author: SHORTESS, Judge Ad Hoc . DENNIS, Justice,

text:
    STATE of Louisiana v. Dwayne David COLEMAN.
    No. 81-KA-1821.
    Supreme Court of Louisiana.
    March 1, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Abbott J. Reeves, Terry Johnson, Eugene Bouquet, Asst. Dist. Attys., for plaintiff-appellee.
    James B. Collins, Harold L. Thibodeaux, Lake Charles, for defendant-appellant.
   SHORTESS, Judge Ad Hoc .

Dwayne David Coleman (defendant) was charged by a Calcasieu Parish Grand Jury indictment with the second degree murder of Bill Carr, a violation of La.R.S. 14:30.1. On March 23-26, 1981, defendant was tried by a twelve-person jury, found guilty as charged and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies upon two assignments of error.

FACTS

As it was getting dark on November 10, 1980, defendant, along with Joe Lewis Perry, Juanita Boyce, and Barbara Briscoe left Houston, Texas, and proceeded towards Louisiana on Interstate 10 in defendant’s 1976 Eldorado automobile. Perry and defendant wanted to rob someone to get some money. They stopped at a rest area while in Texas about 40 miles from Beaumont, but a robbery attempt was unsuccessful. They continued to Louisiana and stopped at another rest area. Defendant and Perry went to the restroom, and then sat on a picnic bench to wait for a likely victim. A large 18-wheeler drove up. The driver, who was alone, got out of the truck, went to the restroom and then used the telephone. As he started back to his truck, Perry walked towards him while defendant went to the rear of the truck and came around the left side of the truck. As Perry demanded the victim’s money, defendant heard three or four shots and ran to the front of the truck where he saw the driver lying on the ground. Defendant said, “I think you done killed that man.” They hurried to defendant’s car and drove toward Lake Charles. Perry had taken the victim’s wallet containing about $200.00, which the two men split. After making several stops, they returned to Houston.

When defendant learned the police were looking for him, he surrendered to the Houston police, waived extradition, and voluntarily returned to Louisiana.

Assignment of Error No. 1

Defendant claims the trial judge erred in overruling his objection to the court’s use of the jury pool. Defendant and Perry were tried at the same time, in different sections of the court. A jury pool was drawn for both trials and then split into two venires. When prospective jurors were excused from the Perry trial, they were placed in defendant’s venire, and vice versa. Defendant argues that those prospective jurors excused from the Perry trial and placed into his venire knew that Perry had been charged with first degree murder and, therefore, were prejudiced against him.

The record indicates that as defendant’s case was called for trial, the trial judge instructed the clerk to unlock the metal jury box containing the names of the prospective jurors remaining after excusáis and those drawn for the section handling the Perry trial. The box was well shaken and the trial judge directed the deputy sheriff to draw nineteen names from the box. Prom this initial call, five were peremptorily challenged by the State, seven by the defendant, one was excused for cause, and six jurors were accepted and sworn. (Tr. 16).

Before another group could be called, the names of ten prospective jurors who had been excused from the Perry ve-nire were placed with the defendant’s ve-nire. Defendant objected to the inclusion of these names, but the trial judge overruled his objection, indicating that it was only a coincidence that two persons allegedly involved in the same offense were on trial in two divisions of court at the same time. (Tr. 19). The voir dire continued and thirteen names were drawn from the box. In this group were six who had been excused from the Perry venire. Five from this group of thirteen were seated and sworn as jurors, including Darrell Crochet and Harvey J. Istre, both from the Perry venire. The State peremptorily challenged four persons, including one who had come from the Perry venire, and the court excused four for cause, three of whom came from the Perry venire. The court then drew two more names. Defendant peremptorily challenged one more juror (Tr. 20) and the final juror, Joseph B. Chapman, Jr., was sworn. Chapman had come from the Perry venire. The court then ordered the selection of two alternate jurors. One of the alternates had also been on the Perry venire. In State v. Lemelle, 353 So.2d 1312 (La.1977), we held that an accused has no right to a trial by a particular jury or juror, but only to a trial by a competent, impartial jury. We also noted that drawing a separate venire for each section would obviate a repetition of these type objections. Again, we state that the better practice would be to have separate venires for each section, especially when severed defendants are being tried at the same time. We find no reversible error because defendant has shown no prejudice resulting from the use of the same jurors in two different sections of court. Additionally, we note that defendant did not exhaust his challenges. The record indicates he used eight peremptory challenges (Tr. 16, 20), so he could have challenged jurors Crochet, Istre and Chapman, and still not have exhausted his allotment of twelve. C.Cr.P. 799.

This assignment of error is without merit.

Assignment of Error No. 2

Defendant argues that the trial judge erred in overruling his objection to a witness’ testimony that he had been involved in an attempted armed robbery prior to the murder. One of the female occupants of the car, Barbara Briscoe, testified that defendant had been involved in an attempted armed robbery prior to the murder, at a different location. Defendant’s statement (Tr. 27) sets forth the complete circumstances and all the events which led to the murder of Bill Carr, including the attempted robbery earlier in the evening. In brief, defendant concedes that the testimony would be admissible under La.R.S. 15:445-448, but argues that the evidence was cumulative in nature, unduly prejudicial, and should have been excluded, although he admits that it did have probative value. The trial judge properly admitted this evidence, because it demonstrated intent, knowledge, and system. La.R.S. 15:445-446. State v. Harris, 383 So.2d 1 (La.1980). Barbara Briscoe’s testimony merely corroborated the defendant’s voluntary inculpatory statements and its probative value outweighed its prejudicial effect. This assignment of error is without merit.

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

LEMMON, J., concurs.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur, disagreeing only with the treatment of other crimes evidence issue.

       Judges Melvin A. Shortess, Burrell J. Carter, and Felix H. Savoie, Jr., of the First Circuit Court of Appeal participated in this decision as associate justices ad hoc, joined by Associate Justices Dennis, Blanche, Watson, and Lem-mon.


source: Caselaw Access Project

author: CARTER, Associate Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. Willie SIMS.
    No. 81-KA-1822.
    Supreme Court of Louisiana.
    March 1, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Carey J. Ellis, Jr., of Ellis & Ellis, Ray-ville, for defendant-appellant.
   CARTER, Associate Justice Ad Hoc.

This appeal involves judicial review of a criminal sentence for excessiveness in accordance with Article 1, Section 20 of the Louisiana Constitution of 1974. The defendant, Willie Sims, was charged along with Michael Williams and James M. Williams with simple robbery of J. C. Wilmore on December 29, 1979, and with simple burglary of the Tip Top Bar in Rayville, Louisiana, on the same date. Defendant first entered pleas of not guilty. On November 17, 1980, the not guilty pleas were withdrawn and the defendant pled guilty to both charges. He was “Boykinized” on this date and a pre-sentence investigation was ordered.

On May 27, 1981, Defendant Sims was sentenced to five years at hard labor on each count, the sentences to run concurrent. Appellant Sims now appeals to this court alleging that the sentence is excessive, setting forth in a single specification of error that the sentence given to him was considerably in excess of sentences given to two other parties charged with the same offense. The specification of error further states that the sentence is inconsistent with the facts and circumstances applicable to the defendant.

In sentencing the defendant the trial court thoroughly reviewed the facts of the case making certain that the defendant had committed the offenses in question. It also asked defendant questions concerning his prior record of two arrests as a juvenile. Defendant served two terms at the Louisiana Training Institute for attempted arson and auto theft. The trial judge, Judge John C. Morris, Jr., stated the following:

“The Court has studied the guidelines set forth in the Code of Criminal Procedure. In spite of your youth and in spite of the fact that this is your first felony offense since becoming an adult, in view of your previous record, which should have straightened you out, this Court has determined that a controlled environment, institutional care, is necessary if you are ever going to be rehabilitated and be turned into a useful citizen. I feel that your record justifies the offense — justifies the punishment that I intend to impose. I don’t know of any other way to correct you. A period of probation I do not feel with your previous record would rehabilitate you, and institutional care is necessary.”

The maximum sentence for simple burglary is twelve years and for simple robbery is seven years. Neither of the defendant’s sentences reached the maximum. However, this court has held that the imposition of a sentence, even though within the statutory limits, may violate a defendant’s right under the Louisiana Constitution against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge in this ease articulated specific reasons for the sentence in relation to the offender and the actual offense. Although he did not list every aggravating and mitigating circumstance in Louisiana Code of Criminal Procedure Article 894.1, this procedure is not necessary if the record reflects that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979).

The trial judge found as an aggravating factor that the defendant was in need of correctional treatment and a custodial environment. The defendant’s youth and his status as a first adult offender were factors mitigating against the term of imprisonment. None of the other mitigating factors in Article 894.1 apply in defendant’s case. Although the trial judge did not note each of these factors, it is not necessary that he do so. The record of the hearing establishes that he adequately covered the requirements of the Article and left a record by which this court may review the sentence for excessiveness. State v. Williams, 397 So.2d 1287 (La.1981).

Defendant contends that his sentence is excessive primarily because it exceeds the sentences imposed on two of his co-defendants by another trial judge of the same district. One co-defendant, James Williams, was sentenced before defendant was sentenced. He received a five year term of imprisonment, suspended, and was placed on active supervised probation for a period of five years. This sentence was recommended to the court by the Department of Corrections due to Mr. Williams’s excellent work record and favorable pre-sentence investigation report. Michael Williams, the other co-defendant, was sentenced to serve three years’ imprisonment on each offense, the sentences to run concurrent. Sims contends that since he received a five year sentence when Michael Williams received only a three year sentence, that his sentence is excessive.

The State submits that “this court cannot expect a judicial district involving several judges, all of whom understandably have different opinions concerning sentencing, to uniformly sentence several defendants in the same case.” The State further submits that the lesser sentence of three years given to Michael Williams was the result of a plea bargain and that, had there been no plea bargain, Michael Williams should have been sentenced to a term at least equal to the defendant’s sentence. We do not know whether Michael Williams has a prior record.

Although the court does not have before it the entire record in State v. Michael Williams and State v. James M. Williams, the information that it does have fully justifies the disparity in the sentences. Defendant Sims, with the present convictions, had a total of four convictions. Additionally, a sentence of incarceration was recommended by the Department of Corrections, and in the James Williams case, a suspended sentence was recommended. We also note that there was a plea bargain in the Michael Williams case which resulted in concurrent three year sentences. These factors are sufficient justification for the disparity in the sentence that each defendant received. This is not to say that disparity in sentences of co-defendants with similar backgrounds, charged with similar participation in identical crimes, may not be considered as a factor in determining whether a sentence is excessive and out of proportion to the severity of the crime. It is a factor that may be considered by this court, along with all other appropriate considerations, when there is no reasonable basis in the record for the disparity. A trial court has discretion in sentencing, and absent an abuse of that discretion, a sentence will not be overturned on appeal. State v. Spencer, 374 So.2d 1195 (La.1979).

As a general rule, a sentence is excessive “if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Bonanno, 384 So.2d 355-357 (La.1980). Although defendant is a first offender as an adult, he had two previous convictions as a juvenile. His record now contains a total of four convictions, namely, Attempted Arson, Auto Theft, Simple Burglary and Simple Robbery. The offenses in the present case included kicking, beating and robbing an elderly man.

There is ample justification in the record for the disparity of sentences of the co-defendants in the instant case, and we do not find the sentence to be excessive and grossly out of proportion to the severity of the crime. Under Louisiana Code of Criminal Procedure, Article 894.1 the sentence imposed upon Appellant Willie Sims was justified, especially in view of the gravity of the two felonies involving violence to person and property. The trial court properly looked to the defendant involved in these two crimes and appropriately tailored the individual sentence to the individual defendant.

Therefore, the conviction and sentence of Appellant are affirmed.

AFFIRMED.

WATSON, J., concurs in the result.

       Judges Melvin A. Shortess, Burrell J. Carter and Felix H. Savoie, Jr., of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Dennis, Blanche, Watson and Lemmon.

      . Pre-sentence Investigative Report Page 10

      . There are no facts available from the transcript but from the pre-sentence investigation report it appears that on December 29, 1979, the defendant and three other men were gathered outside of a bar in Rayville, LA. J. C. Wilmore, an elderly black man, was leaving the bar at approximately 3:00 A.M. when the four men followed him and robbed him of his money. At first Wilmore pulled a knife on them and they retreated. Then, Jessie Potts, one of the co-defendants, picked up a board and struck Wilmore knocking him to the ground. The four men then beat and kicked Wilmore and grabbed his wallet which contained approximately $3.00.
      After the men robbed Wilmore they went to Jessie Potts’ house and while they were there, decided to return to town and get more money. They eventually gained entrance to the Tip Top Bar by ripping some boards off the building. Once inside they broke into the juke box and pool table taking an undetermined amount of money. Upon leaving the bar, the men took over 100 bottles of whiskey. Officers Lester Staten and Eddie Graham were patrolling the area at approximately 4:30 A.M. when they noticed four black males carrying boxes which appeared to be heavy. When the four burglars realized that they had been seen, they dropped the boxes and ran. Officer Staten recognized two of the subjects, Michael Williams and James Williams. These two men along with the defendant and Jessie Potts were later arrested and charged with Simple Robbery and Simple Burglary.


author:
BURRELL J. CARTER, Justice Ad Hoc.
     MARCUS, Justice

text:
    STATE of Louisiana v. Lorena GOINER.
    No. 81-KA-1825.
    Supreme Court of Louisiana.
    March 1, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, P. Michael Cullen, Asst. Dist. Attys., for plaintiff-appellee.
    William R. Ary, New Orleans, for defendant-appellant.
   BURRELL J. CARTER, Justice Ad Hoc.

Defendant, Lorena Goiner, was charged by Bill of Information with knowingly and intentionally acquiring and obtaining possession of a controlled dangerous substance, Pentazocine, commonly known as Talwin, by fraud and deceit, in violation of La.R.S. 40:971, and in a second count she was charged with violation of La.R.S. 40:969 in that she did knowingly and intentionally possess a controlled dangerous substance, Talwin. Defendant Goiner waived a trial by jury, and on December 8, 1980, was found not guilty of the first count (obtaining possession of a controlled dangerous substance by fraud and deceit), but was found guilty of the second count of possession of Talwin. On February 23, 1981, she was sentenced to serve three years’ imprisonment. Appeal has been taken seeking reversal of her conviction and sentence with one assignment of error.

Defendant contends that the trial court erred in finding her guilty of possession of Talwin because there was no evidence that she possessed the drug illegally, and there was no evidence that she had “guilty knowledge” that the drug was a controlled dangerous substance.

Louis R. Capaci, owner of Driftwood Drugs, Inc., testified that on July 21, 1980, a black female brought in a prescription for Talwin. The prescription was in the name of Helen Johnson. Suspecting that the prescription was forged, Capaci told the female he did not have enough pills to fill the prescription. He dispensed 15 or 20 tablets and told her to come back the next day. He attempted to contact the doctor whose name was on the prescription but was unable to do so until the next morning, at which time he was advised that the prescription had not been written by the doctor. Capaci then called the police and told them that the female would be picking up the rest of the prescription around 5:30 P.M. (During the day defendant Goiner called several times to find out when she could come back and pick up the remainder of the prescription.) Upon receiving Capa-ci’s call, two policemen went to the store and arrested the defendant after she had paid for the prescription and was attempting to leave. At trial the defendant was identified as the person who originally brought in the prescription, received a partial filling of same and who picked up the rest of the Talwin on the next day. Capaci stated that after the prescription was filled, he placed the dispensing vial into a brown bag, then closed and sealed the bag. He could not recall having any conversation with the defendant regarding the contents of the prescription.

It is abundantly clear that defendant Goiner, the person arrested in the drugstore with the Talwin, (although not identified at the trial by Capaci), was the same person who originally obtained a partial filling of the prescription and who returned to obtain the rest of the narcotics.

Louisiana jurisprudence has firmly established that “guilty knowledge” is an essential element of the crime of possession of a narcotic drug. State v. Brown, 352 So.2d 690 (La.1977); State v. Elzie, 343 So.2d 712 (La.1977); State v. Green GMC Van, 354 So.2d 479 (La.1977); State v. Perique, 340 So.2d 1369 (La.1976); State v. Marks, 337 So.2d 1177 (La.1976); State v. Mims, 330 So.2d 905 (La.1976); State v. Knight, 298 So.2d 726 (La.1974); State v. Smith, 257 La. 896, 244 So.2d 824 (1971); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971); State v. Kreller, 255 La. 982, 233 So.2d 906 (1970); State v. O’Brien, 255 La. 704, 232 So.2d 484 (1970); State v. Williams, 250 La. 64, 193 So.2d 787 (1967).

Counsel for defendant contends that a person cannot be convicted of a drug offense without proof that he knew that the substance in his possession was an illegal drug. He asserts that there is no direct evidence here to indicate that the defendant had “guilty knowledge”. Counsel propounds the question, “How then can a person receiving a sealed brown paper bag from a pharmacist have guilty knowledge and this guilty knowledge amount to proof beyond a reasonable doubt?” Since the defendant here was found not guilty of obtaining drugs by fraud and deceit, she must, asserts counsel, be innocent of any guilty knowledge of the crime of possession of a controlled dangerous substance. Counsel further argues that, assuming every fact to be proved that the evidence tends to prove, that in order to convict, the evidence must exclude every reasonable hypotheses of innocence. La.R.S. 15:438; State v. Elzie, 343 So.2d 712 (La.1977).

Whether the accused knew the substance was a narcotic drug is a matter of proof by direct or circumstantial evidence. State v. Mims, 330 So.2d 905 (La.1976); State v. Perique, 340 So.2d 1369 (1976). The question of sufficiency of the evidence is a matter not for this Court, but for the jury or trial judge. However, the proof must be sufficient to convince the trier of fact of the existence of every element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Landry, 381 So.2d 462 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980).

The facts in the instant case are very similar to the factual situation presented in State v. Brown, 352 So.2d 690 (La.1977). In State v. Brown, defendant Brown was charged with possession of a controlled dangerous substance and additionally charged with obtaining a controlled dangerous substance with a forged prescription. After a jury trial finding Brown guilty, this Court reversed the convictions, holding that proof of an essential element of both offenses was lacking — knowledge that the prescription was forged (on the forgery charge) and knowledge that the prescription was invalid (on the possession charge). The facts briefly stated are as follows: On January 15, 1976, defendant Brown entered Briley’s Pharmacy in Winnfield, La., accompanied by Frank Williams, Jr. Due to an ongoing investigation of forged prescriptions of controlled dangerous substances, undercover narcotic agents were secreted behind the pharmacist’s counter. Apparently, suspected prescriptions had been left at the pharmacy the day before and had been brought to Officer Moreau’s attention. Trooper Robert Rigby was stationed at the courthouse across the street and two other officers patrolled the area. The four officers were in contact with one another by walkie-talkie.

Defendant Brown requested a prescription in the name of Pinkie Jones, and Williams requested a prescription in the name of A. D. Ruth. Mr. Briley, the pharmacist, filled both prescriptions and handed them to Brown and Williams while alerting Mor-eau by hand signal that these were the questioned prescriptions. Williams paid for the prescriptions and both Brown and Williams left. Law enforcement officers watched their movements and subsequently stopped their car, and Brown, Williams and Billy Chiasson, the driver, were arrested. Pink pills, readily observed scattered on the front seat and floorboards in the front and back of the car, were seized.

The Court reversed the convictions and remanded the case for a new trial stating that the only evidence offered in regard to “guilty knowledge” was proof that the prescriptions were forged, that defendant Brown along with Williams appeared at the store to pick them up, and that upon Brown’s arrest the pills were found scattered throughout the car. This Court stated that as a matter of law, this evidence was insufficient to prove the “scienter" element of the crime of forgery and that there was no evidence that the defendant knew the prescription was forged. This Court further stated that the same result necessarily followed in regard to the possession offense. In the Brown case, the State argued in its closing arguments that defendants Brown and Williams were the same parties who had taken the prescriptions on the day prior to their arrest, but there was no evidence in the record of the trial to prove this. In the instant case, it is clear that defendant Goiner was the party who brought the forged prescription to the pharmacist, obtained a partial filling of same and then returned the next day to obtain the rest of the prescription. Since the defendant obtained a partial filling of the prescription and was the same party who returned and was arrested obtaining the rest of the drugs, there is sufficient circumstantial evidence to show that the defendant knew the substance in the bag was Talwin, a controlled dangerous substance. However, in a possession case, when drugs are obtained by an invalid prescription, “guilty knowledge" is twofold. First, the accused must have knowledge that the substance he is obtaining is a controlled dangerous substance and second, he must have knowledge that such substance was obtained pursuant to an invalid (forged, etc.) prescription or order. R.S. 40:969 C provides:

“It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule IV unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, or as provided in R.S. 40:978 while acting in the course of his professional practice or except as otherwise authorized by this part....”

Although the State has met the first test, that is, has proven, by circumstantial evidence, that the defendant had “guilty knowledge” that she was in possession of a controlled dangerous substance, we find that the second requirement of “guilty knowledge” namely, knowledge that such substance was obtained pursuant to an invalid prescription or order (forged in this case) is missing. The trial judge, in fact, acquitted defendant Goiner of the charge of obtaining possession of a controlled dangerous substance by fraud and deceit and in so doing eliminated this essential element of the offense of possession of a controlled dangerous substance with an invalid prescription or order. There was no evidence, direct or circumstantial, to establish an essential element of the State’s case, namely, that defendant Goiner had “guilty knowledge” that the prescription was invalid. State v. Brown, supra, requires that this conviction be reversed.

REVERSED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I agree with the majority that the state proved that defendant had “guilty knowledge” that she was in possession of a controlled dangerous substance (talwin); however, I do not agree that the state has the burden of proving that defendant had knowledge that the substance was obtained pursuant to an invalid prescription or order. Rather, I consider it a matter of defense whether the substance was obtained pursuant to a valid prescription or order. Since defendant did not make such a showing in the instant case, she was properly convicted of unlawful possession. Accordingly, I respectfully dissent.

       Judges Melvin A. Shortess, Burrell J. Carter and Felix N. Savoie, Jr. of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus and Dennis.

      . It was stipulated at the commencement of the trial that the prescription was not written by Dr. Edward T. Krementz, and if he were called to testify, that he would testify that he did not write this prescription.

      . The following appeared in the record:
      R. pp 25:
      Q. Did you tell anything to the police when the black female entered the store?
      A. When she approached the register, as 1 recall, one of us recognized her_I recognized her and I told the police that this was the lady that had brought the prescription in on the previous day.
      R. pp 28, 29
      Q. Now, when the scrip was given or when you received the scrip yourself, did you speak with the person who had dropped it off, to your knowledge?
      A. To my knowledge, I don’t remember_the only thing that I remember is that when the prescription came across the counter. I do remember looking up and noticing who the lady was that passed the prescription_I also remember that she was the same person that picked the prescription up the following day.
      R. pp 32, 33
      Q. Was the person seated next to me the person that picked the prescription up on the twenty-second?
      A. I can’t tell you for sure if it was. The only thing I can remember is that that person that dropped the prescription off was the person that picked it up and too much time has lapsed...I just can’t remember if she is, in fact, the lady that picked the prescription up or not.


author: CALOGERO, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Vernon WAGNER.
    No. 81-K-1886.
    Supreme Court of Louisiana.
    March 1, 1982.
    Milton Masinter, Dwight Doskey, Craig Colwart, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, John H. Craft, Asst. Dist. Attys., for plaintiff-respondent.
   CALOGERO, Justice.

The trial judge, who six weeks earlier had placed defendant on active probation for two years after suspending a six month prison sentence imposed when defendant pled guilty to simple battery, conducted a “status hearing” and ordered defendant to serve one month in parish prison as an additional condition of his probation.

Defendant contends that the trial court erred in imposing the one month jail term as a condition of his probation. He argues that a jail term should not be imposed without a prior finding that he violated his probation, and further, that the imposition of jail time as a condition of probation is simply not authorized at all in misdemeanor cases.

The state contends that defendant violated his probation by sending letters and “obscene” pictures of his former girlfriend to her new boyfriend and, therefore, the jail term was a result of a probation revocation, although only partial. In the alternative, the state argues that a term of imprisonment may be added as a probation condition in misdemeanor cases.

We are not persuaded by the state’s argument that the imposition of the jail term was the result of a partial revocation of defendant’s probation. There is nothing in the record before us that indicates that a probation revocation hearing was conducted. There is no copy of a warrant for the defendant’s arrest, nor is there a copy of an issued summons charging defendant with violating his probation, as required by La.C. Cr.P. art. 899. In fact, to the contrary, the court minutes state that a “status hearing” was conducted at which the “court amended the defendant’s sentence and conditions of probation.” The judgment imposing the jail term is entitled “Amendment to Sentence and Conditions of Probation” and there is provided therein, “[wjhereas, the court after considering the evidence presented in this matter this day has added two other special conditions to defendant’s probation.... ” The record makes no mention that a revocation hearing took place, or that the “evidence presented” supported a finding that defendant violated any of the conditions of his probation.

Therefore, the question presented is whether a one month jail term may be imposed as an additional condition of defendant’s probation without a prior determination that defendant had violated the probation conditions originally imposed.

Since we have determined that the action of the court in this case was not a result of probation revocation proceedings, we must assume that the hearing was conducted under the authority of La.C.Cr.P. art. 896, which allows the court to change or add conditions of probation in appropriate cases.

La.C.Cr.P. art. 896 provides:

The court may, at any time during the probation period, modify, change, or discharge the conditions of probation, or add further conditions authorized by Article 895.

There is no requirement in that article that it must first be shown that the defendant violated the conditions of his probation before the conditions can be amended. Because the offender is under the continuous supervision of the court when he is placed on probation, this article allows the court, without a prior finding that the defendant has violated his probation, to amend the conditions of the probation when necessary. However, the statute does not give the trial judge unlimited authority. It provides that the only conditions that may be added are those authorized by La.C.Cr.P. art. 895; and, of course, in all cases in which imprisonment results, due process must be afforded.

La.C.Cr.P. art. 895, which refers to the conditions of probation which may be imposed, provides:

A. When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following:
That the defendant shall:
(1) Make a full and truthful report at the end of each month;
(2) Meet his specified family responsibilities;
(3) Report to the probation officer as directed;
(4) Permit the probation officer to visit him at his home or elsewhere;
(5) Devote himself to an approved employment or occupation;
(6) Refrain from owning or possessing firearms or other dangerous weapons;
(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court;
(8) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons, or
(9) Remain within the jurisdiction of the court and get the permission of the probation officer before any change in his address or his employment.
B. In felony cases, an additional condition of the probation may be that the defendant shall serve a term of imprisonment without hard labor for a period not to exceed one year.
C. The defendant shall be given a certificate setting forth the conditions of his probation and shall be required to agree in writing to the conditions.

Defendant contends that La.C.Cr.P. art. 895 only authorizes the court to impose imprisonment as a condition of probation in felony cases. The court is thus implicitly not authorized to do so in misdemeanor cases.

Support for defendant’s argument can be found in the Official Revision Comments to La.C.Cr.P. art. 895. Therein it is noted that part (B) of Article 895, authorizing imprisonment as a condition of probation in felony cases, was added to the statute in direct response to a 1973 opinion by the Attorney General which stated that the courts were not authorized to impose imprisonment as a condition of probation in either felony or misdemeanor cases in the absence of amendment to La.C.Cr.P. art. 895 specifically allowing it. Thereafter, by Act. 211, § 1, of 1974, the Legislature did amend La.C. Cr.P. art. 895 to authorize the imposition of imprisonment as a condition of probation in felony cases only.

This precise issue has recently been addressed by this Court. State v. Upton, 382 So.2d 1388 (La.1980). Therein a unanimous Court, in a per curiam opinion, held that the sentence of a defendant convicted of a misdemeanor was illegal where he had been ordered to serve six months in prison as a condition of his probation:

[WJhile Art. 894 also provides for ‘such conditions [of probation] as the court may fix,’ La.C.Cr.P. art. 895 governing general conditions of probation for both misdemeanors and felonies specifically reserves the condition of time spent in jail (‘not to exceed one year’) to ‘felony cases.’ 382 So.2d 1388, at 1389.

Therefore, we find merit in defendant’s argument that imposition of a prison term as a condition of probation in misdemeanor cases is not authorized by La.C. Cr.P. art. 895, and, thus, such a condition could not be added to his probation.

We also find the imposition of the one month prison term illegal in this case because it exposes the defendant to a greater prison term than is permitted by the statute he violated.

Defendant pled guilty to simple battery. La.R.S. 14:35. The maximum penalty provided for the crime is six months imprisonment. He was sentenced to serve six months in parish prison, suspended. Requiring defendant to serve one month imprisonment (in this case, as an additional condition of probation) exposes defendant to the risk of serving seven months in jail in the event his probation should be revoked. Seven months exceeds the maximum prison term authorized by R.S. 14:35.

Decree

The judgment of the district court of July 16, 1981, insofar as it orders relator Vernon Wagner to serve one month in parish prison as an additional condition of probation, is reversed and set aside.

REVERSED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

I agree that a trial judge cannot order a jail term as an additional condition of probation six weeks after sentencing, unless the trial judge conducts an adversary hearing after due notice and determines that defendant’s conduct during the period of probation justifies the imposition of this additional and more restrictive condition of probation. Compare C.J.P. Arts. 91,92 and 93 with C.Cr.P. Arts. 896, 899 and 900.

However, I do not agree that it is necessary for the trial judge to determine that defendant has actually violated his original conditions of probation in order to modify the terms of probation to include a jail term as an additional condition.

Probation is such a discretionary matter, from beginning to end, that the trial judge must be accorded virtually unlimited discretion, subject only to procedural due process requirements and to limitations against arbitrary decisions. But when notice and opportunity to be heard has been provided, the trial judge should be permitted to take any action pertaining to probation that is not capricious. See State v. Lassai, 366 So.2d 1389 (La.1978).

In the present case the trial judge may still conduct a hearing and may impose a jail term if the evidence establishes that defendant’s conduct during the period of probation justifies such action as “reasonably related to rehabilitation.” C.Cr.P. Art. 895. But the trial judge exceeded his authority by doing so without affording notice and an opportunity to be heard. See State v. Harris, 368 So.2d 1066 (La.1979).

      . Following the “status hearing” two additional conditions were imposed:
      (1) that defendant serve one month in parish prison; and
      (2) that defendant not contact Mrs. Beverly Kearney by phone or otherwise.
      The originally imposed conditions of defendant’s probation were those set out in La.C.Cr.P. art. 895, and the special conditions that defendant make restitution to the victim for medical costs, that he remain in the Substance Abuse After Care Program for a period of one year, and that he actively participate in A.A.

      . We note that this aspect of the Upton decision has recently been called into question where the jail term is imposed contemporaneously with the suspension. State v. Guillory, 404 So.2d 453 (La.1981), Lemmon, J., concurring. That of course is not the case here. The jail term in this case was not imposed at the outset, but rather six weeks after the original sentencing. It can only be viewed as that which it was, i.e., a condition of probation, unlike the Guillory situation, where the jail term was imposed contemporaneously with the suspension, and considered equivalent to the partial suspension of the sentence, which is authorized by La.C.Cr.P. art. 894.

      . This case is clearly distinguishable from State v. Guillory, 404 So.2d 453 (La.1981), in which this court unanimously held that the trial court had authority, at the time of initial sentencing in misdemeanor cases, to impose a jail term with part to be served and part to be suspended. This type of sentence, while arguably constituting the imposition of a jail term as a condition of probation, is expressly authorized by C.Cr.P. Art. 894, which permits the trial court in misdemeanor cases to suspend the imposition or execution of the whole or any part of the sentence in placing the defendant on probation.

      . The amended sentence must be set aside in any event, because it is illegal in that it may be interpreted to expose defendant to seven months imprisonment, which is more than the statutory maximum. Of course, if the added condition of probation were otherwise legal, it would be a simple matter for the trial judge to clarify his probable intent that the one-month imprisonment is part of the six months originally imposed, so that only five months would remain to be served if probation is violated after the one-month period is served.


author: SHORTESS, Justice Ad Hoc.

text:
    STATE of Louisiana v. Hilton J. WRIGHT and Joel Morrison.
    No. 81-KA-1938.
    Supreme Court of Louisiana.
    March 1, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Thomas Chester, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Bernard S. Dolbear, Ronald J. Harris, New Orleans, for defendant-appellant.
   SHORTESS, Justice Ad Hoc.

Hilton J. Wright and Joel Morrison were charged by bill of information with the armed robbery of Robert Hingle on October 14, 1978, at Thorning’s Pharmacy in the Algiers section of New Orleans, a violation of La.R.S. 14:64. Both defendants were arraigned in February of 1979 and pled not guilty. Wright and Morrison filed motions to suppress identification, which were denied. After trial by a 12-person jury, defendants were both found guilty as charged. Subsequently, the State filed multiple bills against each defendant. Morrison was sentenced as a second offender to serve forty years at hard labor with the Department of Corrections. Wright was also determined to be a second offender and was sentenced to serve forty years at hard labor. From these convictions and sentences, defendants appeal.

Around 10:00 a. m. on October 14, 1978, Thorning’s Pharmacy was robbed by three armed black men who wore masks or silk stockings over their faces. One of the robbers was tall, slender and dark-skinned and wore a green army fatigue jacket over blue jeans. He held a red bandanna or handkerchief over his face up to his eyes. Another robber was short, slender, and lighter skinned with rough complexion and wore a stocking over his face. The third robber could not be identified and was never found. Three employees were at the pharmacy at the time of the robbery: Robert Hingle, the pharmacist; Mrs. Edward O’Keefe, a clerk; and Mrs. Olivia Macklin, a delivery person. None were able to get a clear enough look at the robbers’ faces to positively identify either Wright or Morrison at trial.

Initially, Hingle was told to lie down on the floor. Then he was ordered to get Talwin and Pyrobenzamine tablets, which he kept in the back of the pharmacy. When he got the requested drugs he was then told to get Preludin and finally Valium. When he returned from the back with the Valium, the robbers were gone.

Just prior to the robbery, Robert and Marie Latzenhiser, husband and wife, were in their car stopped at the red light at the intersection of Burman and Newton right in front of Thorning’s. Their attention was drawn to two suspicious black men standing near Thorning’s door staring at them. The men watched the Latzenhisers until the light turned green and they drove away. Only then did the men enter the pharmacy. The Latzenhisers noticed that the taller of the two men was wearing an army field jacket, army fatigue boots and blue jeans. The shorter man had on a grayish hat, a pinstripe suit and vest, and had a rough, scarred complexion. He had a big gold earring in his left ear. The Latzenhisers were so impressed by the unusual behavior of the two men that they thought of calling the police, but being unsure, went on to their destination a short distance away. They returned minutes later and saw a police car in front of Thorning’s. They stopped and told the investigating officers what they had seen. Thereafter, in photographic and/or physical line-ups, Marie Lat-zenhiser identified both Wright and Morrison as the two men she had seen in front of Thorning’s. Robert Latzenhiser identified Hilton Wright. Both defendants were identified by the Latzenhisers at trial.

Jane Jones, her mother and her sister were stopped at a red light at the corner of Burman and Newton around 10:00 on the same morning, when they saw three men run out of Thorning’s. One was tall and wore a green army jacket. Another was short and wore a blue suit and hat. When the light changed, the Jones’ ladies passed the three men, pulled over to the side of the street, saw them jump into a yellow car which was half a block away and drive off. As the car, a 1953 four-door yellow Buick, passed them, Jane Jones wrote the license number in her checkbook. The ladies then went to the drugstore and turned this information over to a police officer. A description of the yellow car and its license number was then broadcast over the police radio.

Clifford Burnham, an officer with the New Orleans Police Department, testified that he received the description of the yellow vehicle and recognized it as belonging to Joel Morrison. Burnham and his partner drove to the Fisher Housing Project where they had seen this vehicle on previous occasions. They located the vehicle soon thereafter, watched it for a few minutes until a man came out, got in it, and drove away. They pursued the vehicle, stopped it after it traveled about a block and a half away, and accosted the driver, Kevin Straughter. Straughter testified that on October 14, 1978, Morrison asked him to “pick up his old lady and wash his car.”

Later, after a search warrant was obtained, the vehicle was searched. Part of a ladies’ stocking, a red handkerchief, and a green army jacket were found. Additionally, Merlin Lindsey, an officer of the New Orleans Police Department, assigned to the latent fingerprint section, testified that he dusted the vehicle for prints and. was able to retrieve from the inside of the passenger window a relatively fresh print which he identified as being from the left thumb of Hilton J. Wright.

Joel Morrison’s defense was one of alibi. The contention made by his witnesses was that Morrison had loaned his car to Joseph Kent Caston and was at his mother’s house when the crime occurred. Barbara Bissand testified that Morrison was at his mother’s house between 10:00 and 10:25 a. m. on the day of the robbery; that during that time Caston returned the car to Morrison; and that two other men were with Caston but were waiting for him in another car. Cindy Pigg corroborated much of Ms. Bissand’s testimony.

Assignment of Error No. 1 by Wright

Basically, Wright contends that there was insufficient evidence to convict him for armed robbery. He argues that none of the witnesses in the drug store identified him. That contention is incorrect. Olivia Macklin, the delivery woman, tentatively identified him from a set of photographs. At trial she testified that she told the police officer:

“The man in the photograph resembles the person who held up the drug store.” (Vol. II, pp. 64-65, 174).

Two other witnesses, Robert and Marie Lat-zenhiser, positively identified Wright as one of the men standing outside the drug store moments before the robbery. Additionally, Wright’s fingerprints were found on the passenger side of Morrison’s vehicle, which was identified by the Jones’ ladies as the one used in the robbery.

When viewing this evidence in the light most favorable to the State, we find that a reasonable and rational trier of facts could have found beyond a reasonable doubt that Hilton Wright participated in the robbery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2783, 61 L.Ed.2d 560 (1979).

This assignment of error is without merit.

Assignment of Error No. 2 by Wright

Wright argues that the trial court erred in denying his motion to suppress the identification made by Olivia Macklin. Eleven days after the robbery, Detective Sandy Gavin showed Ms. Macklin a photographic line-up. Although she could not positively identify anyone, she did choose a picture which she said “resembles” one of the robbers. The trial court denied this motion after finding that:

“There is really no identification; it’s a tentative-type thing.” (Vol. II, p. 30).

At trial, Ms. Macklin again stated she chose a photograph of someone who, “.. . resembles the person who held up the drug store.” (Vol. II, p. 30). The defense objected to the introduction of the picture she chose and argued that, “This is no identification; the lady just says he resembles ... . ” (Vol. II, p. 64). The court overruled the objection. Defendant contends here that the photograph admitted into evidence was not material to the case. Obviously, a witness’s identification of a perpetrator of an armed robbery is material no matter how vague the identification.

Wright does not argue that the line-up procedure was impermissibly suggestive. Instead, he seems to be arguing that Ms. Macklin’s vague identification unduly prejudiced him by placing him at the scene of the crime. No in-court positive identification was ever made by Ms. Mack-lin. The State argues that Wright’s attack addresses itself to the credibility of the witness, rather than the admissibility of the evidence. We agree. The weight to be given a witness’s testimony is an issue which must be determined by the finder of fact. State v. McZeal, 352 So.2d 592, 597 (La.1977). Testimony concerning partial or tentative identifications or statements that the offender “resembles” the accused are admissible into evidence. The doubtful or inconclusive nature of the identification is a matter which goes to the weight rather than the admissibility of the evidence. Compare State v. McZeal, supra., State v. Jackson, 337 So.2d 508 (La.1976). This assignment of error is without merit.

Assignment of Error No. 4 by Wright

Wright contends that the trial court erred in curtailing the cross-examination of State witness Robert Latzenhiser who had identified him as one of the men outside of Thorning’s. On cross-examination, defense counsel asked Latzenhiser how long he had lived on Houma Boulevard. The State objected to the relevancy of this question and the court sustained the objection. Counsel then asked Latzenhiser where he was working at the time, and the court, sua sponte, excluded that question as being irrelevant. On appeal, counsel now argues that the witness’s occupation and his length of residence in the area were:

“... valid areas of examination to allow the jury a better view of the witness and to enable the jury to evaluate his testimony and the weight to be ascribed such testimony.” (Wright’s brief, p. 6).

These reasons were not given to the trial judge at trial. Further, the State argues that the questions were totally irrelevant to Latzenhiser’s identification of Wright. La. R.S. 15:275 vests the trial judge with sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness. Even if the trial court erred by preventing such cross-examination, Wright has shown no prejudice resulting from that ruling and is not entitled to a reversal. C.Cr.P. Art. 921.

This assignment of error lacks merit.

Assignment of Error No. 5 by Wright

Wright argues that the trial judge erred in not permitting the predicate of an objection into the record. The following colloquy is the basis for this objection:

MR. CHESTER: Your Honor, at this time, the State would offer, file, and introduce into evidence what’s previously marked as State’s Exhibit 1, the part of the stocking.
MR. DOLBEAR: Objection, State’s 1_
THE COURT: Yes. Let’s say what you’re objecting to as we go along.
MR. DOLBEAR: All right, sir. We’re going to object to number one. First of all, it has not been identify (sic) as been (sic) anything to do with this particular case. We had one lady say—
THE COURT: Wait. Just make the legal objection.
MR. DOLBEAR: I’m making a particular objection.
THE COURT: No, you can’t make a fac-tial (sic) objection, just give a legal bases (sic).
MR. DOLBEAR: All right. I object to the lack of relevancy, competency, and materialality (sic), based on the testimony of the witness who it was presented to for identification.
THE COURT: Okay. What about your (sic), Mr. Lemoine?
(Vol. II, pp. 186-187).

Wright contends that the stocking was not identified by Olivia Macklin at trial. However, Detective Gavin testified that the stocking had been retrieved from Morrison’s vehicle. As such, it was material. The car had been seen at the scene of the crime and the stocking was in the car. Witnesses identified Wright as the perpetrator of the offense, and the victims of the crime testified that the perpetrators wore stockings over their faces.

Counsel contends that the trial judge prevented him from complying with C.Cr.P. Art. 841 which requires that the basis of an objection be made known to the judge at the earliest possible opportunity. Counsel attempted to argue the facts but the judge ordered him to state the legal objection to the evidence. Wright’s right to appeal that alleged error was preserved by his objection that the stocking was irrelevant, incompetent and immaterial evidence.

No error occurred here, and this assignment of error is without merit.

Assignments of Error Nos. 1, 8, 4, 5, 7 and 8 by Morrison

Morrison contends that the trial judge erred in denying his motion to suppress identification. He argues that the line-up held January 31, 1979, was improper and resulted in a denial of his due process right to a fair trial. This contention is based on his assertion that a police officer suggested to the witnesses that an arrested subject would be in the line-up. He also argues that the identification should have been suppressed because the physical and photographic line-ups were so suggestive as to taint all subsequent identifications. Defendant argues in brief that the Latzenhis-ers were told that the second suspect in the robbery would be in the January 31 line-up. He cites Robert Latzenhiser’s testimony at the motion to suppress for that contention. A review of that testimony only shows that Latzenhiser said, “They just said they wanted us to look at these people to see if we could pick out the second person.” (Vol. II, p. 23).

When asked, “Did they tell you they had someone in custody whom they suspected to be the second person?”, Latzenhiser stated, “No, not that I remember.” (Id.). Defendant’s contention has no factual basis. Even if it did, in State v. Stewart, 389 So.2d 1321 (La.1980), we held that a statement by police officers to a victim of a crime that they have a suspect and they would like the victim to view the photographs or attend a line-up, “... does not constitute suggestiveness, for it is generally assumed if one is called to examine a photographic or physical line-up that there is a suspect in the crowd.” At the January 31 line-up, Marie Latzenhiser picked out Joel Morrison and identified him as one of the men she had seen outside Thorning’s on the morning of October 14, 1978, but Robert Latzenhiser did not identify anyone in this line-up.

In his fifth assignment of error, Morrison contends that the trial court committed reversible error in allowing the Assistant District Attorney to establish the presence of defendant’s attorney at the pretrial line-up. However, in brief defendant’s argument appears to be that the trial court erred in refusing to allow him to question Marie Latzenhiser concerning whether she or her husband had seen defense counsel at the courthouse with the defendant on the day of the second line-up. Counsel argues that the Latzenhisers knew he was defendant’s attorney. This fact was not established by the record. Marie Latzenhiser testified that the only time she saw Morrison on January 31, 1979, was, “... when he came out of the door, in the line-up.” (Vol. II, p. 15).

At trial, the State asked a police officer whether defense counsel was present at the line-up. Defendant objected on the grounds that it was irrelevant. The court overruled that objection and defendant argues on appeal that he was unduly prejudiced by the introduction of this evidence. The trial judge has broad discretion in determining relevancy. State v. Nero, 319 So.2d 303 (La.1975). Here, defendant does not show any prejudice occurred from the introduction of this evidence.

In'- his eighth assignment of error, defendant contends that the photographic line-ups were unduly suggestive and the subsequent in-court identifications were the products of prior line-ups. Defendant does not explain how those line-ups were suggestive. His brief appears to contend that the witnesses had an idea of the perpetrator’s identity all along and he argues that the police knew that Morrison’s car was involved in the robbery and therefore the identification of Morrison was only a formality, no matter what evidence the police had. The witnesses in this case stated they were not told that a person had been arrested as a suspect. No suggestions were made to them when they viewed the line-up. There is no evidence here that a substantial likelihood of misidentification occurred in any of the line-ups in this case. A line-up is unduly suggestive if the identification procedure displays the defendant so that the witness’s attention is focused directly on him. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). Such was not the case in the line-ups involved here.

In assignments of error nos. 3 and 4, Morrison contends that the trial judge erred in allowing the Latzenhisers to make in-court identifications of him. He contends that Robert Latzenhiser failed to identify him in several physical and photographic line-ups and that Marie Latzenhiser had not identified him at two prior photographic line-ups. and only at a physical lineup. When the witnesses were asked to identify the defendants in court, no objection was made by defense counsel. Absent a contemporaneous objection, that error is not reviewable on appeal. C.Cr.P. Art. 841.

It is established in the jurisprudence of this State that a witness’s failure to identify an accused at a pretrial line-up does not render a later in-court identification inadmissible, and that failure to identify a suspect at a pretrial line-up is a matter which addresses itself to the weight of a witness’s testimony rather than its admissibility. State v. McZeal, supra., State v. Batiste, 318 So.2d 27 (La.1975).

These assignments of error lack merit.

Assignment of Error No. 2 by Morrison

Here, Morrison contends that the trial court committed reversible error in allowing “non-identification” of Hilton Wright to be introduced into evidence. This argument is the same as Wright’s assignment of error No. 2 which earlier was determined to be without merit. Furthermore, Morrison makes no showing of how such identification prejudiced him, and this assignment of error lacks merit.

Assignment of Error No. 6 by Morrison

Morrison maintains that the trial court erred in allowing the district attorney to comment at trial upon his failure to pick his automobile up from the automobile pound, thus creating an inference that he was guilty. He also contends that his constitutional rights not to testify as well as his privilege against self-incrimination were violated thereby. The record (Vol. II, p. 200) reveals that the following colloquy took place during cross-examination of Ms. Katherine Smith, Joel Morrison’s sister and a defense witness:

Q ... you knew it (the car) was in the pound, right?
A Yes.
Q Did you discuss with him where the car was, and maybe he should go try to get it out of the pound?
A No, I did not.
Q Did you find it unusual that he had a 1973 Buick that was in the police auto pound and he wouldn’t go recover it?
A Well, no I didn’t.
MR. LEMOINE: I think he’s asking for a conclusion.
THE COURT: Yes.

Defense counsel’s objection to this testimony was maintained by the court but was based on grounds dissimilar to those urged here. It is settled that a new basis for an objection cannot be substituted on appeal, and that only the grounds made known to the trial judge at the time of his ruling may be relied on by this court. State v. Baylis, 388 So.2d 713 (La.1980); State v. Woodard, 387 So.2d 1066 (La.1980).

Clearly, Morrison’s fifth amendment rights against self-incrimination were not violated here. He was not forced to testify or give evidence against himself. The privilege against self-incrimination protects the accused only from compulsion to testify against himself. State v. Wilson, 329 So.2d 680 (La.1976).

This assignment of error lacks merit.

For the above and foregoing reasons the convictions and sentences herein are affirmed.

AFFIRMED.

      Judges Melvin A. Shortess, Burrell J. Carter, and Felix H. Savoie, Jr., of the First Circuit Court of Appeal participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon, and Associate Justices Calogero, Marcus, and Dennis.

      . Caston died prior to Morrison’s trial. (Vol. II, p. 219).

      . This fact should in itself refute the allegation that any suggestiveness took place.


text:
    STATE of Louisiana v. Gary JUENGAIN.
    No. 81-KA-1951.
    Supreme Court of Louisiana.
    March 1, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Harry Hardin, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Robert T. Garrity, Jr., New Orleans, and Joseph L. Montgomery, Metairie, of Indigent Defender Bd., for defendant-appellant.
   SHORTESS, Justice Ad Hoc.

Gary Juengain (defendant) was charged by bill of information with the crime of receiving stolen things, a violation of La. R.S. 14:69. On July 22-23, 1980, he was tried by a six-person jury, found guilty as charged, and then sentenced to serve six years at hard labor. On appeal, defendant relies upon two assignments of error.

Thomas Cordes, an undercover agent for the New Orleans Police Department testified that he was working for the Metropolitan Crime Strike Force at 3025 Ridgelake in Metairie on May 12, 1979, when James Carney telephoned and offered to sell him some $1600 worth of travelers checks for $500.00; that Carney and defendant met him at 3025 Ridgelake around 3:10 p.m.; that defendant produced $910.00 in travelers checks and Carney had $700.00 worth; that he offered a total of $300.00 for all the checks but defendant held out for $500.00; that at one time during the negotiations, defendant turned around as though he was going to leave but the deal was finally consummated for $500.00 which he gave to defendant; that after the deal was completed he turned the checks over to Richard J. Seigel, another agent, to preserve for evidence; that the entire transaction was videotaped by Nelson Juneau, a deputy sheriff for Jefferson Parish; and that these tapes were preserved and used in evidence.

Barron Daniel, a special agent with the Inspector’s Office of the American Express Company, was called as a State witness. He testified that he had been assigned to investigate a report of lost or stolen travelers checks belonging to Susan Bayer Libow-itz, which his company had to replace; that in connection with his investigation, he obtained certain business records of American Express Company that pertained to reports of stolen or lost travelers checks; that the procedure for reporting lost or stolen travelers checks requires a customer to telephone a toll-free number in New York City; that a report is made at that time which contains the customer’s name, address and the numbers on the lost, stolen or misplaced checks; that the report also includes information as to where the checks were purchased, when they were discovered lost, and other personal information about the customer; that this information is then fed into a computer system, hopefully to prevent further negotiation of the checks. Notwithstanding timely objection from the defendant that these documents contained hearsay and were not the best evidence, Daniel was permitted to testify that the documents he received indicated that the checks had been stolen. Then after interrogation by the trial judge which established that Daniel was not testifying from original reports and that the copies he had were not made in his department under his direction and control, he sustained defendant’s hearsay objection. Agent Daniel was then asked by the Assistant District Attorney if he conducted an investigation pertaining to certain stolen travelers checks reported by a Ms. Bayer, and Daniel indicated that he had. The judge overruled the hearsay objection and permitted Daniel to testify as to his investigation. His investigation involved an examination of the same American Express records which had previously been ruled inadmissible, and a talk of some sort with Ms. Bayer and her mother.

Against advice of counsel, defendant took the stand in his own defense. He testified that on March 12, 1979, he was cutting grass for an old crippled man when Jerry Lockhart, a friend, interrupted him; that Lockhart had a stack of what he believed to be either coupons, foreign currency or food stamps; that as he and Lockhart discussed the matter, James Carney walked up and told them he knew where they could get $500.00 for the coupons; that he and Carney left Lockhart to finish the grass and drove to 3025 Ridgelake in Metairie where he, after considerable negotiation, obtained $500.00 in cash for the checks; that he did not know the checks were stolen or their value; that he kept $200.00, gave $200.00 to Carney (since deceased) and $100.00 to Terry Lockhart.

Assignment of Error No. 1

Four elements of proof are required to convict under R.S. 14:69, receiving stolen goods:

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

The element in question here is whether the checks were the subject of any robbery or theft. Defendant argues that the trial judge erred when he admitted hearsay testimony as proof that the checks had been the subject of any robbery or theft. Despite timely objections, agents Cordes and Juneau both testified that the travelers checks were stolen. Neither agent had first-hand personal knowledge of this fact but relied upon information given them by the American Express agent, Daniel.

Daniel’s conclusions came from his examination of copies of certain business reports and records which he obtained from his employer, none of which were prepared by him or by his department under his direction and control. In State v. Perniciaro, 374 So.2d 1244, 1247 (La.1979), we set forth the following requirements relative to the business records exception in a criminal case:

In response to scholarly skepticism toward a broad regular course of business exception in criminal cases, which might violate a defendant’s constitutional right to confrontation, see Pugh, The Work of the Louisiana Appellate Court for the 1971-1972 Term, Evidence, 33 La.L.Rev. 306, 318-19 (1973), this court recognized and applied a restrictive formulation of the common law business records exception in criminal cases. In State v. Monroe, 345 So.2d 1185 (La.1977), we stated:
“ * * * Before the exception may be invoked by the State against the defendant, allowing introduction of a permanent record made in the ordinary course of business from personal knowledge of the facts recorded, or from information furnished by one having a business duty to observe and report the facts, it must be shown that the person who made the record is genuinely unavailable for testimony, that he had no strong motive to misrepresent, and that in all probability the evidence is trustworthy. * * * ” 345 So.2d at 1190.
In view of the constitutional right of an accused to confront and cross-examine the witnesses against him, U.S.Const. Amend. VI; La.Const.1974, art. I, § 16, and the statutory prohibition against hearsay evidence, except as provided by law, La.R.S. 15:434, a broader business records exception for the admission of hearsay against a defendant in a criminal prosecution is unwarranted.

In Perniciaro, supra, we found that the business records exception did not apply because the requirements were not met. Nor does it apply here. The trial judge correctly refused to allow copies of the business records from American Express into evidence because no one was called to establish that the person or persons who made the records was genuinely unavailable. Further, Daniel testified that he had not seen the original documents which remained in New York. (Tr. 288). Not withstanding the trial judge’s ruling excluding these records, he permitted Daniel to testify as to his “personal knowledge” because he was the investigator assigned to the case. (Tr. 279). Here the trial judge erred. Daniel’s knowledge was based entirely upon an investigation of the business records heretofore mentioned and a conversation with Ms. Bayer and her mother. The records and the conversations were hearsay.

This testimony from Daniel was inadmissible. It was prejudicial to the defendant because the State’s only evidence to prove that the checks were “... the subject of any robbery or theft” came from this hearsay.

Defendant’s conviction must be reversed. C.Cr.P.Art. 921.

Since the assignment of error No. 1 requires reversal of defendant’s conviction and sentence, his remaining assignments need not be considered. This matter will be remanded to the trial court for a new trial consistent with the foregoing opinion.

REVERSED AND REMANDED.

       Judges Melvin A. Shortess, Burrell J. Carter, and Felix H. Savoie, Jr., of the First Circuit Court of Appeal participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus and Dennis.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Warren LAWSON.
    No. 81-KA-1980.
    Supreme Court of Louisiana.
    March 1, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Jack Pee-bles, Asst. Dist. Attys., for plaintiff-appel-lee.
    John M. Strandridge, Supervising Atty., New Orleans, Peggy Gannon, Student Practitioner, for defendant-appellant.
   DIXON, Chief Justice.

Warren Lawson was charged by bill of information with the December 19, 1978 simple burglary of an inhabited dwelling in violation of R.S. 14:62.2. He initially pleaded not guilty. That plea was withdrawn on March 9,1979, and defendant entered a plea of guilty as charged. The trial court sentenced Lawson to twelve years at hard labor.

The state filed a multiple offender charge against defendant pursuant to R.S. 15:529.1. Lawson admitted the allegations of the multiple bill, and he was adjudged a fourth felony offender. The twelve year sentence was vacated and set aside, and defendant was sentenced to twenty years at hard labor. Defendant filed a petition for post conviction relief, and the trial court denied that petition on June 10, 1981.

Assignment of Error No. 1

Defendant contends the trial court failed to advise him of the privilege against self-incrimination prior to accepting his guilty plea. He argues, therefore, that he did not knowingly and intelligently waive his privilege against self-incrimination.

Neither the colloquy between defendant and the trial court, nor the printed “Plea of Guilty” form signed by defendant made reference to the privilege against self-incrimination. The state admits in brief that defendant was not informed of the privilege against self-incrimination, but asserts that defendant was obviously aware of it because he had pleaded guilty on three former occasions.

There is no merit in the state’s argument. Nothing in the record indicates defendant understood the connotations and consequences of his guilty plea as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and State v. Williams, 384 So.2d 779 (La.1980). We have no evidence to assure us that defendant was properly Boykinized before entering his pri- or guilty pleas. Two of the three prior guilty pleas were entered before 1969, and thus before Boykinization was required.

This court has looked beyond a colloquy to an expanded record to determine whether a voluntary waiver occurred. See State v. Dunn, 390 So.2d 525 (La.1980) and State v. Cusher, 400 So.2d 601 (La.1981). In Dunn, this court relied on a printed waiver form signed by defendant to conclude that he had knowledge of the privilege against self-incrimination, and the effects of its waiver. In Cusher, the entire record was used to prove the voluntariness of defendant’s waiver of the right to confront his accuser. Cusher had been present at numerous pretrial proceedings, where he could not avoid knowledge of the nature of his right of confrontation.

The exceptions contained in Dunn and Cusher are not applicable to this case. The record does not indicate defendant was ever informed of the privilege against self-incrimination. Neither the colloquy nor the waiver form advised defendant of the privilege. Lawson’s case did not involve extensive pretrial proceedings as in Cusher, or any other proceedings that informed him of the privilege against self-incrimination.

Assignments of Error Nos. 2 and 3

Defendant asserts that the mandatory sentence, imposed by the trial judge under R.S. 15:529.1, is in direct conflict with C.Cr.P. 894.1. C.Cr.P. 894.1 requires the sentence to be particularized to the offender as well as the offense, and defendant argues that the mandatory sentence of R.S. 15:529.1 inhibits this statutorily granted discretion of the trial judge. Defendant also contends that his twenty year sentence is excessive.

R.S. 15:529.1 provides enhanced penalties for multiple offenders based on repetition of criminal conduct, and is a valid limitation on the sentencing considerations listed in C.Cr.P. 894.1. Multiple offender statutes have consistently withstood constitutional scrutiny. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901) and State v. Lee, 364 So.2d 1024 (La.1978). This court upheld R.S. 15:529.1 against attacks that it deprived the trial judge of control over sentencing in State v. Badon, 338 So.2d 665 (La.1976) and State v. Ugarte, 176 La. 54, 145 So. 266 (1932).

There is no merit to Assignments 2 and 3.

Because of the failure to comply with the requirements of Boykin v. Alabama, supra, the plea of guilty and conviction are set aside and the sentence is vacated. The case is remanded to the district court for further proceedings.

       Judges Burrell J. Carter, Felix H. Savoie,“Jr. and Melvin A. Shortess of the First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus and Dennis.

      . The trial judge believed a twenty year sentence to be excessive in light of all facts and circumstances surrounding defendant’s case. He stated that twelve years was an appropriate sentence, but he was bound by R.S. 15:529.1. Defendant’s fourth offense occurred in 1978, and sentence was imposed in 1979. At that time, the Code of Criminal Procedure provided for suspension of the execution or imposition of the sentence of a multiple offender who joined a drug rehabilitation program authorized by the Federal Narcotics Rehabilitation Act. C.Cr.P. 893 B (1980) provided the following:
      “The court under the same conditions and by the same procedure as provided for above may suspend the execution or imposition of the sentence of a multiple offender and place the defendant on probation if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs, however, if for any reason the defendant is rejected by said program he shall be returned to the custody of the court which imposed the sentence and the sentencing judge shall order the sentence be executed. Rejection by said program shall be a violation of the defendant’s suspended sentence.”
      The trial judge should consider this alternative if defendant is resentenced.
      Testimony at defendant’s sentencing hearing indicated he is a prime candidate for a drug rehabilitation program. Defendant has been a drug addict for most of his adult life, and has been in and out of jail for various burglaries in order to support his heroin habit. However, he has never been through any sort of drug rehabilitation program; imprisonment alone does not bring about rehabilitation. The director of Odyssey House in New Orleans testified that Lawson was accepted into their program, which is a good indication of their belief in his chances for success. The chaplain for Orleans Parish jail also testified that Lawson showed good prospect for rehabilitation, if ever given such an opportunity.

      . Defendant initially gave notice of his intent to appeal his sentence to this court on May 9, 1979. With that motion still pending, defendant then filed a writ of habeas corpus attacking the voluntariness of his plea in April, 1981. Although technically without jurisdiction over the case because of the pending motion for appeal, C.Cr.P. 916, the trial court proceeded to conduct a hearing of the habeas application and denied it June 10, 1981. Counsel then filed his assignments of error in the appeal on June 24, 1981, incorporating the attack on defendant’s plea first raised by the habeas petition. This matter is therefore considered as an appeal (State v. Campbell, 404 So.2d 1205 (La.1981)), rather than an application for supervisory writs.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Alcide J. WEYSHAM.
    No. 81-K-2134.
    Supreme Court of Louisiana.
    March 1, 1982.
    Milton P. Masinter, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-respondent.
   BLANCHE, Justice.

Alcide J. Weysham was convicted on two counts of unauthorized practice of law, a violation of R.S. 37:213, and was sentenced to serve two concurrent one-year sentences in the Orleans Parish Prison. The sentences on both counts were suspended and Weysham was placed on inactive probation for a one year period. As a special condition of probation, defendant was required to make restitution to the one purportedly victimized by defendant's unauthorized practice of law in the amount of $2340 as to count one, and $3329.27 as to count two. These amounts were to be paid within 90 days of sentencing. Weysham was also ordered to pay a $500 fine on each count or, in default of payment, to serve three months in the parish prison. On appeal, this Court affirmed defendant’s conviction. State v. Weysham, 355 So.2d 251 (La.1978).

Four years after imposition of sentence, the alleged victim complained to the trial judge that defendant had failed to reimburse her in the amount of $2340. In response, the trial judge ordered defendant to appear in court and show cause why his probation should not be revoked and the sentence made executory. On the date of the hearing, the state did not produce any witnesses to testify against defendant, nor did the state introduce any documents to support the alleged probation violations. Relying solely upon a private verbal communication to him by the alleged victim, the trial judge revoked Weysham’s probation and made the suspended sentence exec-utory.

We granted writs to determine if the order of the trial court making the suspended sentence executory after defendant completed his period of probation was proper.

It is well settled that once a probationary period has elapsed the defendant has automatically satisfied the sentence imposed. C.Cr.P. art. 898 (see Official Revised Comment (b)); State v. Jones, 285 So.2d 231 (La.1973); State v. Martens, 338 So.2d 95 (La.1976). Further, a non-fugitive defendant can be ordered to appear before a court to answer charges concerning possible probation violations only during the period of probation or suspension of sentence. C.Cr.P. art. 899; State v. Harris, 342 So.2d 179 (La.1977); State v. Martens, supra.

In the instant case, no summons relating to a possible violation of a condition of probation was issued to Weysham during his one-year probationary period. As a result, defendant’s probation was never suspended and it was successfully completed on April 20, 1978, one year after his sentence was imposed. C.Cr.P. art. 899; State v. Martens, supra; see also State ex rel. DeGreat v. Phelps, 377 So.2d 341 (La.1979). Once Weysham satisfied the sentence imposed, his probation could not be revoked and he could not be subjected to a term of imprisonment. See State v. Jones, supra.

Accordingly, the order of the trial court revoking defendant’s probation and making the suspended sentence executory is hereby vacated.


text:
    Mickey JOHNSTON v. Sandra McCULLOUGH.
    No. 81-C-2172.
    Supreme Court of Louisiana.
    March 1, 1982.

      John Makar, Natchitoches, for defendant-applicant.
    James R. Hatch, Homer, for plaintiff-respondent.
   DIXON, Chief Justice.

This is a custody proceeding to change custody of a thirteen year old boy brought seven years after the initial custody decree. The trial court ordered custody transferred to the father largely on the basis of the boy’s expressed preference. The court of appeal affirmed, amending the ruling to grant greater visitation rights to the mother. 401 So.2d 509 (La.App.1981). Certiora-ri was granted to consider the correctness of this decision.

Sandra Johnston McCullough and Mickey Johnston were divorced on March 26, 1973, in an uncontested Arkansas proceeding. Custody of their five year old son, Kelly, was awarded to the mother. Shortly thereafter, Mrs. Johnston remarried and moved to Florida where the couple currently resides with Kelly. Mr. Johnston also remarried and lives in Homer, Louisiana with his new wife and her five year old daughter. Mr. Johnston paid $150.00 monthly under the divorce decree until the parties agreed that the amount should be raised to $200.00 per month due to private school tuition. No visitation privileges for Mr. Johnston were contained in the divorce decree. However, the mother allowed Kelly to spend about two months each summer and every Christmas vacation with his father in Louisiana. The record reveals, as the trial court found, that both environments are suitable, that each parent loves Kelly and keeps his best interests in mind.

The father maintains that he instituted this suit solely because of repeated requests by Kelly to live with his father in Homer. Both lower courts concluded a change of custody was appropriate since Kelly wanted to try living with his father. In reaching that decision, the trial court afforded much weight to the recommendation of a Reverend Donald Heacock that custody should be given to the father. Reverend Heacock, an ordained Episcopal minister and a clinical social worker hired by Mr. Johnston, spent a great deal of time with Kelly in order to ascertain Kelly’s “true feelings” and whether his father was “manipulating him or encouraging him with bait of some kind.” He observed that Kelly is mature for his age and stable, yet he gets upset a little more quickly than other people in his age group. In his opinion, Kelly enjoyed the rural environment in Louisiana where he was allowed freedom to move about the community at will, to participate in school sports, and to have responsibility caring for animals. Although Kelly exhibited love for his mother and stepfather, Reverend Hea-cock was of the opinion that forcing Kelly to remain with his mother against his will might foster a permanent resentment toward her. Reverend Heacock noticed tension between Kelly and his mother due to her attempts to persuade him to stay in Florida and his conflicting desire to live in Louisiana with his father. However, Reverend Heacock did not interview Mrs. McCullough or Mr. McCullough.

Due to the closeness in age between Kelly and his young stepmother (twenty-seven years old and married to Mr. Johnston for two years at the time of the trial) Reverend Heacock estimated that an adjustment period of at least two years would be necessary; the tension between Kelly and Mrs. Johnston could only be handled through counseling. The stepmother did not testify. Kelly himself testified that he and his stepmother had had some problems with discipline. No tension exists between Kelly and his stepfather. Kelly calls his stepfather “dad,” they play and swim together, and a healthy relationship has grown between Kelly and Mr. McCullough during the years. Mr. McCullough often assists Kelly with his homework. No adjustment period would be required to create a relaxed atmosphere with Kelly’s mother and stepfather; Kelly has lived with them and has been a part oflhat family unit for seven years.

Kelly had difficulty in school, beginning in the primary grades. An early examination indicated that he had dyslexia. He spent one year in a special school, showed improvement, and was returned to a regular school population. Almost every year he was tutored in addition to his regular classes and parental assistance. Recent records and testimony of Heacock and teachers show that Kelly has probably outgrown this handicap, but he continues to be only an “average” student, with the aid of tutoring.

The trial judge was in error when he found that the record “indicated that he did not suffer dyslexia; thus, it appears that his problem was something else.”

The trial court had “the distinct impression that Mrs. McCullough was unduly overprotective of Kelly and nervously provocative about potential hurt to him via normal boyhood activities and attitudes.” The evidence does not support such a finding. The record does reveal a troublesome attitude on the part of Kelly’s father. Mr. Johnston has given Kelly many expensive gifts and privileges which an average thirteen year old does not enjoy. For example, he has had two color television sets, a minibike, motorcycle, private telephone, horse and a shotgun. Some of these gifts were given to Kelly the summer before this suit was filed. Kelly has been allowed to drive an automobile by himself even though he is legally not old enough to operate a vehicle. He is permitted to stay up later at his father’s home, whereas he was required to retire at 9:00 p. m. in Florida because staying up later affected his alertness in school.

Subsequent to Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971), the legislature amended C.C. 157; it now reads in part:

“In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, or to both jointly by agreement of both the husband and wife, in accordance with the best interest of the child or children; ... No preference shall be given on the basis of the sex of the parent in cases where custody is awarded to only one parent... .”

Stability and continuity must be considered in determining what is in the best interests of the child. In Bordelon v. Bordelon, 390 So.2d 1325 (La.1980), a protracted child custody battle persisted between the divorced parents which originated when the mother, the custodial parent, allowed a man to live with her and the children. Upon proof of this relationship, custody was changed to the father. The mother later sought a return of custody urging that she had remarried and her life was stable. This court upheld the lower court’s award of custody to the mother, noting:

“... the stability factor weighs heavily in favor of the mother, since she was the parent most intimately involved with raising the child and had only lost custody for a short while in comparison to the child’s age.” 390 So.2d at 1329.

Although the lower courts were cognizant of this element, inadequate emphasis was placed upon the stability factor. The record shows that Kelly has lived with his mother and stepfather without adverse incident for seven years and that they have been loving parents. The results of their careful attention are apparent in Kelly’s school record and development. No reason to change custody is discoverable except the wishes of Kelly and his father.

“... even though there is no longer an inflexible rule with regard to changes of custody, the policy consideration underlying the rule, stability of environment, is still relevant to a determination of the best interest of the child. A court should consider the prior history of the child’s custody when asked to change custody. Generally, it might not be in the best interest of a child to be regularly moved from parent to parent.... ” 390 So.2d at 1329.

In Cleeton v. Cleeton, 383 So.2d 1231 (La.1980), a change of custody was sought because the mother, who had custody of three minor daughters, was conducting an adulterous relationship. The man whom Mrs. Cleeton was seeing occasionally stayed overnight at the family home, although he generally departed before the girls awoke. This court declined to change custody largely because the children were accustomed to their mother’s care and such action would be traumatic. A change of custody after seven years in a stable, loving environment to a home where adjustment problems are predicted might have long-term detrimental consequences. While it is understandable that Kelly, approaching manhood, wants to spend more time with his father, it is in the best interest of Kelly that the custody arrangement be left undisturbed.

Therefore, the judgment of the lower courts is reversed; since there were no visitation privileges in the original custody decree, it is amended to grant plaintiff, Mickey Johnston, the right of reasonable visitation with Kelly. The plaintiff is cast with all costs.

      . The only support for this conclusion is the testimony of Ron Young, a close friend of the McCulloughs. Although his testimony taken as a whole illustrates the closeness between Kelly and his mother and stepfather, Mr. Young stated that Mrs. McCullough was “almost too concerned sometimes ... almost being a little bit overprotective.”

      . In 1977, C.C. 157 was amended to incorporate the “best interests of the child” test. A later amendment in 1979 specifically applied C.C. 157 to changes of custody as well as the initial custody determination.