob Hester, Kay Kirkpatrick, Asst. Dist. Attys., for respondent.
   WATSON, Justice.

Defendant, Marvin L. Tanner, is being prosecuted for negligent homicide. The issue is whether he can enforce an agreement whereby he agreed to testify before the grand jury and also produce the testimony of an eye witness and the state reciprocally promised that the information against him would be dismissed if the grand jury returned “not a true bill”. LSA-C.Cr.P. art. 444.

FACTS

Tanner was driving a vehicle on July 17, 1981, which had a head on collision with another vehicle occupied by Alton L. Al-mand, Jr., and David R. Almand. Both the Almands died from injuries received in the accident. Defendant Tanner was charged by bill of information with two counts of negligent homicide and entered a plea of not guilty. A grand jury returned “not a true bill” on the charges. Defendant filed a motion to quash the information on the ground that the state had agreed to accept the grand jury’s decision about whether to prosecute.

C.Cr.P. art. 532 states:

“A motion to quash may be based on one or more of the following grounds:
“(1) The indictment fails to charge an offense which is punishable under a valid statute.
“(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
“(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
“(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion of a sufficient bill of particulars is furnished within the delay fixed by the court.
“(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
“(6) Trial for the offense charged would constitute double jeopardy.
“(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
“(8) The court has no jurisdiction of the offense charged.
“(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.”

Although none of the above grounds are present here, section five gives a general basis for quashing an indictment or information. LSA-C.Cr.P. art. 531 provides:

“All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty’ and of ‘not guilty and not guilty by reason of insanity,’ shall be urged by a motion to quash.”

The issue was properly raised by the motion to quash.

The district attorney determines whom, when and how he shall prosecute in his district. LSA-C.Cr.P. art. 61. Although a grand jury is generally regarded as an investigatory tool of the prosecutor, the district attorney is not bound by the grand jury’s action. As stated in the official revision comment under LSA-C.Cr.P. art. 444, “[t]he return of ‘not a true bill’ does not operate as an acquittal, and does not preclude a subsequent charge of the crime by an information filed by the district attorney or by an indictment returned by a subsequent grand jury.” The grand jury action does not sustain a plea of “autrefois acquit”. Thus, defendant was not acquitted by virtue of the grand jury’s no true bill.

At the hearing on defendant’s motion to quash, Tanner’s attorney, Dennis R. Whalen, testified that Assistant District Attorney Bob Hester suggested that, if defendant Tanner and witness, Randall Boyd Tanner, testified before the grand jury and the grand jury issued a no true bill, the bill of information would be dismissed. It was stipulated that both Marvin and Randall Boyd Tanner testified before the grand jury. A no true bill was issued, but the information was not dismissed. According to Whalen, Hester:

“. .. specifically said that if the grand jury no true billed that the district attorney’s office would dismiss the bill of information.” (Tr. 11-12)

Assistant District Attorney Hester testified that he thought a grand jury would be to the state’s advantage because it would eliminate the time and expense of a trial if there were a good defense to the case. Hester admitted that Whalen could logically have concluded that the charges would be dismissed if the grand jury report was favorable. Hester said:

... I never put it m words that I promise or it will be dismissed. Nothing like that was ever said, at least not to my recollection.” (Tr. 16)

Whalen testified in rebuttal:

“I wish to state categorically that he [Hester] made the statement that the charges would be dismissed if the grand jury no true billed.” (Tr. 18)

The trial court denied the motion to quash. Although no reasons for the ruling were assigned, there is some indication in the questions and comments at the hearing that the trial court felt Tanner was not prejudiced by his waiver of the privilege against self-incrimination before the grand jury. A writ was granted to consider the ruling. 420 So.2d 155 (La., 1982).

Although Assistant District Attorney Hester did not remember an express promise to attorney Whalen, he admitted that Whalen’s logical conclusion was that the charges would be dismissed if the grand jury brought in’ a no true bill. Whalen testified categorically that there was a specific statement by Hester, and Hester’s denial was not unequivocal. The trial court’s ruling does not appear to be based on an evaluation of credibility. The evidence establishes a commitment by Hester on behalf of the state. The state can be bound by the action of an assistant district attorney. State v. Refuge, 300 So.2d 489 (La., 1974).

Defendant Tanner waived his privilege against self-incrimination before the grand jury. An order could have been obtained ordering his testimony but, in that case, his compelled testimony could not have been used against him in a subsequent prosecution. LSA-C.Cr.P. 439.1. Testimony under such an order gives the witness immunity from use of that testimony in future prosecutions. It is significant that defendant Tanner was not offered and did not receive that statutory immunity. LSA-C.Cr.P. art. 439.1; Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). Because Tanner received no immunity, his testimony could be used at a later criminal trial to impeach him. Compare New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979). Since Tanner did not testify under the compulsion of an order, he cannot claim use immunity. Rather, he contends that he has transactional immunity which precludes the district attorney from prosecuting him for the offense about which he testified. See the discussion at 52 Tul.L.Rev. 707.

When a district attorney or assistant district attorney makes a good faith bargain with a person accused of a crime and defendant, in reliance on that bargain, relinquishes such a fundamental right as the privilege against self-incrimination, the state cannot repudiate the bargain. State v. Hingle, 242 La. 844, 139 So.2d 205 (1962). Hingle dealt with a plea bargain but the rationale is applicable to other bargains between a defendant and a prosecutor.

“ ‘When such promises are made by the public prosecutor, or with his authority, the court will see that due regard is paid to them, and that the public faith which has been pledged by him is duly kept.’ This is particularly true where the accused, in reliance on such a pledge, has carried out his part of the agreement, and, in doing so, may have relinquished valuable fundamental rights, such as the constitutional guarantee he cannot be compelled to give evidence against himself, a trial on the merits, and the possibility of being entirely exonerated if the evidence is weak and insufficient to sustain a conviction....” 139 So.2d at 210.

Like the right to trial by jury relinquished in Hingle, the privilege against self-incrimination is a fundamental one. Compare State v. Caminita, 411 So.2d 13 (La., 1982) and State v. Hearin, 409 So.2d 577 (La., 1982) where there was no detrimental reliance by the defendant.

In the Florida case of State v. Davis, 188 So.2d 24 (Fla., 1966), the prosecutor and defendant agreed to abide by the result of a polygraph examination. The Florida Court of Appeal affirmed the trial court’s quashing of the indictment on the ground that the agreement regarding the polygraph examination was binding and enforceable. “Defendant had agreed to plead guilty to manslaughter if the test was not in his favor, but the state had agreed to dismiss the case if the results indicated defendant was telling the truth. This was a pledge of public faith — a promise made by state officials — and one that should not be lightly disregarded.” Davis, supra, 188 So.2d at 27. “[T]he equities call for performance of the prosecutor’s compact, .... ” New Jersey v. Ashby, 43 N.J. 273, 204 A.2d 1 (1964).

Absent prosecution for false statements or perjury, defendant obtained complete or transactional immunity from prosecution for these negligent homicides after the favorable verdict by the grand jury.

For the foregoing reasons, the ruling of the trial court herein is reversed. The motion to quash the bill of information is granted and defendant, Marvin L. Tanner, is ordered discharged.

REVERSED AND RENDERED.

BLANCHE, J., concurs and assigns reasons.

BLANCHE, Justice

(concurring).

While I agree with the result reached by the majority, I cannot subscribe to the reasoning used to reach that result. The majority opinion seems to base its conclusion on the fact that the defendant “bargained away” his fundamental right against self-incrimination in exchange for the state’s agreement not to continue to press charges should the grand jury return no true bill; yet, in virtually the same breath, the majority notes that the defendant enjoys transactional immunity from prosecution for any incriminating statements made before the grand jury.

Actually, the defendant did not bargain away his right against self-incrimination. Because of the transactional immunity afforded witnesses before the grand jury by La.C.Cr.P. art. 439.1, any incriminating statements made by the defendant during his testimony could not be used against him in a subsequent prosecution for negligent homicide. Therefore, the defendant did not bargain away his right against self-incrimination. However, the defendant was placed at a disadvantage by disclosing all available defenses to the state — something which he might not have ordinarily done.

In my opinion, this case is better decided on principles of judicial integrity, to-wit: our judicial system cannot countenance prosecutorial misconduct which puts an unwary defendant at an unfair disadvantage. We cannot allow the state to enter into a supposed bargain which causes the defendant to reveal information not otherwise available to the state in carrying its burden of proving the defendant’s guilt in a criminal prosecution, only to have the state renege on the deal once it discovers chinks in the defendant’s tactical armor. In my view, the majority opinion, while reaching the proper result, achieves that end through an anomaly which cannot be reconciled.

I respectfully concur.

      . LSA-C.Cr.P. art. 444 provides:
      “A. A grand jury shall have power to act, concerning a matter, only in one of the following ways:
      “(1) By returning a true bill;
      “(2) By returning not a true bill; or
      “(3) By pretermitting entirely the matter investigated.
      “The grand jury is an accusatory body and not a censor of public morals. It shall make no report or recommendation, other than to report its action as aforesaid.
      “B. At least nine members of the grand jury must concur in returning ‘a true bill’ or ‘not a true bill’. A matter may be pretermitted by a vote of at least nine members of the grand jury, or as a consequence of the failure of nine of the grand jury members to agree on a finding.
      “C. A grand jury may make such reports or requests as are authorized by law.”

      . State v. Francis, 345 So.2d 1120 (La., 1977) stated that the state’s breach of an agreement with the defendant was not a legal ground for a motion to quash. However, there the motion was also untimely, unwritten and without merit. On rehearing^ the judgment in Francis was modified on other grounds.

      . LSA-C.Cr.P. art. 61 provides:
      “Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.”

      .Autrefois acquit is defined by Black’s Law Dictionary, Fifth Edition, as follows:
      “Fr. formerly acquitted. The name of a plea in bar to a criminal action, stating that the defendant has been once already indicted for the same alleged offense and has been acquitted.”


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Dennis Jeffery MOSLEY.
    No. 82-KA-0088.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jerry G. Jones, Dist. Atty., Jennifer Jones Hebert, Asst. Dist. Atty., for plaintiff-appellee.
    C. Thomas Tolbert, Sulphur, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of simple burglary and a sentence of four years imprisonment. The principal issue is whether defendant’s motion for mistrial was properly denied when the trial, which began before a jury of 12 persons, was allowed to be concluded before the jury composed of the first six jurors chosen and the verdict was deliberated and rendered by those six jurors.

When the victim returned home on the evening of February 21,1981, he discovered that someone had broken into his home and stolen his collection of 16 handguns, valued at approximately $1,700. The only other missing item was a pillowcase. The following morning, defendant and his brother attempted to sell 16 handguns (contained in a pillowcase) to an undercover agent for $600. After the sale was completed, defendant was arrested and confessed to the burglary.

At trial, defendant recanted his confession, explaining that he had obtained the guns from his brother and had confessed to the burglary for the purpose of protecting his brother. However, defendant did admit that he had negotiated and completed the sale of the handguns to the undercover agent.

The jury returned a verdict of guilty of burglary as charged.

Denial of Motion for Mistrial

Defendant contends that the trial court erred in denying his motion for mistrial when it was discovered that a jury of the wrong size had been impaneled.

After the jury selection process on the first day of trial, a jury of 12 members was impaneled, and one alternate juror was sworn in that capacity. The parties then began the presentation of evidence to the jury.

On the morning of the second day of trial, the trial court recognized that too many jurors had been impaneled, noting that La.R.S. 14:62 (defining the crime of burglary) now provides that imprisonment may be imposed with or without hard labor. Under the amendment which became effective prior to this burglary, the proper number of jurors was six. See La. Const. Art. I, § 17 (1974); La.C.Cr.P. Art. 782. Realizing that he and counsel had been mistaken in selecting and impaneling a jury of 12 persons, the trial judge, over the objection of defense counsel, dismissed the last six jurors who had been selected, retaining the same alternate juror. The trial then proceeded before a six-person jury. When presentation of the evidence was completed, the trial judge dismissed the alternate juror, and the six jurors proceeded to deliberate, eventually returning the unanimous guilty verdict.

Although the verdict was rendered by the proper number of jurors, defendant contends that (1) the commencement of trial before a 12-person jury violated La.C.Cr.P. Art. 782 and (2) the initial selection of a 12-person jury violated his constitutional right to a full and complete voir dire. As to the last contention, he argues that if he had known he was only going to select six jurors (and would have been entitled to only six peremptory challenges instead of 12), he would have exercised his peremptory challenges in a different manner. He points out that hé had only used four peremptory challenges when the sixth juror was seated.

In State v. Nedds, 364 So.2d 588 (La.1978), the defendant, charged with a relative felony, was tried before a 12-person jury, which deliberated and rendered the verdict. This court held that there is “fatal error” when the case is tried before a jury composed of either more or less than the correct number of jurors. In the present case, the otherwise fatal error was rectified before deliberation and verdict.

We conclude that defendant’s constitutional and statutory rights were not violated in the present case. The case was tried before a jury of six persons. While there were 12 jurors when the first witness testified, only the first six jurors took part in the deliberations before rendering a unanimous verdict. Moreover, defense counsel conducted a full, complete and unrestricted voir dire examination of each juror during the selection process and then agreed to accept each juror individually. While perhaps there is some theoretical substance to defense counsel’s argument that he may have conducted his voir dire differently if the judge and counsel had realized initially that the case was to be tried before a six-person jury, the fact that counsel had not exhausted all of his peremptory challenges at the time of impaneling of the 12-person jury is a strong indication that he was satisfied with all of the jurors who were chosen. Moreover, no party is entitled to any particular juror, and complaints about voir dire selection or restriction should be examined in the light of the entire process.

After considering defendant’s arguments and examining the entire jury selection proceedings, we simply cannot say that defendant was so substantially prejudiced in the exercise of his peremptory challenges as to warrant the drastic relief of mistrial.

The conviction and sentence are affirmed.

CALOGERO, J., dissents.

      . Defendant’s other contentions lack any arguable merit and are treated in an unpublished appendix which is part of the official record in this case.

      . Prior to Act 133 of 1977, La.R.S. 14:62 required that any sentence of imprisonment be imposed at hard labor. The 1977 act amended the statute to make the crime of burglary a relative felony.

      . When the twelfth juror was seated, defense counsel had only used 11 of his 12 allotted peremptory challenges.

      . The author agrees with the dissent in the Nedds case.

      .As argued by the district attorney, although the evidence was presented to more than six jurors, the dismissal of the additional jurors before deliberation and verdict was no more prejudicial to defendant than the use of one or two alternate jurors who are dismissed prior to deliberation and verdict. See also State v. Tauzier, 397 So.2d 494 (La.1981).


author: DENNIS, Justice, dissenting.

text:
    STATE of Louisiana v. Lawrence Wayne HUNTLEY.
    No. 81-KA-3139.
    Supreme Court of Louisiana.
    Jan. 28, 1983.
    For majority opinion see La., 418 So.2d 538.
   DENNIS, Justice, dissenting.

Once criminal proceedings have been formally instituted, as they were here by the filing of the indictment, the need for counsel is particularly acute. An indictment is the point at which the government has committed itself to prosecute and the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 1887, 32 L.Ed.2d 411 (1972). The indictment also marks the point after which any questioning of the defendant by the government can only be for the purpose of butressing a prima facie case and establish the guilt of the defendant. After this point, police investigation cannot be justified on the basis of solving a particular crime or absolving a particular suspect. United States v. Mohabir, 624 F.2d 1140 (2d Cir.1980).

For these reasons and to insure the defendant was fully aware of his predicament and the consequences of his statements, before the state can introduce a confession by an indicted defendant the state has the heavy burden of showing a waiver of defendant’s Sixth Amendment right to counsel. United States v. Mohabir, supra. In the absence of adequate explanation of the significance of an indictment, it would not be proper to hold that a defendant understood the import of the right he was giving up.

In the present case, the defendant was not given any warnings by the investigating officers other than the standard Miranda warnings given to any person in custody. Indeed, there is no indication that the defendant was informed that he had been indicted, so certainly he could not have appreciated the gravity of his legal position or the urgency of his need for a lawyer’s assistance.

Because I cannot conclude that the defendant knowingly waived his right to counsel, I respectfully dissent.


text:
    STATE of Louisiana v. Charles WALTERS, Sr.
    No. 83-KK-0031.
    Supreme Court of Louisiana.
    Jan. 6, 1983.
   In re Charles Walters, Sr., applying for writs of certiorari, prohibition, and mandamus. Caddo Parish, First Judicial District Court, No. 122628, Court of Appeal, Second Circuit, No. 15345-KW.

Denied.


text:
    In re Application of Andrew S. De KLERK.
    No. 82-0-1494.
    Supreme Court of Louisiana.
    Jan. 6, 1983.
   In re Andrew S. De Klerk, applying for permission to retake portions of the Louisiana State Bar Examination.

Granted. Petitioner is allowed to take the relevant examinations in February, 1983, pending his application for a certificate of equivalency.


text:
    STATE of Louisiana ex rel., Joseph SMITH v. Frank BLACKBURN, Warden.
    No. 81-KH-2505.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Joseph Smith, applying for remedial writ. Parish of Orleans. No. 251-883.

Granted; an appeal was ordered for defendant, but it.was never perfected. The district court is ordered to appoint a lawyer to represent defendant on appeal, and order that attorney to perfect the appeal and cause it to be lodged in this Court within a time to be fixed by the district court.


text:
    Eugene V. MACON v. Louis COSTA.
    No. 82-C-2772.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Eugene V. Macon, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit, Orleans Parish, Civil District Court, 420 So.2d 480.

Granted.


text:
    Belinda Dyson Chaney, Wife of/and Joe CHANEY v. STATE of Louisiana, Through the DEPARTMENT OF HEALTH AND HUMAN RESOURCES.
    No. 82-C-2773.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Belinda Dyson Chaney, Writ of Certiorari, or Review to the First Circuit Court of Appeal, Number 82-CA-0029, Parish of Tangipahoa, from the 21st Judicial District Court, Division “B”. 423 So.2d 717.

Granted.


text:
    Marlene JACOBS, Individually and as Natural Tutor of Her Minor Child, Rhonda JACOBS v. NEW ORLEANS PUBLIC SERVICE, INC. et al.
    No. 82-C-2818.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re New Orleans Public Service, Inc. et al., applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans, No. 9446. Civil District Court. Parish of Orleans. No. 601-357.

Granted.


text:
    STATE of Louisiana v. Scott LINGLE.
    No. 82-KK-2864.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re State of Louisiana, applying for writ of certiorari or review. Parish of Orleans, Criminal District Court, No. 288-356; Fourth Circuit Court of Appeal, No. K-0160.

Granted.

CALOGERO, J., recused.


text:
    STATE of Louisiana ex rel., Gerald R. WILSON v. STATE of Louisiana and Parish of Orleans.
    No. 82-KH-2881.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Gerald R. Wilson, applying for writ of mandamus. Parish of Orleans. No. 286-472.

Granted. This matter is transferred to the Fourth Circuit Court of Appeal.


text:
    STATE of Louisiana, ex rel., Joseph W. JOHNSON v. STATE of Louisiana.
    No. 81-KH-2533.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Joseph W. Johnson, applying for writ of mandamus. Parish of Caddo. No. 108798.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Lonnie COOLEY v. SIXTH JUDICIAL DISTRICT COURT, SECTION A & B, PARISH OF MADISON, State of Louisiana.
    No. 81-KH-2768.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Lonnie Cooley, applying for writ of mandamus. Madison Parish. No. 27398.

Denied. Moot.


text:
    STATE of Louisiana v. Freddie CLEMENTS, Jr.
    No. 82-KH-1293.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Freddie Clements, Jr., applying for writ of certiorari. Parish of Orleans, Criminal District Court, No. 272-959.

Denied.


text:
    STATE of Louisiana ex rel. Charley OSBERRY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary State of Louisiana.
    No. 82-KH-1306.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Charley Osberry, applying for writ of habeas corpus. Parish of Orleans. No. 272-523.

Denied.


text:
    STATE of Louisiana ex rel. James HUNTER v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 82-KH-1411.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re James Hunter, applying for remedial writs. Parish of Orleans. No. 246-302.

Writ denied.


text:
    STATE of Louisiana ex rel. Raymond JACOBS v. Honorable Bill C. DOWNEY Clerk of Court and Charles Blaylock, Attorney.
    No. 82-KH-1414.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Raymond Jacobs, applying for writs of mandamus, certiorari and other remedial writs. Parish of Ouachita. Fourth Judicial District Court, No. 39390.

Writ denied.


text:
    STATE of Louisiana, ex rel. David Paul RACHAL v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-K-2542.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re David Paul Rachal, applying for a writ of review. Nineteenth Judicial District Court. Parish of East Baton Rouge, Section Y. Nos. 4-2-76-93 and 4-2-76-949.

Writ denied.


text:
    STATE of Louisiana v. Melvin BINDOM.
    No. 82-KH-2647.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Melvin Bindom, applying for writ of mandamus. Parish of Avoyelles. No. 44444.

Denied. First present to district court.


text:
    STATE of Louisiana v. Clarence GREEN.
    No. 82-KH-2705.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Clarence Green, applying for writ of mandamus. Parish of West Feliciana, Fifth Judicial District Court, No. 11476.

Denied. Transcript has been furnished to relator.


text:
    STATE ex rel., Albert SOUBLET v. ORLEANS PARISH CRIMINAL DISTRICT Judge Frank Shea and Section “G”, Court Reporter.
    No. 82-KH-2737.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Albert Soublet, applying for remedial writs. Parish of Orleans. No. 268-481.

Denied.


text:
    STATE of Louisiana, ex rel., Truman McDONALD v. Honorable Wallace C. LeBRUN, Judge, 24th Judicial District Court.
    No. 82-KH-2765.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Truman McDonald, applying for a writ of mandamus, Twenty-Fourth Judicial District Court, Parish of Jefferson.

Denied. Moot. Trial court has acted.


text:
    STATE ex rel., Manuel DRAYDEN v. FIRST JUDICIAL DISTRICT COURT PARISH OF CADDO.
    No. 82-KH-2767.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Manuel Drayden, applying for writ of mandamus. Parish of Caddo. No. 108057.

Denied. Moot.


text:
    STATE of Louisiana v. Vernon SIMMS.
    No. 82-KH-2794.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Writ Denied March 25,1983.
   In re Vernon Simms, applying for remedial writs. Parish of Orleans. No. 82-KH-2794.

Writ denied.


text:
    Clarence BROWN v. LYKES BROTHERS STEAMSHIP CO., INC. and the Hartford Insurance Company.
    No. 82-C-2823.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
   In re Interocean Stevedoring, Inc., et al., applying for writs of certiorari or review to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 13275; Civil District Court, No. 80-10589.

Writ denied.