author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Ivan MOLINARIO.
    No. 65597.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.
    Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lance M. Africk, Marvin Opotowsky, Asst. Dist. Attys., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant appeals to this Court from a conviction for possession of Demerol, a violation of R.S. 40:967. Following a multiple-offender hearing, at which the state produced evidence of three prior felony convictions, defendant was sentenced to life imprisonment.

Defendant has made nineteen assignments of error, of which we treat only one in this opinion. The appendix attached hereto deals with the other assignments, which we deem to be without merit.

Defendant contends that a federal conviction for violation of 18 U.S.C.A. § 922(a)(6), the Gun Control Act of 1968, was improperly used for purposes of enhancement of his sentence following the multiple offender hearing. We agree.

In the multiple offender bill filed by the state, three prior felony convictions were alleged. One of the convictions was a 1973 guilty plea to a charge that he violated the Federal Gun Control Act of 1968 by making a false written statement when purchasing a firearm. Defendant had stated in the said application that he was not a convicted felon when, in fact, he had been convicted of a felony.

Louisiana, at that time, had no statute making such violation a felony under its law; the comparable statute involved only a misdemeanor offense. Thus, the conviction of the U. S. Statute would not have been a felony in this state and, under the provisions of R.S. 15:529.1, could not be used as a conviction for enhancement under the habitual offender law.

The Louisiana Habitual Offender Law, R.S. 15:529.1, states:

“A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:”

As we recognized in State v. Singleton, 352 So.2d 191 (La.1977), the clear meaning of this statute is that the use of a federal conviction for enhancement of punishment is improper when the crime was not one which “if committed in this state would be a felony.”

Under the terms of R.S. 15:529.1 and R.S. 40:967, if the defendant is found to be a third offender rather than a fourth offender, then the maximum sentence which he could receive would be ten years imprisonment and a fine of $10,000 for his conviction on the charge of possession of Demerol.

We therefore reverse the sentence imposed following defendant’s conviction and remand for resentencing.

CONVICTION AFFIRMED, SENTENCE REVERSED, CASE REMANDED FOR RESENTENCING.

       Chief Judge Paul B. Landry, Jr., Retired, participated in this decision as Associate Justice Ad Hoc.

      . Defendant was charged with possession of Demerol (Pethidine), which is listed in Schedule II of R.S. 40:964.

      . R.S. 40:967 states in relevant part:
      “C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner or provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this Part. Except as provided in Subsections E and F hereof, any person who violates this Subsection shall be imprisoned with or without hard labor for not more than five years; and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.”

      . The Habitual Offender Law, R.S. 15:529.1, makes the following provisions for those who are found to be fourth offenders:
      “(3) If the fourth or subsequent felony is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then, (a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or (b) If the fourth or subsequent felony and two of the prior felonies involved a violation of R.S. 14:34, R.S. 14:62.1, R.S. 14:65, R.S. 14:110(B), or of any crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence."

      . This statute states:
      “§ 922. Unlawful acts

      (а) It shall be unlawful— * * *
      (б) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.”

      . R.S. 14:125 provides:
      “False swearing is the intentional making of a written or oral statement, known to be false, under sanction of an oath or an equivalent affirmation, where such oath or affirmation is required by law; provided that this article shall not apply where such false statement is made in, or for use in, a judicial proceeding or any proceeding before a board or official, wherein such board or official is authorized to take testimony.
      “Whoever commits the crime of false swearing shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both.”

      . This degree of penalty may be ascertained by reading together R.S. 40:967(C) (footnote 2, supra) and R.S. 15:529.1 which states in pertinent part:
      “(2) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then, (a) The person shall be sentenced to imprisonment for any term not less than one-half the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; . . . ”


source: Caselaw Access Project

author: ELLIS, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. Sybil M. ALFORD.
    No. 65617.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.

      Sybil M. Alford, in pro. per., defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Antoine Laurent, Asst. Dist. Atty., for plaintiff-respondent.
   ELLIS, Justice Ad Hoc.

Defendant Sybil Alford was charged by bill of information with operating a motor vehicle on a public highway in violation of La.R.S. 32:61. Defendant pleaded not guilty and trial was held on August 30, 1979. The trial court found defendant guilty as charged. Defendant was fined twenty-five dollars ($25.00); the fine was suspended. Defendant applied to this Court for supervisory writs to review the judgment of the trial court. This Court granted writs on January 11, 1980.

At trial, the state adduced the following facts: State Trooper Herschel Nobles was patrolling Highway 21 in St. Tammany Parish. Defendant was travelling in her car in the opposite direction on the highway. Nobles picked defendant’s car up on his radar unit and turned around and followed her for approximately one mile before she turned onto Highway 16. Nobles testified that defendant’s vehicle was travelling at 65 m. p. h. according to his speedometer. The speed limit in that area was 50 m. p. h. Defendant was stopped by Trooper Nobles and issued a speeding citation. At trial, defendant testified, contending that a second car had sped past her vehicle, almost forcing her off the road immediately before the state trooper stopped her. Defendant insisted that Nobles had tracked this second car with his radar, and not her car.

ASSIGNMENT OF ERROR NO. 1

By assignment of error number one, defendant contends that the trial court was in error in placing the burden of proof on the defense, thereby requiring her to prove her innocence. Specifically, defendant points out the language used by the trial court in making its determination of guilt: “Ms. Alford is convinced in her mind and made a valued effort to convince me that she was not speeding. This court appreciates that.” Defendant argues that this language indicates that the trial judge felt that she had to convince him that she was not guilty, rather than the defense convincing him that she did exceed the speed limit.

La.R.S. 15:271 provides:

“The plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant’s guilt.”

At trial, defendant raised no objection to the trial court’s statement or the possibility of misapplication of the burden of proof. We note that Ms. Alford represented herself at trial and represents herself on this appeal. Her pro se status may explain the failure of the defense to object to several possible errors which occurred at trial. See assignments of error numbers 2, 3, 4, and 5, infra. It is well settled that absent a contemporaneous objection, an alleged error or irregularity at trial cannot be reviewed by this Court. La.C.Cr.P., Art. 841; State v. Mitchell, 356 So.2d 974 (La.1978); State v. Matthews, 354 So.2d 552 (La.1978); State v. Lee, 346 So.2d 682 (La.1977). Because of an absence of any objections to this assignment of error alleged by defendant, there is nothing before this Court to review.

Furthermore, we note that there is sufficient evidence contained in the record on which the trial court could find defendant guilty beyond a reasonable doubt. Cf. State v. Otis, 339 So.2d 343 (La.1976).

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 3 & 5

By these assignments of error, the defense contends that the trial court was in error in relying upon the speed clockings of defendant’s radar unit. Defendant specifically alleges that it was error for the trial court to rely on the radar as evidence of speed and also to state that no evidence had been introduced to question whether the radar unit had been properly functioning at the time of defendant’s arrest. Defendant also argues that the trial court should not have accepted testimony from the officer about defendant’s speed according to his speedometer when no evidence was introduced at trial which would establish the reliability of that instrument.

Trooper Nobles testified at the hearing that he had picked up defendant’s vehicle on his radar unit and had followed her for about one mile before pulling her car over. His testimony indicated that defendant’s car had been travelling about 65 m. p. h. according to his speedometer. At no time did he testify as to what the exact reading was on his radar unit. He stated that he had initially observed defendant’s car by radar, but did not specifically state what the reading on the radar was.

At trial, defendant raised no objections to the admissibility of the radar and speedometer evidence. Because of her failure to object to the introduction of this evidence at trial, there is nothing for this Court to review. These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment of error, defendant contends that the trial court was in error in accepting the testimony of the state trooper because it was demonstrably untrue.

This Court is prohibited by the state constitution from deciding factual questions. Review by this Court is limited to questions of law. La.Const. art. 5, § 5 (1974). In State v. Tucker, 354 So.2d 521 (La.1978), this Court held:

“This Court’s appellate jurisdiction is limited to questions of law, and it will not reverse a conviction on a question of guilt or innocence unless there is no evidence of an essential element of a crime—a situation which presents a question of law, it being illegal to convict a person of crime on no evidence.”

See also State v. Strother, 362 So.2d 508 (La.1978).

Because we are unable to review questions of fact, we must find that the trial court found that there was some credibility to the testimony of the state trooper. We cannot attempt to determine whether or not the trial court discounted that portion of the testimony found to be erroneous, or found the entire statement to be truthful. These are questions of fact and beyond our scope of review. It appears to us that the trial court made a judgment on the credibility of the witnesses and chose to accept the testimony of Trooper Nobles. See State v. Sullivan, 352 So.2d 649 (La.1977); State v. Cobbs, 350 So.2d 168 (La.1977).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

By assignment of error number six, defendant contends that the trial court was in error in not allowing her to testify fully about another vehicle allegedly involved with hers at the time of the initial radar sighting.

As noted above, defendant alleged that a second car was near hers at the time Officer Nobles initially observed her car. Defendant claimed that this second car forced her off the road. She cross-examined Trooper Nobles about the second car. The officer denied any knowledge of such a vehicle. The defendant took the stand and testified as to the appearance and behavior of the second car. Defendant was testifying when the trial court interrupted her and informed her that such testimony was not relevant and that the only pertinent question was, “Were you speeding?” The judge added: “I think you have discussed most of it in other statements anyway.”

Defendant argues that her testimony was relevant because she was a witness to the incident. She claims that the trial court deprived her of the right to present a defense.

La.R.S. 15:441 provides:

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

A trial judge’s ruling as to the relevancy of evidence should not be disturbed absent a showing of clear abuse of discretion. State v. Echols, 376 So.2d 1244 (La.1979); State v. Weems, 358 So.2d 285 (La.1978); State v. Winston, 343 So.2d 171 (La.1977).

In the instant case, we would have been concerned that the trial judge had abused his discretion had he refused to allow defendant the opportunity to develop her testimony concerning the second car. The testimony presented the possibility that the state trooper may have tracked the wrong vehicle with his radar. A reading of the record, however, indicates that the trial court interrupted Ms. Alford only after she had testified at length about the second car. In view of defendant’s testimony, we find that she was allowed adequately to present her defense concerning the second car. The trial court apparently chose to believe Officer Nobles’s version of the facts and discounted defendant’s version.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7

By this assignment of error, the defense contends that the trial court was in error in refusing to allow defendant the right to have the details of her arrest and citation admitted into the record.

Defendant alleged that when Officer Nobles stopped her, he refused to listen to her story about the second car and did not pursue that automobile. Defendant claimed that the officer manifested a hostile and menacing attitude toward her. An investigation of the incident by the Governor’s Office was initiated by defendant. She contends that testimony about the trooper’s conduct would have been relevant as to his ability properly to perform law enforcement functions. Defendant alleges that it was grave error to deny her the opportunity to raise this question.

We find that the ruling of the trial court v/as correct. The trooper’s conduct after defendant’s arrest is not relevant in the instant case: it does not tend to negate the commission of the offense. La.R.S. 15:441, supra.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 8

By assignment of error number eight, defendant contends that the trial court was in error in refusing to allow the introduction of her car into evidence at trial.

At trial, defendant argued that it was impossible for her car to have attained the speed with which she was charged because of the condition of the vehicle, a ten-year old station wagon. As evidence of this, she wanted to drive her car to the court and let the trial judge examine it. The trial court refused to examine the car on the grounds that it would be an improper exercise of its discretion in a misdemeanor proceeding and that there was no assurance that the car was in the same condition the day of trial that it had been on the day that the crime allegedly occurred. The court did hear testimony from defendant and another witness as to the condition of the car.

The decision of the trial court was correct. The condition of the car on the date of trial is not relevant. There was no way that the trial court could dismiss the possibility that the car had been tampered with or driven a great distance before trial, but after the alleged offense. Without any foundation establishing that the car was in the same condition the day of trial that it had been on the date of the offense, the trial court properly excluded the evidence of the car’s condition on the day of trial. See generally State v. Echols, supra.

This assignment of error is without merit.

The decision of the trial court is affirmed.

AFFIRMED.

DIXON, C. J., concurs.

WATSON, J., dissents being of the opinion that Assignment # 8 has merit.

      . We note that this result is not unanticipated. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court stated: “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of “effective assistance of counsel.”


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Robert J. MORVANT, Alfonse Campos and Bobbie Agent.
    No. 66221.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.

      Owen J. Bordelon, Jr., Gretna, for defendants-respondents Robert J. Morvant and Alfonse Campos.
    Douglas Wayne Mancuso, Metairie, for defendant-respondent Bobbie Agent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Harry Hardin, Asst. Dist. Attys., for plaintiff-relator.
   DIXON, Chief Justice.

This case is before us on writs granted at the application of the state. The defendants, Robert Morvant, Alfonse Campos and Bobbie Agent, are charged by bill of information with the theft of $5000. Agent is also charged individually with the theft of an additional $3354. The purpose of the state’s application for writs was to seek review of the action of the trial court in granting a defense motion to suppress statements made to the police and physical evidence that had been seized.

The record indicates that on April 26, 1978 Rodney Leonard and Robert Carro-way, representatives of Norvell Wilder Supply Company, made a complaint to Detective Bond of the Jefferson Parish Sheriff’s Office alleging that their firm had been the victim of theft, perpetuated by the defendants Morvant (a Norvell Wilder employee) and Campos (a former employee). The alleged thefts involved a scheme to defraud the company through phony transactions involving fictitious invoices.

Acting on the information given by Leonard and Carroway, Detective Bond, with two other officers, went to Morvant’s office at Norvell Wilder at 7:55 a. m. on April 27; after identifying themselves as police officers and informing Morvant that they were investigating an internal theft at Norvell Wilder, they requested that Morvant accompany them to the sheriff’s office. Mor-vant agreed, and was driven to the station in an unmarked police car. At the station he made a statement implicating himself and the other defendants. As a result, the other two defendants were arrested. Subsequent to his arrest, Agent made an incul-patory statement. In addition, Morvant signed a written consent to the search of the Warehouse of Wetlands Oil & Industrial Supply Company, Inc., a business run by him and Campos. A search of the warehouse resulted in the seizure of a number of items by the police.

Campos and Morvant argue that the action of the detective in requesting that Morvant accompany the officers to the station amounted under the circumstances to an arrest, unsupported by probable cause, and that, therefore, the statements made by the defendants, and the physical evidence seized in the search of the warehouse, must be suppressed as the fruits of an illegal arrest. To determine the validity of the defendants’ claim, we must first determine if the defendant Morvant was arrested when he was picked up by the police, and, if so, whether the arrest was supported by probable cause.

C.Cr.P. 201 provides:

“Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.”

This court has held that the definition of arrest is keyed to the concept of restraint. The circumstances indicating an intent to effect a restraint on the liberty of an accused, rather than the precise timing of the words “you are under arrest,” determine when an arrest has been made. State v. Tomasetti, 381 So.2d 420 (La.1980); State v. Mendoza, 376 So.2d 139 (La.1979); State v. Rawls, 376 So.2d 117 (La.1979). In the instant case, the detectives identified themselves and showed the defendant their credentials. They advised Morvant that they were investigating a theft at Norvell Wilder. Morvant was transported to the sheriff’s office in a police car, after being requested to accompany the officers and not being informed that he could refuse to do so. The arrest register, reflecting information supplied by the arresting officer, indicated that Morvant had been placed under arrest at 7:55 a. m., the time that the officers approached him at work. Under the circumstances, we cannot say that the trial court erred in concluding that the officers had the intent to restrain the defendant and actually did so.

A warrantless arrest must be based on probable cause. State v. Simms, 381 So.2d 472 (La.1980); State v. Tomasetti, supra; State v. Mendoza, supra. Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Simms, supra; State v. Tomasetti, supra; State v. Mendoza, supra.

At the hearing, Detectine Bond testified about the facts he knew at the time he picked up Morvant. He stated that Leonard and Carroway had come to the station and reported seventeen transactions in which they believed fraud and theft had occurred. The company representatives and the detective went over each transaction, with the representatives explaining what they believed had occurred in each, and providing documentation to back up those beliefs. The two men told Bond that Morvant and Campos had formed a company in competition with Norvell Wilder, while Morvant was still working for that firm. Further, they reported that Morvant had on numerous occasions requested a secretary to write company checks out to cash, in violation of company policy. Those checks were “backed up by bogus invoices” from J. Ray McDermott Company. As an example, Detective Bond related one incident in which a check for $300 was requested to be made out for cash, for the purchase of equipment, backed up by a phony invoice. In substance, then, the representatives of Norvell Wilder reported to the police that Morvant had caused checks to be issued to cash, contrary to company policy, in order to satisfy falsified invoices.

The main thrust of the defendants’ (Mor-vant and Campos) argument that the above facts did not amount to probable cause is that Detective Bond relied solely on the statements of the company representatives as to the facts that a theft had occurred and that Morvant was involved. The defendants point out that the detective admitted that he had relied on the representations of the Norvell Wilder employees concerning the meaning of the documentation they showed him. In particular, the officer relied on them as to the falsity of the J. Ray McDermott invoices, without independent investigation or checking with J. Ray McDermott. The defendants argue that the reliance on the Norvell Wilder representatives concerning the commission of the offense and the defendants’ involvement was unjustified without independent investigation to corroborate their allegations.

Probable cause, however, need not be based on an officer’s personal knowledge. An officer can act on knowledge supplied by a person, even if the identity of the informant is kept confidential. State v. Rudolph, 369 So.2d 1320 (La.1979); State v. Gipson, 359 So.2d 87 (La.1978); State v. Marks, 337 So.2d 1177 (La.1976). In State v. Paciera, 290 So.2d 681 (La.1974), this court, following Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), held that an affidavit submitted to a magistrate for a search warrant may be based on hearsay statements of an informant only if the affidavit sets forth a substantial factual basis from which the magistrate might find that both the informant and the information were reliable. This court has held that those requirements also apply to hearings to test the constitutionality of an arrest without a warrant. State v. Rudolph, supra. Therefore, at a hearing to suppress evidence obtained as a result of such an arrest, the state bears the burden of showing that the informant was credible and the information reliable.

The bulk of the jurisprudence interpreting the requirements of Paciera has involved confidential informants whose identities were not known to the issuing magistrate or the court reviewing the validity of the arrest. Paciera itself, however, gives some indication as to how the reliability of known sources of information, such as are involved in this case, are to be judged. In Paciera, the affiant’s source of information was identified as two of his fellow police officers whom we concluded were therefore reliable informants. Similarly, in the instant case, the informants are identified as being employees of a respected business, charged with the duty of reporting what they believed to be a theft from their employer. In light of the facts that the informants were known to be responsible members of the community, who saw no need to cloak their actions in anonymity, and who were employed in a responsible position with the victim of the alleged theft, Detective Bond was justified in believing they were reliable sources of information.

The record also establishes the reliability of the information they supplied. The Nor-vell Wilder representatives did not approach the police with a bald assertion that Morvant had been stealing from their employer. Rather, they gave Detective Bond a detailed account of seventeen transactions which they believed involved theft and fraud. They explained what they thought happened in each transaction. They supplied written documentation including the allegedly falsified invoices and the checks written to pay for them. The defendants argue that the officer was not justified in relying on the company representatives’ statement that those invoices were not genuine, and that he should have corroborated the statement by checking with J. Ray McDermott. It is apparent, however, that the Norvell Wilder representatives were in at least as good a position to tell whether the invoices were genuine as anyone at McDermott, because they were in a position to know if the goods and equipment represented by the invoices had been delivered. The officer was justified in relying on the statements of Leonard and Carroway because they were in a position to be acquainted with the matters they were relating, and because they gave him sufficient information, with details and documentation, for him to conclude that the information was reliable. See State v. Paciera, supra; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

We conclude that, when supplied with reliable information from credible sources that the defendant Morvant had for a period of time been engaged in a scheme in which he directed that company checks be issued to pay for goods and equipment which had not been supplied, through the use of bogus invoices, Detective Bond had probable cause to arrest Morvant.

Since the officer’s action in picking up Morvant was justified, the statement he made in custody, after being advised of his constitutional rights, need not be suppressed. It follows that the subsequent arrests of the defendants Campos and Agent are valid because, at the time they were effected, the officers had probable cause, arising from the defendant Morvant’s statement, to believe that they were involved in the theft. The consent given by Morvant to search the Wetlands warehouse must also be considered untainted by any prior illegality. The statements made by the defendants Morvant and Campos, and the evidence seized in the search of the Wetlands warehouse, were therefore improperly suppressed by the trial court.

The defendant Agent did not rely on the alleged invalidity of Morvant’s arrest in his motion to suppress the inculpatory statement he made after being arrested. In his motion, and in brief to this court, Agent claims that the statement was not made freely and voluntarily. The record indicates that Agent was picked up or arrested in much the same way as Morvant had been. He was approached by police officers who identified themselves and indicated that they were investigating a theft, and requested that he accompany them to the station. He was transported to the station in a police vehicle, and, after arriving, was told of his rights and signed a “rights form.” He was then questioned.

The basis of the defendant Agent’s argument is that his statement was not free and voluntary because it was given only after he was led to believe that he would not be prosecuted and would instead be used as a witness for the state. At the hearing on the motion to suppress, evidence was heard from the defendant and the officer who had questioned him.

That officer, Officer Thibodeaux, testified that initially Agent denied any knowledge of a theft, but when confronted with incriminating evidence, admitted his involvement. Thibodeaux admitted discussing the possibility that the defendant would be used as a witness and be given immunity, but when first questioned could not recall when that discussion took place. Later in his testimony he stated that it was only after the statement had been taken that he had told the defendant that he would check with the district attorney to see if the defendant would have to be arrested, or if he could be used as a state’s witness.

The defendant, on the other hand, testified that before the statement was given, he was told that he was not a suspect and that he was going to be used as a witness. He also testified that the officer told him that he would recommend to the district attorney that he not be prosecuted. According to the defendant, the statement was, therefore, made under the impression that he was not going to be prosecuted but that he was only to be used as a witness for the state.

After the defendant testified, the officer was recalled to the stand. Officer Thibo-deaux at that point departed from his prior testimony and stated that the only thing he had told the defendant was that his employer (J. Ray McDermott) was not going to press charges.

In State v. Jackson, 381 So.2d 485, 487 (La.1980), this court enunciated the principles under which the admissibility of a confession must be judged. We noted first that as a matter of federal constitutional law, a confession obtained by “ ‘any direct or implied promises, however slight, [or] by the exertion of any improper influence’ ” must be considered involuntary and inadmissible. Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 42 L.Ed. 568 (1897). We noted that the rationale for that rule is that even the slightest inducements held out by a person in authority, such as a police officer or a prosecutor, may render a confession involuntary. We further noted that immunity from prosecution is a particularly powerful inducement, and has been said to be, in Louisiana, always “sufficient to deem a confession made in reliance thereon involuntary.” 14 La.L. Rev. 642, 662 (1954).

As to the Louisiana law concerning the admission of confessions, we stated in State v. Jackson, supra:

“In Louisiana the statutorily mandated test for voluntariness is not whether a confession was induced by improper external forces but whether the confession was free and voluntary and ‘not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.’ R.S. 15:451. The state has the burden of affirmatively proving that a confession was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises and must prove beyond a reasonable doubt that a confession was free and voluntary. R.S. 15:451, C.Cr.P. Art. 703(C), State v. Coleman, 369 So.2d 1286 (La.1979); State v. Volk, 369 So.2d 128 (La.1979); State v. Weinberg, 364 So.2d 964 (La.1978).”

Conclusions of a trial court on the credibility and weight of testimony relating to the voluntariness of a confession are given great weight and will not be overturned unless they are not supported by the evidence. State v. Jackson, supra; State v. Manning, 380 So.2d 46 (La.1980); State v. Gaines, 354 So.2d 548 (La.1978). Here, the trial court’s determination that Agent’s statement was inadmissible was supported by the evidence.

The essence of the officer’s testimony was that the defendant was only told that the district attorney would be consulted as to the possibility that the defendant would be a state’s witness, and that he was told that after the statement had been made. The defendant, on the other hand, testified that before giving the statement he was promised that he would not be prosecuted, that he was not a suspect and would be used as a witness (and impliedly be given immunity). There is no dispute that at some point statements were made to the defendant, either that he might be given immunity and used as a witness, or that the district attorney would be consulted to determine if the defendant would be used as a state’s witness (a term connoting immunity).

After reviewing the record, we conclude that the trial court did not err in holding that the statements had been made under the influence of promises that the defendant would not be prosecuted. The testimony of the officer underwent significant changes during the course of the hearing, casting reasonable doubt upon the accuracy of his testimony. The defendant consistently testified that he had been led to believe, prior to giving the statement, that he would not be prosecuted and that he would instead be used as a witness for the state. Under the circumstances, the trial court did not err in concluding that the statement was obtained by “direct or implied promises, however slight” or under the influence of “inducements or promises,” and that the state failed to prove beyond a reasonable doubt that the confession was free and voluntary.

For the reasons assigned, the trial court’s granting of the motion to suppress filed by defendants Morvant and Campos is reversed, and the motion is denied. The granting of defendant Agent’s motion to suppress his statement is affirmed. The case is remanded to the trial court for further proceedings.

       Honorable Edward A. de la Houssaye, III participated in this decision as an Associate Justice Ad Hoc.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Eric E. TRICHE.
    No. 66375.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.
    Lemmon, J., concurred in result and in denial of application for rehearing, and filed opinion.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Lester A. Robertson, Lake Charles, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-respondent.
    James C. Dixon, Baton Rouge, for defendant-relator.
   MARCUS, Justice.

Eric E. Triche was charged by affidavit with operating a vehicle while his license was suspended in violation of La.R.S. 32:415. After a bench trial, defendant was found guilty as charged and sentenced to pay a fine of one hundred dollars plus court costs or “30 days jail suspended on payment of fine.” Upon defendant’s application, we granted certiorari under our supervisory jurisdiction to review the correctness of his conviction and sentence. Defendant asserts eight assignments of error. Finding merit in Assignment of Error No. 3, we need not consider the others.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in finding his license was suspended on the date of the alleged offense. He argues it did not become suspended until its later receipt by the Department of Public Safety.

Prior to 1976, there was confusion as to whether suspension and revocation are effective upon sending of notice of the action taken, Smiley v. Waguespack, 314 So.2d 492 (La.App. 1st Cir.), writ denied, 318 So.2d 58 (La.1975), or upon surrender of license after a revocation hearing, Vieknair v. State, Department of Public Safety, 303 So.2d 226 (La.App. 4th Cir. 1974). See also Sneed v. Department of Public Safety, 343 So.2d 336 (La.App. 2d Cir.), writ denied, 345 So.2d 900 (La.1977). In 1976, the legislature enacted La.R.S. 32:414(F), which provides:

Any period of suspension or revocation under this Chapter shall begin upon receipt by the [Department of Public Safety] of the operator’s license of the person affected or proof of its loss.

Now it is clear that any period of suspension or revocation under title 32, chapter 2 begins upon receipt by the Department of Public Safety of the operator’s license of the person affected or proof of its loss.

In the instant case, the alleged offense occurred on July 27, 1979. However, testimony at the trial indicated defendant was in possession of his operator’s license when he was arrested on that date. Moreover, exhibit S — 1, introduced by the state, reveals defendant’s license was not surrendered until August 8, 1979, after the alleged offense. Therefore, the period of suspension had not begun as of the date of the alleged offense. Accordingly, the trial judge erred in finding defendant’s license was suspended on the date of the alleged offense. Assignment of Error No. 3 has merit. We must reverse.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and the affidavit is dismissed.

LEMMON, Justice, concurring in the Denial of Application for Rehearing.

On original hearing the court held that defendant was not guilty of the charge of operating a motor vehicle during the period of suspension of his license, because the offense occurred in July, 1979 and defendant did not surrender his license until August 8, 1979. The basis of the decision was R.S. 32:414 F, quoted in the opinion.

The purpose of the provision that the period of suspension begins upon the department’s receipt of the license is to prevent a licensee from keeping his license after suspension is ordered and having the period of suspension run while the license is still in his possession. The statute thus encourages immediate surrender.

However, as soon as the license is suspended, a licensee frustrates the statutory scheme.by failing to surrender the license and continuing to drive. In my view the period of suspension, for purposes of determining violations of R.S. 32:415, is from the date of imposition of the suspension until the date of termination of the suspension. R.S. 32:414 F is pertinent only as a reference point to determine the latter date.

In the present case defendant’s license was suspended forthwith after his second conviction of driving while intoxicated, and no hearing was required. Therefore, as soon as he received notice of the suspension, he could not thereafter operate a motor vehicle, under penalty of being charged with violation of R.S. 32:415. The record reflects, however, that the notice of defendant’s suspension was sent to him by registered mail and that the notice was returned undelivered. Defendant thus had not received notice of his suspension at the time of the offense charged, and he should therefore be found not guilty of violating R.S. 32:415. I therefore concur in the result reached on original hearing, although for different reasons, and I vote to deny the application for a rehearing.

      The Honorable Richard H. Gauthier participated in this decision as an Associate Justice Ad Hoc.

      . 379 So.2d 14 (La. 1980).

      . 1976 La.Acts, No. 194, § 1.

      .Moreover, we note exhibit S-l also indicates the suspension was for one year terminating on August 8, 1980. Thus, the suspension must have begun on August 8, 1979, twelve days after the alleged offense.

      . The record also contains a confusing letter addressed to defendant by the department, stating that his license had been suspended in error and that his driving record was now clear. Because of this confusing letter dated at the approximate time of the suspension here in question, the necessity of notice is even more critical.


author:
CALOGERO, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Oliver BOUTTE, Jr.
    No. 66184.
    Supreme Court of Louisiana.
    May 19, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Kim Gandy, David Plavnicky, Asst. Dist. Attys., for plaintiff-appellee.
    Michael M. Ogden, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

Defendant was convicted in a bench trial of committing a lewd, lascivious, and sexually indecent act upon four-year-old Karei-sha Butler. He was sentenced to three years’ imprisonment in the parish prison. On appeal, defendant urges two assignments of error as grounds for reversal of his conviction and sentence.

Context Facts

The state presented evidence at trial to support the following account of defendant’s actions:

While awaiting delivery of his paycheck at his 1515V2 South White Street home, Henry Warrick was greeted by his neighbor, Oliver Boutte, defendant herein. Though Warrick and defendant had never previously spoken to one another, Warrick accepted Boutte’s offer of a beer and an amicable conversation followed. At one point during the conversation, Warrick’s four year old daughter, Kareisha, joined her father on defendant’s porch, and then resumed playing with neighborhood children.

After Warrick left, defendant called Kar-eisha back up to his porch. When Kareisha went to see what he wanted defendant forced her inside his house, remove her clothes, and laid on top of her. Defendant started rubbing Kareisha’s genitals and sticking his tongue in her mouth, but got up when Kareisha refused to stop screaming. Defendant then allowed Kareisha to dress herself and pushed her out the door.

The victim, four year old Kareisha Butler, was not called to the stand as a witness at trial. Ophelia Butler, Kareisha’s mother, testified as to what Kareisha told her when Kareisha came back to the house shortly after leaving, or being pushed out of, defendant’s house. Ms. Butler stated that Kareisha was crying when she came home, that her clothes were on backwards, and that her legs were red from what appeared to be some sort of rubbing. Kareisha later pointed out the defendant’s house and described her assailant as “the man that daddy was talking to earlier.” The coroner’s report, entered into evidence, showed no evidence of injury to the child at the time of the coroner’s examination, which occurred four hours after the incident.

Assignment of Error No. 1

In this assignment defendant urges that there was a total lack of evidence to support his conviction of indecent behavior with a juvenile and that the state failed to introduce any evidence tending to prove that he had the specific intent to arouse or gratify his own or the victim’s sexual desires, an essential element of the offense under R.S. 14:81. Defendant claims that all of the state’s evidence was hearsay or circumstantial in nature and was insufficient to exclude every reasonable hypothesis of innocence, as required by R.S. 15:43s.

Defendant has not previously raised these contentions by motion for new trial or by motion for acquittal. This Court has previously denied review to a defendant who appeals a conviction on the grounds that the state failed to introduce any evidence to support a conviction or an essential element of the crime unless the defendant has preserved the issue by making a motion for a new trial on those grounds or asking by motion for an acquittal. Article 5, § 5, Louisiana Constitution, State v. Williams, 354 So.2d 152 (La.1978); State v. Tennant, 352 So.2d 629 (La.1977).

However, in State v. Peoples, 383 So.2d 1006 (La.1980), we recently held that it would be patently unfair and a denial of a defendant’s due process rights to refuse to review a complaint that the state failed to present any evidence of the crime charged or an essential element thereof simply because he failed to file a motion for a new trial or filed such a motion and neglected to assert this contention therein.

This Court’s traditional test in reviewing a defendant’s contention that the state failed to prove the crime or an essential element of it is whether there is some evidence from which the trier of fact could reasonably conclude that beyond a reasonable doubt the accused had committed every element of the crime for which he was charged. State v. Stowell, 338 So.2d 661 (La.1976); State v. Williams, 323 So.2d 801 (La.1975). This Court has noted in State v. Mathews, 375 So.2d 1165 (La.1979); and State v. Abercrombie, 375 So.2d 1170 (La.1979) that this standard has seemingly been broadened by the United States Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, supra, the Supreme Court rejected and overruled the previous “no-evidence” criterion for federal habeas review of state convictions (review was precluded where there was “some” evidence of the elements of the crime) and held that federal due process protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt. 99 S.Ct. at 2786. The Supreme Court in Jackson set forth the following test as to whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt: “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 99 S.Ct. at 2789.

We conclude that under either standard of review there was sufficient proof of defendant’s guilt. The victim’s mother’s testimony provided ample proof of defendant’s specific intent to arouse his own sexual desires or those of the victim. Two of Kareisha’s playmates furnished testimony which corroborated the testimony of the victim’s mother. One of Kareisha’s playmates saw Kareisha resisting defendant’s efforts to pull her into his house, another playmate saw defendant pushing the crying victim out of his house.

Defendant argues that the testimony of the victim’s mother cannot support a verdict of guilty of indecent behavior with a juvenile because her testimony about her daughter’s complaint is inadmissible hearsay. The state argues, with some authority, that the first complaint of the victim of a sex crime is part of the res gestae of the offense and is admissible substantively, as an exception to the hearsay rule, not simply when it corroborates a victim’s testimony. See 6 Wigmore on Evidence, § 1761, p. 246 (Chadbourn Edition 1976); McCormick on Evidence, § 297, p. 709 (Cleary Edition 1972); 2 Wharton’s Criminal Evidence, Charles Torcia (ed.) 1972, § 300, p. 84; 2 Jones on Evidence, Gard (ed.) 1972, § 10:14, p. 288.

We find it unnecessary to decide whether the child’s statement to her mother is admissible as part of the res gestae of the offense, because defendant made no objection whatever to the mother’s testimony at trial. C.Cr.P. art. 841. Having failed to object to the mother’s testimony at trial, appellant cannot complain about the admissibility of the state’s evidence in this Court. State v. Arnold, 367 So.2d 324 (La.1979). Ordinarily if hearsay evidence is admitted without objection, it becomes substantive evidence and may be used by the trier of fact to the extent of any probative or persuasive power that it has. McCormick on Evidence, § 54, p. 125 (Cleary Edition 1972); 2 Wharton’s Criminal Evidence, Charles Torcia (ed.) 1972, § 273, p. 22; 79 A.L.R.2d 890-975. But see Germany v. State, 235 Ga. 836, 221 S.E.2d 817 (1976); Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr.1975).

In State v. Allien, 366 So.2d 1308 (La.1978) we were confronted with an unusual case where the general rule that unobjected to hearsay is substantive evidence did not apply. In Allien, id., we held in the context of impeaching evidence consisting of prior inconsistent statements that unobjected to hearsay which is the exclusive evidence of a defendant’s guilt or of an essential element thereof, and where the hearsay statements are recanted at trial by the out-of-court declarants, is no evidence at all. We are satisfied that defendant’s case does not fall within the narrow exception to the above stated rule that we recognized in Allien.

Assignment of Error No. 2

Defendant’s second assignment of error is that the trial court erred in excluding the testimony of a defense witness on the grounds that the witness had violated the trial court’s sequestration order.

During its case in chief the defense recalled the victim’s mother to question her about a possible civil suit against defendant and about an allegation that the mother offered five dollars to the victim in return for her testimony. When Ms. Butler denied making the offer, the defense called Alber-tine Neveaux in order to impeach the testimony of Ms. Butler. Counsel for the state objected to Ms. Neveaux’s testifying on the grounds that the witness had been present in the courtroom during trial in violation of the court’s sequestration order.

Defense counsel indicated that he had planned to use Ms. Neveaux as a witness and that he had intended that she be sequestered. When the trial court questioned defense counsel as to the purpose of Ms. Neveaux’s testimony, the defense counsel stated that Ms. Neveaux would be used to impeach Ms. Butler’s testimony. The court then learned from the captain of the deputies that Ms. Neveaux had been asked by him if she were going to be a witness in defendant’s trial and that she had told him, “No.” The trial court then concluded that the witness was “stubborn and arbitrary” and therefore would not be allowed to testify. Thereafter, defense counsel submitted its case without objecting to the court’s ruling excluding Ms. Neveaux as a witness.

The state contends that defendant waived his right to appeal on this basis by failing to make a contemporaneous objection to the court’s ruling. C.Cr.P. art. 841. We disagree. The contemporaneous objection rule, now stated in C.Cr.P. art. 841, did away with the requirement that a party file formal bills of exceptions and states: “It is sufficient that a party . . . makes known to the court the action which he desires the court to take . . . The trial judge here was fully cognizant that defendant was asking that Ms. Neveaux be allowed to testify.

In any event we do not conclude that the trial court committed reversible error in refusing to permit Ms. Neveaux to testify.

C.Cr.P. art. 764 grants the trial court authority to order witnesses excluded from the courtroom to prevent their being influenced by testimony of prior witnesses and to strengthen the role of cross-examination in developing the facts. State v. Wilson, 360 So.2d 166 (La.1978); State v. Mullins, 353 So.2d 243 (La.1977). This provision allows the trial court to disqualify a witness when the sequestration rule has been violated. State v. Mullins, id. The trial judge’s ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Wilson, supra; State v. Calloway, 343 So.2d 694 (La.1976).

C.Cr.P. art. 764 notwithstanding, there are constitutional limitations on the trial judge’s exercise of his discretion to disqualify witnesses from testifying. Sixth Amendment, United States Constitution, Article I, Section 16, Louisiana Constitution; State v. Jones, 354 So.2d 530 (La. 1978). Article I, Section 16 of the Louisiana Constitution guarantees an accused the right to compel the attendance of witnesses and to present a defense. The Sixth Amendment to the United States Constitution provides that a defendant has the right to have compulsory process for obtaining witnesses in his favor. Washington v. Texas, 338 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

In Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893) the Supreme Court held that although the general rule is that a witness may not be disqualified for disobeying a sequestration rule, the trial court may under “particular circumstances” exclude a disobeying witness. The federal courts have generally followed the rule enunciated in United States v. Schaefer, 299 F.2d 625, 631 (7th Cir. 1962) cert. den. 370 U.S. 917, 82 S.Ct. 1553, 8 L.Ed.2d 497 (1962), that exclusion is not proper unless the witness was present with the consent, connivance, or knowledge of the defendant or his attorney. Accord Taylor v. United States, 388 F.2d 786 (9 Cir. 1967); United States v. Kiliyan, 456 F.2d 555 (8 Cir. 1972); Braswell v. Wainwright, 463 F.2d 1148 (5 Cir. 1972); Barnard v. Henderson, 514 F.2d 744 (5 Cir. 1975).

However, not every erroneous exclusion of disobeying witnesses is reversible error. If the testimony is not relevant or material to the defendant’s case then the defendant has not been prejudiced by the court’s ruling. Taylor v. United States, 388 F.2d at 789.

In the case at bar there is no showing that the excluded witness violated the sequestration order with the consent, connivance, or knowledge of defense counsel or defendant. With respect to the materiality and relevance of the witness’ testimony, apparently the only impeaching matter as to which Ms. Neveaux was to testify was whether Ms. Butler had shortly before trial in the rear of the courtroom offered her four year old daughter five dollars to testify.

This matter was relevant to the case in that it bore upon the mother’s general credibility and may have been particularly relevant because Ms. Butler had a potential civil suit against defendant and thus had an unusual stake in the outcome of this criminal trial. But offering candy or money to a nervous or frightened four year old to testify in a courtroom is not equivalent to offering an adult money or other inducement to be a witness.

The trial judge (and this was a judge trial not a jury trial) was certainly made aware that the child’s mother (and father) had a more than passing interest in seeing defendant convicted inasmuch as she had an interest in pursuing a civil suit against defendant. The partisanship of a mother aggrieved by having her four year old daughter nearly raped was obvious to the trial judge and is not appreciably reinforced by evidence that she may have offered the four year old five dollars to calm her anxieties and induce her cooperation in the courtroom. It is not likely that exclusion of the proffered witness as to the “bribe,” as opposed to the admission of that witness’ testimony, had any effect upon the trial judge’s decision in the case. Under these circumstances the impact of exclusion is so minimal that it does not constitute reversible error, even though the excluded testimony was relevant and material.

Decree

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

AFFIRMED.

MARCUS, J., concurs.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

Before a defense witness may be excluded the court must find that the violation of the rule of sequestration was with the consent, connivance, procurement or knowledge of the defendant or his attorney. State v. Jones, 354 So.2d 530 (La.1978). There is no evidence of such consent, conni-vanee, procurement or knowledge in this case. Therefore, the witness should have been allowed to testify. The majority holds, however, that the erroneous exclusion of this testimony was harmless because of its minimal impact. I disagree. The evidence sought to be introduced would have been used as a tool to impeach the testimony of Mrs. Butler on the question of her offer of money to her daughter to testify. While such an issue may be thought of as peripheral, it takes on special importance in this case where the bulk of the state’s evidence was hearsay and a large portion of that offered by Mrs. Butler. Therefore, I believe that the testimony which would have been given by Ms. Neveaux was material and that its exclusion should not have been dismissed as harmless error.

       Honorable Edwin W. Edwards participated in this decision as an Associate Justice Pro Tempore.

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

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

      . In Allien two young girls found in possession of marijuana told two policemen that they had obtained the marijuana from defendant. At trial both girls testified that defendant had not given or sold the marijuana to either of them and denied the truthfulness of their previous statements. The court found that the girls were hostile witnesses and allowed the state to impeach them with the prior inconsistent statements, which implicated defendant. R.S. 15:487.
      Defendant did not object to the use of the hearsay impeaching statements and we held that defendant did not concede the substantive use of the statements because an objection would not have caused the exclusion of the prior statements. An objection to the admission of the hearsay statements would at most have prompted an admonition from the judge that they could only be considered for purposes of impeachment. The impeaching hearsay statements could be used to prove that the girls were not credible and their in-court testimony should not be believed, but they could not be used to prove that the substance of their prior out-of-court statements was true. Allien, 366 So.2d at 1311.

      . In Jones, supra, where defendant complained of a judge’s disqualifying a defense witness who violated a sequestration order, we remanded the case to the trial court with instruction to hold a hearing to determine whether the defense witness’ violation of the sequestration order was with the consent, connivance, or knowledge of the defendant or his attorney and whether the proffered testimony was material or relevant to the defendant’s case. State v. Jones, 354 So.2d at 532.

      . Our reading of the transcript indicates that it was reasonable for the trial judge to conclude that only the alleged offer of five dollars to Kareisha was the impeachment material at issue. If the exclusion of other evidence was involved, defense counsel should have alerted the trial judge to this fact.
      Significantly, the trial judge did not order the witness excluded immediately upon learning of the sequestration violation. He attempted to learn the importance of Ms. Neveaux’s testimony and excluded her only after learning that Ms. Neveaux was apparently going to be used for the sole purpose of impeaching Ms. Butler about the alleged five dollar offer.


author:
DENNIS, Justice.
     MARCUS, Justice

text:
    STATE of Louisiana v. Leroy WILLIAMS.
    No. 66312.
    Supreme Court of Louisiana.
    May 19, 1980.
    Alfred B. Shapiro, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., Herman L. Lawson, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On December 1, 1978 defendant Leroy Williams was charged by bill of information with the crime of distribution of marijuana, in violation of La.R.S. 40:966(A). On March 12, 1979, defendant appeared in court with employed counsel and entered a plea of guilty as charged. He was sentenced to 6 years imprisonment at hard labor and a fine of $7500. Williams appeals on the basis of three assignments of error. We find merit in his contention that his plea of guilty must be set aside because the judge did not affirmatively and independently establish that Williams made a knowing and voluntary waiver of his constitutional rights. We reverse the conviction and sentence and remand the case to the lower court.,

In the case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) the United States Supreme Court recognized that the entering of a guilty plea “demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” Id. at 243-44, 89 S.Ct. at 1712. This court, relying on Boykin, has held that a constitutionally valid guilty plea requires an express and knowing waiver of the accused’s right to a jury trial, his right to confront accusers, and his privilege against compulsory self-incrimination. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

In this case, after defense counsel informed the court of defendant’s intention to enter a plea of guilty, the court questioned the defendant as follows:

“THE COURT: Is this what you want to do?
THE DEFENDANT: Yes, sir.
THE COURT: Has he discussed the rights you have to go to trial and the rights you would have during the course of the trial?
THE DEFENDANT: Yes, sir.
THE COURT: You understand those?
THE DEFENDANT: Yes, sir.
THE COURT: This is voluntary on your part?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand the nature of the charge?
THE DEFENDANT: Yes sir.
THE COURT: Has he acquainted you with possible penalties?
THE DEFENDANT: Yes sir.
THE COURT: Including the maximum penalty?
THE DEFENDANT: Yes, sir.
THE COURT: And no one has promised you anything to do this?
THE DEFENDANT: No, sir.
THE COURT: No one has promised you any particular sentence?
THE DEFENDANT: No, sir.
THE COURT: The Court finds that the defendant, present with his counsel, has knowingly and intelligently entered a plea of guilty without any force or coercion being involved; that he understands the nature of the charge; that there is a factual basis for the plea; that his counsel has explained the rights he surrenders by entering a plea of guilty, and for all those reasons the Court accepts the plea of guilty to the charge of attempted—
DISTRICT ATTORNEY: No, sir, excuse me. It is of distribution of marijuana.
THE COURT: All right.”

This record shows that the trial judge primarily relied on the assumption that the defense counsel adequately informed defendant of the rights he waived by entering his guilty plea. Defendant contends that the trial court may not rely on such an assumption but must make an independent determination of defendant’s valid waiver of his rights. We agree with the defense argument and reverse defendant’s conviction and sentence.

The resolution of the issue here rests on our interpretation of the requirements for a valid guilty plea handed down by the United States Supreme Court in Boykin v. Alabama, supra. The Court held that due process requires an affirmative showing that a defendant who pleads guilty to a criminal charge has been apprised of his constitutional rights and has knowingly and voluntarily waived those rights. Such waiver, according to Boykin, cannot be presumed and reversible error is presented when “ ‘the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.’ ” Boykin, supra, 395 U.S. at 244, 89 S.Ct. at 1713. Therefore, a record should be left which is “adequate for any review that may be later sought [citations omitted] and forestalls the spin-off of collateral proceedings that seek to probe murky memories.” Id. The only realistic means of assuring that the trial judge leaves a record adequate for any later review is to require that the record contain on its face direct evidence that the accused was made aware by the trial judge of his right to jury trial, his right to confront accusers, and his privilege against compulsory self-incrimination. See In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (1969). To allow any more indirect showing would be to satisfy Boykin’s requirement of an affirmative showing of defendant’s waiver of his constitutional rights by means of “murky memories” — exactly what Boy-kin indicates is insufficient.

Moreover, in State v. Holden, 375 So.2d 1372 (La.1979) we stated that the effect of Boykin was to constitutionalize the requirements of Federal Rule of Criminal Procedure 11 as set forth in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). McCarthy held that the mandate of Rule 11 could not be complied with unless the district judge personally inquired of defendant whether he understandingly and voluntarily entered a guilty plea thereby waiving his constitutional rights. McCarthy also held that when such a violation occurs the defendant’s guilty plea must be set aside and the case remanded for another hearing.

In cases where a prior conviction based on a guilty plea is being used to enhance the penalty under our multiple offender laws, we have required a strong showing of a knowing and voluntary waiver of rights by the defendant when his guilty plea is accepted by the trial judge. In such instances, we require that the state produce a contemporaneous record of defendant’s guilty plea colloquy with the trial judge which affirmatively shows the waiver of his right to jury trial, his right to confront accusers, and his privilege against compulsory self-incrimination. State v. Martin, 379 So.2d 1092 (La.1980). If the record shows a substantial defect in this regard the guilty plea based conviction cannot be used to enhance defendant’s conviction. State v. Lewis, 367 So.2d 1155 (La.1979).

We have also recognized the need for the contemporaneous recording of defendant’s guilty plea showing a knowing and voluntary waiver of his rights in prosecutions for crimes such as possession of a concealed weapon by a person previously convicted of certain enumerated felonies, La.R.S. 14:95.-1, where a previous felony conviction is an essential element of the crime charged. In instances when the prior conviction is based on a guilty plea we have held that the waiver by defendant of his rights, including the three mentioned above, must be shown to have been made knowingly and voluntarily through a contemporaneously recorded transcript of the colloquy between the defendant and the judge regarding the waiver of these rights. State v. Martin, 382 So.2d 933 (La.1980); State v. Bolton, 379 So.2d 722 (La.1980).

Accordingly, logic and due process require that the same rule apply in a case in which the defendant directly attacks the validity of his conviction. In enhancement of penalty cases the validity of a prior guilty plea governs the severity of the penalty imposed, whereas in cases presenting a direct attack upon a conviction, the validity of the plea determines whether there will be any penalty imposed. Fairness and due process demand that a defendant be strenuously protected from an unknowing or involuntary guilty plea regardless of how his complaint is raised.

The colloquy found in the record between the trial judge and defendant Williams is not sufficient to affirmatively establish the defendant’s knowing and voluntary waiver of his constitutional rights. The trial judge relied ultimately on Williams’ assertion that he understood the defense attorney’s out of court explanation of the plea and its consequences. The trial judge did not make an independent determination that the defendant understood what the plea connotes and its consequences. The record does not disclose that the defendant knowingly and voluntarily waived his constitutional rights, including his right to trial by jury, his right to confront accusers, and his privilege against compulsory self-incrimination. Therefore, the due process requirements of Boykin require that the guilty plea be vacated, the conviction and sentence reversed, and the matter remanded to the district court.

REVERSED AND REMANDED.

BLANCHE, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In my view, the colloquy at the time the guilty plea was entered by defendant with retained counsel satisfies the Boykin requirement that the accused had a “full understanding of what the plea connotes and of its consequences.” I consider that the record shows that defendant “voluntarily and understandingly entered his plea of guilty.” Accordingly, I respectfully dissent.

       The Honorable Frederick Stephen Ellis participated in this decision as an Associate Justice pro tempore.

      . See contra State v. Nelson, 379 So.2d 1072, 1075 (La.1980) (concurring opinion).
      See United States v. Timmerick, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) which provides that conformation with the technical or formal requisites of Rule 11, such as informing defendant of the mandatory special parole term, is not constitutionally required.

      . State v. Holden, supra, limits this to post-1971 convictions.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Lionel PERKINS.
    No. 65013.
    Supreme Court of Louisiana.
    May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Frank J. Kenner, Michael A. Dessommes, New Orleans, for defendant-appellant.
   ON REHEARING

WATSON, Justice.

Defendant, Lionel Perkins, Jr., was convicted by a jury of two counts of forgery, and was sentenced to ten years imprisonment. Both conviction and sentence were affirmed per curiam on November 29, 1979. A rehearing was granted to consider whether Perkins was properly convicted of two counts of forgery and whether the sentence imposed is excessive.

On September 20, 1974, Perkins went to the First National Bank of Commerce in Downtown New Orleans with a GAC Finance Company check for $1,800. The check was payable to Dudley P. Guillot, and appeared to be signed by J. R. Baker, GAC’s branch manager. Perkins had a temporary driver’s license and a New Orleans City employee identification card with the name of Dudley Guillot. Because of the amount involved a customer service representative, Mrs. Dorothy Garrity, had to authorize payment of the check. After she had done so, she telephoned GAC Finance and discovered that the check number identified it as one of about fifteen blanks which had been stolen. Mrs. Garrity described Perkins to their security officer, who was at the bank’s Carrollton branch. Shortly thereafter, Perkins appeared at the Carrollton branch and was arrested. The evidence seized from his vehicle included: twenty-two to twenty-four checks, all signed and ready for negotiation, each with a temporary driver’s license and an identification card attached; $1,100 in cash, some still in First National Bank of Commerce wrappers; and an airplane ticket to Los Angeles, purchased that day for $648. At Perkins’ home, officers seized an auxiliary telephone and a utility belt containing telephone tools.

Both the theft of the GAC checks and the loss of some temporary drivers’ licenses from the Drivers’ License Bureau were connected with an individual posing as a telephone repair man. The witnesses could not identify Perkins as the imposter in either instance.

Defendant was charged in one bill of information with two counts of forgery in violation of LSA-R.S. 14:72. The first count charged defendant with forging the check with intent to defraud and the second count charged him with fraudulently issuing and transferring the same check. The jury found defendant guilty on both counts, but only one sentence was imposed by the judge.

The State failed to produce any evidence that Perkins personally signed or altered the check cashed at First National Bank of Commerce. Mrs. Garrity was sure that the check was presented to her, but could not testify that it was signed in her presence. Even though the evidence implies strongly that defendant knew the check was forged, it does not necessarily follow that he himself did the deed. No other evidence bears on the question of who forged the check. Therefore, there is no evidence to support a conviction on Count One. State v. Mathews, 376 So.2d 1166 (La.1979). Since the conviction on that count is without a legal basis, the question becomes whether guilt on Count Two is sufficient to support the sentence of ten years imprisonment.

At the time of this offense, trial and sentencing, LSA-C.Cr.P. art. 493 allowed a single offense to be charged in different ways in several counts. The Official Revision Comment to the article made it clear that a defendant, although convicted on more than one count, could be sentenced for only one offense. While the trial judge imposed a single sentence of ten years imprisonment, the record does not show whether the sentence was intended to apply to one or both of the verdicts rendered by the jury. The case was tried well before the effective date of LSA-C.Cr.P. art 894.1, which provides statutory guides for sentencing and requires articulation of reasons, and the trial judge assigned no reasons for the sentence. Defendant contends that, because he is a first offender, the sentence is excessive in violation of Article 1, Section 20 of the Louisiana Constitution of 1974. It is suggested that LSA-C.Cr.P. art 894.1 be applied retroactively and the matter remanded for a full statement by the trial judge of the reasons for the sentence.

Defendant did not object to the exces-siveness of his sentence in the trial court and has not assigned it as error to this court. State v. Cox, 369 So.2d 118 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979). The issue has been raised only in supplemental brief, which contends that there is no factual basis for the sentence imposed. Since, on the contrary, the record explains the length of the sentence, it is unnecessary to decide whether a remand would otherwise be appropriate.

Although none of the witnesses could identify defendant as the mysterious telephone repair man, the other checks, drivers’ licenses and telephone equipment suggest Perkins’ plan of operation. They appear to be part of a scheme for wholesale forgery; components in one system of criminal conduct. LSA-R.S. 15:446. The entirety of the circumstances surrounding the crime indicates why a maximum sentence was imposed. Compare State v. Cox, supra. This “apparently severe sentence” is not disproportionate when viewed in context. The sentence is not so excessive as to constitute an abuse of discretion.

DECREE

For the foregoing reasons, the verdict of guilty on the first count of forgery is set aside. The conviction on Count Two and the sentence of ten years imprisonment are affirmed.

AFFIRMED IN PART, REVERSED IN PART.

       Honorable Frederick Stephen Ellis participated in this decision as Associate Justice Ad Hoc.

      . Defendant’s other assignments have been carefully considered and determined to be without merit. Accordingly, we deal here only with the two issues mentioned.

      . LSA-R.S. 14:72:
      “Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
      “Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.
      “Whoever commits the crime of forgery shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both.”

      .LSA-C.Cr.P. art. 493 provided:
      “No indictment shall charge more than one offense except as otherwise provided in this Title, but the same offense may be charged in different ways in several counts.”

      . In sentencing, the trial judge stated: “[t]he jury found you guilty as chargefd] . . . [t]he sentence of the court is that you are ordered to serve 10 years in the custody of . the Department of Corrections . . ”. Tr. 1 (July 1, 1975).


author: PER CURIAM.

text:
    STATE of Louisiana v. David WEST.
    No. 66373.
    Supreme Court of Louisiana.
    May 28, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman L. Lawson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Wayne Douglas Mancuso, Jefferson, for defendant-appellant.
   PER CURIAM.

We granted writs to consider whether a timely filed motion to set aside a judgment of bond forfeiture should be defeated solely because the supporting evidence was not produced within the six month period prescribed by law. Finding that the timely commencement of proceedings to vacate the judgment satisfied the time limitation, we reverse the denial of the motion.

On January 29, 1979, relator David West and three other men were arrested in DeSo-to Parish on charges of conspiracy to distribute marijuana, La.R.S. 40:979, and possession of marijuana with intent to distribute, La.R.S. 40:967; and relator’s bond was set in the amount of $75,000. On January 31st the Guillory Bonding Service posted the bond. When relator failed to appear for arraignment on February 21, 1979, the court ordered bond forfeited, over the objections of defense counsel who was present.

On March 2, 1979, counsel filed motions to set aside the bond forfeiture and to compel relator’s extradition from a federal penitentiary in Yuma, Arizona where he was then incarcerated. It was alleged that he had been held in federal custody since before his arraignment date and had been unable to appear through no fault of his own. The matter was taken up with various other motions on March 23, 1979. Despite counsel’s requests that relator be extradited for the hearing, he was not present, the state asserting lack of jurisdiction to extradite him. Because counsel required relator’s assistance on the pending motions, the hearing was rescheduled for May 25, 1979, by which time the court felt relator could be returned to Louisiana. Although counsel pressed for an immediate annulment of the bond forfeiture order, the court set the matter for hearing with the other motions because the prosecutor refused to concede that relator had been in federal custody at the time of arraignment.

On its own motion the trial court continued the May 25th hearing without date. On July 26, 1979, counsel repeated his motion to recall the bond forfeiture order, reasserting relator’s inability to attend the arraignment because of his continuous federal incarceration. This motion was urged together with other pretrial motions at a hearing on August 22, 1979, for which relator had been returned.

Counsel submitted an affidavit from a United States Marshal indicating that relator had been in federal custody from February 1, 1979 to March 9, 1979 and thus explaining his failure to appear for arraignment on February 21st. In the court’s view, relator had established a “non-forfeiture situation” under La.R.S. 15:87(B), which excuses the nonappearance of a principal “prevented from [appearing] because he is being detained in a jail or in a penitentiary in another jurisdiction . . . ” However, the court ruled that relator’s proof had come too late to win relief, because it had fallen two days on the wrong side of the six month deadline (from the time of forfeiture) established by La.R.S. 15:87(B). It found that there had been “no reason shown why the documents tendered in court today could not have previously been tendered within the six month period.”

Although relator was not prevented from presenting his evidence within the period of limitation, neither was he required to do so, having timely filed and vigorously urged his motion early in the proceedings. From the outset, counsel resisted the bond forfeiture and made known to the court the facts warranting an annulment of the judgment. By commencing proceedings to set aside the forfeiture well within the six month period, counsel earned a reasonable extension of the deadline for producing his evidence. Cf. State v. Kunzler, 248 La. 133, 177 So.2d 112 (1965). His acquiescence in the continuances of the hearing could not fairly operate to defeat his meritorious claim.

Because the trial court was satisfied that relator’s detention excused his failure to appear for arraignment, the order of bond forfeiture is set aside.

REVERSED.


text:
    STATE of Louisiana v. Eddie LANDRY.
    No. 65971.
    Supreme Court of Louisiana.
    May 30, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
    Louis A. Heyd, Jr., New Orleans, for defendant-relator.
   BLANCHE, Justice.

Defendant was charged with two counts of armed robbery in violation of La.R.S. 14:64. He has not been brought to trial since further proceedings below await disposition of the matters here raised by defendant’s writ application which this Court granted November 12, 1979.

Two armed robberies occurred in Jefferson Parish along Williams Boulevard. The first was at the Sights & Sounds TV Rental on July 14, 1979; the second occurred at T & A Auto Parts on July 15, 1979. In each case, two persons participated in the commission of the offense. The defendant was subsequently identified as one of the robbers by an eyewitness to each robbery.

The defense filed three motions: an application for bill of particulars, a prayer for oyer and discovery, and a motion for discovery and inspection. A preliminary examination was held by the Twenty-Fourth Judicial District Court on September 21, 1979; a second hearing on various pre-trial motions was on October 19, 1979. Defendant’s complaints before this Court arise out of the evidence and rulings in these two hearings. In these motions, defendant sought:

1. Names and addresses of those eyewitnesses unable to identify defendant’s picture in a photographic lineup (Prayer for Oyer and Discovery).
2. The time of day each of the robberies is alleged to have occurred (Request for a Bill of Particulars).
3.The initial description of the armed robber which the police had obtained from the victim or victims immediately subsequent to the robberies (or robbery) (Request for a Bill of Particulars).

The trial judge ruled in favor of the state and denied relator the information sought hereinabove. We granted writs to consider the matters.

With regard to defendant’s request to be furnished the names and addresses of those robbery eyewitnesses who were not able to identify defendant’s photograph as a photograph of one of the robbers, the defendant only learned of the existence of these witnesses from the arresting officer’s testimony given at the preliminary examination. The officer, Sergeant James Gallagher of the Kenner Police Department, testified that when defendant was arrested on August 6 for an unrelated crime, his photograph taken at that time was used in the two photographic lineups here questioned. At these two lineups, a victim in each armed robbery chose defendant’s photograph as one of the robbers. However, others who also were victims or witnesses in these robberies viewed the photographs and were unable to identify defendant as one of the participants.

Defendant argues that because such information contradicts any identification of him as a robber, it is exculpatory in nature and should be furnished him under the principles of law articulated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) applied by this Court in numerous instances, among the more recent being State of Louisiana v. Brooks, (No. 65812) (La.1980).

In Brady, the United States Supreme Court held that the suppression of evidence favorable to an accused, when the accused has requested any such evidence, violates due process in the event the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution. In Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), Justice Blackmun writing for the Court stated:

“The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where evidence is favorable to the accused and is material to guilt or to punishment.” 408 U.S. at 794, 92 S.Ct. at 2568, 33 L.Ed.2d at 713.

The Brady standard emerged in a post-conviction review, and a judgment as to whether the evidence was favorable and material was made on a record that had already been perfected. However, in this pre-trial request, there is no way of knowing whether the evidence will eventually turn out to be Brady material unless the defendant is permitted to pursue the witnesses for that purpose.

In State v. May, 339 So.2d 764, 770 (La.1976), this Court, relying on United States v. Agurs, supra, held that when a substantial basis for claiming materiality exists, the prosecutor should have complied with the defendant’s pre-trial disclosure request or submitted the matter to the Court. Later, in State v. Talbot, (No. 62,832) (La.1980), we held that:

“Before trial or at trial a prosecutor should disclose evidence when he is uncertain whether it is sufficiently material to require disclosure under Brady, because the significance of an item can seldom be predicted before the entire record is completed ... In contrast, a judge in a post-trial hearing has the entire record before him, can ascertain the materiality of the omitted evidence in the context of the entire record, and can determine from all the evidence whether the evidence was so material that its omission resulted in denying defendant his right to a fair trial.”

Thus, if defendant were permitted to develop from the witnesses evidence which would create a reasonable doubt as to the accuracy of the identification of the defendant by other witnesses, then the character of such evidence may be reasonably described as favorable, and certainly material, as it bears upon the question of defendant’s guilt. Brady, supra.

Therefore, when defendant makes a substantial showing in advance of trial that the information sought may reasonably prove to be exculpatory and material, the defendant’s due process right to prepare his defense and thus receive a fair trial demands disclosures.

We find that the defendant had made such a showing here, and accordingly, reverse the ruling of the trial judge denying him this information.

In relator’s next assignment of error, he complains that the trial judge erred in ruling that the state’s answer to paragraph one of defendant’s application for a bill of particulars was sufficient.

In defendant’s application for the bill of particulars, he requested that he be furnished with the exact time of the armed robbery charged in counts one and two, respectively. In response, the state directed counsel’s attention to the bill of information which contained the dates and the victims of the two armed robberies. Nevertheless, defendant insists that he is entitled to know the time said robberies were committed because if he is presumed to be innocent until proven guilty, then he cannot be presumed to know the time at which he allegedly committed said robberies (citing La.Const. art. 1, § 15).

Additionally, he states that such information could well be exculpatory or could lead to exculpatory information. In particular, he postulates that if he knew prior to trial the time when the crime occurred, he may, for example, be able to provide an alibi defense and thus, he is faced with going to trial without evidence which could prove his innocence (that is, without witnesses who could testify that he was nowhere near the scene of the crime at that particular time).

We have held on numerous occasions that a defendant is not entitled to be informed as to the time of day the alleged robbery is said to have occurred, as time is not an essential element of armed robbery. State v. Monk, 315 So.2d 727 (La.1975), and cases there cited. It also seems to us that if the defendant wishes to know the time that each of the crimes was committed, he could obtain this information on his own by consulting with the victims in each case. The bill of information states that he did rob Kenneth Cochran, Sr. and Andrew A. Jaufre on July 15, 1979, and in another count, robbed Sidney Foret on July 14,1979, and undoubtedly, information from these victims as to the time of the robbery is as readily available to defendant as it is to the state. In any event, it would amount to no more than a mere detail with which the state expects to prove its case and it is well-settled that a defendant is not entitled to the details of evidence with which the state expects to prove its case. State v. Vince, 305 So.2d 916 (La.1974); State v. Womack, 283 So.2d 708 (La.1973); State v. Monk, supra.

This assignment is without merit.

By the next assignment of error, defendant contends that the trial court erred in ruling that the state gave a sufficient answer to defendant’s request that he be furnished with the initial description of the robber given by the victim in each robbery. The state’s response to the request had been that defendant was not entitled to that information.

This Court has been consistent in holding that an accused is not entitled to the details of evidence which the state intends to use against him. Vince, Womack and Monk, supra. We have specifically held that information relative to the victim’s initial description of a perpetrator of a crime is such evidence as is not discoverable by the defense. State v. Knight, 323 So.2d 765 (La.1975). In the absence of any showing that such description would fall within the scope of Brady/Agurs, this detail of the information which the state has does not have to be disclosed. The ruling of the district court was correct.

For these reasons, it is hereby ordered:

That the judgment of the trial court in overruling defendant’s prayer for oyer wherein defendant requested the state to furnish the names and addresses of those eyewitnesses unable to identify the defendant’s photograph in a photographic lineup is hereby reversed.

That the judgment of the trial court in denying defendant’s two requests for a bill of particulars wherein defendant requested information as to the time of day that each of the robberies is alleged to have occurred and the initial description of the armed robber which had been obtained from the victim or victims immediately subsequent to the alleged robberies, is hereby affirmed.

It is further ordered that this prosecution be and the same is hereby remanded to the district court with instructions to issue such orders as are necessary for compliance with this opinion and for further proceedings in accordance with law.

       Honorable Edward A. de la Houssaye, Ill participated in this decision as Associate Justice Ad Hoc.


text:
    STATE of Louisiana v. Gerard EDWARDS. STATE of Louisiana v. George O. REESE.
    Nos. 66229, 66287.
    Supreme Court of Louisiana.
    May 30, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Julie C. LeBlanc, Louise Korns, Asst. Dist. Attys., for plaintiff-relator.
    Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
   PER CURIAM.

These consolidated cases present the question whether sentence may be enhanced on the basis of a guilty plea absent a showing that the defendant was advised, before the plea was entered, of his right to trial by jury or judge.

Defendant Gerard Edwards was convicted of aggravated battery, La.R.S. 14:34, on October 18, 1979. Defendant George Reese was convicted of two counts of armed robbery, La.R.S. 14:64, on November 14, 1979. In both cases the state filed bills of information charging that defendants, as multiple felony offenders, were subject to enhanced penalties under La.R.S. 15:529.1. Both defendants moved to quash the multi-pie bills on the ground that the prior guilty pleas underlying the charges were not adequately counselled. Finding no recorded waiver of the right to a trial by judge, the court agreed that the pleas could not be used to enhance sentence. We granted the state’s applications for writs to review the quashing of the informations.

The court concluded that defendants had been adequately advised of their right to trial by jury, but not advised of the option of trial by judge. In its view, defendants, uncounselled on the latter opportunity, could not be deemed to have pleaded guilty intelligently and voluntarily. The trial judge is not required to inform the defendant that he is waiving a trial by judge alone when he pleads guilty.

Accordingly, the rulings granting defendants’ motions to quash are reversed and the cases are remanded for further proceedings consistent with this opinion.

       de la Houssaye, J. ad hoc, and Lemmon, J., not participating.

      . There is no “magic word” formula for the requisite advice of rights. State ex rel. Leblanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).


author: PER CURIAM:

text:
    STATE of Louisiana v. Byron PATTERSON.
    No. 66729.
    Supreme Court of Louisiana.
    May 30, 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.
    Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM:

Defendant, and a Terrance Butler, were charged by bill of information with the armed robbery of one Suresh Chawla, in violation of R.S. 14:64. A second count in the information charged Butler alone with another armed robbery. On March 4, 1979, at counsel’s request, the trial court severed Butler from defendant’s case. After trial by jury on March 19, 1979, defendant was found guilty as charged. The state thereafter filed an information against him under the multiple offender provisions of R.S. 15:529.1. On September 21, 1979, the trial court sentenced defendant as a second felony offender “as to each of the two (2) counts which are to run concurrently, for one hundred years . . .” Defendant now appeals his conviction and sentence to this Court, urging that we review errors patent on the face of the record.

We affirm defendant’s conviction. We note, however, that the trial judge evidently became confused by the original, two-count form of the information when he imposed two concurrent sentences for a single offense. La.C.Cr.P. Art. 872 provides that “[a] valid sentence must rest upon a valid and sufficient . . . [vjerdict, judgment, or plea of guilty.” La.C.Cr.P. Art. 872. A second, concurrent, one-hundred year sentence in this case is thus clearly illegal.

An illegal sentence may be vacated and corrected at any time. La.C.Cr.P. Art. 882; State v. Siegel, 354 So.2d 525 (La.1978). Accordingly, while affirming defendant’s conviction, we vacate his concurrent sentences to one-hundred years’ imprisonment at hard labor, and remand to the trial court for resentencing and all proceedings not inconsistent with this opinion.

CONVICTION AFFIRMED; SENTENCES VACATED AND CASE REMANDED FOR RESENTENCING.


author: PER CURIAM. DENNIS, Justice,

text:
    STATE of Louisiana v. Larry BETHLEY.
    No. 66061.
    Supreme Court of Louisiana.
    June 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
    John Cornish, Alton T. Moran, Director, M. Michele Fournet, Asst. Public Defender, for defendant-appellant.
   PER CURIAM.

Affirmed.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent. Although the assistant district attorney was willing to accept one black person on the jury, she exercised all six of her peremptory challenges against the remaining six black persons in the jury pool leaving only white jurors to determine the defendant’s guilt or innocence. The use by the state of all of its peremptory challenges to exclude blacks from the jury raises the question of the presence of racial discrimination being exercised by the state. In view of this, the trial judge should have required the assistant district attorney to make a showing that each peremptory challenge was unrelated to the prospective juror’s race. See State v. Eames, 365 So.2d 1361, 1364 (La.1979) (concurring opinion).