author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Morris BURTON, Jr.
    No. 81-KA-2033.
    Supreme Court of Louisiana.
    June 21, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Warren J. Hebert, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
    John P. Calmes, Jr., Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Morris Burton, was convicted of second degree murder, a violation of R.S. 14:30.1. The trial judge ordered Burton to serve a life sentence at hard labor without benefit of parole, probation or suspension of sentence for 40 years. Defendant appeals his conviction and sentence, raising a single assignment of error. We find no merit in this sole assignment and affirm defendant’s conviction and sentence.

Burton, with a nylon stocking pulled over his head, entered a Baton Rouge bread thrift shop and pulled a .32 caliber pistol on the store’s proprietor and an employee. The robber pointed his weapon toward the cash register and in an unintelligible mumble appeared to demand money. The proprietor opened the cash register and reached for its contents when the holdup man shot him once in the upper chest. As the victim slumped to the floor, his assailant turned the gun on the other employee and, under the threat of death, ordered her to give him the money. The clerk hurriedly placed approximately $300 in a paper bag and handed it to the armed perpetrator, who then fled the store. Though the wounded proprietor was rushed to a nearby hospital, he died later that day from extensive internal bleeding.

Following a tip from a confidential informant, the police investigation focused on Morris Burton. After investigating the informant’s allegations, Baton Rouge police apprehended defendant at his residence.

Burton gave the authorities a statement in which he admitted his participation in the armed robbery and murder at the bread thrift shop. In this recorded confession, defendant stated he was driven to the thrift shop by a friend, Melvin Bindom. While Bindom remained in the vehicle defendant, armed with a pistol, proceeded to hold up the shop and shot the proprietor.

Defendant filed a motion to suppress this statement, urging it was inadmissible as evidence against him because it was the product of an unlawful arrest. According to Burton, his arrest was illegal because the police lacked probable cause and arrested him at his residence without first obtaining an arrest warrant. The trial judge refused to suppress the confession and we denied writs on the matter, noting that defendant had an adequate remedy on appeal. 393 So.2d 749 (La.1980).

In his only assignment of error, defendant reasserts his argument concerning the trial court’s failure to grant his motion to suppress the inculpatory statement given after his arrest.

A confession obtained as a direct result of an unlawful arrest should be suppressed as evidence. State v. Leatherwood, 411 So.2d 29 (La.1982); State v. Cook, 404 So.2d 1210 (La.1981). An arrest is lawful when it is based on probable cause. State v. Leatherwood, supra. Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution to believe the person to be arrested has committed a crime. State v. Tokman, 412 So.2d 561 (La.1982); State v. Leatherwood, supra.

A confidential informant may provide adequate information to establish probable cause for a warrantless arrest. State v. Edwards, 406 So.2d 1331 (La.1981). However, the basis of the informant’s credibility and the reliability of his information must be established. State v. Edwards, supra; State v. Cook, supra. If necessary, the reliability of both the informant and his information may be corroborated by independent sources. State v. Wichers, 392 So.2d 419 (La.1981).

In the instant case, the state attempted to establish probable cause at the hearing on the motion to suppress primarily through the testimony of Officer Robert Gill. According to this witness, a confidential informant contacted the officer with information concerning the robbery-murder at the bread thrift shop. This informant provided information on previous occasions which had resulted in two convictions. Thus, the officer was justified in his belief that this confidential informant was of proven credibility. State v. Paciera, 290 So.2d 681 (La. 1974).

The confidential informant allegedly provided Officer Gill with details of the crime, identified Morris Burton as the holdup man, and stated that Melvin Bindom was in possession of the murder weapon. Though the circumstances underlying these claims were never disclosed, independent corroboration was provided after Gill and another officer picked up Bindom and questioned him about his knowledge of the offense. See State v. Wichers, supra.

Bindom allegedly admitted in a taped statement his participation in the robbery, named defendant as a co-perpetrator, and claimed that Burton had recently given him a pistol. Though Bindom, who also testified at the hearing, emphatically denied making a statement implicating anyone in the robbery-murder, he admitted that defendant had given him a gun.

Later that evening, Bindom, while accompanied by police officers, retrieved the pistol. Ballistics tests were immediately performed on the gun which conclusively established it was the murder weapon. According to Officer Gill, defendant was arrested at his residence in the early morning hours shortly after the ballistics tests were completed.

We believe the information obtained by law enforcement officers subsequent to the confidential informant’s tip sufficiently corroborated his allegations. Bindom’s alleged admission that he and defendant were the perpetrators and his possession of the murder weapon clearly supported the reliability of the informant’s information. Under these circumstances, we conclude that a police officer of average caution would have probable cause to believe that Morris Burton had committed a crime.

Though the testimony at the hearing on the motion to suppress adequately supported the trial judge’s ruling, our review of his holding is not limited to the evidence adduced at this pre-trial hearing. State v. Chopin, 372 So.2d 1222 (La.1979). Accordingly, all pertinent evidence given at trial of the case may be considered in our review of the lower court’s holding.

At trial, defendant was able to create an apparent contradiction concerning two facts vital to the state’s showing of probable cause. The recorded statement of Melvin Bindom, in which he allegedly acknowledged his and defendant’s participation in the offense, was offered to impeach Officer Gill’s testimony. Though parts of the tape were inaudible, it is clear that Bindom did not, in this particular statement, implicate Burton as the holdup man. The veracity of Officer Gill was further eroded when testimony by the ballistics expert indicated that testing of the murder weapon may have been conducted after defendant was arrested. Even so, we are of the opinion that the entire record supports the conclusion that the informant’s information was reliable and defendant’s arrest based on probable cause.

Though Officer Gill mistakenly believed that Bindom implicated defendant as the perpetrator during his recorded statement, the officer consistently testified that Bindom had made several remarks concerning the robbery-murder which did implicate Burton that were not recorded by the investigating officers. Gill’s contentions concerning Bindom’s statement and ballistics tests were supported by the testimony of Ronald Alford, the other Baton Rouge police officer present when Melvin Bindom gave his statement. Considering the three year lapse of time between the interrogation of Bindom and the officer’s testimony, it is most likely that these witnesses confused those statements which were not recorded with those statements offered as evidence at trial.

Though we find the foregoing inconsistencies in Officer Gill’s testimony damaging to the state’s case, we still conclude that the informant’s tip, which eventually led to Burton’s arrest, had been independently corroborated to a degree sufficient to give the investigating officers probable cause to arrest defendant. The police investigation centered on Melvin Bindom and defendant solely as a result of the information provided by the tipster. Bindom verified the police informant’s claim that he had possession of the murder weapon and that defendant was involved in the offense when Bindom acknowledged receiving a pistol from Burton shortly after the offense. This gun, which was recovered from Bindom before defendant’s arrest, was the same caliber as the pistol used to kill the thrift shop proprietor. Thus, even though the defense was able to undercut Officer Gill’s recall of the facts surrounding Burton’s apprehension, the subsequent investigation unquestionably solidified the reliability of the informant’s allegations.

Defendant also urges that if probable cause did exist, the confession ought to be suppressed because defendant’s arrest at his residence was affected without a warrant. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Though the absence of exigent circumstances gave law enforcement officers adequate time to obtain an arrest warrant, we note that defendant was apprehended several years before the Payton decision was rendered. This Court has consistently refused to apply Payton retroactively because, as we reasoned in State v. Edmond, 399 So.2d 187 (La.1981), “At the time defendant was arrested, his warrantless arrest was specifically authorized by Article 213 of the Louisiana Code of Criminal Procedure. The arrest was made on probable cause and in good faith reliance on what the officers believed to be a valid statute under previously announced standards.”

Because there are no compelling reasons to alter our previous holdings, we conclude that defendant’s warrantless arrest was lawful, and his subsequent confession admissible as evidence. Accordingly, the conviction and sentence of Morris Burton are affirmed.

AFFIRMED.

LEMMON, J., concurs.

       Judges William Norris and Fred Sexton of the Second Circuit Court of Appeal and Judge Robert Lobrano of the Fourth Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Melvin Bindom voluntarily accompanied the police officers for questioning in the early evening of November 30, 1977. The murder weapon was retrieved later that night and tests were conducted after midnight. Burton was arrested at approximately 3:00 a. m. on December 1. The ballistics expert, Ronald Jewel, stated testing was conducted on December 1, 1977. Therefore, unless the tests were performed before 3:00 a. m., they would have been conducted subsequent to defendant’s arrest.

      . At the hearing on the motion to suppress, Officer Gill stated that “we talked about the thing (robbery-murder) prior to him giving a statement. Then ... then the statement was recorded.” While testifying at trial the officer stated that possibly two recorded statements had been taken from Bindom and urged that “I don’t recall if 1 said it (Bindom’s implicating defendant) was on that taped statement or not. I said he made the statement.” Later, Gill added that “Melvin Bindom said a lot of things to me that’s probably not on the tape.”

      . Art. 213. Arrest by officer without warrant; when lawful.
      A peace officer may, without a warrant, arrest a person when:
      (1) The person to be arrested has committed an offense in his presence, and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;
      (2) The person to be arrested has committed a felony, although not in the presence of the officer;
      (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer; or
      (4) The peace officer has received positive and reliable information that another peace officer holds a warrant for the arrest.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Jesse L. CAVANESS.
    No. 81-KA-2171.
    Supreme Court of Louisiana.
    June 21, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Brett Grayson and Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
    James C. Hrdlicka, David Randall Buckley, Baton Rouge, for defendant-appellant.
   DENNIS, Justice.

The defendant, Jesse L. Cavaness, was convicted of forcible rape after a trial by jury, adjudged a second felony offender pursuant to La.R.S. 15:529.1, and sentenced to forty years imprisonment at hard labor. Defendant appealed to this court on the basis of eight assignments of error.

Pursuant to the internal procedure employed by this court, this case was screened and placed on our summary docket calendar for oral argument. Subsequent thereto at least two justices were of the view that the case presented an issue requiring a written opinion because it appeared that the trial judge had ruled certain testimony of a defense witness inadmissible on the basis of our “rape shield statute,” La.R.S. 15:498. However, further examination of the record reflects that this statute is not at issue in this case because the trial judge’s ruling was not based on it; rather, he sustained the state’s objection to the testimony of the defense witness because he found that it was not relevant to any material issue in the case.

The victim of the rape testified that the defendant had approached her at the Hitching Post bar, informed her that one of her companions was in trouble outside, and then raped her after she had followed him outside the bar to investigate. According to defense counsel’s colloquy with the trial judge while the jury was excused, the manager of the Hitching Post would have testified that he had seen the victim and her companion approach men in the bar for drinks and that they had on one occasion collected a cover charge at his establishment without his authorization. The trial judge did not abuse his discretion in excluding this testimony from the jury; that the victim had asked other bar patrons to buy her drinks on other occasions or had collected an unauthorized cover charge does not tend to prove that she approached the defendant or that she consented to sexual intercourse with him. La.R.S. 15:441.

Finding no error in the trial judge’s ruling, nor any merit in the other assignments of error raised by the defendant, we affirm his conviction and sentence.

AFFIRMED.

LEMMON, J., dissents.

      . For a discussion of the procedure employed by this court in screening appeals and assigning them to the summary docket see State v. Duhon, 340 So.2d 151 (La. 1976), as modified by State v. Montgomery, 362 So.2d 769 (La.1978).


text:
    STATE of Louisiana v. Bruce WHEELER.
    No. 81-KA-2537.
    Supreme Court of Louisiana.
    June 21, 1982.
    William J. Guste, J., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Richard Pe-tre, John Craft, Spencer Kimball, Asst. Dist. Attys., for plaintiff-appellee.
    Lloyd N. Frischhertz, Irvy E. Cosse, Jr., Seelig, Cosse & Frischhertz, New Orleans, for defendant-appellant.
   DENNIS, Justice.

Defendant, Bruce Wheeler, was convicted by a jury of possession of marijuana with intent to distribute, La.R.S. 40:967, sentenced to three years at hard labor, and fined $1,000. Defendant appealed and argues eight assignments of error. Because we conclude the trial judge committed reversible error in admitting into evidence improper expert testimony over defendant’s objection, the defendant’s conviction and sentence are reversed.

Officers Schexnayder and Adams of the New Orleans Police Department were parked on Law Street writing a report on March 17, 1981. They became interested in the activities of a man standing by a wall about one-half block down the street. During a period of thirty-minutes he was approached by several juveniles, each of whom handed the man something and received an item in return from a brown Schwegmann’s grocery bag near his feet. Before approaching the man Schnexnayder and Adams summoned other police officers for assistance, instructing them to cover the suspect’s rear in case he took flight. As officers Schexnayder and Adams drove down the street, the man picked up his Schwegmann bag, dropped it in a garbage can and walked away from them. The suspect was overtaken by Officer Adams, apprehended, patted down for weapons, advised of his rights, and placed in the police vehicle. Meanwhile, Officer Schexnayder retrieved the brown Schwegmann bag from the garbage can. It contained ten small coin envelopes and a plastic envelope containing marijuana, a photograph of the defendant with a gun in his waistband, and a purple Crown Royal bag containing a loaded pistol. After arriving at the police station, the police removed $359 and six bullets from defendant’s pockets.

Defendant contends that the trial court erred in determining the admissibility of expert opinion evidence. Robert Humphrey, a narcotics officer with the New Orleans Police Department, was accepted by the court as an expert in narcotics transactions, particularly those involving marijuana. The prosecutor summarized the testimony of the arresting officers as to the events surrounding their encounter with the defendant in asking a hypothetical question as follows:

“Q. At this time I will ask you to assume that on an afternoon in March, 1981 two New Orleans police officers see an individual at the intersection of Law and Congress Streets. Please assume also at least three times this individual is approached by three black males and at this time the defendant reaches inside a grocery bag by his foot and gives the three black males something. The police approach this individual, he puts the bag in a garbage can nearby and leaves the scene. The police apprehend this individual and upon searching his person find $359.00 in cash and six live rounds of ammunition and please assume also the police inside the bag in the garbage can find ten coin envelopes of marijuana, one plastic bag of marijuana and one Magnum revolver. I am asking you to assume these ten coin envelopes here are the ten coin envelopes in the hypothetical question and also the envelope marked S-3 is the plastic bag in the hypothetical question. In your expert opinion what is the likelihood of this individual being involved in the distribution of marijuana ?” [emphasis added]

The defense counsel objected:

“I object to this, I don’t think that the witness is in a position to testify to that, I don’t think the witness necessarily has all of the information that he would have to give an opinion even if he could, such as if the brown paper bag was the same this person they were watching had or a different bag. I don’t think this case is a typical one for this hypothetical question.”

The objection was overruled and the witness answered:

“In my opinion the person would be involved in the distribution of marijuana, he might have a dime bag, but not several dime bags and he would not have $359.00.” [emphasis added]

Later in the trial the prosecution asked the expert witness: “What is the significance of the revolver found?” After defense counsel’s objection was overruled, the witness answered:

“The reason the subject had the revolver was to keep from being ripped off, due to the location and amount of money and what he was selling. It is quite common for someone in distribution to have a revolver.”

Our statutes set forth the broad principles governing the admissibility of expert opinion evidence. Generally speaking, a witness can testify “only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.” La.R.S. 15:463. An exception to this rule is provided, however, for expert witness testimony:

“On questions involving a knowledge obtained only by means of a special training or experience the opinion of persons having such special knowledge are admissible as expert witnesses.” La.R.S. 15:464.

In deciding whether to admit expert witness testimony, a trial judge should recognize that the foregoing statutory precepts are not detailed, specific rules but broad, guiding principles containing several variables: First, the terms “fact” and “opinion” denote merely a difference of degree of concreteness of description or a difference in nearness or remoteness of inference. The opinion rule operates to prefer the more concrete description to the less concrete, the direct form of statement to the inferential. Second, the purpose for which the testimony is admitted should have an effect upon the degree of concreteness required. As Professor McCormick observes:

“ * * * In the outer circle of collateral facts, near the rim of relevancy, evidence in general terms will be received with relative freedom, but as we come closer to the hub of the issue, the courts have been more careful to call for details instead of inferences.
U * * *
“The trial judge may well be more liberal in the use of his discretion to admit opinions and inferences as to collateral matters and less liberal in order to see that the concrete details are brought out as to more crucial matters. Is it expedient to go further and to tie his hands by a rule forbidding opinion-evidence as to these ‘ultimate’ matters?” McCormick on Evidence, § 12, p. 26 (1972).

Third, the preference for direct, concrete testimony and the reluctance to admit opinions and inferences as to matters crucially at issue are somewhat relaxed, if the opinion or inference to be expressed may be classified as expert testimony. To warrant the use of expert testimony two elements are required: (a) the subject of the inference must be so distinctly related to some science, profession, business or occupation as to be beyond the understanding of the average layman; and (b) the witness must have sufficient skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier of fact in his search for truth.

McCormick on Evidence, §§ 12, 13 (1972). See Cramer v. Theda Clark Memorial Hospital, 45 Wis.2d 147, 172 N.W.2d 427 (1970); Hill v. Lee, 209 Va. 569, 166 S.E.2d 274 (1969); Webb v. Fuller Brush Co., 378 F.2d 500 (3d Cir. 1967); Collins v. Zediker, 421 Pa. 52, 218 A.2d 776 (1966); Pennsylvania Threshermen, etc. Ins. Co. v. Messenger, 181 Md. 295, 29 A.2d 653 (1943); Bebont v. Kurn, 348 Mo. 501, 154 S.W.2d 120 (1941); Manhattan Oil Co. v. Mosby, 72 F.2d 840 (8th Cir. 1934). State v. Killeen, 79 N.H. 201, 107 A. 601 (1919)

It is believed that all courts would exclude extreme expressions, even by a witness who has been qualified as an expert, on such matters as how the case should be decided, as to whether the defendant is guilty or as to the amount of unliquidated damages which should be given. State v. Chevallier, 213 La. 528, 35 So.2d 135 (1948); State v. Borde, 209 La. 905, 25 So.2d 736 (1946); State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942); State v. Bessa, 115 La. 259, 38 So. 985 (1905); State v. Robertson, 111 La. 35, 35 So. 375 (1903). See, e.g., Warren Petroleum Co. v. Thomasson, 268 F.2d 5 (5th Cir. 1959) (error to admit highway patrolman’s statement after collision that owner of one of vehicles “should assume liability”); Duncan v. Mack, 59 Ariz. 36, 122 P.2d 215 (1942) (whether public convenience would be served by transfer of license); Grismore v. Consolidated Products, 232 Iowa 328, 5 N.W.2d 646 (1942) (opinions as to guilt, negligence, testamentary capacity, reasonable cause — dictum). In such cases all of the variables weigh heavily against admission of the evidence: The evidence is not truly expert testimony because it relates to matters well within the jury’s understanding and is wholly without value to the trier of fact in reaching a decision; the inference or opinion is abstract and indirect; and it relates to an ultimate issue rather than a collateral matter. When an objection is raised to the introduction of an expert’s opinion or inference, care should be taken by the trial judge to assess the statement in light of each of the foregoing variables.

These variables have been considered determinative in cases admitting or rejecting expert police testimony on narcotic transactions. A police officer’s opinion as to whether a drug transaction occurred was inadmissible when based solely on the bodily position and movements of the participants during a sidewalk conversation; the officer was no more expert than the jurors concerning the significance of the fact that the four persons kept looking at the area where defendant had his hands; nor did the officer’s expertise add any probative value to defendant’s shaking of his head from side to side when he was approached by two other persons. State v. Hernandez, 70 Cal. App.3d 271, 138 Cal.Rptr. 675 (1977). An officer’s expert testimony that heroin was possessed “for sale” was erroneously admitted because it went to the ultimate issue of the case and was not a proper subject matter of expert testimony. State v. Arguello, 244 Cal.App.2d 413, 53 Cal.Rptr. 245 (1966) (“once he has given the jury the benefit of his experience with respect to the habits of users, the quantities involved, the value of narcotics found in defendant’s possession, the customary methods of packaging them for wholesale, for retail and for use and matters of this nature, the jury should be as able as the witness to form an opinion whether or not the narcotics involved in the prosecution were held for sale.” Id. 53 Cal.Rptr. at 251) In People v. Brown, 116 Cal.App.3d 820, 172 Cal.Rptr. 221 (1981) it was held permissible for an expert police witness to testify to such matters as that the expression “Are you looking?” means “Do you wish to purchase heroin?” that “bag” means a quantity of heroin, that the price of a “quarter” bag ordinarily ranged from $20 to $25, and to explain the meaning of the word “runner,” but an officer’s testimony that, in his opinion, defendant “was working as a runner” was reversible error, as such answer was tantamount to an opinion that defendant was guilty of aiding and abetting in the sale of heroin. See also, Ex Parte Dial, 387 So.2d 879 (Ala.1980); Commonwealth v. Waters, 276 Pa.Super. 584, 419 A.2d 612 (1980); but see, State v. Gomez, 101 Idaho 802, 623 P.2d 110 (1981); Cf. State v. Marquez, 127 Ariz. 98, 618 P.2d 592 (Ariz.1980); United States v. McCoy, 539 F.2d 1050 (5th Cir. 1976); United States v. Milton, 555 F.2d 1198 (5th Cir. 1977); United States v. Scavo, 593 F.2d 837 (8th Cir. 1979).

Applying the foregoing precepts, we conclude that the trial court erred in the present case by permitting the police officer to testify that, in his opinion, the defendant had been involved in the distribution of marijuana. This testimony was tantamount to an opinion that the defendant was guilty of the crime charged, an indirect, abstract inference as to the ultimate issue in the case. The officer was no more an expert than the jurors concerning the matters at issue in this case: the reliability of the arresting officers’ observations that a man was engaged in passing out articles from a Schwegmann’s shopping bag which he dumped in a trash can immediately before their approach; the officers’ discovery of a substantial quantity of material later determined to be marijuana in individual containers inside the Schwegmann’s bag; the officers’ identity of the defendant as the same person who disposed of the Schwegmann’s bag and was later arrested. Nor did the officer’s expertise provide any assistance to the jury in reaching a decision. There is no necessity for this kind of evidence; to receive it merely tends to suggest that the jury may shift responsibility for decision to the witnesses. McCormick, supra, p. 26. For the same reasons it was impermissible for the officer to testify that “[t]he reason the subject had the revolver was to keep from being ripped off, due to the location and amount of money and what he was selling.”

On the other hand, the officer’s opinion that it is quite common for marijuana distributors to carry revolvers for such purposes was admissible. This was a matter of which the officer had special knowledge which would have aided the jury in making a decision. This part of his testimony also consisted of a concrete description of facts within his knowledge and did not involve an opinion as to an ultimate issue in the case.

Although there was abundant evidence of the defendant’s guilt, and it is difficult to understand why the prosecutor thought it necessary to introduce an expert’s opinion, we conclude that the improper introduction of such evidence was so prejudicial that the conviction must be reversed. The officer’s testimony was tantamount to an opinion that the defendant was guilty of distribution of marijuana. As the subject matter of the opinion approaches the hub of the issue, the risk of prejudice and hence of reversible error consequently increases. This is particularly so when the witness expressing the opinion is one, such as a police officer, in whom jurors and the public repose great confidence and trust. Under these circumstances, it is clear that a substantial right of the defendant has been violated, and that there is a reasonable possibility that the errors contributed to his conviction. Article 921; State v. Gibson, 391 So.2d 421 (La.1980).

In order to facilitate a retrial of the case, we have reviewed defendant’s assignment of error number one contending that the trial court erred in denying his motion to suppress evidence. This assignment is without merit. The property was abandoned without any unlawful infringement of the defendant’s rights and the bag was lawfully seized. State v. Williams, 398 So.2d 1112, 1114 (La.1981); State v. Chopin, 372 So.2d 1222 (La.1979); State v. Ryan, 358 So.2d 1274 (La.1978); State v. Perique, 340 So.2d 1369 (La.1976); State v. Lawson, 256 La. 471, 236 So.2d 804 (La.1970). The officer did not approach the defendant in a manner or under circumstances which made it seem that some form of detention was imminent until after he disposed of the bag. State v. Saia, 302 So.2d 869 (La.1974).

The circumstances upon which the defendant bases other claims of error will not likely recur at a retrial. We do not consider them in this review.

The conviction and sentence are reversed and the case is remanded for a new trial.

REVERSED AND REMANDED.

WATSON, J., dissents.

LEMMON, J., dissents and will assign reasons.

       Judges Israel M. Augustine and Philip C. Ciac-cio of the Court of Appeal, Fourth Circuit, and H. Charles Gaudin of the Court of Appeal, Fifth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Watson and Lem-mon.


author: DIXON, Chief Justice. LEMMON, Justice, DENNIS, Justice,

text:
    STATE of Louisiana ex rel. Larry LaFLEUR v. Jack DONNELLY, Warden, Dixon Correctional Institute.
    No. 81-KH-2654.
    Supreme Court of Louisiana.
    June 21, 1982.

      William G. Carmichael, Clinton, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Chief Justice.

We granted relator’s petition to review the claim that his guilty plea was not knowingly and intelligently entered.

Larry LaFleur was charged with simple burglary and theft that occurred on September 3, 1980, simple burglary committed September 4, 1980 and possession of a firearm by a convicted felon on September 4, 1980. After an initial plea of not guilty, he entered pleas of guilty to all charges pursuant to a plea bargain agreement. Defendant was sentenced to six years on each count of simple burglary, six years on the theft charge and five years on the firearm possession charge, all sentences to run concurrently. R.S. 14:95.1 provides the five year sentence for firearm possession to be served without benefit of parole, probation or suspension of sentence.

Clyde Fontenot, defendant’s attorney at the time he entered the guilty pleas, testified that he had bargained with the district attorney for concurrent sentences of nine years each on the theft charge and the two simple burglary charges. Fontenot told defendant he would be eligible for parole after three years. Defendant refused the offer, and said he would go to trial before he would plead guilty in exchange for a nine year sentence.

Defendant then made a deal through the chief deputy of the Evangeline Parish sheriff’s office. Deputy McGee arranged for six year concurrent sentences on the three charges and an additional five year concurrent sentence on the firearm possession charge. Mr. Fontenot was not involved in the second plea bargain other than to have the district attorney agree not to treat defendant as an habitual offender and to be present when the guilty pleas were entered.

The record substantiates defendant’s assertion that he would not have pleaded guilty if he had known he would be ineligible for probation or parole on the sentence he would receive under the firearms statute. Although Clyde Fontenot emphatically denied that he made any promises to defendant regarding parole, he admitted that the question of parole or probation probably came up. He and defendant had discussed parole concerning the nine year sentence, and he told defendant he would be eligible after three years. Fontenot “... guess[ed] there was some discussion about, you know, eligible or not eligible for parole, you know, or two years, you know, after six you’re eligible after two, usually.” Defendant testified Fontenot told him the decision would be made by the parole board, but that he would be eligible for parole after two years if he accepted the six year plea bargain.

At the sentencing hearing on April 10, 1981 the state noted “[p]lea bargain was six years. To run concurrent with the possible revocation of parole.” The trial judge sentenced defendant to six years on each count of simple burglary and six years for the theft charge, sentences to run concurrently, and five years for possession of a firearm, also to run concurrently with the aforementioned sentences. The trial court stated defendant was to be given credit for all time served to work toward his record for parole or probation purposes. The transcript of the sentencing hearing contains no reference to the ineligibility for parole, probation or suspension of sentence on the firearm charge. In fact, the defendant was unaware that he was to receive three six year sentences and one five year sentence to be served concurrently. When the sentencing judge asked defendant if he understood the sentences were to be concurrent, defendant replied that “I didn’t know anything about concurrent.” Only at the sentencing hearing did defendant learn that he was receiving separate sentences to be served at the same time. At the post conviction hearing defendant said that “as far as I knew was that I was pleading guilty to 6 years to all of them put together.” He did not know that he was being charged under the “gun act,” meaning the firearms possession statute.

“. .. while an understanding of the triad of rights may be the sine qua non for the acceptance of a guilty plea, it is also true that other factors may have a bearing on the validity of the plea. A mere recitation of rights does not always insure the intelligent and voluntary nature of the plea. See, e.g., State v. Galliano, 396 So.2d 1288 (La.1981); State v. Beatty, 391 So.2d 828 (La.1980).” State v. Halsell, 403 So.2d 688, 690 (La.1981).

It is important to explain to the accused the elements of the offenses with which he is charged and the rights he is waiving by pleading guilty thereto. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). However, it is probably much more important to the defendant’s decision (about whether to plead guilty) that he understand the maximum penalty exposure.

In this case a detailed account of the possible sentences by the trial court could have prevented any misunderstanding with regard to parole eligibility on the firearms charge. A full explanation of the sentence provided for an offense by the legislature seems particularly important when, as part of the penalty for the offense, parole eligibility is denied, because the accused may be far more concerned about the possibilities for early release than any abstract right to confront his accusers at trial.

In State v. Galliano, 396 So.2d 1288 (La. 1981), this court upheld the vacating of a plea by the trial judge on grounds that all parties concerned had mistakenly believed at the time of the plea colloquy that suspension of sentence was available under the applicable statute. Defendant in this case justifiably believed that he would be eligible for parole in two years, and pleaded guilty, in part, on that basis. The guilty plea was made voluntarily, but it was not knowingly and intelligently entered. See also State v. Jones, 398 So.2d 1049 (La. 1981).

For the foregoing reasons, defendant’s convictions and sentences are reversed and set aside, and the case is remanded for further proceedings not inconsistent with this opinion.

DENNIS, J., concurs with reasons.

LEMMON, J., concurs and assigns reasons.

WATSON, J., dissents.

LEMMON, Justice,

concurring.

Compliance with the three-right articulation rule of State ex rel Jackson v. Henderson, above, is not the equivalent of a constitutionally valid guilty plea. A guilty plea which complies with the per se rule of Jackson, but which does not comply with Boy-kin's constitutional mandate that the record show the plea was entered knowingly and intelligently, must be set aside. Conversely, a guilty plea which does not comply with the per se rule of Jackson, but which is constitutionally valid because it was clearly shown to have been entered knowingly and intelligently, should be affirmed. The key inquiry is whether the record (consisting of both the evidence at the time of the plea and the evidence at the postconviction attack on the plea) establishes that defendant entered the plea knowingly and voluntarily. McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102.

On this record, defendant is clearly entitled to have his plea to firearm possession set aside. Because that plea was part of a package deal, the state may insist that the entire plea be set aside.

DENNIS, Justice,

concurring.

I respectfully concur.

I cannot join in the majority’s speculation as to which was more important to this defendant’s decision to plead guilty, his understanding of his constitutional rights or of his maximum penalty exposure. It is unnecessary and will probably not be understood in the way it is intended.

      . The record contains no other reference to defendant being subject to parole revocation. When defendant was asked whether he was on parole at the time of the sentencing hearing he responded in the negative.

      . As a matter of fact, virtually all of the recent pleas which come before this court are in compliance both with Jackson’s per se rule and Boykin’s constitutional mandate. The problems occur primarily in older pleas, which were entered before trial judges began making the painstaking efforts they do today to insure that a guilty plea is valid.
      Older pleas are now coming before this court generally as predicate offenses used for enhancement of recent crimes. Because the state frequently is prejudiced by stale postconviction attacks on pleas, the record of older pleas should be examined using a standard of substantial compliance, and the unexplained delay in raising the issue should be considered as one factor in the totality of circumstances in the determination of whether to set aside the plea. State v. Cusher, 400 So.2d 601 (La.1981); State v. Bosworth, 415 So.2d 912 (La.1982).

      . It is interesting to note that defendant’s success in setting aside the plea may work to his detriment. If the state’s evidence is still intact, and if defendant is tried and convicted, he will probably be sentenced without the benefits of a very favorable bargain (in which the district attorney agreed not to bill him as a multiple offender).


author: AUGUSTINE, Justice ad hoc.

text:
    STATE of Louisiana v. Gilbert L. COLLAR.
    No. 81-KA-2838.
    Supreme Court of Louisiana.
    June 21, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Clifford Strider, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.

      Calvin Johnson, Collins, Johnson & Volk, New Orleans, for defendant-appellant.
   AUGUSTINE, Justice ad hoc.

Gilbert L. Collar was charged by bill of information with the attempted forcible rape of Lolita Hamilton. Collar was tried by a jury on February 3, 1981 and was found guilty as charged. He was subsequently sentenced to serve five years at hard labor.

FACTS

Lolita Hamilton, the twelve year old victim in this case, had been visiting her grandmother for a number of days as of Sunday, June 15, 1980. Gilbert Collar lives in the same apartment building as the victim’s grandmother, and in fact, they are next-door neighbors.

That Sunday morning, Miss Hamilton was left alone in the apartment with her brother David while her grandmother attended church. Shortly afterward, David also left the apartment with Ronald Collar, the defendant’s brother. When some time had elapsed and her brother still had not returned, Lolita went out into the hallway to see whether David might be on his way back. Gilbert Collar saw her there and, without forewarning, forced her back into her apartment. He pushed her into the living room, where he threw her onto the sofa and then to the floor. Collar tried to unbuckle the victim’s gym suit, but when she resisted and called for help, Collar put his hand over her mouth. When the defendant unzipped his pants and exposed himself, Miss Hamilton jumped to her feet and ran downstairs. She could not get out of the building, however, because the defendant had locked the doors. When she returned, the defendant scratched and bruised the victim’s arms. Collar then left the apartment, telling the victim that he would return in a few minutes with band-aids. Seizing the opportunity, Lolita Hamilton called her paternal grandmother, Mabel Singleton, and told her what had just occurred. Mrs. Singleton then called the victim’s father, who in turn phoned the police.

When police arrived, they inspected the scene for evidence. The victim showed them a wet spot on the sofa, where she claimed the defendant had discharged. The police cut that part of the fabric and tested it, finding the fabric positive for seminal fluid.

There was other corroborative evidence: Mabel Singleton testified that Lolita was crying when they spoke on the phone just after the incident; the victim’s father testified that shortly after the attempted rape, he arrived at the scene and saw fresh scratches and bruises on Lolita’s arms; Lula Thomas, a neighbor, testified that she saw the defendant force Lolita into the apartment, heard a scuffle a short time later, then saw the defendant in the kitchen of the victim’s apartment.

The defendant completely denied the allegations, saying that he had just left his apartment to buy cigarettes when he met Miss Hamilton in the hallway. He testified that after a brief conversation with her concerning his former girlfriend, Hamilton began insulting him and an argument ensued. Collar stated that when he turned and walked away from her, Hamilton picked up an iron ball and threw it at him, striking him in the back. Collar turned around and struck Hamilton with his bare hands, but she fought back, the struggle continuing for some time until a neighbor yelled at both of them, at which point hostilities ceased. According to the defendant, this entire episode took place in the hallway.

ASSIGNMENT OF ERROR

The claimed error in this case concerns the refusal of the trial judge to allow the defendant to conduct a certain line of impeachment inquiry. The defendant sought to establish that the victim’s testimony was entirely false and that her motive for perjury was to retaliate against Gilbert Collar for having been instrumental as a State’s witness in a previous trial against the victim’s uncle.

According to the defense, the victim’s uncle Louis J. Ferdinand, had attempted to rob the defendant’s mother. The robbery was foiled when the defendant Collar happened on the scene and shot Ferdinand in his mother’s defense. In a later prosecution, Collar’s role as a State’s witness was significant in obtaining Ferdinand’s conviction. The crime occurred in 1975, and Ferdinand completed his jail sentence approximately two months prior to the attempted rape of Lolita Hamilton.

On three séparate occasions, defense counsel sought to bring these facts before the jury. During cross-examination of the victim, she testified that her Uncle Ferdinand had never been to jail, at least not to her knowledge. At that point, the defense sought to introduce evidence of the uncle’s conviction. The State’s objection was sustained on the basis of relevance, the prosecutor arguing that a 1975 crime was too remote in time to be seriously regarded as a bias-inducing event.

On two later occasions, defense counsel asked questions concerning Louis Ferdinand’s involvement in the earlier attempted armed robbery. Each time, the State’s objection was sustained.

Appellant now argues that “defense counsel was seeking to show a connection between the conviction of the victim’s uncle, his release from jail and the charge against defendant.” Thus, the entire validity of the defendant’s position rests upon the premise that the victim knew or believed that her uncle had been convicted as a result of Collar’s cooperation with the State as a principal witness in the prosecution of her Uncle Ferdinand. But this premise was shown to be false — the victim testified that she had no knowledge of her uncle’s conviction. It follows that the fact of Louis Ferdinand’s prior conviction could not have motivated Lolita Hamilton to commit perjury. Under these circumstances, we see no reversible error in the trial judge’s ruling that evidence of Louis Ferdinand’s prior conviction should not be admitted.

For the reasons assigned, the conviction and sentence of Gilbert L. Collar are affirmed.

AFFIRMED.

       Judge Gaudin of the 5th Circuit Court of Appeal, and Judges Ciaccio and Augustine of the Court of Appeal, Fourth Circuit, participated in this opinion as associate justices ad hoc, joined by Associate Justices Calogero, Dennis, Watson and Lemmon.


author:
FRED C. SEXTON, Jr., Justice Ad Hoc.
     ROBERT L. LOBRANO, Justice Ad Hoc, BLANCHE, Justice

text:
    STATE of Louisiana v. Bobby Glenn ROWE.
    No. 81-KA-3017.
    Supreme Court of Louisiana.
    June 21, 1982.
    Dissenting Opinion of Lobrano, J., June 24, 1982.
    Dissenting Opinion of Blanche, J., July 8, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Ralph L. Roy, Asst. Dist. Attys., for plaintiff-appellee.
    John P. Calmes, Jr., Baton Rouge, for defendant-appellant.
   FRED C. SEXTON, Jr., Justice Ad Hoc.

The defendant, Bobby Glenn Rowe, was charged on March 10, 1980, by bill of information with armed robbery for his participation in the January 3, 1980, armed robbery of Lee’s Grocery in Baton Rouge, Louisiana. Larry J. Mack and Robert Pratt were also charged with armed robbery in the same bill of information. The court minutes reflect that on May 8, 1980, Ms. Michelle Fournet was appointed to defend both defendant and Mack. On July 14, 1980, the trial court ordered the trials of the three co-defendants to be severed. The defendant’s trial was held on July 17 and 18, 1980. Larry Mack’s trial was scheduled for July 23 but Mack entered a guilty plea before that date. On the date the case was called, due to confusion over who was appointed to defend Robert Pratt, the court appointed Denis Weber as Pratt’s defense counsel and continued his trial until August 18, 1980. After trial on July 17 and 18, 1980, the defendant was found guilty as charged by a unanimous verdict and was sentenced on September 4, 1981, to fifty (50) years imprisonment at hard labor.

The state’s theory of the case is that the defendant borrowed a car from a neighbor and drove it, with Mack and Pratt accompanying him, to Lee’s Grocery in furtherance of plans formulated earlier to rob the store. Upon arriving at the store, Pratt went into the store and conducted a reconnaissance mission in order to determine the number of persons in the store and the precise location of a pistol Rowe had seen under the counter on a previous visit to the store. Pratt completed his mission and told Mack and the defendant that the cashier was the only person in the store and that the pistol was still located under the counter. Armed with this information and a revolver, Larry Mack entered the store and forced the cashier, at gunpoint, to place the contents of the cash register in a paper bag. Mack then fled on foot with approximately $120 in cash, change and food stamps. He also took the gun from under the counter. The cashier, Ms. Aucoin, notified the police of the robbery, and identified Larry Mack as her assailant after examining police photographs. Based on information received from a confidential informant the police located and arrested Larry Mack in a motel room in Baton Rouge, near the scene of the robbery. The defendant, Pratt and two women were also arrested.

The defendant, Bobby Glenn Rowe, was ultimately found guilty of armed robbery. After the trial, on October 20, 1980, the court granted defendant’s counsel’s motion to withdraw and substituted Mr. John Calmes as attorney of record.

The defendant initially urged four assignments of error. His second assignment, dealing with the admissibility of a confession, was not briefed or argued before this court and thus is not considered. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972). Because of our disposition with respect to the final two assignments of error, we do not reach the defendant’s first assignment which is based on the prosecutor’s alleged systematic exclusion of black prospective jurors from the jury by use of peremptory challenges.

In his third assignment of error, the defendant urges that the trial court erred in denying defendant’s court appointed attorney’s motion to withdraw as counsel of record, due to a conflict of interest. Defense counsel, Ms. Fournet, made this motion pri- or to trial. Defendant’s final assignment of error is grounded upon the trial court’s denial of defendant’s motion for a new trial. Since assignments of error three and four are closely interconnected, to facilitate discussion, the assignments will be merged and treated simultaneously.

The testimony of Ms. Fournet adduced at the hearing on the motion for a new trial indicates that on July 14, 1980, the date both defendants were initially set for trial, she was representing both of them. She testified that she filed a motion to withdraw from defendant Rowe’s case. She then indicated to the court that Mr. Mack wanted to plead guilty. A recess occurred and thereafter, Ms. Fournet advised the trial court that Mr. Mack was dissatisfied with her representation and that he wished to hire an attorney. Mack affirmed such in person to the court and further stated that his reason for doing so was that Ms. Four-net was representing both him and Bobby Glenn Rowe. He stated that she had advised him that he should testify against Bobby Glenn Rowe. On the record, Ms. Fournet stated that she informed Mack that his agreement to testify against Rowe was not part of any plea bargain and she also stated that she understood that the District Attorney intended to call Mack as a state’s witness against Rowe. The record reflects a discussion between the court, District Attorney and Ms. Fournet with the general thought that if Mack’s motion for continuance to retain counsel was granted, Ms. Fournet’s motion to withdraw as counsel for Rowe would be made moot. The court granted Mack’s motion, severed his trial and continued it until July 26, 1980. The record does not reflect that the trial court ever acted upon Ms. Fournet’s motion. Ms. Fournet further testified that she contacted Mack before the trial and was told by him that he did not intend to testify against Rowe.

During the course of the trial Larry Mack was called as a state’s witness and was given use and derivative immunity and thus was compelled to testify. During the defense’s cross-examination of Mack the following discourse was had relative to Mack’s possible plea of guilty and testimony in exchange for the possibility of favorable consideration during sentencing:

“Q. You’ve been thinking about this for a while, haven’t you?
A. Thinking about what for a while?
Q. Whether or not you are going to testify today?
A. Right.
Q. You’ve been talking it out at the parish prison?
A. No.
Q. You haven’t been talking about it out there?
A. Well I said I wasn’t going to testify against him because you came to me with, ‘don’t testify against him’. You are defending him. You don’t think I should testify against him. That—
Q. You told me you didn’t want to testify, isn’t that correct?
A. Right. You’re telling me you don’t think I should and at first you was telling me to testify against him when you was defending me.” (Emphasis added).

Ms. Fournet immediately asked that the jury be retired and further requested a mistrial citing the highly prejudicial nature of the witness’ comment and the existence of a conflict due to her past representation of the witness and her present representation of the defendant. She argued that due to such past representation of the witness her ability to cross-examine the witness and thereby adequately and effectively represent the defendant was severely limited. Alternatively Ms. Fournet made a motion to withdraw as counsel based on the statement made by the witness and the conflict that existed. The court denied both motions.

She then asked for and was granted an admonition to the jury instructing them to disregard Larry Mack’s last statement regarding her advice that he testify against defendant. The witness was also instructed by the court not to refer to any events that took place while Ms. Fournet represented him. The defense counsel then asked five questions involving the dividing of the money before tendering the witness. Ms. Four-net once again urged a motion for mistrial and a motion to withdraw. Both were denied.

This court in the recent case of State v. Ross, 410 So.2d 1388 (La.1982), addressed the question of joint representation and the conflicts of interest arising therefrom which can adversely affect a defendant’s Sixth Amendment right to the effective assistance of counsel. The Ross case is virtually indistinguishable from the case at bar with the exception that in Ross no objections were made during the course of the trial regarding the conflict issue. In Ross, this court stated:

“The trial court erred in failing to recognize a conflict of interest that existed through the appointment of one attorney to represent defendant and his co-defendant.
The right of every criminal defendant to have the assistance of an attorney during the proceedings against him is a cornerstone of our legal system. Amendment 6, U. S. Constitution; Article 1, Section 13, Louisiana Constitution (1974). To be more than just a hollow right, our law requires that assistance of counsel be effective. As a general rule, courts have held that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant he is representing. The issue of conflicting loyalties usually arises in the context of joint representation of co-defendants. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1976); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Johnson v. Hopper, 639 F.2d 236 (C.A.5 1981). But it has also surfaced in cases like the one at bar, where an attorney runs into a conflict because he or she is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney. United States v. Morando, 628 F.2d 535 (C.A.9 1980); United States v. Partin, 601 F.2d 1000 (C.A.9 1979). Although the issue can arise in different contexts, the legal principles are the same.
Multiple representation is not per se illegal and does not violate the Sixth Amendment to the U. S. Constitution (or Article 1, Section 13 of the Louisiana Constitution) unless it gives rise to a conflict of interest. Cuyier v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway, supra. The mere possibility of conflict is insufficient to reverse a criminal conviction. However, if the defendant establishes that an actual conflict of interest adversely affected his lawyer’s performance, he has demonstrated a violation of his Sixth Amendment rights under the U. S. Constitution and his Article 1, Section 13 rights under the Louisiana Constitution of 1974, Cuyler, supra. If an actual conflict exists, there is no need for a defendant to prove that he was also prejudiced thereby. Showing an actual conflict mandates reversal. State v. Franklin, 400 So.2d 616, 1981 Supreme Court.” (Emphasis added).

We determine that in the instant case there existed an actual conflict. Larry Mack, a co-defendant of Bobby Rowe’s was called as a state’s witness against Rowe, Ms. Fournet was obviously unable to adequately cross-examine Mr. Mack and thereby protect the defendant’s interests due to the nature of the attorney client relationship that had existed between Mack and Ms. Fournet.

In a situation such as exists here where one of two co-defendants who were, or are, being represented by the same defense counsel is called to testify against the other, thereby hampering the defense counsel’s ability to protect the interests of the client at trial an actual conflict exists per se. Such a finding of actual conflict mandates reversal. State v. Ross, supra.

Therefore for the reasons stated above, the defendant’s conviction is reversed and the case is remanded for a new trial.

REVERSED AND REMANDED.

ROBERT L. LOBRANO, J. Ad Hoc, dissents and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

ROBERT L. LOBRANO, Justice Ad Hoc,

dissenting.

I respectfully disagree with the majority view that defendant was deprived of his Sixth Amendment right to the effective assistance of counsel. The majority states that Ms. Fournet was “obviously” unable to cross-examine Larry Mack, the state’s witness. (emphasis added). I do not find this to be correct. Ms. Fournet was in a better position than most defense attorneys to cross-examine Mr. Mack as he had consented to speak with her prior to defendant’s trial. In most instances, state witnesses are very reluctant to talk with defense attorneys. Further, any prejudicial remarks made by Larry Mack were clearly admonished by the trial judge. I do not find that defendant was prejudiced in any way, nor was he deprived of his Sixth Amendment right to counsel.

I respectfully dissent.

BLANCHE, Justice

(dissenting).

Though defendant and Larry Mack were initially represented by the same attorney, the trial judge ordered a severance- and Mack was permitted, before defendant’s trial, to retain his own counsel. When counsel cross-examined Mack, there was no joint representation and, consequently, no conflict of interest. The trial judge did not limit the scope, nor in any manner interfere with the effectiveness, of the cross-examination.

Because of the use and derivative immunity given Mack, as well as counsel’s prior representation of him, defense counsel was in a more favorable position to conduct an effective cross-examination. Because the prejudicial remarks made by Mack were clearly elicited by defense counsel, the state should not be penalized by reversing defendant’s conviction. Further, the trial judge corrected any possible prejudice when he admonished the jury.

Accordingly, I respectfully dissent.

       Judges Fred C. Sexton, Jr., and William Norris, III, of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.


author: ROBERT L. LOBRANO, Justice ad hoc.

text:
    STATE of Louisiana v. Melvin WILLIAMS.
    No. 81-KA-3158.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Dandall Green, Nancy Sharpe, William P. Campbell, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Dwight Doskey, Walter L. Sentenn, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   ROBERT L. LOBRANO, Justice ad hoc.

On August 18, 1981 defendant, Melvin Williams was charged by bill of information with possession of a firearm as a convicted felon, in violation of La.R.S. 14:95.1. After the trial court denied his motion to suppress, defendant pled guilty to the charge, reserving his right to appeal the denial of his motion. Thereafter, he was sentenced to three years at hard labor. Defendant now appeals on the basis of one assignment of error, that the trial court erred in denying his motion to suppress the firearm.

STATEMENT OF FACTS

The record reflects that the sole evidence presented at the motion to suppress was the testimony of the two police officers who apprehended defendant. Their testimony shows the following facts. On July 30, 1981, at approximately 1:00 a.m., Officers Selby and Corales were patrolling in an unmarked police car. As they approached the intersection of St. Ann and Roman Streets in the City of New Orleans, they observed the defendant sitting in the driver’s seat of a green Chevrolet parked in the middle of Roman Street with the lights off. The officers then observed a Negro male (one Terry Marchand) run from the bar on the corner and get into the passenger side of the car. Officer Corales testified that, although he wasn’t positive, it appeared that Marchand was holding something. Just as the car’s engine started up and the lights were turned on, Officer Selby jumped out of the police car and ran toward the intersection. At that point in time, both officers suspected that an armed robbery or some other crime may have been committed. Officer Selby ran toward the moving car waving his ID and shouting “Police! Stop!” The car continued coming in his direction, at which time Officer Corales positioned the police vehicle so as to prevent defendant’s car from striking Officer Selby. As a result, the two cars locked bumpers. Defendant then attempted to back up his car unsuccessfully. Officer Corales got out of the police car and told Officer Selby that he recognized the driver of the car (defendant) and that he was possibly “wanted”. Officer Selby continually ordered defendant to get out of the car but defendant refused to obey. Officer Corales, in the meantime, had already escorted Marchand from the passenger side to the rear of the car. As Officer Selby approached the driver’s side, defendant moved his hands from the steering wheel down to his waist area and slowly opened the car door. Officer Selby approached cautiously and noticed that defendant had a cast on his leg as he alighted from the car. As Officer Selby escorted defendant out of the car, he noticed a blue steel revolver on the floorboard where defendant was seated. Officer Selby did not seize the gun at this time, but instead proceeded to take defendant to the rear of the car where Officer Corales had been detaining Marchand. The officers asked defendant for his driver’s license, which he failed to produce. Thereupon he was placed under arrest for driving without a license. Officer Selby then retrieved the gun from the floorboard of defendant’s car.

ASSIGNMENT OF ERROR

Defendant argues that the trial court erred in denying his motion to suppress the gun seized from his car. Specifically, he contends that merely observing an individual running from a place of business to a waiting car does not constitute a cause sufficient to justify a forcible stop.

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is well recognized in our statutory law, as well as federal and state jurisprudence. La.C.Cr.P.Art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Cook, 332 So.2d 760 (La.1976). Specifically our Code of Criminal Procedure provides:

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

In determining the rights granted to police officers under the above cited article, this Court has consistently stated that the officers must have reasonable cause to stop and question the particular individual detained, including reasonable belief justified by action on the part of the detainee that he has been, or is about to be engaged in criminal conduct. State v. Cook, 332 So.2d 760 (La.1976). The reasonable cause sufficient to justify an investigatory stop is somewhat less than the probable cause needed for a full custodial arrest. As was stated by this Court in State v. Chopin, 372 So.2d 1222, 1224 (La.1979);

“[Reasonable cause is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference.”

In the instant case, Officers Selby and Corales infringed upon defendant’s right to be free from governmental interference when Officer Selby jumped from the police vehicle, ran towards defendant’s car, and ordered him to stop. This action by the officers must be weighed in light of the facts and circumstances of this particular case. Although the facts of other cases may be somewhat relevant in deciding the present issues, it is well settled each case must stand on its own.

In State v. Wade, 390 So.2d 1309 (La.1980) defendant’s immediate flight through a “high crime area” upon seeing an unmarked police vehicle constituted reasonable cause for an investigatory stop. In State v. Cook, 332 So.2d 760 (La.1976), a police officer in an unmarked vehicle saw defendant, otherwise unknown to him, standing with his back against the corner of a building, peeking surreptitously around it several times. When defendant started walking up the street, the officer followed, and upon seeing other officers in civilian clothes displaying their badges the defendant walked away. This was sufficient to justify an investigatory stop. In State v. Chopin, 372 So.2d 1222 (La.1979) we held that the police officers did not have the right to make an investigatory stop of a person who was walking in a well-lit, well-traveled area carrying a brown paper bag and who became “kind of nervous” upon catching sight of a patrol car. This court has also considered the actions of a defendant in attempting to escape after the police officer turned on his red light and sounded his horn in upholding an investigatory stop. State v. Dupart, 383 So.2d 1226 (La.1979).

The factual situation in this case can best be summarized by the following response given by Officer Selby under cross-examination.

“As we approached the intersection we saw a car parked in the middle of the street with its lights off with the subject inside the vehicle. As we approached closer, we observed the subject run very hurriedly. Not a trot. I mean run and sprint away from a building, which drew some suspicion to our minds that possibly something had occurred or taken place.”

A police officer has the right to make an investigatory stop under suspicious circumstances. Certainly a person running from a bar at 1:05 A.M. in the morning to a car parked in the middle of the street with its lights off creates a sufficient “suspicious” atmosphere to warrant such a stop.

We therefore conclude that the trial court was correct in denying the motion to suppress, and therefor affirm the conviction and sentence.

       Judges William Norris, III. and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.


author: MARCUS, Justice.

text:
    Melvin SMITH v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Office of Charity Hospital of Louisiana at New Orleans.
    Nos. 81-C-3266, 81-C-3283.
    Supreme Court of Louisiana.
    June 21, 1982.

      Laura Denson Holmes, Dept, of State Civil Service, Baton Rouge, for applicant in No. 82-C-3266.
    Louis L. Robein, Jr., Barker, Boudreaux, Lamy, Gardner & Foley, Philip H. Kennedy, La. Dept, of Health & Human Resources, New Orleans, Laura Denson Holmes, Baton Rouge, for respondent.
    Philip H. Kennedy, La. Dept, of Health and Human Resources, New Orleans, for applicant, in No. 82-C-3283.
   MARCUS, Justice.

Melvin Smith was employed by the Department of Health and Human Resources (DHHR) as a Police Officer I (probationary status) at Charity Hospital in New Orleans. He was suspended because of his involvement in a shooting incident and his alleged failure to cooperate with the police. His special officers commission issued by the police department was confiscated and revoked. Smith filed an appeal with the State Civil Service Commission, challenging the basis for his suspension. Subsequently, he was advised that he was being separated from his appointment as Police Officer I. Thereafter, DHHR filed a motion for summary disposition of the appeal. Following a hearing limited to a consideration of the motion for summary disposition, the Commission set aside and reversed the suspension for non-compliance with Civil Service Rules but affirmed the dismissal. The decision of the Commission was filed with the Director on July 6, 1981.

Thirty calendar days later, on August 5, 1981, the Commission received a letter from Smith’s attorney which read as follows:

This letter will serve as a formal appeal from the decision of the Commission rendered in this matter on July 6, 1981. Specifically, we wish to appeal that portion of the decision which holds that Charity Hospital of Louisiana at New Orleans complied with all applicable Commission regulations pertaining to the notice of dismissal allegedly rendered to Melvin Smith. It is our contention that the notice of “indefinite suspension” served as the actual notice of dismissal but, as indicated, this notice of dismissal did not comply with the Commission regulations.

Additionally, on August 5, 1981, Smith’s attorney mailed a letter to the Commission, postmarked that day, reiterating his assignment of errors, designating the entire record for appeal and enclosing a bond for costs in the sum of $100. The August 5 letter was received by the Commission on August 7, 1981.

Thereafter, the Commission issued a notice of appeal. DHHR filed a motion to dismiss the appeal on the ground that Smith’s application for appeal was not timely filed with the Commission within thirty days, as required by La.Const. art. 10, § 12 and Uniform Rules, Courts of Appeal, Rule XVI. The court of appeal denied the motion to dismiss finding that the application for appeal was timely filed since under the Administrative Procedure Act, La.R.S. 49:951 et seq., Smith was entitled to apply for a rehearing within ten days of the Commission’s decision. Since the decision of the Commission could not be final until ten days had expired, the court reasoned, Smith in essence had forty days within which to file his appeal. Therefore, his appeal which was received within the forty-day period was considered to be timely. The court in so ruling recognized the inconsistency between the APA and Civil Service Rule 13.-33(b) which states: “No hearing shall be granted from a final decision of the Commission” but concluded that the “state law, being of a higher status than the Civil Service rules, controls in this case.”

After the judgment was rendered, the court of appeal granted the motion of the Director of the Louisiana Department of State Civil Service to intervene in these proceedings pursuant to La.R.S. 13:3417. Thereafter, DHHR and the Director made separate applications to this court to review the decision of the court of appeal. We granted both applications.

DHHR and the Director both contend that the court of appeal erred in ruling that the appeal was timely based on the premise that the Administrative Procedure Act superseded Civil Service Rule 13.33(b). We agree. La.Const. art. 10, § 10(A) vests the Commission “with broad and general rulemaking and subpoena powers for the administration and regulation of the classified service.. .. ” This constitutional grant of rule-making power to the Commission precludes the legislature from enacting a statute which would nullify the Commission’s rule prohibiting a hearing from a final decision of the Commission. Accordingly, the rehearing provision of the Administrative Procedure Act is not applicable to decisions of the Commission. Cf. La. Consumers’ League, Inc. v. La. Public Service Commission, 351 So.2d 128 (La.1977).

The Director further contends that the application, assignment of errors, designation of record and bond for costs were not filed with the Commission within thirty calendar days after its decision became final as required by Rule XVI of the Uniform Rules of the Courts of Appeal; therefore, the appeal was not timely filed. It is conceded that the Commission had adopted no rules governing the appeal from the Commission to the courts of appeal.

La.Const. art. 10, § 12 provides:

Each commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.

Rule XVI (Appeals from Final Decisions of Civil Service Commissions) of the Uniform Rules — Courts of Appeal provides:

Section 1. Every application for an appeal from a final decision of a Civil Service Commission shall be filed with the commission in writing as required by law and shall include an assignment of errors, which shall set out separately and particularly each error asserted and a designation of the portions of the record desired to be incorporated into the transcript. . ..
Section 2. Each appellant shall file with his application for appeal a bond for costs in the sum of $100 in favor of the commission.
Section 3. The commission shall endorse on every application for an appeal the date of its filing and shall fix the return date, which shall not be more than sixty (60) days from the date of filing the application for an appeal.
Section 4. No appeal shall stay execution of the decision of the commission, unless otherwise ordered by the Court of Appeal.
Section 5. All other rules and all laws regulating appeals, not inconsistent with the foregoing, shall be applicable to appeals from such commissions.

We consider that the letter received by the Commission on August 5, 1981, the thirtieth calendar day after the decision of the Commission became final, complied with La.Const. art. 10, § 12 requiring that the application be “filed with the commission within thirty calendar days after its decision becomes final.” Hence, Smith timely executed his substantive constitutional right to have the decision of the Commission reviewed by the court of appeal. We do not consider the requirements of Rule XVI, as promulgated by the courts of appeal, to be jurisdictional concommi-tants to the substantive right of appeal. Rather, we consider them to be procedural in nature and therefore of no moment in determining if an appeal has been taken. By this, we are not implying that a rule could not be promulgated that would impose sanctions, including dismissal of an appeal, for failure to comply with procedural requirements.

However, in the instant case, Smith complied with Rule XVI. Sections 1 and 2 provide that every application for an appeal from a final decision of the Commission shall be filed with the Commission in writing as required by law including an assignment of errors, designation of the record and a bond for costs in the sum of $100. Section 5 provides that all other rules and laws regulating appeals, not inconsistent with the foregoing shall be applicable to appeals from the commissions. Rule VI, section 5 of the Uniform Rules — Courts of Appeal provides in pertinent part that: “All motions or other pleadings sent through the mail shall be deemed timely filed if mailed on or before the due date.” Smith mailed his assignment of errors, designation of the record and bond for costs on August 5, 1981, the thirtieth day after the decision of the Commission became final. Hence, Smith fully complied with the rules of the court of appeal.

In sum, Smith timely filed his application for an appeal and complied with the rules of the court of appeal. The motion to dismiss the appeal was properly denied.

DECREE

For the reasons assigned, the ruling of the court of appeal denying the motion to dismiss Melvin Smith’s appeal is affirmed. The case is remanded to the court of appeal for further proceedings.

      . Civil Service Rule 13.28(a) provides that the decision of the Commission shall be final on the day it is filed with the Director.

      . La.R.S. 49:959(A) provides in pertinent part:
      A decision or order in a case of adjudication shall be subject to rehearing, reopening, or reconsideration by the agency, within ten days from the date of its entry.

      . 407 So.2d 498 (La.App. 1st Cir. 1981).

      . 410 So.2d 1141 (La.1982) (DHHR writ grant); 412 So.2d 76 (La.1982) (Director of the Department of State Civil Service writ grant).

      . To the extent Calvin v. State Department of Hospitals, 252 So.2d 748 (La.App. 1st Cir. 1971), is inconsistent with this position, it is expressly overruled.


author:
ROBERT L. LOBRANO, Justice Ad Hoc.

      DIXON, Chief Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Lionel TALBERT.
    No. 81-KA-3268.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Ralph L. Roy, Asst. Dist. Attys., for plaintiff-appellee.
    Vincent Wilkins, Jr., Asst. Public Defender, David Randall Buckley, Bonnie P. Jackson, Appellant Counsel, Baton Rouge, for defendant-appellant.
   ROBERT L. LOBRANO, Justice Ad Hoc.

Defendant Lionel Talbert was charged by grand jury indictment with aggravated rape, a violation of R.S. 14:42, and armed robbery, a violation of La.R.S. 14:64, which occurred on July 27, 1978. On November 6, 1978, defendant pleaded not guilty. His motion to suppress the photographic lineup was denied on December 10, 1980. On May 29, 1981, a unanimous 12 person jury found defendant guilty of aggravated rape. He was sentenced on October 22, 1981 to life imprisonment, without benefit of probation, parole, or suspension of sentence. On appeal, he urges four assignments of error.

FACTS

On July 27, 1978 the victim testified that she had just gone to bed when she heard a knock at the front door. She got up, went to the front room, turned on the light, and asked “who is it?” A man’s voice responded “Doc”. She recognized the voice as belonging to the man who had raped her one month earlier, so she immediately ran back to the bedroom to get her gun. As she was returning with the gun, she heard a loud crash. The front door had been kicked down and was laying in the middle of the living room floor. She remembers hearing several clicking sounds from defendant’s gun before it fired once. Terrified for her six year old child who had been sleeping next to her, the victim laid her gun down and told defendant not to enter the bedroom. Defendant told her to come in the living room and lie down on the floor, which she did. He then raped her and took $60.00 in cash from her wallet.

Approximately one month prior, a similar incident had occurred, except on that occasion she voluntarily opened the door after the man identified himself as “Doc”. “Doc” (Herman Wright) was a friend of hers and it was not unusual for him to visit her late at night. However, the man at the door was not the man she knew as “Doc”. He entered the house, and although he did not have a gun, raped her. He told her he would return and kill her if she told anybody. She explained that she did not report this first incident to the police because she believed she would not be able to prove it was rape since she opened the door voluntarily.

Defendant denies any involvement in the first incident, but does admit to sexual intercourse with the victim on the other occasion. However, he asserts that she consented to have sex with him.

ASSIGNMENT OF ERROR NO. 1

Appellant argues that the trial court committed error in admitting evidence of a prior crime allegedly committed by appellant. This, he urges made it impossible to receive a fair trial.

Generally, evidence of other crimes committed by the defendant is inadmissible due to “substantial risk of grave prejudice to the defendant”. State v. Prieur, 277 So.2d 126 (La.1973). However, there are certain exceptions to this exclusionary rule. Under La.R.S. 15:445 and 446, evidence of acts similar to that charged is admissible to show intent, knowledge, or system. Beyond the literal terms of these statutes, this Court has held to be admissible, for limited purposes, proof of other crimes exhibiting almost the identical modus operandi or system, committed in close proximity in time and place. State v. Ballard, 351 So.2d 484 (La.1977). In State v. Hatcher, 372 So.2d 1024 (La.1979), this Court discussed fully the requirements for admissibility of other crimes evidence under the modus operandi exception.

“In order to be admissible the extraneous offense evidence must meet several tests: (1) there must be clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith; State v. Prieur, 277 So.2d 126 (La.1973); see also, State v. Gaines, 340 So.2d 1294, 1298 (La.1977) (concurring opinion); McCormick on Evidence, Sec. 190, pp. 451-52 (2d ed. 1972); (2) the modus operandi employed by the defendant in both the charged and the uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person; State v. Jackson, 352 So.2d 195 (La.1977); State v. Lee, 340 So.2d 1339, 1345 (La. 1977) (concurring opinion); (3) the other crimes evidence must be substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. State v. Frederick, 340 So.2d 1353 (La.1976); (4) the other crimes evidence must tend to prove a material fact genuinely at issue; State v. Ledet, 345 So.2d 474 (La.1977); (5) the probative value of the extraneous crimes evidence must out weigh its prejudicial effect. State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977).” Id. at 1033.

In the instant case, evidence of defendant’s alleged prior rape of the victim was admissible either to prove intent under R.S. 15:445, or under the modus operandi exception to the “other crimes” exclusionary rule.

With respect to intent, it was the defendant who put the question of intent at issue by contending that he only intended to, and did, pay Ms. James to have intercourse with him. He claims that after he kicked the door down, he told her to either give him his money back, or “do what you supposed to do.” Normally if the act is proved, there can be no real question as to intent. However, under the facts of this particular case there is a real issue of the defendant’s intent to have intercourse without the victim’s consent. Defendant’s argument that intent is not an issue because he admits to having intercourse with the victim is incorrect. The issue is intent to perform the act without the victim’s consent. Evidence of the prior incident is admissible to prove that intent.

We are of the opinion that the evidence is also admissible under the modus operandi exception. Analyzing the evidence in accordance with the pronouncements of State v. Hatcher, supra we find: (1) that there was clear evidence defendant committed the prior rape; (2) that the mo-dus operandi employed by defendant, i.e., identifying himself as “Doc”, was so distinctive as to logically say they are the work of the same person; (3) and (4) that the evidence of the prior rape was relevant to show that defendant had intercourse without the victim’s consent on the second occasion, and further to prove the defendant’s identity; and (5) that the probative value of the evidence outweighed its prejudicial effect.

Therefore, we reject this assignment of error.

ASSIGNMENTS OF ERROR NOS. 2 and 3

By these assignments, defendant contends the trial court erred in allowing the prosecution to question him about prior convictions, and not granting a mistrial. The following testimony by the defendant is pertinent to this issue:

“Q. Yea. Now, you stated you were convicted of what?
A. Agg burglary.
Q. Agg burglary. Now agg burglary, of course, as you know, is the unauthorized entering of a structure, among other things, either while armed with a dangerous weapon or arming yourself after you get into a structure or committing what we call a battery on a person, that is hitting somebody while you’re in there, with the intent of either stealing something or with the intent of committing a felony therein. I want you to — before you answer this question — I don’t want you to answer it right away because I have my own reasons. My question is, what was the felony involved in that aggravated burglary case?
A. What was the what?
Q. My question is this; you have said you were convicted of aggravated burglary. Now, aggravated burglary, under our law, is the unauthorized entering into a structure, either armed with a dangerous weapon or arming yourself after you get in or committing a battery on a person after you’re in there, accompanied with the intent, that is the intention, of either stealing or else of committing some other felony, and there are many of those. Now, my question is, what was the felony involved in your case that you were convicted of; what was the felony that you intended to commit in this unauthorized entry, the case that you have been convicted of?
A. Well, I was convicted of it but I don’t even know nothing about that case.
Q. Where—
A. I was convicted, you understand, sure.
Q. But, I want to know — you were sitting — you were tried?
A. Yea, I was tried.
Q. You were convicted and you were sitting there and you heard the case like you’re sitting here the last day or two, right?
A. Right.
Q. Now, I want to know what it was that — your intention — what was the intention that was ascribed to you in that case?
A. The only thing I can gather look like they was trying to see whether I committed a battery.
Q. A what?
A. A battery or whatever you call it.
Q. Isn’t it a fact that the felony that you were charged with having intended when you made this unauthorized entry was attempted aggravated rape?
A. No sir.
Q. You deny that?
A. I don’t know what they call it.
Q. I mean, do you deny — do you deny— well, let’s see, maybe I can help you out. The commission that you’re talking about allegedly or did occur on June 3, 1978, in that you committed aggravated burglary of a structure located at' 1628 Bynum, belonging to Willie M. Mitchell, Now, do you know Willie M. Mitchell?
A. Yes, I do.
Q. And she is who — she’s a female?
A. Yes.
Q. Now, in that case, were you not— were you not convicted factually of breaking in that place, being armed and attempting to rape her? Wasn’t that the charge in that case, to break it down factually?
A. Uh — see, I don’t—
Q. Wasn’t that the State’s case?
♦ sfc ♦ * % *
Q. My question again, I didn’t try that ease, did I? Did I try this case to which you were convicted?
A. I don’t know who.
Q. Did I?
A. I don’t know who it was.
Q. Wasn’t — you were sitting there — you were eyeballing those witnesses like you were today, were you not? Didn’t that little Willie Mitchell get up there and say you tried to rape her?
Mr. Wilkins: Judge, I’m going to object.
Q. I’ll ask the question one more time. Was not or isn’t it true the offense you were convicted of, that is aggravated burglary, that the intended felony involved in this case you were convicted of, was attempted aggravated rape?
A. Yea.”

Evidence of a prior conviction is permissible for impeachment purposes as set forth in La.R.S. 15:495, which provides:

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

Further, this Court has held that the state may cross-examine a witness as to the details of an offense for which the witness was convicted for purposes of establishing the true nature of the offense. State v. Jackson, 307 So.2d 604 (La.1975); State v. Elam, 312 So.2d 318 (La.1975). However care must be taken to avoid prejudice to the rights of the accused by expansive reference to details of a former conviction. State v. Oliver, 387 So.2d 1154 (La.1980).

Defendant maintains that the cross-examination by the prosecutor went beyond the bounds of an aggressive prosecution. He argues that the prosecutor named the victim, the date, and the place the offense occurred, and in so doing prejudiced the jury to such an extent as to deny defendant a fair trial. He asserts that the trial court should have granted a mistrial. We disagree. A review of the questions by the prosecutor and the responses by the defendant convinces us that the trial court was correct in its ruling. The defendant’s credibility was under attack, and he consistently failed to reveal a vital element of the crime for which he had been previously convicted. It is apparent to this court that he made every effort to avoid the direct questions of the prosecutor. Had he told the truth when first asked about the felony he was alleged to have intended upon entering the structure, there would have been no need for the prosecutor to go any further in his questioning. However, by failing to be straightforward the prosecutor was obligated to pursue the matter to get to the truth.

Accordingly we find no merit to assignments 2 and 3.

ASSIGNMENT OF ERROR NO. 4

Defendant argues that the mandatory life sentence imposed pursuant to La.R.S. 14:42 was excessive under the circumstances of this case. In support thereof he cites the case of Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973) which set forth certain factors to be considered in determining whether the sentence is constitutionally disproportionate to the offense. A similar argument was made in State v. Prestridge, 399 So.2d 564 (La.1981), where this Court stated:

“Counsel forcefully argues that mandatory sentences established by the legislature are subject to judicial review under the constitutional provision, that not all convictions for aggravated rape under LSA-R.S. 14:42 which proscribes varying types of behavior warrant the severe mandatory sentence of life imprisonment, that the mandatory sentence precludes individualized treatment of the offense and the offender, and that the sentence is particularly excessive in this case which did not involve the more brutal acts normally associated with the commission of the crime of aggravated rape.
This court is not prepared to hold that the mandatory life sentence imposed under LSA-R.S. 14:42 does not fall within the state legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies. See and compare State v. Mallery, 364 So.2d 1283 (La.1978) — distribution of heroin, LSA-R.S. 40:966; State v. Terrebonne, 364 So.2d 1290 (La.1978) — distribution of heroin, LSA-R.S. 40:966A; State v. Daniel, 378 So.2d 1361 (La.1979) — second degree murder, LSA-R.S. 14:30.1; State v. Brooks, 350 So.2d 1174 (La.1977) — second degree muider, LSA-R.S. 14:30.1.

In light of Prestridge, this assignment lacks merit.

Although given no assignment of error, defendant argues in his brief that the pre-trial photographic lineup was so tainted that it rendered the in-court identification of defendant completely unreliable. If there was any error in the identification process, such error was harmless in view of the fact that defendant admitted to having intercourse with the victim.

For the reasons assigned, the conviction and sentence are affirmed.

DIXON, C. J., concurs with reasons.

LEMMON, J., dissents and assigns reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur. “Other crimes” evidence must be relevant to a real issue in the case before it is admissible. “Intent” is not an issue in a rape case. “Modus operan-di” is an issue only to prove identification of the offender. The real issue in this case is whether the prosecuting witness consented to the sexual act. Evidence of the prior rape was relevant to this issue.

LEMMON, Justice,

dissenting.

The evidence of a prior attempted rape should not have been admitted. When a defendant takes the stand and places his credibility at issue, the fact of a prior conviction may be used in cross-examination to indicate his bad character as to credibility. Here, the fact of a prior conviction was properly admitted. However, the prosecutor’s hammering away at the details underlying the former conviction had nothing to do with impeaching defendant’s credibility. The sole purpose was to show that defendant had a tendency to commit rape, and the inquiry into the expansive details of the conviction (an inquiry unrelated to credibility) should have been curtailed in order to avoid the overwhelming prejudice which ultimately occurred. See State v. Oliver, 387 So.2d 1154 (La.1980).

This issue involves a basic question of fairness. Since I cannot say that the jury would have convicted defendant of rape without the disclosure that he had attempted a rape once before, I cannot say that he received a fair trial. He should be retried before a jury that is exposed only to appropriate evidence bearing on his guilt of this crime.

       Judges William Norris, III. and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . R.S. 15:445 provides: “In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”
      R.S. 15:446 provides: “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

      . Although defendant argues his identity was not an issue since he admitted having intercourse with the victim, his argument is without merit because prior to his testimony he cross-examined the victim intensively as to her identification of defendant as the assailant.

      . The victim and the defendant each related a plausible story. The jury might have believed either one, until the trial judge allowed the highly prejudicial evidence that defendant’s pri- or conviction of aggravated burglary encompassed an attempted rape. That evidence sealed defendant’s fate.