author: WATSON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Ernesto C. SALAZAR.
    No. 66747.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Dissenting Opinion Nov. 24, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Clarence McManus, Asst. Dist. Attys., for plaintiff-appellee.
    Ronald P. Herman, Metairie, for defendant-appellant.
   WATSON, Justice.

Defendant, Ernesto C. Salazar, pled guilty to possession of cocaine with intent to distribute. LSA-R.S. 40:967. A sentence of five years at hard labor was suspended, and defendant was placed on five years’ conditional probation. Defendant appeals the trial court’s denial .of a motion to suppress evidence. State v. Crosby, 338 So.2d 584 (La., 1976).

Salazar had been noticed and questioned by Dade County Sheriff’s deputy William Johnson at the Miami Airport. Johnson telephoned police officers in New Orleans who stopped Salazar upon his arrival at Moisant Airport. Defendant consented to the search of his luggage by Shep, a trained narcotics detection dog. After a positive response by Shep, a search warrant was issued. Almost two pounds of cocaine were found in Salazar’s luggage. The affidavit in support of the search warrant recites the following facts.

On Tuesday, February 13, 1979, Sergeant G. Schwabe and Agent F. Whitehead received a phone call from Detective Bill Johnson of the Dade County Sheriff’s airport detail. Schwabe spoke to Johnson while Whitehead listened on an extension. They were advised that a white male named Ernesto C. Salazar had entered the Miami International Airport carrying limited luggage. He appeared hurried, nervous and apprehensive. Salazar first approached the National Airlines ticket counter and then went to that of Northwest Orient. Salazar looked around constantly. When asked by the Northwest Orient employee what name his reservation was in, Salazar stuttered, hesitated and then gave the name Frank Pola. Salazar checked two pieces of baggage, a shoulder bag, navy blue trimmed in tan, and a fabric suit bag. Johnson, who has extensive experience with drugs at the airport, identified himself to Salazar as a police officer and asked if Salazar would mind talking to him, which Salazar agreed to do. Salazar identified himself to Johnson from a Louisiana driver’s license as Ernesto C. Salazar, but had no answer to the question of who Frank Pola was. The Miami address Salazar gave to Johnson was in an area of known drug traffic and his Miami telephone number was fictitious. Salazar showed and surrendered to Johnson a small amount of marijuana in his purse. Johnson advised Salazar that he would not charge him with possession. Salazar refused, however, to have his baggage searched and remained nervous when boarding his flight. Johnson then checked with the airline and learned that Salazar’s reservation under the name of Frank Pola was made in St. Petersburg, Florida, at approximately 1:30 P.M. the same day. The call back number on the reservation was fictitious. Salazar was described as being a white male, approximately five feet five inches tall, weighing one hundred forty pounds with brown hair and eyes and a mustache. He was wearing blue jeans and a checked shirt, and carrying a small leather purse. He was scheduled to arrive in New Orleans aboard Northwest Orient Airlines flight number 185 at áp-proximately 4:28 P.M. Schwabe had Agent R. Dennis and Shep stand by for arrival of the flight. Schwabe and Whitehead observed a nervous exit from the plane by Salazar. Looking around constantly, Salazar claimed his baggage and then started to leave the airport, whereupon they approached him and identified themselves as police officers. Salazar began to physically shake. When asked for his identification and airline ticket, Salazar advised that he had thrown the ticket away, but said he was flying under the name of Ernesto Salazar. The agents had verified that there was no reservation on flight 185 for Salazar and asked Salazar if he would consent to a search of his baggage. He refused, but agreed to permit Shep to smell his luggage. K-9 dog Shep is trained to locate cocaine, heroin, marijuana, hashish, PCP and metha-qualone powder but cannot differentiate between them. In the baggage claim area Shep, who had located drugs in baggage in the past, sniffed out Salazar’s two bags from numerous other pieces of luggage. The affidavit asked that a warrant be issued for search of the two pieces of luggage, described in detail.

Defendant contends that the initial stop in Miami was unconstitutional and taints the subsequent stop in New Orleans and that there was no probable cause for issuance of the search warrant. The trial court correctly concluded that the conversation with Detective Johnson in Miami was voluntary on Salazar’s part; that the investigatory stop in New Orleans was based upon reasonable suspicion; and that there was probable cause for issuance of the search warrant.

The issues are the legality of the encounter in Miami; the legality of the stop in New Orleans; and the validity of the warrant.

It is clear that the conversation in Miami was not a seizure or invasion of privacy as prohibited by Article 1, Section 5, of the Louisiana Constitution of 1974 and the Fourth Amendment to the Constitution of the United States. There is nothing to show that the conversation between Johnson and Salazar involved a restraint or interference with Salazar’s liberty. According to Johnson’s testimony at the hearing on the motion to suppress, Johnson asked Salazar if he had a minute to talk to him, and Salazar answered yes. They did not leave the main area of the airport. The contact did not prevent Salazar from proceeding on his way if he wished to do so, and Salazar subsequently continued to his departure gate. In United States v. Mendenhall, -U.S. -, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the two justices joining in the opinion of the court held that a similar confrontation was not a seizure. Three concurring justices did not reach the question of whether there was a seizure because it had not been considered by the lower courts, but agreed that there was reasonable suspicion of criminal activity which justified a stop for routine questioning. Here, there was less restraint at the Miami Airport than there was in Menden-hall. In Mendenhall the suspect was not only questioned in the airport proper, but asked to accompany officers to the Drug Enforcement Administration office where she removed her clothing and was searched for narcotics.

It is questionable whether the conversation between Salazar and Johnson constitutes an investigatory stop. A stop, although not a “seizure” in the constitutional sense, is a lesser form of detention. A “stop” involves an element of force or duress, temporary restraint of a person’s freedom to walk away. See the concurring opinion of Justice Harlan in Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Louisiana has recognized that a police officer can converse with a citizen without infringing on the citizen’s liberty. State v. Shy, 373 So.2d 145 (La., 1979). See the concurring opinion by Chief Justice Dixon in State v. Brown, 370 So.2d 547 at 555 (La., 1979). There is nothing here to indicate that Salazar was detained by Detective Johnson. Salazar was free to leave and did so after their conversation. One policeman talked to one citizen without the use of force or coercion.

If the Miami conversation is characterized as a “stop”, it was based on reasonable suspicion of criminal activity. LSA-C. Cr.P. art. 215.1. At the hearing on the motion to suppress, Johnson testified that Salazar was nervous, hurried and apprehensive, stuttering over his name. Salazar checked with National Airlines and then studied a screen posting all flights before booking a flight on Northwest Orient. Yet, he apparently had a reservation with the latter airline. His flight was scheduled to depart at 3:40 P.M. but he did not buy his ticket until 3:25 P.M. Salazar’s demeanor, his stutter, his light luggage, Latin appearance, and late arrival all indicated to Johnson that he might be a drug courier.

Mere nervousness does not give rise to a reasonable suspicion of criminal activity. State v. Chopin, 372 So.2d 1222 (La., 1979). Nervousness coupled with the failure to claim one’s baggage is also insufficient. State v. Washington, 364 So.2d 958 (La., 1978). Being nervous and black and picking up one piece of luggage without surrendering a claim check does not give rise to reasonable suspicion. State v. Matthews, 366 So.2d 1348 (La., 1978). A past arrest for possession of heroin, purchase of a ticket with small bills, and a jog to the restroom after a nervous and evasive arrival in New Orleans from Los Angeles are insufficient. State v. Key, 375 So.2d 1354 (La., 1979). However, components of a drug courier profile can be considered with other relevant information in evaluating whether there was a reasonable suspicion of criminal activity. State v. Brown, 370 So.2d 547 (La., 1979). Here, although Salazar arrived late for his Northwest Orient Airlines reservation, he did not, as might be expected, hurry to that airline. Instead, he first approached National and then checked the other flights scheduled from the airport before purchasing his ticket. He stuttered when asked his name. These facts, combined with his nervousness, apprehension and general resemblance to the Miami drug courier profile justified Detective Johnson’s approach to Salazar.

The second question is whether the interrogation in New Orleans was based upon a reasonable suspicion of criminal activity. Reasonable cause for an investigatory stop such as that made by the officers in New Orleans is something less than probable cause. State v. Brown, supra. Here, the New Orleans police officers had a detailed description of Salazar from the detective in Miami, certainly a reliable informant. Salazar not only fit certain elements of the drug courier profile in that he appeared nervous and apprehensive, was traveling with limited luggage and was arriving from an area of drug traffic, but, in addition, he was traveling under an assumed name and had given fictitious information both to the airline employees and to Detective Johnson. There was ample evidence for suspicion of criminal conduct.

The third issue is whether the warrant which issued was based on probable cause. Since the affidavit particularly described the two pieces of luggage to be searched and the fact that they had been picked out by Shep, the search warrant was properly issued. Article 1, Section 5, Louisiana Constitution of 1974; LSA-C.Cr.P. art. 162.

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

AFFIRMED.

DIXON, C. J., concurs.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I disagree with the majority’s opinion that the Supreme Court in United States v. Mendenhall,-U.S.-, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) held that a similar confrontation was not a seizure. As I read the several opinions of the justices, none of which commanded a majority, at least seven justices assumed there was a seizure. See the concurring opinion of Justice Powell, joined by the Chief Justice and Justice Blackmun, - U.S. at-, 100 S.Ct. at 1880, 64 L.Ed.2d at 513; the dissenting opinion of Justice White, joined by Justices Brennan, Marshall and Stevens,-U.S. at -, 100 S.Ct. at 1883, 64 L.Ed.2d at 517. I cannot see how the initial encounter in Miami in this case differs in any significant way from the seizure in Reid v. Georgia, -U.S.-, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), where the Supreme Court held that as a matter of law, the agents could not have reasonably suspected that a person who did little more than occasionally glance over his shoulder was engaged in criminal activities.

I respectfully dissent.

      . Conditions of active probation were a fine of $250 plus costs, a visit to Angola, and psychiatric counseling.

      . In Reid v. Georgia,-U.S. -, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) the question was not whether the initial contact was legal, but whether there was probable cause for search of a flight bag dropped by one of two subjects. The three concurring justices noted the similarity to Mendenhall and stated through Justice Powell that their concurrence in Mendenhall did not indicate disagreement on the seizure issue. The concurring opinion points out that Reid v. Georgia does not consider the legality of the initial stop and therefore the state courts should regard that issue in light of Mendenhall.

      . LSA-C.Cr.P. art. 215.1 provides:
      “Temporary questioning of persons in public places; search for weapons
      “A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.
      “B. When a law enforcement officer has stopped a person for questioning pursuant to this Article, and reasonably suspects that he is in danger of life or limb, he may search the outer clothing of such person for a dangerous weapon or for any other thing the possession of which may constitute a crime.
      “C. If the law enforcement officer finds a dangerous weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. Johnnie L. WHITE.
    No. 67234.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Philip J. Boudousque, Asst. Dist. Attys., for plaintiff-appellee.
    Jack A. Quarles, Jr., New Orleans, Thomas S. Loop, Metairie, Indigent Defender Program, for defendant-appellant.
   DIXON, Chief Justice.

A twelve member jury found the defendant guilty of armed robbery, a violation of R.S. 14:64. The defendant was sentenced to twenty-five years at hard labor. On appeal, two assignments of error are raised.

I Identification of the Defendant as the Perpetrator of the Crime

The robbery occurred on November 25, 1978, at a Church’s Fried Chicken outlet. Shortly after 11:00 p. m. an unmasked Negro male entered the restaurant when it was empty of customers. He produced a gun and ordered the two employees behind the counter to kneel on the floor. Within a few moments the assistant manager, Henry Dillon, walked out of his office at the rear of the restaurant. The robber pointed the gun at Dillon and directed him to open the cash register and hand over the money inside it. The robber took between $150-$200 and fled on foot.

Prior to trial, a photographic lineup was prepared, comprised of five photographs. The defendant does not contend that this lineup was so suggestive as to violate due process. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). One of the employees was not able to identify the defendant’s picture. She did not testify at trial. Another employee, Katie Grandberry, picked two of the photographs, including the defendant’s, as possibly being those of the robber. At trial, she testified that she could not positively identify the defendant as the perpetrator of the robbery. However, Henry Dillon picked the defendant’s photograph out of the lineup more than forty days after the crime, and stated at trial that he was absolutely sure that the defendant committed the robbery. The state’s case rested entirely upon this testimony.

Of the three eyewitnesses to the crime, Henry Dillon had the longest exposure to the robber. The two employees who were unable to make a positive identification of the defendant had been ordered almost immediately to kneel on the floor behind the counter. They did not have the same opportunity to observe the robber that Henry Dillon did. The testimony indicates that the restaurant was well lighted at the time of the robbery; the robber stood close to Dillon and held a gun at his side. Dillon testified that when the robber smiled, he could see a gap between his front teeth. Although Dillon testified that he was nervous during the confrontation, he never hesitated in his identification: “You see, the man was right on me with the gun in my side. Just about-I will never forget his face.” Given these facts, we conclude that Dillon’s in-court identification was reliable; he had a sufficient opportunity to view the robber, was able to describe his facial features in some detail and with relative accuracy, and voiced no doubt whatsoever that his identification was correct. Cf. Manson v. Brathwaite, supra; State v. Vaughn, 378 So.2d 905 (La.1979). According to the test established by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), there was sufficient proof from which the jury could determine that the defendant was guilty of the crime beyond a reasonable doubt. State v. Landry, 381 So.2d 462 (La. 1980).

The defendant has also requested this court to consider the favorable results of a polygraph examination conducted after the trial. It is the defendant’s view that these results corroborate his charge that he was incorrectly identified. In order to consider this argument on appeal, it must be assumed that the polygraph results have become a part of the record below. C.Cr.P. 921. Because of their inherently unreliable nature, polygraph test results have been held to be inadmissible in criminal trials. State v. Catanese, 368 So.2d 975 (La.1979). However, polygraph evidence may be admissible at certain post trial proceedings in which the defendant’s guilt or innocence is not at issue. We do not believe that this appeal is such an instance.

This assignment of error is without merit.

II Denial of the Motion for “Continuance”

On several occasions during the trial, defense counsel requested a “continuance” because two defense witnesses who had been subpoenaed were not present in court. On each occasion the motion was denied by the trial judge, who ruled that the witnesses were unavailable to testify. The record indicates that defense counsel did not file a request for the issuance of subpoenas until September 13, five days before trial. Defense counsel explained to the judge that he was not informed of the two witnesses’ names until September 12. Allegedly, the sheriff received the subpoenas too late to make service. On the morning of trial, instanter subpoenas were issued, but no one was present at the two designated addresses.

We note initially that the motion for a “continuance” should have properly been styled a motion for recess. C.Cr.P. 708, 761. However, this misnomer does not prevent the court from examining the motion as though it had been properly denominated. State v. Bertrand, 381 So.2d 489 (La.1980); State v. Dickinson, 370 So.2d 557 (La.1979); State v. Mizell, 341 So.2d 385 (La.1976). Regardless of the appellation, a motion for recess is evaluated by the same standards as a motion for continuance. State v. Sharp, 321 So.2d 331 (La.1975). Those standards are contained in C.Cr.P. 709. To be entitled to a recess to secure the presence of a witness, the defendant must show the actual necessity for the witness and the materiality of the expected testimony, as well as show due diligence in attempting to procure the witness for trial. State v. Bertrand, supra; State v. Hogan, 372 So.2d 1211 (La.1979); State v. Dickinson, supra. Assuming that defense counsel satisfied the latter requirement in attempting to locate the two witnesses, no showing was made that the witnesses’ testimony would in any way benefit the defendant’s case. Defendant merely asserts in a supplementary brief that the witnesses “could have explained the whereabouts of Mr. White at the time of the robbery.” This assertion that the witnesses could have supplied an alibi falls short of being a sufficient offer of proof as required by statute. The defendant also fails to contend that, had the motion been granted, it was likely that he could locate and produce the witnesses. For these reasons, we cannot say that the trial judge’s denial of the motion was error.

The defendant’s conviction and sentence are therefore affirmed.

DENNIS, J., concurs.

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


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Alexander JOHNSON, Jr.
    No. 66151.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Max Zelden, Zelden & Zelden, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

Alexander Johnson, Jr. was charged with aggravated burglary (R.S. 14:60). After waiving trial by jury, he was found guilty by the trial judge and sentenced to nine years at hard labor with credit for time served. His appeal presents six arguments relative to eight of his nine assignments of error.

At approximately 4:30 a.m. on January 6, 1979, James Jackson, a 52 year old male, was asleep in bed in his one room apartment located at 333SV2 Washington Avenue in New Orleans, when two men broke into his apartment. The defendant Johnson beat Jackson in the head with a metal bar and the two men stole his wallet and forty-eight dollars. Jackson called the police, and he described to them the men who had robbed him.

The next day Jackson saw Leroy Solomon at Church’s Fried Chicken on Washington Avenue and South Galvez Street. After Jackson told Leroy about what had happened, Leroy told him that he knew the individuals who broke into his apartment. However, he did not name them. Apparently Alexander Johnson, Jr. and Alvin Breaux were staying at Leroy’s apartment because they were going to help him move. Before he saw Jackson at Church’s Fried Chicken, Leroy had overheard Alexander Johnson say that he and two other men broke into an apartment while the victim was in bed.

Later that day, someone yelled for Jackson to come downstairs to Melvina’s Bar, over which Jackson lived. This unknown individual told him that the men who robbed him were in the bar. Jackson went inside the barroom and told the barmaid to give the two some beer on him, while he went to call the police. When the police arrived, Jackson pointed out the defendant, Alexander Johnson, and Alvin Breaux.

Breaux pled guilty to this burglary and testified for the state, placing the bar in the hands of defendant in the assault on Jackson.

ASSIGNMENT OF ERROR NO. 1

By this assignment, defendant argues that the trial court erred in denying Jasper Pharr’s oral motion to withdraw as attorney of record. Personal difficulties between the defendant and his counsel are cited as the reasons for the proposed withdrawal. The defendant also complains of the judge’s failure to hear evidence tending to establish this supposed conflict.

While a defendant’s right to the counsel of his choice is firmly established in our law, that right may not be used to obstruct the orderly procedure in our courts nor to interfere with the fair administration of justice, and this Court has long so ruled: State v. Lee, 364 So.2d 1024 (La.1978); State v. Anthony, 347 So.2d 483 (La.1977); State v. Frezal, 278 So.2d 64 (La.1973); State v. St. Amand, 274 So.2d 179 (La.1973). Alexander Johnson picked the very morning of trial to express his displeasure with and attempt at discharge of his lawyer. The record does not reflect any express offering of substitute counsel by the defendant or any proposal for seeking such other counsel. In State v. Lee, supra this Court pronounced rules dispositive of the question:

“... The right of defendant to counsel of his choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system of which it is a part. State v. Dickerson, 353 So.2d 262 (La.1977); State v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand, supra. Once the day of trial arrives, the question of substitution of counsel rests largely within the discretion of the trial judge. See State v. St. Amand, supra; State v. Austin, 258 La. 273, 246 So.2d 12 (1971). The granting or refusal of a motion for a continuance rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. La.Code Crim.P. art. 712; State v. Adams, 347 So.2d 195 (La.1977).”

As stated, the decision to permit the withdrawal of counsel at such a late date in the proceedings is reserved to the trial judge in his discretion; the defendant so concedes. The judge was of the belief that the motion was calculated merely to delay the start of trial. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, it is asserted that reversible error took place when the trial court permitted the defendant to waive trial by jury, that the waiver was not made knowingly and intelligently. The validity of the defendant’s waiver becomes evident from the following colloquy appearing in the record:

“BY THE COURT:
Alright then, the case has to go to trial. I think the Supreme Court will uphold me. Now, let me tell the defendant-Mr. Pharr, you intimated to the court that this defendant may want to waive the jury. It’s immaterial with the Court and I inform the defendant that he had a right to waive the jury and be tried by the judge. You also have a right to be tried by the jury. Let me ask you the question: Do you want a judge trial or do you want a jury trial?
“BY THE DEFENDANT:
Judge.
“BY THE COURT:
You want to waive the jury; is that correct?
“BY THE DEFENDANT:
Yes, sir.”

It must be noted that the defendant’s counsel, against whom no claim of incompetence has been suggested, was present at the waiver. The record also bears witness to the facts that the defendant’s options were presented to him by the trial judge, as is required by C.Cr.P. art. 780, and that the defendant stated his election to waive jury trial not once but twice, clearly and unequivocally. Greater proof of knowing and intelligent waiver has been neither constitutionally nor jurisprudentially required. See State v. Muller, 351 So.2d 143 (La.1977). Accordingly, the second assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Here, the defendant assigns error to the trial judge’s extensive examination of witnesses by way of leading questions and to the judge’s elicitation of what is alleged to be hearsay testimony. Initially, this Court is not at liberty to consider the correctness of the trial court’s actions in light of the fact that the defendant failed to raise contemporaneous objection. “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” C.Cr.P. art. 841. On the contrary, the record reveals that counsel for the defense specifically acquiesced in the judge’s examination of witnesses.

The actions of the trial court can be justified, regardless of the defendant’s failure to object. Being the lone trier of fact, the judge was merely trying to clarify issues in his mind which had been befuddled by cryptic testimony. This Court, in State v. Layssard, 310 So.2d 107 (La.1975) stated that:

“Where the judge is the trier of fact he has the right to question the witness to clarify the evidence in his mind. Unless his participation in the trial is to such an extent and of such a nature that it deprives the defendant of a fair trial, there is no error.”

Additionally, it should be noted that the bulk of the court’s questioning was aimed at the elucidation of issues, the confusion of which might as easily have worked to defendant’s detriment as to his advantage. It was in this context that most of the alleged hearsay testimony was elicited. At page 62 of the record, the following exchange took place:

“BY THE COURT:
Now, at that time, after the police arrived there and you say you told the police that the man on trial here today, Johnson, was one of those fellows, did Leroy-at that time now-did Leroy or anybody else tell you, ‘say, listen, Jackson, you better identify him.’ or ‘that’s the guy that did it,’ or did you do that on your own steam?
“BY THE WITNESS:
No, Leroy’s the one who told me that’s who it was.”

A close examination of the transcript reveals that this testimony is not hearsay at all. Obviously, the court’s purpose in prompting the admission of this out-of-court statement was to ascertain whether the witness had identified the defendant from his own memory of the beating or only as a result of Leroy Solomon’s influence. Since the judge was concerned only with the actual occurrence vel non of Solomon's utterance, and not with the truthfulness thereof, the statement was admissible; it was not barred by the hearsay rule. Pugh, Louisiana Evidence Law, 396, 412 (1st ed., 1974).

Regardless of the nature of the evidence in question, this Court has long held that the admission of even hearsay testimony is harmless error where the effect is merely cumulative or corroborative of other testimony adduced at trial. State v. McIntyre, 381 So.2d 408, 411 (La.1980). The fact that Leroy Solomon had informed the victim of the defendant’s identity is established in the record independently of the statement objected to by the defense. Accordingly, this assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 4, 5, 6, 7 AND 9

The remaining assignments of error, numbers four, five, six, seven, and nine, which deal with various post-trial motions, are likewise without merit. The allegation that the trial court erred in allowing the defendant to waive the legal pre-sentence delays cannot be supported in the total absence of any indication from the record that counsel’s waiver of these delays was without the knowledge and consent of the defendant. The trial judge’s denial of the defendant’s motion for new trial was justified due to the tardiness of the request, C.Cr.P. art. 853 (no “newly discovered” evidence was offered), and due to the lack of grounds therefor, C.Cr.P. art. 851. The denial of the motion to amend the sentence was, by law, totally within the court’s discretion, C.Cr.P. art. 881. The judge’s refusal to allow the defense “leave to take a note of evidence”, was likewise a discretionary decision, which we are not inclined to disturb. There is no procedural vehicle or right in defendant in this regard of which we are aware or to which our attention has been directed. And finally, the defendant asserts that C.Cr.P. art. 876 requires the trial judge to order a post-sentence investigation where none was had prior to sentencing. It must be noted that the state of the record before us reflects neither the fact that such an investigation has failed to take place nor the defendant’s objection to the judge’s complained of failure to act. Moreover, we are not prepared to say that the absence of a required post-sentence investigation is a proper matter for complaint to this Court in the review of defendant’s conviction and sentence. Defendant’s remedy lies first with the division of probation and parole supervision and/or with the trial judge.

Decree

For the reasons set out above, the verdict and sentence of the trial court are affirmed.

AFFIRMED.

      . The maximum penalty for violation of R.S. 14:60 is thirty years.

      . Assignment of error number eight was neither briefed nor argued before this Court; hence, it is considered to have been abandoned. State v. Sterling, 377 So.2d 58 (La.1979); State v. Johnson, 372 So.2d 1217 (La.1979).

      . Jasper Pharr was defendant’s privately retained counsel.

      . In an effort to preserve evidence for appeal pertaining to the court’s denial of counsel’s outset motion to withdraw, defendant on the occasion that he sought various post-sentence relief asked “leave to take a note of evidence” relating to the defendant’s problems with his original counsel.

      . Absent the note of evidence, defendant’s reason for conflict with his original counsel is not before us. However, at oral argument, it was related to this Court that the difference stemmed from the attorney’s alleged insistence that defendant plead guilty.

      . C.Cr.P. art. 876 provides:
      “If a court has not ordered a presentence investigation in a felony case and has imposed a sentence of one year or more, the division of probation and parole supervision shall make a post-sentence investigation and report within sixty days from the date the sentence is imposed. The post-sentence investigation report shall be delivered to the sentencing judge and to the district attorney in order that each may supplement it with such comments as he deems appropriate. The report shall then be forwarded to the officer in charge of the penal or correctional institution in which the convicted person is incarcerated and shall become a part of the records pertaining to that person. If the convicted person has been placed on probation, the report shall be kept as part of his probation record.”


author: MARCUS, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. Everett Blaise CASTILLO.
    No. 66696.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 21, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
    Dymond, Crull & Castaing, Edward J. Castaing, Jr., New Orleans, for defendant-appellant.
   MARCUS, Justice.

Everett Blaise Castillo was indicted by the grand jury for the crime of aggravated rape in violation of La.R.S. 14:42. After trial by jury, defendant was found guilty of attempted aggravated rape and sentenced to serve thirty years at hard labor. On appeal, defendant assigned twenty assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 7 AND 8

Defendant contends the trial judge erred in allowing in evidence an oral inculpatory statement made by him while in police custody. He argues that the statement was not freely and voluntarily made after having been advised of his Miranda rights.

Defendant’s pretrial motion to suppress all written inculpatory statements and a pistol obtained as a result of a written confession was held on December 4, 1978, before Judge Robert M. Fleming. All officers involved in the arrest and interrogation procedures testified as to the facts surrounding defendant’s oral inculpatory statement made in the patrol car at the parking lot and his subsequent written confession given at the police station. Defendant also testified at the suppression hearing. At the conclusion of the hearing, Judge Fleming ruled as follows:

[T]he defendant moved to suppress a confession given to two detectives, and also a gun that was found in the police car. And I do not recall whether there was a motion to suppress the statement that was made to Officer Viator, or not. However, all motions are denied.

Defendant objected to the ruling. The prosecutor then asked the court:

[DJoes that mean, then, that the statement made by the accused to Officer Viator in the parking lot is considered voluntary?

Judge Fleming answered in the affirmative. Defense counsel clearly heard that the judge’s ruling applied to both the oral and written confessions. Nonetheless, he made no objection to the inclusion of the ruling on the oral statement. On January 23,1979 (over a month and a half after the suppression hearing), the state served notice on the defense that it intended to use both the oral and written inculpatory statements at trial. However, the state later chose not to introduce the written confession or pistol in evidence at trial.

Trial commenced on February 12, 1979, and was presided over by Judge Robert E. Johnson. Defendant had not reurged a motion to suppress the oral inculpatory statement prior to trial. During Officer Viator’s testimony, while the jury was retired to allow the judge to rule on a hearsay objection, the prosecutor informed the judge that Viator’s testimony would include a statement which was “in effect a spontaneous confession” and thus an exception to the hearsay rule. Defendant’s objection was overruled and the jury was returned to the courtroom. After Officer Viator testified as to the oral statement made by defendant, defense counsel raised several objections, inter alia, that the state had not laid a proper foundation for admission of the inculpatory statement in evidence. After the jury was retired, defense counsel argued that the state had failed to meet its burden of proving that defendant’s inculpa-tory statement was free and voluntary after having been advised of his Miranda rights. The state responded that a ruling on the admissibility of the oral inculpatory statement had been made following the pretrial suppression hearing. The trial judge then overruled the objection “for the same reasons as given by Judge Fleming” and admitted the oral statement in evidence.

Defendant first contends that he was erroneously deprived of his right to a hearing, outside the presence of the jury, on the issue of the voluntariness of the oral inculpatory statement before it was introduced in evidence. This contention is without merit because the voluntariness of the oral statement was established at the pretrial suppression hearing. Although defendant did not seek to suppress the oral statement at that hearing, he clearly heard the court rule that the oral statement was considered voluntary. He made no objection to the court’s expansion of the suppression hearing beyond the pleadings to include a ruling on the voluntariness of the oral statement. Moreover, at no time prior to trial (some two months later) did defendant attempt to reurge the motion to suppress the oral statement. At trial, defendant objected on a number of grounds, including the state’s failure to lay a proper foundation, but did not seek a hearing outside the presence of the jury on the question of voluntariness. Hence, we conclude that the prior ruling on admissibility of the oral inculpatory statement was properly accepted by Judge Johnson at the trial on the merits. However, this did not prevent defendant from introducing evidence during trial concerning the circumstances surrounding the making of the inculpatory statement for the purpose of enabling the jury to determine the weight to be given to it. La.Code Crim.P. art. 703(B).

Next, we proceed to the merits of defendant’s complaint, i. e., whether the trial judge erred in allowing in evidence an oral inculpatory statement made by him while in police custody. He argues that the statement was not freely and voluntarily made after having been advised of his Miranda rights.

The facts developed at the suppression hearing are as follows. During the early morning hours of July 2, 1978, Officer Emery of the New Iberia City Police Department was on patrol when he received a radio broadcast advising him that there had been a kidnapping at the Pizza Hut in the Torrido Village Mall. The call also gave a description of defendant. Subsequently, Officer Emery received a call from Officer Blanchard, who notified him that the suspect was in the general area of the Iberia Parish Hospital. Blanchard had followed defendant, who was in the victim’s car, from a nearby cane field to the hospital, at which time defendant jumped out of the car and escaped.

Shortly thereafter, defendant was apprehended by Officer Emery. Another policeman, Sergeant David, arrived on the scene as defendant was handcuffed, informed that he was under arrest and placed in the back seat of Officer Emery’s police ear. As defendant was being driven to the police station, Officer Emery received a call requesting that he take defendant to the Torrido Village Mall parking lot so that defendant’s car keys could be used to move an automobile suspected of belonging to defendant. Upon arriving at the parking lot, Officer Emery was met by Officers Mestayer and Viator, who had been watching the suspect’s car, and by Sergeant David. The four policemen conversed briefly, and when Officers Mestayer and Viator began heading towards the patrol car in which defendant was handcuffed, defendant shouted racial slurs and obscenities at the policemen. Officer Mestayer then opened the rear door of the car and asked defendant where his car keys were located. According to Officer Viator’s testimony, defendant replied, “if you want the mother fuckers . . . come get them yourself” and “you all going to beat me anyway, cause I raped the white bitch.” Officer Mestayer testified that he searched defendant’s pockets, found the car keys, closed the car door and told Officer Emery to take defendant to the police station. He further testified that, during this brief encounter in the car, he became angry, lost his cool and slapped defendant; however, he stated that the incident occurred after he had secured the keys from defendant.

At the police station, defendant was given his Miranda warnings for the first time. He declined to make a statement or contact an attorney. Afterwards, he was locked up in a drunk tank where Officer LeBlanc sprayed him with mace. Approximately one hour later, defendant was brought by Officer Feller to Lieutenant Judice’s office, where he was allowed to wash off the residue left by the mace. Lieutenant Judice advised defendant that, if the victim’s statement that defendant had raped her on the hood of her car was correct, then defendant’s fingerprints would be on the car. Defendant then gave a written confession wherein he stated that the pistol he used in the crime was located beneath the back seat of the patrol car that brought him to the station. The pistol was later recovered from that location.

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. Code Crim.P. art. 703(C); La.R.S. 15:451. The admissibility of a confession is'in the first instance a question for the presiding judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Jones, 386 So.2d 1363 (La.1980); State v. Hutto, 349 So.2d 318 (La.1977). In the instant case, Judge Fleming ruled that defendant’s statement made in the patrol car at the parking lot was voluntary. After reading the record of the suppression hearing, we are convinced that this conclusion is supported by the evidence.

It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, the United States Supreme Court observed: “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been deprived of his freedom of action in any significant way.” Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody. State v. Jones, supra; State v. Robinson, 384 So.2d 332 (La.1980); State v. George, 371 So.2d 762 (La.1979); State v. Thornton, 351 So.2d 480 (La.1977); State v. Sockwell, 337 So.2d 451 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972); State v. Hall, 257 La. 253, 242 So.2d 239 (1970). The United States Supreme Court recently defined the term “interrogation” in Rhode Island v. Innis, - U.S. -,-, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980):

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. ... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. [Footnotes omitted.]

In the instant case, defendant made his inculpatory statement while in police custody and prior to being advised of his Miranda rights. However, we conclude that his statement was given spontaneously and voluntarily and was not a result of police interrogation. After defendant’s arrest, he was driven to the Torrido Village Mall parking lot so that officers there could obtain his keys to move his car. As Officers Mestayer and Viator approached defendant, he shouted racial slurs and obscenities at the policemen. Defendant was asked no questions about the kidnapping or rape-he was only questioned regarding the location of his car keys. It was at this time that defendant said “you all going to beat me anyway, cause I raped the white bitch.” Officer Mestayer’s request for the location of defendant’s car keys could not have reasonably been expected to elicit an incriminating response from defendant. Because the inculpatory statement was an unforeseeable result of police conduct rather than the product of police “interrogation” as defined in Innis, the oral inculpatory statement was properly ruled admissible.

Having reviewed the remaining assignments of error asserted by defendant, we find that they present no reversible error and do not require published explanation because they do not present any question of unsettled law. Therefore, these assignments of error are discussed in an unpublished but publicly-recorded appendix to this opinion.

DECREE

Defendant’s conviction and sentence are affirmed.

DIXON, C. J., dissents with reasons.

CALOGERO, J., dissents, would remand to trial court for hearing on whether oral inculpatory statement was inadmissible.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Assignments of Error Nos. 1, 7 and 8 deal with rulings on the voluntariness and admissibility of an oral inculpatory statement in which Castillo allegedly told the police that they “were going to beat him anyway, cause he raped a white bitch.” In order to address these issues, it is necessary to place this statement in the substantive context of the events surrounding defendant’s arrest and ■ in the procedural context of pretrial proceedings and the trial itself.

The events which culminated in Castillo’s capture began when two young women, the manager and an employee, locked up the Torrido Village Mall Pizza Hut early one morning and got into their cars in preparation for dropping the day’s receipts at a night depository before going home. As the employee watched, an unknown black male gained entry to the manager’s car and drove off with her. The employee quickly phoned police headquarters, where information about the incident was transmitted by the dispatcher. Officer Blanchard had just come off duty and was in the police station when the call came in. Because he was familiar with the kidnapped girl and her car and “just assumed the worst, that maybe she was going to be raped or possibly killed,” Blanchard decided to look for the car in an area of cane fields not far from the scene of the abduction. On his way to that area he passed a police car and stopped to communicate his suspicions to its driver, Officer Emery.

Blanchard’s hunch about location proved correct: he soon spotted the victim’s car, being driven by the victim while a man crouched in the passenger seat, and he pursued it to a hospital parking lot, where the man jumped from the car and became lost in the darkness as he ran in an easterly direction. After talking briefly with' the victim, Blanchard informed police headquarters that the Pizza Hut manager had been raped and he gave the police a general description of the suspect and the direction in which he had fled. Very soon after this information was broadcast, a man fitting the general description ran past Officer Emery, ignored the officer’s command to stop, and was apprehended after a brief chase. Another police officer, Sergeant David, joined Emery as he handcuffed defendant and patted him down. Emery phoned headquarters with the information that he was on his way with the prisoner, but as he was driving toward the station, with Sergeant David’s car following, he received a request that he stop at the Torrido Village Mall, where two other officers, Mes-tayer and Viator, had staked out the only car remaining in the parking lot because they suspected that it belonged to the kidnapper.

Mestayer was the officer who had responded to the call placed by the Pizza Hut employee at the time of the abduction, interviewing this eyewitness at the scene of the incident. At that time he had been accompanied by Officer LeBlanc, whose wife worked with the victim as assistant manager of the Pizza Hut; in fact, Mrs. LeBlanc would have been on duty that night if the victim had not taken her place. Officer Mestayer placed the lone car parked at the scene under surveillance, and when he and Officer Viator heard Emery’s announcement that he had a suspect in custody they radioed to him requesting that he stop in the parking lot so that they could get the suspect’s car keys and unlock the car’s steering column for towing.

After the cars driven by Officer Emery and Sergeant David arrived at the parking lot, the four policemen conferred while Castillo remained in the back seat of Emery’s car, hands cuffed behind his back. According to Mestayer’s testimony at the hearing on the motion to suppress, Castillo addressed the officers with racial epithets and refused to cooperate in producing the car keys. At that point, Mestayer admitted, “out of being mad I lost my cool and slapped him.” Officer Viator, who was with Mestayer when he approached the car in which Castillo was sitting to try to obtain the keys, agreed that defendant was profane and non-cooperative. He described the context of defendant’s inculpatory statement in the following terms:

“A. [When Mestayer] [w]ent into the car, and asked him which pocket his keys were in, he said, if you want the mother fuckers, to come get them yourself. He says, you all going to beat me anyway, cause I raped the white bitch.
Q. Now, you say Mestayer-where was Mestayer when this was being said?
A. Inside the-well, not inside the car, but by the front door of the car. You know he opened the back door of the car, and he was standing there.”

According to Viator, defendant made his statement before there was any physical contact between him and Mestayer. After Mestayer slapped Castillo he searched his pockets, found the car keys, and transferred his attention to the suspect’s car. Officer Emery re-entered the patrol car in which Castillo was sitting and completed the journey to the police station where-for the first time during this entire sequence-Castillo was informed of his Miranda rights.

After receiving the Miranda warnings Castillo declined to make a statement or to contact an attorney but he did make a phone call to his mother. He was then locked up in the drunk tank, where Officer LeBlanc located him shortly thereafter and sprayed him with mace. He gave a written confession within an hour or so after the macing, after the police permitted him to wash off the residue left by the gas and informed him that incriminating fingerprints were present on the hood of the victim’s car and that he would be placed in a lineup. The written confession was not introduced at trial, nor was the pistol which was located as a result of that confession, but Castillo’s oral statement, “you all going to beat me anyway, cause I raped the white bitch,” was placed before the jury.

The critical issue presented by the facts is whether the state was under an obligation to safeguard defendant’s privilege against compulsory self-incrimination by informing him of his rights under Miranda, at the time of his inculpatory statement. Resolution of this issue is complicated by the absence from the record of any conclusive evidence on this point, as the result of certain procedural errors. On October 4, 1978 defendant filed a pleading styled “Motion to Suppress Confession and Other Evidence” which sought to suppress “all written confessions or other written inculpatory statements obtained by Officers Judice and Feller,” and, in addition, the gun located as a result of the written confession. On December 4, 1978 that motion was argued before Judge Fleming at a four hour hearing whose focus was-quite naturally, given the specific purpose of the motion to suppress-the voluntariness or not of the written confession, in the light of the physical abuses suffered by defendant before he made it. Because defendant had filed a federal complaint in connection with those abuses, a United States attorney was present at the hearing and an investigator for the Federal Bureau of Investigation appeared as a witness. Castillo himself took the stand and testified regarding the impact of the slapping incident and the macing on his state of mind at the time of the written confession, but he was not questioned about his oral statement nor about the events which preceded it. The testimony of the four police officers who had been present at the time of the oral statement touched upon that period of time in only the most superficial fashion, merely as part of the chain of events which led up to and explained the slapping incident. Neither the prosecutor nor counsel for the defense raised the issue of the voluntariness of the oral statement in his closing argument. Again, their concern was with the written confession. However, on the day following the hearing, Judge Fleming ruled on defendant’s motion in the following terms:

“BY THE COURT: Yesterday we had a hearing on a motion to suppress certain matters in the case of State of Louisiana versus Everett Castillo, and I note that the defendant’s in Court, with the District Attorney, and Mr. Porteus Burke, his lawyer. I want to rule on the motion to suppress. The State moved-rather, the defendant moved to suppress a confession given to two detectives, and also a gun that was found in the police car. And I do not recall whether there was a motion to suppress the statement that was made to Officer Viator, or not. However, all motions are denied.
BY MR. P. BURKE: To which ruling, your Honor, of course we object.
BY THE COURT: Yes sir. Your objection is noted.
BY MR. D. BURKE: Your Honor, does that mean, then, that the statement made by the accused to Officer Viator in the parking lot is considered voluntary?
BY THE COURT: Yes, sir.”

This ruling was clearly wrong. Defendant had not moved to suppress the oral statement, neither the state nor the defense intended to address that issue, and there was no evidence on the basis of which the court could validly determine that the statement was admissible. But when the state, some six weeks later, filed a notice of its intent to use both the oral statement and the written confession at trial, there seems to have been no way in which defendant could reopen the question of the statement’s admissibility.

The trial itself was presided over by Judge Johnson, who had not been present at the hearing and ruling on the motion to suppress. In the course of Officer Viator’s testimony, while the jury was retired, the prosecutor informed the judge that the witness’ testimony would include a statement which was “in effect a spontaneous confession.” Defense counsel did not respond, but when the witness began to recount the oral inculpatory statement to the jury, counsel raised a hearsay objection and asked that the jury again be removed. The objection was overruled and after the statement had been put before the jury, counsel objected on several grounds, among them the state’s failure to lay a foundation for admission of an inculpatory statement. Defense counsel argued this point rather extensively, noting the absence of any evidence that Miranda warnings had preceded the statement. In response, the state conceded that the statement was a confession and that the prosecution bore the burden of proving voluntar-iness; but it informed the judge that the statement had been found voluntary in the ruling on the motion to suppress, and it presented this prior ruling on the motion to suppress as one which obviated the necessity for making any further determination of voluntariness at trial. The judge’s response was as follows:

“Well, the Court, of course, overrules the objection, and for the same reasons as given by Judge Fleming. The Court will overrule that objection. Would you like to talk on your other objections, Mr. Burke?”

Again, the ruling was wrong, first because it relied on an earlier ruling which itself was erroneous, second because even after a confession has been ruled admissible by the trial judge, the state is further required to establish the predicate of voluntariness before the jury. State v. McGraw, 366 So.2d 1278 (La.1979); C.Cr.P. 703(B).

In State v. Huizar, 332 So.2d 449, 452 (La.1976), we observed that “[spontaneous, volunteered statements given without coercion or custodial interrogation are not subject to exclusion because of non-compliance with Miranda’s prior-warning requirements.” Defendant was unquestionably in custody when he made his inculpatory remark, so that the crucial question is whether that statement was truly spontaneous and volunteered, as the state argues, or whether it was instead the result of police conduct which might be characterized as “interrogation.” In Rhode Island v. Innis, -U.S.-,-, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 307-308 (1980), in the context of a somewhat similar fact situation, the United States Supreme Court defined “interrogation” in the following terms:

“We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. . ..
[Id] By ‘incriminating response’ we refer to any response-whether inculpatory or exculpatory-that the prosecution may seek to introduce at trial. . . . ”

After Castillo had been apprehended and handcuffed by Officer Emery and patted down by Emery and Sergeant David, he spent “a couple of minutes” in the back seat of Emery’s car en route to the Torrido Village parking lot. By that time it appears that Emery was aware of the identity of the victim and knew that she had been raped. While the two were in the car together, Emery received the radioed information that there was a car at the scene of the abduction which probably belonged to the perpetrator. He then engaged in an exchange of communications with his prisoner which was sufficient to convince him that the keys to that car were on Castillo’s person, but we have no evidence about his words or actions during that period. After his arrival at the parking lot, we only know that Castillo was asked whether the car was his, whether he had the keys, and where they were, before he made his inculpatory statement. Again, there is no evidence concerning other words or actions on the part of the four police officers who were present at that time. Even on the basis of the few facts currently available, however, it seems quite possible that defendant’s statement was made in response to police conduct which constituted interrogation, particularly in light of indications of a degree of personal animus against defendant on the part of some members of the police department, and taking into consideration the fact that Castillo was only seventeen years old at the time of his arrest. And even if Castillo’s remarks were “clearly expressions of defiance and bravado,” as the state claims in brief, expressions of defiance and bravado are not characteristic only of unsolicited, voluntary statements; the same bravado might characterize a reaction of hopelessness and helplessness in the face of compulsion.

Clearly, defendant was deprived of a determination of whether his oral inculpatory statement was inadmissible because it was made in response to custodial interrogation without prior Miranda warnings. The ease should be remanded to the trial court for a hearing on this issue.

      . Defendant has expressly abandoned Assignments of Error Nos. 2, 4, 5, 9, 10, 11, 12, 13, 14, 15, 17, 18 and 19 in his brief to this court.

      . Officer Viator testified concerning defendant’s oral inculpatory statement. Officer Emery and Sergeant David were apparently out of earshot when it was made. Officer Mestayer’s testimony was silent on this point.

      . Officer Mestayer testified he slapped defendant once with an open hand, but defendant claimed he was punched twice with a closed fist. Officer Mestayer was suspended for two days for this misconduct.


author: BLANCHE, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. David LOLLAR.
    No. 65893.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Joseph Lotwick, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellant.
    Jimmie R. Major, Clifton 0. Bingham, Jr., Baton Rouge, for defendant-appellee.
   BLANCHE, Justice.

Defendant was charged with three counts of negligent injuring under La.R.S. 14:39, as a result of a traffic accident allegedly caused by defendant driving in a southerly direction in a northbound traffic lane, thereby striking the victims’ vehicle head-on. Defendant filed a motion to quash the bill of information on the ground that the statute contained an unconstitutional criminal presumption. The trial court granted the motion, effectively holding the statute unconstitutional on its face. The state applied for a supervisory writ and this Court granted the writ but ordered the record lodged as an appeal. La.Const. art. 5, § 5(D)(1) (1974). We reverse.

At issue in this appeal is whether R.S. 14:39, which provides in part that “[t]he violation of a statute or ordinance shall be considered only as presumptive evidence of such [criminal] negligence”, infringes upon the defendant’s constitutional rights to remain silent and to be presumed innocent. A related issue is whether the statute im-permissibly relieves the state of proving every element of the crime by elevating non-negligent statutory violations or those indicative of ordinary negligence to the status of criminal negligence.

The crime of negligent injuring is almost identical in definition to the crime of negligent homicide, except that in the former the victim is only injured, while in the latter, the victim dies. The second sentence of the negligent injuring statute, which defendant claims contains the unconstitutional presumption, is identical to the second sentence of the negligent homicide statute. R.S. 14:39; R.S. 14:32. Thus, jurisprudence interpreting the homicide statute language is relevant to a consideration of the statute at issue. See Reporter’s Comment, R.S. 14:39; State v. Brady, 310 So.2d 593 (La.1975); State v. Seals, 255 La. 1005, 233 So.2d 914 (La.1970); Legros v. Conner, 212 So.2d 177 (3d Cir. 1968).

In State v. Hammontree, 363 So.2d 1364 (La.1978), this Court considered a similar attack on the identical presumption set forth in the Louisiana negligent homicide statute, R.S. 14:32. In upholding the statute, we stated, at 1372:

“The better interpretation of ‘presumptive evidence’ in R.S. 14:32 is that it creates no legal presumption, but means that the violation of a statute related to the cause of the accident will justify the inference that defendant committed a criminally negligent act. To constitute ‘criminal negligence’, the offender’s conduct must be a gross deviation below the standard expected of a reasonably careful man. R.S. 14:12. Reasonably careful men are expected to obey safety laws, and it is within the province of the legislature to permit the inference that one who violates a safety law and thereby injures another is guilty of criminal negligence; and if it is proved beyond a reasonable doubt that the criminal negligence was the cause of death, the perpetrator may be guilty of criminal homicide.”

After our decision in Hammontree, the United States Supreme Court had the opportunity to review the constitutionality of a New York statute which provided, with certain exceptions, that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle. In County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Court upheld the statute and reaffirmed the usefulness of inferences and presumptions under the proper circumstances. The court distinguished between a constitutional “permissive” inference or presumption and a suspect “mandatory” presumption.

A permissive inference or presumption, the Court declared, is one that allows, but does not require, the trier of fact to determine the existence of an element of the crime from the existence of one or more “evidentiary” or “basic” facts, 99 S.Ct. at 2224. Because this type of presumption leaves the trier of fact free to credit or reject the inference depending upon the evidence adduced, it does not place any burden of proof upon defendant and, therefore, does not affect the application of the “beyond a reasonable doubt” standard unless, under the particular facts of the case, there is no rational way the trier could make the connection between the evidentia-ry facts the prosecution proves and the conclusion permitted by the inference.

A mandatory presumption, on the other hand, “may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.” Id. at 2224-25. “A mandatory presumption violates due process ‘unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.’ ” Id. at 2229.

It is clear from the interpretation of La.R.S. 14:32 as finally enunciated in State v. Hammontree, supra, that the identical presumption contained in R.S. 14:39 is a “permissive” presumption under the most recent analysis and, therefore, is not unconstitutional on its face. See State v. Daranda, 388 So.2d 759 (La.1980). The statute does not require a jury to infer criminal negligence from the mere violation of any statute but, rather, permits a jury to accept or reject evidence of a violation of a statute as evidence of criminal negligence depending upon all the facts and circumstances surrounding the violation. The state still has the burden of proving all elements of the crime charged beyond a reasonable doubt.

The same is applicable to violations of statutes through ordinary negligence or without any negligence. Such violations are not elevated by the law to the level of criminal negligence since the trier of fact is given the responsibility of deciding whether the circumstances of the violation justify the inference. In order to find criminal negligence, the jury would have to be convinced beyond a reasonable doubt that the defendant’s actions constituted a gross deviation below the standard expected of reasonably careful men. R.S. 14:12. Thus, defendant’s second contention is without merit.

We are supported in our determination of these issues by Hammontree v. Phelps, 605 F.2d 1371 (5th Cir. 1979), decided after the United States Supreme Court decision in Ulster County, supra. After reviewing this Court’s interpretation of State v. Hammon-tree, supra, and Ulster County, supra, the 5th Circuit concluded, at page 1379:

“In sum, Louisiana case law characterizing the term ‘presumptive evidence’ as an ‘inference’, and the legislature’s use of the word ‘only’ to qualify the term ‘presumptive evidence’, lead us to conclude that the Louisiana negligent homicide statute did not shift any constitutional burden from the prosecution to the defendant.”

It is important to note, however, that were this a review of a trial on the merits, the inquiry would not end here. “In deciding what type of inference or presumption is involved in a case, the jury instructions will generally be controlling, although their interpretation may require recourse to the statute involved and the cases decided under it.” Ulster County, supra, 99 S.Ct. at 2225, n. 16; Hammontree v. Phelps, supra, at 1379. Thus, the jury would have to be informed that the presumption creates no legal presumption, but merely justifies an inference, and that the presumption places no affirmative burden upon the accused. See State v. Hammontree, supra; Hammontree v. Phelps, supra.

For the reasons assigned, the judgment of the trial court granting a pre-trial motion to quash the bill of information is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

R.S. 14:39 is unconstitutional, as written, because it is so poorly worded that it must be explained in a jury instruction, and without additional explanation, the use of the phrase “presumptive evidence of (criminal) negligence” weakens the presumption of innocence.

Mere violation of a statute (as, for example, by driving 56 in a 55-mile per hour zone) does not give rise to any presumption regarding criminal negligence. The second paragraph of R.S. 14:39 apparently attempts to say that violation of a statute is admissible evidence as part of the determination of whether defendant’s conduct constitutes criminal negligence, but is not conclusive of that determination. Unfortunately, instead of saying “not conclusive”, R.S. 14:39 says “only presumptive”, implying that some presumption (a strong word to a layman) arises from the mere violation of a statute, no matter how innocuous. Such a presumption of guilt erodes the constitutional presumption of innocence.

Nevertheless, the second paragraph or the offensive words contained therein are severable. Since the statute is not unconstitutional in its entirety, the motion to quash the bill of information was improperly granted.

I concur in the reversal.

      . The definition of each crime is as follows: R.S. 14:39. Negligent Injuring.
      Negligent injuring is the inflicting of any injury upon the person of another by criminal negligence.
      The violation of a statute ordinance shall be considered only as presumptive evidence of such negligence.
      R.S. 14:32. Negligent Homicide.
      Negligent homicide is the killing of a human being by criminal negligence.
      The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Douglas Wayne JOHNSON.
    No. 67263.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., W. E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
    Clayton Mack Perkins, Jr., St. Francis-ville, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Douglas Wayne Johnson, was charged by bill of information with having committed a theft of $162.12. Following trial, a six-member jury returned a unanimous verdict of guilty as charged. On the date set for sentencing, a motion for a new trial was heard and denied. Thereafter, defendant was sentenced to two years imprisonment at hard labor. On appeal to this Court, the defendant argues five assignments of error.

The facts surrounding the commission of the offense are summarized as follows: On January 5, 1979, the defendant went to Scott’s Grocery in East Feliciana Parish and, while there, cashed a check in the amount of $162.12. The check was drawn on the account of Baskets Plus, Inc. in the Fidelity National Bank, and was made payable to Herman Jackson. In cashing the check, the defendant presented as evidence of his identification an altered driver’s license. The license was issued to one Herman C. Jackson, but contained a photograph of the defendant. After the check was presented to the bank for payment by Scott’s Grocery, it was returned with the notation that the signature was irregular and the endorsement cancelled.

Subsequent to this incident a man, allegedly fitting the defendant’s description, attempted to cash a check at the Neighborhood Grocery in Zachary, Louisiana. Neighborhood’s proprietor, Mrs. Wheat, became suspicious and called the police when she noticed that the license used for the identification had been tampered with, or seemed to her irregular. Thereafter, the defendant was arrested and was subsequently identified as the person pictured in the altered license who had cashed a check at Scott’s Grocery.

Assignment of Error Number 1

By this assignment, the defendant contends that the trial court erred in not suppressing the eyewitness identification of defendant pursuant to a pre-trial lineup. In the course of the hearing, defendant contended that two lineups were conduet-ed-one at the East Feliciana Parish Jail and one at the East Baton Rouge Parish Jail. The state denied that any lineup was conducted in the East Feliciana Parish Jail. The trial judge, while doubting that an East Feliciana Parish lineup had been conducted, suppressed whatever identification was purportedly made at that lineup, but denied the motion relative to the East Baton Rouge lineup.

Notwithstanding the fact that the trial judge suppressed the alleged East Feliciana Parish lineup, the defendant, arguing that one did occur, takes the position in this assignment that, because he had no knowledge of the witnesses attending the lineup in the East Feliciana Parish Jail, all eyewitness identification should be suppressed, including any identification made of him at the East Baton Rouge Parish lineup. We find that this contention is without merit. The only witness to identify the defendant at the East Baton Rouge lineup was the victim, who testified that he did not participate in any lineup in East Feliciana Parish.

At the hearing on defendant’s motion to suppress, the complaining witness and owner of Scott’s Grocery, Walter Jackson, testified that he identified the defendant at an East Baton Rouge Parish lineup and, as stated above, denied participation in any earlier lineups. In particular, he denied participation in any lineup in East Feliciana Parish. Jackson also explained that he had been to the East Feliciana Parish Prison where the defendant was locked up, but had gone there only to talk to the district attorney, and not to identify anyone. He further testified that he had known the defendant and had seen the defendant on numerous occasions over a period of three years or more, had cashed several checks for him, and knew the defendant’s face. He was positive that the person whom he recognized in the lineup was the same person who had cashed the check at his store. This positive identification by the victim, based upon the above factors, insures the reliability of the defendant’s identification. Thus, we conclude that the defendant’s identification by the victim came from a source independent of any alleged taint resulting from the East Feliciana Parish lineup in which this victim claims he did not participate.

It is well established that even if a pre-trial identification of an accused was the product of impermissible suggestion, the in-court identification is, nevertheless, admissible if it has an independent basis. State v. Rudolph, 332 So.2d 806 (La.1976), and cases therein cited.

This assignment is without merit.

Assignments of Error Numbers 2 and 5

By these assignments, the defendant contends that the trial court erred in denying his motion for a mistrial premised on the opening statement of the state, which referred to inadmissible other crimes evidence.

During the state’s opening statement, the prosecutor described the offense for which the defendant stood accused. He related how defendant had presented the check to the victim with the use of a fraudulent driver’s license for identification. Completing this factual exposé, he continued with the following:

“About two weeks later, the defendant attempted to cash a check in Zachary, Louisiana at a store and again presented the same identification which he had presented to [the victim of the principal action].”

Subsequently, the prosecutor introduced evidence to show that the driver’s license utilized in the perpetration of the offense was recovered from the owner of the Neighborhood Grocery Store in Zachary, Louisiana. The store owner testified that she called the police when she noticed that the license used for identification had been tampered with. In the meantime, the suspicious presenter of the license left the store, leaving his license with the store owner, who later tendered it to the police.

Defendant’s counsel made a motion for a mistrial when the above remark was made to the jury and, after trial and conviction, made a motion for a new trial, all on the grounds that the above remarks were made in the absence of defense counsel being furnished a “Prieur notice” of the state’s intention to produce evidence of other crimes.

Defendant’s contention, if accepted, leads to the conclusion that evidence of the crime for which defendant is on trial cannot be introduced if the jury, from the introduction of the evidence, can infer that defendant committed or attempted to commit another crime. While possibly the jury might have concluded that the defendant attempted to pass off a check on the proprietor of the Neighborhood Grocery using the same modus operandi, undoubtedly the evidence was relevant to show how the state came into possession of the license used in the commission of the offense.

Code of Criminal Procedure art. 770 provides:

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

A reading thereof shows that proscription does not apply to other crimes as to which evidence thereof is admissible. Accordingly, the prosecutor’s remarks, even if construed as evidence of other crimes committed by the defendant, related to admissible evidence and were not subject to the drastic remedy of mistrial as provided by the article.

Finally, defendant objects to the introduction of the license in evidence. While we are not certain of the grounds upon which this objection is made, our review of the record shows that the evidence complained of was positively, visually identified by the victim and that its chain of custody was proven by two other witnesses called by the state. In State v. Paster, 373 So.2d 170, 177 (La.1979), we stated:

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the ease. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is- a factual matter for determination by the trier of fact.”

The visual identification by the witnesses, in our opinion, proved beyond a reasonable doubt that the license was that utilized by defendant in cashing the check, and was relevant to the case. These assignments are without merit.

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

AFFIRMED.

DENNIS, J., concurs.