author: CALOGERO, Justice, MARCUS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Kevin Michael SHEA.
    Nos. 81-KA-0377, 81-KA-0378.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    On Rehearing Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Sonia D. Peters, Dale G. Cox, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Howard F. Fish, Jeanette G. Garrett, Shreveport, for defendant-appellant.
   SWIFT, Justice Ad Hoc.

Defendant, Kevin M. Shea, has appealed two armed robbery convictions in Caddo Parish, one of Tony Tuminello at his Phillips 66 service station on July 2, 1979, and the other of Delores C. Dick at the Quick Mart Grocery Store on June 29, 1979. The first appeal involves Shea’s conviction by a unanimous jury after a trial. The other is a “Crosby type” appeal in connection with a guilty plea bargain. The defendant was sentenced in the first instance to 17 years and in the other ease to 5 years, both at hard labor. The sentences were imposed to run consecutively, without benefit of parole, probation or suspension of sentence.

FACTS

Mr. Tuminello was robbed of cash and checks by two men after one had fired a pistol shot into the floor. When they left he immediately called the police and gave them descriptions of the robbers.

Three Shreveport police officers were having coffee at a restaurant approximately three blocks from Tuminello’s filling station at the time and they were notified by radio of the armed robbery shortly thereafter. The report identified the robbers as two white males, one a blonde and the other with long dark hair, both wearing blue jeans, one with a plaid shirt and the other with a blue shirt. Leaving the restaurant a minute or so later, the officers saw two individuals who met this description walking on the sidewalk at a brisk pace. When they failed to stop on being ordered to do so and after one man made a motion with his hand as if to remove something from his waist or pocket, the police drew their weapons and apprehended the two suspects. One of these was the defendant, who had in his shirt pockets a wad of money and also some checks payable to Tuminello’s business. The other, Justice M. Ratliff, had in his possession a revolver with five live shells and one spent cartridge. The two persons were taken to the police station and subsequently identified by Mr. Tuminello and by Ms. Dick in a six-man line-up.

Both suspects were advised of their Miranda rights at the scene when arrested and also at the police station. At the station Shea told the police he did not want to make any statements until he saw a lawyer and the interview was terminated at that point.

The next afternoon, July 3, 1979, just prior to Shea’s transfer to the Caddo Parish prison, the detectives again approached Shea and asked him if he wanted to talk about the case. No inquiry was made as to whether he had hired a lawyer or if he was indigent. This accused was again informed of the Miranda rights and again he acknowledged this in writing. Thereafter, although he refused a recorded interview, Shea gave a brief oral statement to the detectives admitting that he and his companion had robbed the service station. He said that he pulled the gun and demanded money from Mr. Tuminello. The latter gave him money and checks. As he was unable to carry these and the gun at the same time, he gave the gun to his accomplice and they fled. Shea also admitted that he was involved in the other robbery.

This defendant testified at the trial that he had repeated his desire for a lawyer before making the inculpatory statement. However when the detectives told him they already knew everything and that it would be better for him to cooperate, he told them what happened. The police denied that Shea asked for counsel or was promised anything on this occasion.

Ratliff subsequently pleaded guilty to both offenses and was sentenced.

ASSIGNMENT OF ERROR NO. 1 (BOTH CASES)

The defendant first contends that the district court erred in denying his motion to suppress the inculpatory statement given on July 3, because it was obtained in violation of his rights under the 5th and 14th amendments of the United States Constitution, as set forth by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In State v. Thucos, 390 So.2d 1281 (La. 1980) this court pointed out the necessity for “scrupulous honoring” of a defendant’s assertion of his right to counsel, saying:

“Before a confession or inculpatory statement can be admitted in evidence, it must be established that the accused who makes the statement during custodial interrogation was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); R.S. 15:451. The Supreme Court in Miranda also stated: ‘Once warnings have been given, the subsequent procedure is clear.... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.’ Although it has been recognized that an accused may later change his mind and waive the same rights which he earlier asserted, [State v. Manning, 380 So.2d 46 (La.1980), and State v. Dominick, 354 So.2d 1316 (La.1978)] once a defendant has invoked his constitutional right to remain silent or his right to counsel, the validity of any subsequent waiver depends upon the ‘scrupulous honoring’ of that right by the police, Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Manning, supra. The state’s burden here is a heavy one. State v. Mouton, 366 So.2d 1336 (La.1978); State v. Peevy, 321 So.2d 324 (La.1975). The courts indulge in every reasonable presumption against the waiver of fundamental constitutional rights. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Glasser v. U.S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); State v. Manning, supra.

More recently, in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court said:

“Second, although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler, supra, 441 U.S. [369], at 372-376, 99 S.Ct. [1755], at 1757-1759 [60 L.Ed.2d 286], the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” (Emphasis added.)

And after mentioning later cases dealing with the “undisputed right” under Miranda to remain silent and to be free of interrogation before consulting with a lawyer the court stated:

“We reconfirm these views and to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” (Emphasis added.)

In a concurring opinion Justices Powell and Rehnquist indicated an uncertainty as to whether this decision really prohibited the police from initiating an inquiry as to whether a suspect has changed his mind about talking to them without an attorney. However, it seems quite clear to us that the majority of that court has so ruled.

In the present case it is undisputed that the police did initiate such an inquiry on July 3, after having been clearly informed by the defendant on the previous evening that he would not make any statements without counsel. Consequently, there was a violation of the additional standard governing police interrogation of a suspect imposed by Edwards v. Arizona, supra.

The state alternatively contends that if the court erred in this respect the error was harmless because there is overwhelming evidence of the defendant’s guilt in the record of the Tuminello robbery case.

In State v. Gibson, 391 So.2d 421 (La. 1980), this court adopted the harmless error rule applied in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), saying:

“It appears that the Chapman test, i.e., ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and that ‘the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt,’ will assist this Court to fulfill both of the requirements of state law.

From the record it seems quite possible that the jury could have convicted this defendant of the Tuminello robbery without consideration of the inculpatory statement in question. However, for reasons hereinafter set forth it is unnecessary for us to decide whether or not this error was harmless beyond a reasonable doubt.

We note that Edwards was rendered on May 18, 1981. Prior thereto, of course, law enforcement authorities were unaware of any prohibition against an officer asking a suspect, who had been warned of his Miranda rights and refused to give any information without counsel, whether he had changed his mind and was then willing to be interrogated without a lawyer. In this case Shea’s inculpatory statement was obtained, his motion to suppress was tried and denied, he was tried and found guilty by a jury in one case, pled guilty in the other and he was sentenced for both offenses, all before the decision in Edwards was announced. Therefore, we are presented with the question of whether or not the rule of that case is to be applied retroactively.

The United States Supreme Court does not mention this subject in its decision. However, it has directed that Escobedo and Miranda, both of which introduced new standards governing police interrogation as safeguards against the use of unreliable inculpatory statements, are not to be applied retroactively. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), rehearing denied, 385 U.S. 890, 87 S.Ct. 12, 17 L.Ed.2d 121. In Johnson the court decided that such newly instituted standards did not “enhance the reliability of the fact-finding process” to the extent that inculpatory statements previously obtained without their application should be excluded from evidence when the statements were found reliable under the prior tests of voluntariness. We see no sound reason why this new standard for police interrogation imposed by Edwards in regard to obtaining a suspect’s statement without counsel should or will be treated differently.

This court has taken the same position with respect to retroactive application of the Dino rule, excluding statements given by minors without consultation with an attorney, parent or adult. State v. Collum, 365 So.2d 1272 (La.1978), U.S. cert. den. 444 U.S. 882, 100 S.Ct. 171, 62 L.Ed.2d 111 (1979); State v. Kent, 391 So.2d 429 (La. 1981).

In the present case the trial judge determined that defendant Shea’s oral statement was given freely and voluntarily after he was fully advised of his Miranda rights. We agree with the court’s conclusion that it was admissible under the standards existing when it was taken and also when the matter was tried. We also find that the defendant voluntarily and intelligently waived the right to counsel and his privilege against self-incrimination before making the inculpatory statement. As this occurred before the decision in Edwards was rendered and we are convinced the United States Supreme Court will pronounce that decision is not retroactive, we so hold in this case.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2 (BOTH CASES)

The defendant contends the trial court erred in denying his motions to suppress evidence and the confession obtained as a result of the arrest by the police shortly after the Tuminello robbery. He argues that the officers did not have reasonable grounds to make this investigatory stop and search of the defendants under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Article 215.1 of the Louisiana Code of Criminal Procedure.

Article 215.1 authorizes a police officer to stop a person in a public place for questioning when he reasonably suspects that person is committing, has committed or is about to commit a criminal offense. Reasonable cause for an investigatory stop or detention is something less than probable cause, which must exist for a police officer to arrest without a warrant for an offense committed outside his presence. La.C.Cr.P. Art. 213(3). However, the detaining officer making such stop must have articulable knowledge of particular facts sufficient reasonably to suspect the detained person of criminal activity. State v. Edsall, 385 So.2d 207 (La.1980).

Under the circumstances of this case we are convinced the police officers not only had reasonable cause for an investigatory stop but also had probable cause to arrest the defendant and his accomplice without a warrant. These two persons were in the immediate vicinity of the robbery within minutes after it occurred. They fitted the descriptions of the robbers broadcast on the police radio. They were heading away from the scene of the crime at a brisk pace. Instead of initially stopping as ordered, both suspects accelerated their paces and one of them reached toward his pocket as if to produce a weapon. Under somewhat similar facts this court upheld a stop, search and arrest in State v. Jackson, 337 So.2d 508 (La.1976). Also see State v. Kenner, 384 So.2d 413 (La.1980).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3 (BOTH CASES)

This assignment is directed at the denial of defendant’s motion to suppress out-of-court identification. Since it was neither argued nor briefed by the defendant, it should be considered as abandoned. State v. Kenner, supra. Nevertheless, we have reviewed the transcript of the pre-trial hearing of this motion and conclude that the physical line-up was properly conducted. It was not suggestive, conducive to a mistaken identification or tainted in any manner as would violate due process' of law.

This assignment has no merit.

ASSIGNMENT OF ERROR NO.

4 (81-KA-0377)

In this assignment the defense contends that the trial court erred in denying its challenge for cause of prospective juror Nathaniel Willis on the grounds that the voir dire examination disclosed he was not impartial and would not accept the law as given by the court. La.C.Cr.P. Art. 797 (2 and 4).

Initially, while he recognized the presumption of innocence and the state’s burden to prove guilt beyond a reasonable doubt, the juror indicated that he would expect the defendant to produce some evidence on his own behalf in order to find him not guilty. However, upon being further instructed by the trial judge in this respect and in response to additional questions, Mr. Willis said that “it would be kinda hard” but he could and would apply the law according to the court’s instructions.

We believe the juror’s initial answers in this instance were brought about more from a lack of understanding of the law than bias. From our review of the entire voir dire examination we are convinced of the juror’s ability and willingness to decide the case impartially according to the law and evidence. We therefore conclude that the trial judge did not abuse the broad discretion vested in him in ruling on this challenge for cause. State v. Sheppard, 350 So.2d 615, 638 (La.1977); State v. Sonnier, 379 So.2d 1336, 1352 (La.1980); State v. Bates, 397 So.2d 1331, 1333 (La.1981).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5 (81-KA-0377)

This assignment involves the trial court’s denial of defendant’s motion for a mistrial on the ground that the prosecutor made a comment during the voir dire examination which referred to the possibility that the defendant would not take the stand and testify in his own defense. La.C. Cr.P. Art. 770. The remark was contained in the following question:

“Miss Peters: The fact that the defendant doesn’t have to do anything in his defense, but if the defendant elects to take the stand then that would be his right. Would you, Mrs. Hutchison, could you judge his credibility like any other witness?”

A similar argument was made in State v. Kenner, 336 So.2d 824, 828 (La.1976). It was rejected because of the defendant’s failure to object or move for a mistrial at the time. However, this court went on to say:

“In any event, the remarks were not a comment on the failure of defendant to take the stand, but only a statement that defendant might or might not present evidence. It has been held by this court that a prosecutor’s statement that ‘the evidence ... was uncontradicted and un-controverted’ was not an impermissible comment on the accused’s failure to take the stand. State v. Singleton, 321 So.2d 509 (La.1975). Hence, we do not find that the prosecutor’s remarks adversely affected defendant’s due process rights in any way.”

We reach the same conclusion in this instance. We do not consider the portion of the question objected to as a comment on the failure of the defendant to take the stand. Instead, the prosecutor merely mentioned the defendant’s constitutional privilege not to do so and then directed a legitimate inquiry toward the weight to be accorded his statements if he should choose to testify.

This assignment is without substance.

ASSIGNMENT OF ERROR NO. 6 (81-KA-0377)

The defendant argues that the trial court erred in curtailing cross-examination of Detective John Snell, thereby denying him the opportunity to attack the credibility of this state witness by showing his bias.

The defendant’s counsel attempted to ask the detective if taking statements helps the state in getting convictions. The state objected on the ground that the question called for an opinion or a conclusion and it was sustained. We agree with the trial court’s ruling that the question called for an impermissible impression or opinion of a witness not shown to have special knowledge in that field. La.R.S. 15:463 and 464. Furthermore, we are unable to see how the defendant could have been prejudiced or harmed by such ruling.

This assignment has no merit.

ASSIGNMENTS OF ERROR NOS. 7, 8 AND 9 (81—KA-0377)

Since these assignments of error were neither argued nor briefed by the defendant, they will be considered abandoned. State v. Kenner, supra.

ASSIGNMENT OF ERROR NO. 10 (81-KA-0377) & ASSIGNMENT OF ERROR NO. 4 (81-KA-0378)

Lastly, defendant Shea contends that his sentences are excessive. His principal complaint seems to be directed at the disparity between his consecutive sentences of 17 and five years and those of his accomplice Ratliff of two concurrent seven and one-half years sentences imposed pursuant to guilty pleas for the same robberies. Such comparison alone is not sufficient to establish an unconstitutional excessive sentence. State v. Bonanno, 373 So.2d 1284, 1294 (La.1979).

Ratliff’s background is not in the record before us. However, we note that at the time of these offenses Shea was on probation for a felony theft convicted in Texas. He was the one who held the revolver and discharged it in the proximity of the victim Tuminello.

Before the 17 year sentence was imposed the trial judge ordered a pre-sentence investigation and permitted the defense to review the report. A pre-sentence hearing was held, after which the judge stated for the record in detail the considerations which he took into account and the factual bases for imposing sentence under the guidelines of La.C.Cr.P. Art. 894.1.

Under the circumstances and as armed robbery is one of the most serious crimes in Louisiana, for which the Legislature has provided a minimum sentence of five years and a maximum of 99 years, without benefit of parole, probation or suspension of sentence, it is quite clear to us that the trial judge did not abuse his wide discretion in sentencing this defendant to serve 17 years at hard labor for the Tuminello robbery.

The defendant also contends that the five year sentence imposed in the other case is excessive inasmuch as the trial judge ordered that it be served consecutive to his 17 year sentence. He argues that the second sentence should have been made to run concurrently under La.C.Cr.P. Art. 883, because the two offenses constituted parts of a common scheme or plan. We disagree. These two robberies occurred four days apart and were separate crimes. But even if they were considered a single course of criminal conduct, Article 883 is not phrased in mandatory terms. More important, the five year sentence in the Quick Mart robbery case was imposed pursuant to a plea bargain to which the defendant, the district attorney and the judge had agreed. Consequently, he is precluded from complaining of excessiveness of that sentence before this court. State v. Curry, 400 So.2d 614 (La. 1981). Also, it appears that the only condition to the defendant’s guilty plea was the reservation of his rights to appellate review of the trial court’s ruling on his motion to suppress.

These assignments of error therefore lack merit.

For the foregoing reasons, the convictions and sentences are affirmed.

AFFIRMED.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., dissents with reasons.

CALOGERO, Justice,

concurring.

The majority finds that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), prohibits the police from initiating an inquiry as to whether a suspect, who earlier chose not to talk without an attorney, had changed his mind. I am not convinced that Edwards v. Arizona stands for that proposition. Edwards probably should be construed more narrowly than that in my opinion.

The majority determines that Edwards v. Arizona should be applied only prospectively. I am not convinced that this is correct. In my mind the Edwards opinion may well enhance the truth finding process, as opposed to simply creating a prophylactic deterrence of police activity.

For the reason first above stated I concur in the majority’s affirmance of defendant’s conviction and find in this case no need to decide the retroactive/prospective question. Defendant’s statement of July 3, 1979, was not improperly admitted in evidence. Defendant neither asked for counsel nor “expressed his desire to deal with police only through counsel.” Edwards v. Arizona, supra. An informed accused may waive his rights to silence and to counsel and respond to interrogation. North Carolina v. Butler, 441 U.S. 369 at 372-376, 99 S.Ct. 1755 at 1757-1759, 60 L.Ed.2d 286 at 372-376 (1979).

This case is different from our recent State v. West, 408 So.2d 1114 (La.1982), where defendant had been advised by his attorney to make no statement to police, the police officers were fully aware of that fact, and they took a statement from him nonetheless.

ON REHEARING

MARCUS, Justice.

We granted a rehearing in this case to reconsider our decision that the trial court correctly refused to suppress defendant’s inculpatory statement.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless the accused is first advised of, and subsequently waives, his right to remain silent and right to the presence of an attorney. However, it was not clear from Miranda the standard to be applied in determining whether a person in custody has waived these rights.

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), sought to answer Miranda. Mosley was arrested in connection with two robberies and was advised of his Miranda rights. Mosley subsequently informed the police that he did not wish to answer any questions about the robberies, whereupon the police ceased the interrogation. After an interval of approximately two hours, Mosley was taken by police to a different interrogation room and was again given his Miranda warnings. In addition, he signed a waiver of rights form. The police then told Mosley that he had been implicated in a homicide. Mosley then made a statement implicating himself in the homicide. The Court held:

[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his rights to cut off questioning was scrupulously honored. 423 U.S. at 104, 96 S.Ct. at 326. (Emphasis added.)

The Court, finding that Mosley’s “right to cut off questioning” was fully respected, held that the admission in evidence of his incriminating statement did not violate the principles of Miranda. However, the Court observed in footnote 7 that:

The present case does not involve the procedures to be followed if the person in custody asks to consult with a lawyer, since Mosley made no such request at any time. Those procedures are detailed in the Miranda opinion.... (Emphasis added.)

The Court gave no reasons for distinguishing between the right to remain silent and the right to counsel. Thus, Mosley did not resolve the issue of whether the police could resume questioning of an accused following his invocation of the right to counsel.

Without an express statement of law on this issue, lower federal courts reached varied results. It appears that a majority of the courts did not make a distinction between the right to counsel and the right to remain silent. In so doing, the courts either used the “scrupulously honor” test of Mosley or the “knowing and intelligent waiver” test as dictated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A minority of the courts applied a per se rule against further police interrogation once the accused invoked his right to counsel.

This court, when confronted with the issue, that is, whether the police can resume questioning of an accused following his invocation of the right to counsel, seems to have adopted the “scrupulously honor” test. State v. Thucos, 390 So.2d 1281 (La.1980); State v. Manning, 380 So.2d 46 (La.1980).

In Manning, defendant was arrested at 11:50 a.m., given his Miranda warnings and taken to the police station. At the station at 2:25 a.m., he signed a waiver of rights form. Later at 5:03 a.m., while the officer was asking Manning if he understood his Miranda rights, he stated that he wanted an attorney. Questioning immediately ceased and defendant was told that an attorney would be made available to him. As the officers began preparing to leave the interrogation room, defendant announced that he did not need an attorney and that he wanted to “clear the air.” Manning then made a statement at 5:08 a.m. (about five minutes after he had invoked his right to counsel). Under these facts, we concluded that Manning’s Miranda rights had not been violated.

In Thueos, defendant was arrested about midnight, advised of his Miranda rights, and taken to the stationhouse where he was again informed of his rights. He elected not to sign the waiver of rights form and stated that he did not want to talk and that he would like to see an attorney. The officers allowed defendant to make a call but testified that they did not know whether he reached an attorney or not. Thereafter, defendant was brought to his cell. Later that morning, at 9:00 a.m. (some nine hours after invocation of his right to counsel), defendant was brought to the interrogation room and interrogated. Thueos was again advised of his Miranda rights, signed a waiver of rights form, and made an oral inculpatory statement. Defendant was then returned to his cell. The next morning, he was once again taken from his cell to the interrogation room where he was advised of his rights. A second inculpatory statement was then made by defendant. Under these facts, we concluded that Tíni-cos’ rights had not been “scrupulously honored” and thus his statements were inadmissible. In distinguishing Manning, we stated:

The officer’s initiation of further questioning in this case, after defendant had asserted his right to be silent and right to have counsel present during questioning, is fatal to the admissibility of the statements made by the defendant.

Whether an accused’s rights are “scrupulously honored” should depend on the particular facts of each case. Stated another way, it depends on the totality of the circumstances. The fact that the officer initiates further questioning after the accused has invoked his right to counsel should be only one of the factors considered in determining whether his right to counsel has been “scrupulously honored.” Other factors, such as the time delay between the original request and subsequent interrogation, whether Miranda warnings were given before each separate interrogation, whether waiver of rights forms were signed, and whether or not pressures were asserted on the accused by the police between the time he invoked his right to counsel and the subsequent interrogation, should be considered in making this determination. In Thueos, we most probably placed too much emphasis on the officer’s initiation of further questioning in reaching our conclusion.

In the instant case, Shea was arrested on the afternoon of July 2,1979, and was fully advised of his Miranda rights. He was taken immediately to the police station where he was again advised of his rights. He also signed a waiver of rights form. Shea told the detectives (Snell and Smith) that he did not want to talk about the case until he had seen an attorney. The interview was immediately terminated. After an interval of some twenty-four hours, Snell returned and told Shea that he was about to be transferred. Snell asked Shea if he wanted to talk about the case. Snell readvised Shea of his Miranda rights and defendant again signed a waiver of rights form. Shea then made a statement about his involvement in the robberies. Under the totality of the circumstances, we consider that Shea’s right to counsel was “scrupulously honored.” Hence, his incul-patory statement is admissible in evidence.

On May 18,1981, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), was decided. Edwards held that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. The Court further held that an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

In the instant case, Shea invoked his right to counsel. Counsel was never made available to him nor did Shea initiate further communication with the police. To the contrary, the police re-initiated further conversations with him. Hence, under Edwards, the resumption of interrogation was not a product of a voluntary waiver and therefore the statement would be inadmissible.

However, Shea’s statement was made on July 3, 1979, some ten months prior to the Edwards decision (May 18,1981). The issue then is whether Edwards should be given retroactive effect. We think not.

In United States v. Johnson, - U.S. -, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), the Supreme Court stated:

Where the Court has expressly declared a rule of criminal procedure to be a “clear break with the past,” it almost invariably has gone on to find such a newly-minted principle non-retroactive.

The Edwards Court, upon announcing its new ruling, stated, “We now hold ...” (emphasis added), which indicates that the Court felt that this holding was breaking new ground in the area of police procedure. The ruling was unanticipated. Law enforcement authorities had relied on the old standards. In the instant case, the police did not know that once Shea requested counsel, further interrogation must cease until counsel had been made available to him, unless he (Shea) initiated further communication himself. The rule, therefore, as pronounced in Edwards is a “clear break with the past” and thus is non-retroactive.

In sum, the trial court correctly refused to suppress defendant’s inculpatory statement.

DECREE

For the reasons assigned, our original opinion is reinstated.

DIXON, C.J., dissents.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion. In State v. Thucos, 390 So.2d 1281 (La.1980) this Court held that inculpatory statements made by the defendant had to be suppressed where defendant had asserted his right to consult with an attorney but was nevertheless again questioned by police officers before he had an opportunity to do so. Under those circumstances, we found that the state had not met its burden of proving that the defendant’s assertion of his right to an attorney had been “scrupulously honored.” The instant case is indistinguishable from Thucos. Accordingly, the inculpatory statements made by this defendant pursuant to questioning initiated by the police officers after defendant had asserted his Miranda rights and requested an opportunity to consult with an attorney should likewise have been suppressed.

The majority opinion correctly states that the United States- Supreme Court held, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless the accused is first advised of, and subsequently waives, his right to remain silent and his right to the presence of an attorney. However, the majority falls into error when it finds that Miranda did not make clear, under the circumstances involved in this case, the standard to be applied in determining whether a person in custody waived these rights.

Miranda might not have made clear the standard to be applied in a situation where the accused merely chooses to remain silent (as opposed to asserting his right to consult an attorney). Michigan v. Mosely, 423 U.S. 96, 96 S.Ct., 321, 46 L.Ed.2d 313 (1975). However, on the question of what procedure should be utilized where the accused asserts his right to counsel, the Court in Miranda specifically stated:

Once warnings have been given, the subsequent procedure is clear .... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.

I fail to see what the majority finds unclear about this standard as it relates to this case. In fact, fully aware of these expressions by the high court, this Court held, in State v. Thucos, supra, that where the defendant had requested to see an attorney before answering questions, and the officers had again initiated questioning the following day without the defendant’s having consulted with an attorney in the interim, the state had not met its burden of proving that the defendant’s rights had been “scrupulously honored.” We found the Thucos case to be distinguishable from our earlier decision in State v. Manning, 380 So.2d 46 (La.1980), where it was found that the defendant’s rights had been “scrupulously honored” because the defendant was the one to initiate communications with the officers after previously asserting his rights.

Yet the majority finds that Thucos is not dispositive of this case because other factors should be considered (other than that the defendant asserted his right to counsel and was nevertheless again questioned by the officers) in determining whether a defendant’s rights were scrupulously honored, and because “we most probably placed too much emphasis on the officer’s initiation of further questioning in reaching our conclusion” in Thucos. I find it difficult to understand how the majority can conclude that our emphasis might have been misplaced in Thucos, since, not six months later, the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) came down with the exact same result, likewise placing its emphasis on the defendant’s assertion of his right to counsel coupled with the initiation by the officers of further questioning. The Court in Edwards held:

[Although we have held after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler, supra, [441 U.S. 369], at 372-376, 99 S.Ct. 1755, [at 1757-1759], 60 L.Ed.2d 286, the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. (Emphasis added.)

Perhaps the majority feels that the United States Supreme Court has misplaced its emphasis also. However, that is not a question for our determination. Therefore, whether Edwards is retroactive or not, the majority falls into serious error in cutting back on the standard set out in Thueos, where the identical position has since been taken by the United States Supreme Court.

Finally, the majority finds that Edwards should not be given retroactive effect because it created a new rule. While it is arguable whether Edwards created a “new” rule at all (to be discussed further below) in view of its reliance on Miranda, it certainly is clear that it did not create a “new” rule in Louisiana since we had previously rendered the Thueos decision on the same issue with the same result.

Furthermore, I believe that Edwards v. Arizona, supra, should be given retroactive effect. Although the United States Supreme Court has not specifically addressed the issue of prospective/retrospective application of Edwards, its actions clearly indicate that Edwards is not to be applied prospectively only. One week after handing down Edwards, the United States Supreme Court granted certiorari in six cases which involved the same issue. In each case, the petitioner was a defendant whose statement had been ruled admissible by the trial court and whose conviction had been affirmed on appeal. Blakney v. Montana, 451 U.S. 1013, 101 S.Ct. 2999, 69 L.Ed.2d 384, (1981); White v. Finkbeiner, 451 U.S. 1013, 101 S.Ct. 3000, 69 L.Ed.2d 385, (1981); Leuschner v. Maryland, 451 U.S. 1014, 101 S.Ct. 3001, 69 L.Ed.2d 385, (1981); Monroe v. Idaho, 451 U.S. 1014, 101 S.Ct. 3001, 69 L.Ed.2d 385, (1981); Wantland v. Maryland, 451 U.S. 1014, 101 S.Ct. 3001, 69 L.Ed.2d 386 (1981); and James v. Illinois, 451 U.S. 1014, 101 S.Ct. 3001, 69 L.Ed.2d 386 (1981). One month later the Court followed this same procedure in Williams v. Ohio, 452 U.S. 935, 101 S.Ct. 3073, 69 L.Ed.2d 949 (1981). The Court vacated the judgments and remanded the cases to the courts below for “further consideration in light of Edwards v. Arizona.” This procedure is contrary to that adopted by the Court following its decision in Miranda. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), decided one week after Miranda, directed that Miranda would apply only to cases in which the trial began after the date of the Miranda decision.

The belief that Edwards is to be applied to this case is further supported by People v. Paintman, 412 Mich. 518, 315 N.W.2d 418 (1982), in which the Michigan Supreme Court, relying upon Edwards, ruled that Paintman’s pre-Edwards statement was inadmissible. The state of Michigan sought certiorari. The United States Supreme Court denied the application. - U.S. -, 102 S.Ct. 2280, 73 L.Ed.2d 1292 (1982). Accord: Connecticut v. Smith, 455 U.S. 945, 102 S.Ct. 1441, 71 L.Ed.2d 657 (1982).

Actually, the question whether to accord retroactive or prospective application to a decision of the United States Supreme Court only arises when that Court announces a new rule. Johnson v. United States, - U.S. -, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 1601 (1965); Battie v. Estelle, 655 F.2d 692 (5th Cir.1981). In my view, Edwards announces no new rule regarding the admissibility of statements obtained by the police after a defendant has invoked his right to counsel. The United States Supreme Court in Edwards specifically stated that the use of Edwards’ confession at trial “violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda.” 451 U.S. at 480, 101 S.Ct. at 1882 (emphasis supplied). Noting that Miranda required that once an accused asserted his right to counsel, “the interrogation must cease until an attorney is present,” the Court briefly discussed cases after Miranda which applied the dictates of Miranda to the particular facts presented in those cases. The Court then concluded:

We reconfirm these views and to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel. 451 U.S. at 485, 101 S.Ct. at 1885.

Therefore, because I think Edwards v. Arizona, supra, should be applied retroactively, and in any event, State v. Thucos, supra, is dispositive of the issue, holding that questioning is not to be initiated by police once the defendant has asserted his right to counsel until counsel has been made available to him, I dissent from the majority opinion.

       Judges E.L. Guidry, Jr. and G. William Swift, Jr. of the Court of Appeal, Third Circuit, and Judge Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson and Harry T. Lemmon.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed. 977 (1964).

      . State in the Interest of Dino, 359 So.2d 586 (La.1978), U.S. cert. den., Louisiana v. Dino, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978).

      . Specifically, the accused must be warned that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

      . See United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir.), cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978); United States v. Collins, 462 F.2d 792 (2d Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972).

      . See, e.g., United States v. Grant, 549 F.2d 942 (4th Cir.), cert. denied, 432 U.S. 908, 97 S.Ct. 2955, 53 L.Ed.2d 1081 (1977); Cobbs v. Robinson, 528 F.2d 1331 (2d Cir.1975), cert. denied, 424 U.S. 947, 96 S.Ct. 1419, 47 L.Ed.2d 354 (1976).

      . In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Supreme Court held:
      A waiver is ordinarily an intentional relinquishment of a known right or privilege. The determination of whether there has been an intelligent waiver .. . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

        Accord, e.g., Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1978).

      . E.g., United States v. Massey, 550 F.2d 300 (5th Cir.1979); United States v. Clark, 499 F.2d 802 (4th Cir.1972); United States v. Priest, 409 F.2d 491 (5th Cir.1969).

      . In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (discussed fully later in this opinion), initiation was made the crucial factor to be considered. However, at the time of the decision in Thueos, Edwards had not been decided and for reasons to be discussed later, we hold that Edwards is non-retroactive.

      . Shortly after Edwards was decided, the Supreme Court granted certiorari in a number of cases which were apparently pending on direct review in that Court, vacated the judgments and remanded for further consideration in light of Edwards. This action does not mean that the Supreme Court will ultimately decide to give full retroactive effect to Edwards.

      . “In the course of making that holding [Edwards], Justice White established a new prophylactic rule." The Supreme Court, 1980 Term, 95 Harv.L.Rev. 127 (1981-82) (emphasis added).
      “The instant majority, by establishing the new per se rule, went beyond what was necessary to exclude the confession.. .. This new rule protects the suspect’s choice to be free from interrogation until he consults with counsel.... The Court could have at least noted that its new rule was not the most faithful reading of Miranda.” 33 U.Fla.L.Rev. 788, 797 (1981) (emphasis added).
      “The Court instead seized upon the opportunity to announce a broad prophylactic rule in direct opposition to the previous trend toward limiting the scope of Miranda.” 23 Ariz.L.Rev. 1391, 1400 (1981).

      . 605 P.2d 1093 (Mont. 1979).

      . 611 F.2d 186 (7th Cir.1979).

      . 45 Md.App. 323, 413 A.2d 227 (1980).

      . 101 Idaho 251, 611 P.2d 1036 (1980).

      . 413 A.2d 1376 (Ct.Spec.App.Md.1980).

      . 82 Ill.App.3d 551, 37 Ill.Dec. 934, 402 N.E.2d 936 (1980).

      . No cite below reported.


source: Caselaw Access Project

author: MARCUS, Justice. CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Anthony McCARTY.
    No. 82-K-0461.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., James C. McMichael, Jr., Dale G. Cox, Asst. Dist. Attys., for plaintiff-relator.
    Jeannette G. Garrett, Richard Goorley, Shreveport, for defendant-respondent.
   MARCUS, Justice.

Anthony McCarty was indicted by the grand jury in the same indictment in separate counts with first degree murder in violation of La. R.S. 14:30 and armed robbery in violation of La. R.S. 14:64. Defendant filed a pretrial motion to suppress certain inculpatory statements made by him. After a hearing, the trial judge ordered the statements suppressed. On the state’s application, we granted a writ under our supervisory jurisdiction to review the correctness of these rulings and consolidated the case for hearing with State v. Kevin Michael Shea, 421 So.2d 200, presently on rehearing. Separate opinions will be rendered in these cases.

At the suppression hearing, the following facts were adduced. At about 1:30 p.m. on January 13, 1981, McCarty was arrested. He was advised of his Miranda rights and taken to the police station. He was then turned over to Detective Lindsay who also advised him of his rights (1:45 p.m.). McCarty indicated that he understood his rights and signed a waiver of rights form. At that time, McCarty indicated that he wanted to call his lawyer. Defendant was allowed to use the phone but was unable to get in touch with his attorney. After defendant hung up the phone, Lindsay asked him “if there was anything he wanted to say about it [the case].” Defendant then told Lindsay and another officer that he had been elsewhere on the night of the crime. Questioning then ceased.

At about 1:00 p.m. the next day (some twenty-four hours later), upon learning that the victim of the robbery had died, Detective Lindsay contacted McCarty and again advised him of his Miranda rights. McCarty indicated that he understood them and signed a waiver of rights form. The only statement he made at that time was that the police should “check with people in the house [where defendant had said he was on the night of the crime], that they would verify where he was.” At the conclusion of the hearing, the trial judge, finding that the police initiated conversation with defendant after he had invoked his right to counsel, suppressed both statements.

We consider that the trial judge correctly suppressed the first statement made by McCarty. Defendant had stated that he wanted to call a lawyer. After defendant hung up the phone, Detective Lindsay immediately continued the interrogation. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965), the United States Supreme Court stated:

If [the accused] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. (Emphasis added.)

Rather than following the dictates of Miranda and terminating interrogation, Lindsay continued to question defendant. Hence, this statement was obtained in violation of Miranda and is inadmissible.

We reach a different result as to the second statement. Once defendant had invoked his right to counsel, the validity of any subsequent waiver depends upon the “scrupulously honoring” of that right by the police. State v. Kevin Michael Shea, 421 So.2d 200 (La.1982) (on rehearing).

Under similar facts in She a, we held that defendant’s right to counsel was “scrupulously honored.” In the instant case, as in Shea, there was a twenty-four hour delay between the original request for an attorney and the subsequent interrogation. Miranda warnings were given before each separate interrogation. Likewise, waiver of rights forms were signed on each occasion. There is no evidence, nor is it claimed, that any mental or physical coercion was involved. The fact that Detective Lindsay initiated further questioning is only one of the factors to be considered. Under the totality of the circumstances, we conclude that McCarty’s right to counsel was “scrupulously honored.” Hence, the second statement did not violate the principles of Miranda and is therefore admissible in evidence.

In reaching this result, we must also conclude that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), should not be given retroactive effect as Edwards held that once an accused has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the police until counsel has been made available to him, unless the accused himself initiates further communication with the police. Here, after invoking his right to counsel, counsel was not made available to McCarty nor did he initiate further communication with the police. Rather, it was Detective Lindsay who initiated further communication with him. However, in State v. Kevin Michael Shea, supra, we held the “new rule” pronounced in Edwards was non-retroactive. Therefore, it would have no effect in the instant case since the statement in question was made on January 14, 1981, some four months prior to the Edwards decision (May 18, 1981).

The state also contends that even if a statement is suppressed because of a violation of Miranda, it should still be permitted to impeach defendant’s testimony by use of the statement. This argument is applicable only to the first statement that we found to have been obtained in violation of Miranda and therefore inadmissible. The trial judge’s ruling is not so broad as to bar the use of this statement for impeachment purposes. Specifically, he did not pass on the voluntariness of the statement. Therefore, the state’s fears are premature. Nevertheless, we shall address this issue because it will arise at trial if defendant takes the stand, for then he is subject to impeachment.

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the United States Supreme Court held that a confession which was not preceded by Miranda warnings could be used in cross-examination if that confession was otherwise voluntary and the defendant’s direct testimony was inconsistent with the confession. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), extended the scope of Harris to a situation where the statement was made after the Miranda warnings, but before defendant was provided requested counsel. Thus, we find no constitutional bar to the use of defendant’s statement for impeachment purposes if that statement is determined to have been made voluntarily. Consequently, if the trial judge determines that defendant’s statement was made voluntarily, the statement is admissible for impeachment purposes.

DECREE

For the reasons assigned, the ruling of the trial judge prohibiting the admission in evidence of defendant’s first statement in the state’s case in chief is affirmed; however, the ruling of the trial judge suppressing the second statement is reversed and set aside. The case is remanded to the trial court for further proceedings in accordance with law.

DIXON, C.J., dissents.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I dissent from the majority’s determination that the second statement defendant made was admissible. State v. Thucos, 390 So.2d 1281 (La.1980), with a contrary result, is indistinguishable from the present case on this issue and should, therefore, be controlling. Furthermore, I believe Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) should be given retroactive effect. For a more thorough discussion of these views, see my dissent to State v. Shea, 421 So.2d 200 (La.1982), a companion case also rendered this day.


author: MARCUS, Justice.

text:
    LEENERTS FARMS, INC. v. Kenneth R. ROGERS, et al.
    No. 82-C-0770.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      Ernest L. Parker, Bean & Parker, Lafayette, for applicant-plaintiff.
    John F. Fant, Adams, Fant & Wyche, Shreveport, for respondents-defendants.
   MARCUS, Justice.

This is a suit brought by a mortgage debtor, Leenerts Farms, Inc. (Leenerts) to recover $72,755.26 in attorney fees paid under protest to the sheriff along with principal and interest to avoid the sale of property affected by a mortgage pursuant to a writ of seizure and sale. Alternatively, plaintiff sought to have the attorney fees fixed for legal services rendered by the mortgage creditors’ attorney in collecting the debt. In addition, plaintiff sought damages for the creditors’ refusal to accept a “payout amount” prior to the date fixed for the sheriff’s sale. Made defendants were the mortgage creditors, Kenneth R. Rogers, Crystal Winney Rogers, Joe Bob Rogers and Mary Baker Rogers (Rogers) and the sheriff. The creditors filed an exception of no cause of action. The trial judge sustained the exception and dismissed plaintiff’s suit. The court of appeal affirmed. We granted certiorari because of a conflict in the circuit courts of appeal over the issue of whether the courts may inquire into the reasonableness of attorney fees which have been fixed in a note by the parties as a percentage of the amount due upon default of the debtor.

At the outset, we note that the function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition and all well-pleaded allegations of the petition are accepted as true. An exception of no cause of action is sustained only where the law affords no remedy to plaintiff under the allegations of his petition. If a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Jackson v. East Baton Rouge Parish School Board, 393 So.2d 243 (La.App. 1st Cir.1980).

On May 25,1978, Leenerts purchased several tracts of farmland from Rogers. As a portion of the consideration, Leenerts gave the vendors (Rogers) a promissory note in the amount of $550,000 secured by a mortgage on the property. Leenerts also agreed in the note “to pay all attorney’s fees incurred in the collection of this note, or any portion hereof, including interest, which fees are hereby fixed at twenty percent of the amount to be collected.”

Leenerts became delinquent in the payments on the note and Rogers instituted, through their attorney, an executory process proceeding to enforce their mortgage on the property. A writ of seizure and sale was issued by the court commanding the sheriff to seize and sell the property affected by the mortgage, as prayed for and according to law. Prior to the sale of the property, Leenerts contacted Rogers and requested a payout figure on the debt. Leenerts was informed that Rogers would accept no less than the full amount as prayed for in the executory proceeding. This amount included principal, interest, attorney fees of twenty percent of all outstanding principal and interest (as stipulated in the note) and all costs. Leenerts was further informed that Rogers would not accept any money and Leenerts would have to pay the sheriff to avoid the sale of the property. On the morning of the sale, Lee-nerts paid the entire amount requested by Rogers to the sheriff, that is, $440,031.57, which included $72,755.26 in attorney fees. In making this payment, Leenerts, by written letter through its attorney, stated that it was making payment of attorney fees under protest and reserved all rights to file a proper proceeding to recover such amount as a court might determine as excessive considering the legal work performed by Rogers’ attorney. Leenerts further reserved its right to seek damages resulting from Rogers’ refusal to accept payment in this matter.

The sole issue presented for our determination is whether the courts may inquire into the reasonableness of attorney fees which have been fixed in a note by the parties as a percentage of the amount due upon default of the debtor. If so, plaintiff’s petition states a cause of action; otherwise, it does not.

Any analysis of this issue must start with the premise that legal agreements have the effect of law upon the parties and that the courts are bound to give legal effect to all such contracts according to the true intent of the parties. Further, that this intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences. La.Civ.Code art. 1945. Courts are not created to relieve men of their bad bargains made. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970). Although parties are permitted to contract with respect to attorney fees, Ma-loney, supra, attorney fees are subject to review and control by the courts. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979); Husk v. Blancand, 155 La. 816, 99 So. 610 (1924).

As previously indicated, the note in question provides:

[TJhey [Leenerts] further agree to pay all attorney’s fees incurred in the collection of this note, or any portion hereof, including interest, which fees are hereby fixed at twenty percent of the amount to be collected.

The court of appeal interpreted this provision of the note in accordance with this court’s decision in W.K. Henderson Iron Works & Supply Co. v. Meriwether Supply Co., 178 La. 516, 152 So. 69 (1934). That case involved a note which provided for attorney fees fixed at ten percent of the amount due in the event the debtor defaulted on the note and it became necessary to engage the services of an attorney to collect the note. In Henderson, this court held:

A stipulation for attorney’s fees in case an obligation should not be paid at maturity, and the services of an attorney are necessary for the collection thereof, is a stipulation for liquidated damages and becomes due in full when the obligation is not paid at maturity and the services of an attorney becomes necessary to enforce the same, regardless of the extent or value of said services. (Emphasis added.)

Generally, where parties agree to liquidated damages, the “courts will not inquire whether the actual damage suffered equaled or approximated the agreed upon amount.” Maloney, supra. While article 1935 of the Civil Code provides that damages due for the delay in the payment of money are called interest, and the creditor is entitled to recover no more, it has been held that a stipulation in a note for the payment of attorney fees upon the default of the debtor is not a stipulation for the payment of damages as contemplated by said article. Foundation Finance Co. v. Robbins, 179 La. 259, 153 So. 833 (1934); Race & Foster v. Bruen, 11 La.Ann. 34 (1856). Therefore, such a provision certainly cannot be a stipulation for the payment of liquidated damages. Hence, the question remains as to whether the courts may inquire into the reasonableness of attorney fees despite a stipulation in the note fixing the fees at a percentage of the amount to be collected upon the default of the debtor. We think so.

This court has a duty to assert the authority conferred on it by our state constitution to regulate the practice of law. This court’s prevailing judicial authority resulted in the adoption and promulgation of the Articles of Incorporation of the Louisiana State Bar Association, which Articles came to incorporate the Code of Professional Responsibility. The Code of Professional Responsibility which regulates attorneys’ practices has been recognized as having the force and effect of substantive law. Saucier v. Hayes Dairy Products, Inc., supra.

The Code of Professional Responsibility, DR 2-106, Fees for Legal Services, provides in pertinent part:

(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.

Individuals cannot by their conventions, derogate from the force of laws made for the preservation of public good or good morals. La.Civ.Code art. 11. We view the Code of Professional Responsibility as being the most exacting of laws established for the public good. Hence, the prohibition against a lawyer collecting a “clearly excessive fee” cannot be abrogated by a provision in a note fixing the amount of attorney fees as a percentage of the amount to be collected. Therefore, despite such a provision, courts may inquire into the reasonableness of the fee. W.K. Henderson Iron Works & Supply Co. v. Meriwether Supply Co., supra, holding to the contrary, is expressly overruled. Thus, plaintiff’s petition states a cause of action. The courts below erred in holding otherwise. We must reverse.

DECREE

For the reasons assigned, the judgment of the court of appeal affirming the judgment of the district court sustaining the exception of no cause of action and dismissing plaintiff’s suit is reversed. The exception of no cause of action filed by defendants, Kenneth R. Rogers, Crystal Winney Rogers, Joe Bob Rogers and Mary Baker Rogers, is overruled and the case is remanded to the district court for further proceedings in accordance with law.

      . 411 So.2d 576 (La.App. 1st Cir.1982).

      . 413 So.2d 506 (La.1982).

      . See People’s National Bank of New Iberia v. Smith, 360 So.2d 560 (La.App. 4th Cir.1978), which is in direct conflict on essentially the same facts as Fidelity National Bank of Baton Rouge v. Pitchford, 374 So.2d 149 (La.App. 1st Cir.1979), relied on by the court of appeal in deciding the instant case. The court of appeal also relied on a decision of this court in W.K. Henderson Iron Works & Supply Co. v. Meriwether Supply Co., 178 La. 516, 152 So. 69 (1934), which supports the Pitchford decision.

      . A copy of the instrument transferring title is not in the record; however, the note evidencing the debt is in the record. Said note is paraphed for identification with an “Act of Cash Sale with Assumption of Mortgages and Mortgage with Vendor’s Lien and Privilege Retained” passed on May 25, 1978.

      . Whether Leenerts’ claim for damages for Rogers’ refusal to accept payment prior to the sheriff’s sale states a cause of action independently of this issue is not before us. It was not assigned as an error by Leenerts in its application for writs to this court nor was it briefed or argued. In any event, in view of our disposition of the case, it is of no moment.

      . See Dole v. Wade, 510 S.W.2d 909 (Tenn.1974), for a similar holding.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Kerwin HILLARD.
    No. 82-KA-0009.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Glen Petersen, William Weath-erford, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Anthony J. Marabella, Jr., M. Michele Fournet, Baton Rouge, of Office of the Indigent Defender, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Kerwin Hillard, was tried and convicted of first degree murder, La.R.S. 14:30, and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. Hillard appealed, and we found only one of his assignments of error to have merit. State v. Hillard, 398 So.2d 1057 (La.1981). We remanded the case for a determination of whether the juvenile record of the key state witness was sufficiently probative of the witness’s veracity that its admission was necessary for a fair determination of the defendant’s guilt. If the trial court concluded that the witness’s juvenile record was not sufficiently probative of his veracity, the court was to affirm the defendant’s conviction subject to his right to appeal. On the other hand, if the juvenile record was sufficiently probative, the trial court was ordered to grant a new trial. On remand, the trial court found that the witness’s juvenile record was not sufficiently probative of his veracity, and that the introduction of the juvenile record would have added nothing to the defense cross-examination. We reverse.

Kerwin Hillard and Robert Johnson were arrested in connection with the murder of Michael Bonds, a Baton Rouge taxi cab driver. After his arrest, Johnson gave a statement wherein he admitted that he was present in Bonds’ cab when the latter was shot, but he identified Hillard as the murderer. Hillard, on the other hand, contended that Johnson was responsible for Bonds’ murder. According to Hillard, he had fallen asleep in the cab and had awakened only upon hearing the driver pleading for his life before being shot by Johnson. The district attorney’s office later entered into a plea bargain with Robert Johnson. In exchange for a promise of a fifteen year sentence, Johnson agreed to testify against Hillard and plead guilty to manslaughter and to being an accessory after the fact in armed robbery. Hillard, however, was not so lucky and was .prosecuted for first degree murder.

The sole question before us is whether the defendant, Kerwin Hillard, was denied his constitutional right to confrontation by the trial court’s refusal to allow questioning of Robert Johnson concerning his juvenile record during cross-examination. We could not fully address this issue in State v. Hillard, 398 So.2d 1057 (La.1981), for we were not furnished with Johnson’s juvenile record at that time. Instead, we remanded the case to allow the trial court to examine Johnson’s juvenile record and to make a determination of whether it was sufficiently probative of Johnson’s veracity such that its admission was necessary for a fair determination of defendant’s guilt. Since the trial court held that the witness’s juvenile record was not sufficiently probative, we are now called upon to review the decision of that court.

The Sixth Amendment to the United States Constitution and Art. 1, Sec. 16 of our Louisiana Constitution, guarantee the right of an accused in a criminal proceeding to be confronted with the witnesses against him. State v. Hillard at 1059. A primary interest secured by the confrontation clause is the right to cross-examination. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). This right to cross-examine is more than a desirable rule of trial procedure. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). It is “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Chambers v. Mississippi, 410 U.S. at 295, 93 S.Ct. at 1046; Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).

The United States Supreme Court has also decided, however, that the right to cross-examine is not absolute, for it may bow to accommodate other legitimate interests in the criminal trial process. Chambers v. Mississippi, 410 U.S. at 295, 93 S.Ct. at 1046. But when the right to confrontation is denied or significantly diminished, the “ultimate of the fact-finding process” is called into question, and the court must closely examine the competing interest. Chambers v. Mississippi, 410 U.S. at 295, 93 S.Ct. at 1046; Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969).

Here, we must examine the relationship between the defendant’s right to confrontation and the legitimate interest of the state in preserving the confidentiality of juvenile records. A balancing process is envisioned. We must determine, given the facts of this particular case, whether the defendant’s confrontation rights outweigh the state’s interest in keeping these juvenile records confidential.

On one side of the balance, there is the defendant’s right to confrontation. Confrontation is important in that it allows “a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they might look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Ohio v. Roberts, 448 U.S. at 63-64, 100 S.Ct. at 2537-38; Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895). When the state’s witness is the co-participant in the crime for which the defendant is on trial, the right to confrontation becomes especially important, and great latitude is allowed in cross-examination. See State v. Lewis, 236 La. 473, 108 So.2d 93 (1959); State v. Jackson, 227 La. 949, 81 So.2d 5 (1955).

During Hillard’s trial, the state called Lisa, Kevin, and Alma Beachem, each of whom had seen the defendant and Robert Johnson on the night of the murder. Lisa Beachem testified that she had observed the defendant carrying a pistol that night and had been later informed by Hillard that he had killed someone. On cross-examination, however, she admitted that some of her testimony was inconsistent with a prior statement she had made. In addition, Lisa Beachem revealed that the state had promised not to prosecute her as an accessory after the fact if she agreed to testify.

Kevin Beachem recalled seeing the defendant carrying a small pistol prior to the time of the killing. However, he saw Robert Johnson in possession of the same small pistol after the time the shooting occurred. Kevin’s testimony conflicted with that of his sister Lisa in that he had heard the defendant say “they” had killed somebody. On cross-examination, Kevin Beachem also admitted that he had been threatened with prosecution if he did not testify.

Alma Beachem stated that she overheard the defendant tell her sister Lisa that he had killed someone. However, on cross-examination, the witness also conceded that she had been threatened with prosecution if she did not testify.

Robert Johnson was the crucial witness for the prosecution. He was the only person who could refute the defendant’s explanation as to what occurred in the taxi cab prior to the shooting. The members of the Beachem family saw Hillard carrying the murder weapon before the shooting occurred, but only Johnson was seen with the pistol after the time of the killing. Also, the Beachems had testified only under threat of prosecution and may have been afraid to reveal the truth for fear of incurring the wrath of the prosecutors.

When Johnson took the stand, he continued to maintain, as he had done since his arrest, that Hillard was the trigger-man and was responsible for the murder of Michael Bonds. On cross-examination, defense counsel attempted to discredit Johnson’s testimony. Johnson admitted that he had been offered a twenty-six year sentence by the state in return for his testimony, and then a twenty-one year sentence, both of which he rejected. A taped statement made by Johnson shortly after his arrest was played for the jury. The tape was stopped numerous times, and each time Johnson was forced to concede either that he had lied when he gave the statement or that the police officers had furnished him with the information. Defense counsel succeeded in bringing out several inconsistencies in Johnson’s testimony. In addition, Johnson testified that he had been informed by the officers, before he implicated Hil-lard, that all they wanted was the trigger-man. The defense also managed to bring out the fact that Johnson had been convicted previously of burglary. The trial court, however, did not permit defense counsel to ask Johnson any questions concerning his juvenile record.

Johnson’s juvenile record was later introduced into evidence during the trial court’s hearing on remand. This record revealed the following adjudications:

(1) May 14, 1975 — Robert Johnson was adjudicated a delinquent on an aggravated assault charge and was counseled and warned by the court. During a football game, Johnson had pulled out a knife concealed in his sock and cut his victim near the chest and behind the ear.
(2) April 26, 1976 — Johnson was adjudicated a delinquent on two separate misdemeanor charges. The charges involved two shoplifting incidents on the same day at two different stores.
(3) October 10, 1977 — Johnson was adjudicated a delinquent, his suspended commitment was revoked, and he was confined to the Louisiana Training Institute until July, 1978. Three charges were involved. On May 4, 1977, Johnson had participated in the burglary of a truck. On September 9, 1977, Johnson committed a simple battery by striking his victim with a closed fist, causing bruises on his face and left eye. Finally, on September 30, 1977, Johnson participated in the burglary of a Billups Station where approximately $600 worth of merchandise was stolen.

Johnson’s juvenile record was very relevant to the issue of his veracity. A swearing match had developed between Robert Johnson and Kerwin Hillard. Although his testimony had been shown to be inconsistent and to conflict with the statement he had given after his arrest, Johnson had been consistent on one point. He had stated since his arrest that the defendant was responsible for the murder of the cab driver and was the trigger-man. Conversely, Hil-lard had maintained that it was Johnson who had shot and killed the cab driver. Evidence of Johnson’s prior juvenile adjudications for aggravated assault and simple battery would have shown his tendency toward violent behavior and may have influenced the jury to give more weight to the testimony of the defendant. The witness’s two adjudications for shoplifting and two adjudications for burglary have a direct bearing on his credibility and would have assisted the defendant in his attempts to discredit Johnson’s testimony. In addition, Johnson’s previous adjudications were relevant to show the bias, interest, or corruption of the witness. With evidence of such a substantial juvenile record, the defense could have asserted that the plea bargain was so generous that Johnson was loathe to do anything to upset the authorities before he pled and the plea was accepted. State v. Hillard at 1060 n. 3.

Weighed against the defendant’s right to confrontation and cross-examination of the witness is the state's interest in maintaining the confidentiality of juvenile records.

Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974), discussed the policy behind the confidentiality of juvenile records:

“The state argues that exposure of a juvenile’s record of delinquency would likely cause impairment of rehabilitative goals of the juvenile correctional procedures. This exposure, it is argued, might encourage the juvenile offender to commit further acts of delinquency, or cause the juvenile offender to lose employment opportunities or otherwise suffer unnecessarily for his youthful transgression.”

In this case we find that the defendant’s right to confrontation outweighs the policy of confidentiality. Johnson, who will be spending the next fifteen years in prison, will hardly be discouraged from committing other crimes or from gaining employment or otherwise suffer because his juvenile record is exposed. Use of the juvenile record to cross-examine the witness is essential to Hillard, however, for it may mean the difference between life imprisonment and acquittal. The juvenile record is sufficiently probative of the witness’s veracity as to necessitate its disclosure, and the trial court erred in not granting defendant a new trial.

For the foregoing reasons, the conviction and sentence are reversed, and the case is remanded for a new trial.

MARCUS, J., dissents.

      . The defendant’s right to full cross-examination of the witness in order to expose any bias or interest of the witness which might influence his perceptions or color his testimony is recognized by statute, La. R.S. 15:492. State v. DeCuir, 364 So.2d 946 (La.1978); State v. Kellogg, 350 So.2d 656 (La.1977).


author:
WARD, Justice Pro Tern.
     WATSON, Justice,

text:
    STATE of Louisiana v. Jerry LEWIS.
    No. 81-KA-3337.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Glen Petersen, Asst. Dist. Attys., for plaintiff-appellee.
    Joel B. Dickinson, Joel B. Dickinson & Associates, Baton Rouge, for defendant-appellant.
   WARD, Justice Pro Tern.

On April 8, 1980, the East Baton Rouge Parish Grand Jury indicted the defendant, Jerry Lewis, and charged him with manslaughter, LSA-R.S. 14:31. More than one year after the indictment, on June 8, 1981, he entered a plea of guilty as charged. The plea was entered after an extensive colloquy between the Trial Judge and Lewis. That colloquy, also known as the Boykin examination, was conducted in the presence of defense counsel who participated in it. The Trial Judge, after thoroughly advising Lewis of the rights which he was waiving by pleading guilty, accepted Lewis’s plea and ordered a pre-sentence investigation. A sentencing hearing was scheduled for September 4, 1981, and after the hearing and after a review of the sentencing guidelines, which are prescribed by La.C.Cr.P. Art. 894.1, the Trial Judge sentenced Lewis to imprisonment for twenty-one years, the maximum sentence for manslaughter.

On September 14,1981, Lewis filed a pro se motion to withdraw his plea of guilty, and he asked to be granted a trial. Initially, the Trial Judge granted the motion, and on October 8,1981, he vacated the plea, but later on the same day, after a hearing in open court, the Trial Judge recalled that order, and the guilty plea and sentence were allowed to stand.

Lewis has appealed, and he urges several reasons for reversal. First, and most importantly, Lewis argues that the Trial Judge erred when he withdrew his order vacating the plea of guilty and the sentence. Nothing in the record, neither a transcript nor a minute entry therein, refers to the October 8th order of the Trial Judge in which he vacated the plea and sentence. On the other hand, a transcript of the hearing held later that day does refer to the order vacating the plea and sentence. It indicates that after the hearing, the Trial Judge recalled his order because he believed La.C.Cr.P. Art. 881 and 882 prohibit the withdrawal of a plea of guilty after sentence.

Articles 881 and 882, however, refer to amendment and correction of sentence, not to withdrawal of a plea of guilty, the subject of La.C.Cr.P. Art. 559. Art. 559 does permit a plea of guilty to be withdrawn, but only before sentence is imposed. Nonetheless, expanding concepts of due process and U.S. Supreme Court decisions — all having occurred since the adoption of Article 559 and the Code of Criminal Procedure— suggest that an exception to the blanket prohibition against withdrawal of pleas after sentence is required both by law and logic. An exception is required by law because a guilty plea is meaningless unless a rigorous procedure is followed both before and after the plea is entered. Counsel must ordinarily be present. Defendants must be advised of basic fundamental rights; waiver of these rights must be knowing and voluntary, and the minutes must reflect all of this. State v. Jones, 404 So.2d 1192 (La.1981). Beginning with State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977), this court has held that the trial court could properly vacate a plea of guilty even after sentence when it determined that the facts surrounding a guilty plea rendered it “constitutionally deficient.” Also, in State v. Galliano, 396 So.2d 1288 (La.1981), this court held that the Trial Judge had authority to grant a motion to vacate the sentence and to allow the withdrawal of a plea of guilty when the plea was not both volún-tary and intelligently entered. In that case the defendant had not been advised of the statutory minimum sentence, his knowledge of the consequences of the plea was questionable, and, therefore, the Boykin colloquy was constitutionally deficient.

These decisions indicate that there are exceptions to the blanket prohibition against withdrawal of guilty pleas, exceptions which are required not only by law, but also by common sense and reason. In these instances, when the plea is constitutionally deficient, it is only reasonable to permit withdrawal of that plea because it may be attacked on constitutional grounds, even after sentence, by a writ of habeas corpus. Hence, judicial economy obviously suggests that the Trial Judge should have jurisdiction to immediately conduct a hearing of the motion to vacate a plea even after sentence.

Turning to the instant case, in Lewis’s pro se motion, the styling of the motion is not important, but the content is. Lewis states in what he styled as a Motion to Withdraw Plea of Guilty:

“That at the time he withdrew his plea of ‘Not Guilty’ and pleaded guilty to the charge of manslaughter he was assured by his attorney that the Assistant District Attorney would recommend that he be placed on probation; that his attorney assured him that if he has a good record he would probably be placed on probation, if not probation, he would receive a lighter sentence.
That mover certainly would not have pleaded guilty if he had known that he would be given the maximum sentence of twenty-one years.”

In State ex rel. Clark v. Marullo, supra, this court held a similar motion should be considered as the equivalent of an application for writs of habeas corpus. In this case, whether or not Lewis’s motion is considered as habeas corpus or a motion to withdraw his plea, it is a request for a post-conviction remedy which attacks the constitutionality of the guilty plea. When a Trial Judge finds, even after sentencing a defendant, either that a plea of guilty was not entered freely and voluntarily or that the Boykin colloquy was inadequate, and that the plea, therefore, is constitutionally infirm, the Trial Court retains the authority to vacate the sentence and set aside the plea, notwithstanding Article 559. State v. Galliano, supra; State v. Banks, 383 So.2d 1009 (La.1980), State ex rel. Clark v. Marullo, supra.

In the case before us, although the Trial Judge initially granted Lewis’s motion to withdraw his plea and to proceed to trial, the record does not contain the Trial Judge’s reasons for ordering the plea vacated. Lewis’s motion in essence alleges that the plea was not voluntarily made and that it was induced. In his brief, Lewis’s counsel contends that he, counsel, was unintentionally misled by remarks made by the Trial Judge and that as a result, he then inadvertently misled Lewis. Hence, the Trial Judge may either conduct a hearing to determine whether the plea should be vacated or grant Lewis’s motion without a hearing. In any event, the Trial Judge has jurisdiction and authority to set aside Lewis’s guilty plea, and this is true even though the Boykin colloquy is otherwise more than adequate and well done.

Since the plea colloquy is but an objective method of ascertaining and preserving an accused’s state of mind, however, judicial inquiry need not focus solely upon the clarity of the words used. For this reason, a court, when called upon to do so through a recognized procedural vehicle, has the power, notwithstanding a record waiver of constitutional rights, to determine whether other factors present at the time of a guilty plea, whether inside or outside the plea colloquy record, were sufficient to render the plea involuntary or unintelligent. (Citations omitted).

State v. Galliano, supra, at 1290.

We, therefore, remand the case to the Trial Judge, who may either vacate the plea and proceed to trial or conduct a hearing on Lewis’s pro se motion.

Lewis raises two other issues on appeal. One of those issues deals with the excessiveness of the sentence imposed by the Trial Court. Because we hold that the case should be remanded, it is not necessary to consider whether the sentence was excessive.

Lewis’s attorney has his own appeal. He has attempted to withdraw from the case. The Trial Judge granted his motion to withdraw when he granted Lewis’s motion to withdraw the guilty plea, but the Trial Judge withdrew that order when he withdrew the order vacating Lewis’s plea, and he has re-appointed him as counsel to represent Lewis.

Defense counsel objects to being ordered to accept the appointment as counsel when there is an indigent defender’s board within that parish from which counsel could be obtained. Ordinarily, the Trial Judge has the inherent power to appoint lawyers to represent indigents, and the traditional and specific duty of the lawyer is to serve in this capacity. State v. Campbell, 324 So.2d 395 (La.1975). While this appointment is certainly not an error, counsel in the instant case may be called to testify for defendant during an evidentiary hearing, so the Trial Judge should have an opportunity to reconsider counsel’s motion to withdraw in order to avoid the awkward situation of defense counsel having to be both advocate and witness in the case.

For these reasons, we reverse and remand to the Trial Court for determination of whether defendant Lewis should be allowed to withdraw his guilty plea.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

Once a court of proper jurisdiction allows the defendant to withdraw his guilty plea, there is no authority for the court to later enter a guilty plea on behalf of defendant by recalling the first order. The matter is in the posture of no plea having been entered on behalf of the defendant and proceedings must continue from that point.

Therefore, I respectfully dissent from the order remanding the case to determine whether defendant should be allowed to withdraw his plea.

       Judges William H. Byrnes and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Pro Tempore, with Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . La.C.Cr.P. Art. 881. “Although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.”
      La.C.Cr.P. Art. 882. “An illegal sentence may be corrected at any time by the court that imposed the sentence. A sentence may be reviewed as to its legality on the application of the defendant or of the state: (1) In an appeala-ble case by appeal; or (2) In an unappealable case by writs of certiorari and prohibition. Nothing in this article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.”

      . La.C.Cr.P. Art. 559. “The Court may permit a plea of guilty to be withdrawn at any time before sentence.”


author: DAVID R.M. WILLIAMS, Justice Pro Tem.

text:
    STATE of Louisiana v. Ozey LEWIS.
    No. 82-KA-0697.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Cliffe Laborde, III, Asst. Dist. Atty., for plaintiff-appellee.
    Michael J. Johnson, Cottonport, for defendant-appellant.
   DAVID R.M. WILLIAMS, Justice Pro Tem.

On February 4, 1982, defendant Ozey Lewis pleaded guilty to a violation of La. R.S. 14:98, driving while intoxicated. It was his third offense in violation of this statute. He had previous convictions of driving while intoxicated (DWI) in April, 1978, and in October, 1979. The trial judge sentenced the defendant to one year in parish jail. The defendant reserved his right to appeal to this court under State v. Crosby, 338 So.2d 584 (La.1976) and now asserts one assignment of error: that his previous convictions for DWI should not be used to enhance the penalty for the present conviction because the minutes do not show that he was properly Boykin ized when he pleaded guilty to the prior offenses.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that a defendant who pleads guilty must knowingly waive three important constitutional rights: (1) The privilege against compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one’s accusers. A waiver of these rights cannot be presumed from a silent record. See also, State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

In the instant case, the minute entries contained in the record do not show that the defendant was apprised of his constitutional rights before his prior convictions. Because of this, the defendant claimed that he should not be charged with a third offense of DWI. In support of this assertion the defendant relies upon our decision in State v. Jones, 404 So.2d 1192 (La.1981). In Jones, the defendant entered a plea of guilty to a third offense in violation of La.R.S. 14:98. At issue before this court in Jones was whether the court minutes showing defendant’s two prior convictions of violations of this same statute would serve as a valid predicate for the third charge, although the minute entires did not show that defendant was Boykin ized. The Jones court held the Boykin and Jackson decisions applicable to a misdemeanor guilty plea later used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, thereby requiring that the defendant’s guilty pleas to prior offenses meet the requirements contained in those cases. Jones at 1195-96.

This court then addressed the question of retroactivity of the decision. The decision was held to be applicable to that particular case and to “pipeline” cases, i.e. those appeals filed and pending with this court on this issue, as of the date that the decision was handed down, September 10, 1981. The holding was to be applied only to guilty pleas entered after the decision became final, September 24, 1981. Id. at 1196. See La.C.Cr.P. art. 922.

This decision was later clarified in State v. Moore (82-KA-0800). In Moore, the defendant had entered a guilty plea on January 12,1981, to a second offense of prostitution, but had reserved her right to appeal. Because the Moore appeal was not pending in the Louisiana Supreme Court when Jones was rendered on September 10, 1981, and the guilty plea to the predicate offense was entered before September 24, 1981, the Jones requirements were not considered to be applicable to a determination of the validity of the plea to the predicate offense.

In the instant case, as in State v. Moore, supra, the appeal was not “in the pipeline” when the Jones decision was rendered, i.e. it had not been filed nor was pending with this court as of September 10, 1981. Furthermore, the two guilty pleas upon which the third offense of DWI is predicated in the instant case were entered into prior to the finality of the decision in State v. Jones, supra. Defendant’s two prior convictions of La.R.S. 14:98 may serve as a valid predicate for his prosecution for a third violation of the statute.

For the foregoing reasons, the decision of the trial court is affirmed.

AFFIRM.

       Judges Charles R. Ward, William H. Byrnes, III and David R.M. Williams, of the Court of Appeal, Fourth Circuit participated in this opinion as Associate Justices with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . The minute entry showing defendant’s first conviction does not indicate whether he pleaded guilty or was adjudged guilty. The distinction is irrelevant. He pleaded guilty to the second offense.