author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Gerald MANNING.
    No. 64309.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      Ann Woolhandler, George M. Strickler, Jr., New Orleans, Paul Henry Kidd, A Law Corporation, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Gerald Manning was indicted by the Oua-chita Parish grand jury on October 20,1977, for the aggravated rape of Vonda Harris, the first degree murder of Vonda Harris, and the aggravated rape of his neighbor, a sixty year old Monroe woman. The aggravated rape of the neighbor was severed from the case at bar and tried separately. The jury here found him guilty of attempted aggravated rape and of second degree murder of the victim Vonda Harris. He was sentenced to twenty years imprisonment at hard labor without benefit of parole, probation or suspension of sentence for the rape offense, and life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for the murder offense. He appeals the conviction on the grounds that his confession to the rape-murder of Vonda Harris was obtained in violation of this fifth amendment and Miranda rights and that the state withheld material evidence from him.

On February 21,1977, a workman discovered the nude body of a young woman behind a vacant house in Monroe, Louisiana. The victim, Vonda Harris, had been raped and beaten to death.

Six months after the discovery of Vonda Harris’ body, on August 9, 1977 at 1:41 a. m. the Monroe police received a complaint from the sixty year old woman that she had been raped by a young man who lived next door to her. She identified the defendant Gerald Manning as the man who had raped her. Defendant was taken to the police station and questioned for several hours. At 4:59 a. m. defendant requested an attorney. At 5:08 a. m. defendant told the police that he didn’t need an attorney and made an exculpatory statement concerning his neighbor’s claim.

At 6:00 a. m. the police allowed Manning to return home but asked that he return to the station at 8:00 a. m. When he returned he took a lie detector test in which he admitted being at the neighbor’s residence, but denied having had intercourse with her. At 10:00 a. m. defendant was again allowed to return home. Several hours later the police asked Manning to return to the police station for questioning. Shortly after the questioning began, Manning made an oral unrecorded confession that he had forced his neighbor to have sexual intercourse with him.

Defendant was then questioned about the Vonda Harris rape-murder. At 2:50 p. m. Manning made an oral recorded statement implicating himself and an accomplice, Morris “Buck” Perkins, in the Harris murder. At 3:31 p. m. defendant made an oral incul-patory statement concerning the neighbor’s rape. The police ceased questioning Manning at 5:00 p. m. August 9th and resumed questioning about the Harris case the next morning at 8:15 a. m. At 10:35 a. m. on August 10, 1977 Manning made another oral recorded statement in which he admitted his participation in the murder of Vonda Harris.

We deal first with the confession issue. Defendant contends that his confessions should not have been admitted for the following reasons:

1) The confessions were obtained in violation of defendant’s Miranda rights.
2) The confessions were not made freely and voluntarily.
3) The trial court failed to articulate the standard it used in ruling on the admissibility of the confessions.

The defense argues that the police obtained his confession by violating two rights protected by Miranda, the right to remain silent, and the right to counsel. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant contends that the police deprived him of both rights by giving him equivocal Miranda warnings and engaging in conduct which encouraged defendant to believe that he could not go home unless he gave a statement. The defense argues that the alleged violation of Manning’s rights Which occurred at 5:03 a. m. August 9, 1977 rendered all subsequent confessions by Manning unlawful and inadmissible.

At 1:41 a. m. on August 9, 1977 Officer Otwell of the Monroe Police Department was called to investigate a complaint by defendant’s neighbor that she had been raped by a young man who had lived next door. After listening to her complaint and briefly questioning Manning, the officer gave defendant his Miranda warnings and took him to the police station.

At the station at 2:25 a. m. he signed a waiver of his constitutional rights. At 4:59 a. m. defendant began to make an oral recorded statement. When asked if he waived his constitutional rights, Manning answered “yes”, but in the course of questioning the following exchange took place:

“Q: I need to get you to speak up?
A: Talk to you now? Am I gonna talk to you now?
Q: Well, that’s what I am talking about. Do you want an attorney here or do you want to go ahead and tell us your side of it?
A: I want an attorney, you know.
Q: Well, I need to know. If you want an attorney right now let me know and we’ll stop talking to you if you want an attorney?
A: Talking about I can get somebody to come here now?
Q: No, they will appoint you one later but I’ll quit talking to you if you want an attorney?
A: I want an attorney.
Q: O.K. Statement concluded at 5:03 A.M. 8-9-77.”

Officer Zambie then told the defendant that they did not have an attorney available immediately and would have to question him at a later time when the presence of an attorney could be secured. The officers began preparing to leave the interrogation room when the defendant announced that he did not need an attorney and that he wanted to “clear the air.” Manning then made a statement at 5:08 a. m. that he had not be¿n in his neighbor’s residence at the time of the rape. Later at 6:00 a. m., August 9th, the police took Manning home and asked him to return to the station at 8:00 a. m.

Defendant contends that in the foregoing incident the police rendered defendant’s Miranda rights meaningless by telling him that he could have an attorney, but not until later, thereby creating the impression that he would not be allowed to go home unless he waived his right to remain silent and his right to counsel.

When a defendant invokes his constitutional right to silence, the validity of any subsequent waiver depends upon the “scrupulous honoring” of that right by the police. Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 325-326, 46 L.Ed.2d 313 (1975). The other constitutional right safeguarded by Miranda, the right to counsel, demands an equally strict standard of conduct by the police. In either instance, the police must cease interrogation when the defendant exercises these constitutional rights. Miranda, supra. The accused is not precluded, however, from later changing his mind and waiving those same rights. State v. Dominick, 354 So.2d 1316 (La.1978). But the state’s burden is a heavy one. State v. Mouton, 366 So.2d 1336 (La.1978); State v. Peevy, 321 So.2d 324 (La.1975). The courts indulge in every reasonable presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Glasser v. United States, 315 U.S. 63, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 431 (1977).

In the present case defendant received three Miranda warnings before making the 5:08 a. m. exculpatory statement concerning the rape of his neighbor. Officer Otwell gave Manning a Miranda warning at 1:50 a. m. at Manning’s house. At 2:25 a. m. defendant signed a written waiver of rights form. Later at 5:03 a. m. while an officer was asking Manning if he understood his Miranda rights, Manning exercised his rights by stating that he had nothing to say and that he wanted an attorney. After the officers ascertained defendant’s intentions, they immediately ceased questioning Manning, indicating to him that his rights would be respected. They told the defendant that they could not provide him with a lawyer at that time (5:00 a. m.), but that he could have counsel appointed for him later. They told the defendant in no uncertain terms that they would not question him until he was provided with counsel. Manning’s statement within minutes that he didn’t need a lawyer was volunteered by Manning; he was not responding to police questioning at that time.

The facts recited above support the conclusion that defendant understood his Miranda rights and that his decision to waive right to counsel during interrogation and make a statement resulted from Manning’s belief that he could convince the police of his innocence. There is no indication of an overpowering of defendant’s will by the police officers. When Manning invoked his Miranda rights at 5:03 a. m., he saw the meaning of those rights — the officers immediately stopped questioning him, and the officers told him that they could not question him until an attorney was present. The fact that the police honored defendant’s right to cut off questioning indicated to Manning that the promise of an attorney was not illusory.

We conclude that defendant’s Miranda rights were not violated by the Monroe police officers at 5:03 a. m. on August 9, 1977, nor at any time thereafter. The officers gave defendant fresh Miranda warnings before beginning each new round of questioning.

Defendant contends that Miranda warnings notwithstanding, his confession must be suppressed because it was not made freely and voluntarily. Before a confession may be introduced into evidence the state must show that the confession was made freely and voluntarily and that it was not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. R.S. 15:451, See Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 297 (1936). Although Manning made no allegation at the preliminary examination or at the motion to suppress hearing that he had been physically abused, at trial he alleged that he had been choked by a policeman. The court obviously did not believe him, and defendant has abandoned this contention on appeal. The thrust of his argument now is that the police used psychological coercion to exploit the defendant’s low intelligence level and high degree of susceptibility to suggestion to force the defendant into making a confession which was not the product of his own free will.

In support of this contention defendant points to certain untrustworthy information in the confessions and alleges that the police suggested the contents of his confessions and induced his first confession by promising him that he could go home, for football practice, if he confessed. Defendant argues that the police successfully conditioned him into saying what they wanted him to say by “rewarding” him for cooperating with them by making statements.

The circumstances of the questioning do not suggest that defendant’s will was overpowered psychologically or otherwise. After an initial four hours in police custody, Manning was taken home and asked to return to the police station at 8:00 a. m. At this point Manning was no longer detained and returned voluntarily to the station accompanied by his mother. Manning took a lie-detector test in which he admitted to having sex with his neighbor but denied that he had raped her. Upon conclusion of the test at 10:00 a. m. he was once again allowed to return home. At 12:30 p. m., when an officer asked defendant to return to the police station, Manning went with the officer because he understood that he would be allowed to return home. Shortly after this questioning session began Manning confessed to raping his neighbor, followed by his confession to the murder-rape of Vonda Harris.

The first confessions occurred after 7 or 8 hours of police custody interrupted by two significant breaks (totalling 4 — 4½ hours) when defendant was in his home environment and free to consult with family and friends. From the time Manning was first questioned to the time he confessed to the Vonda Harris rape-murder he received no less than nine Miranda warnings. Although Miranda warnings do not establish voluntariness of a confession if police conduct shows that Miranda rights will in fact be disregarded, in the present case defendant knew from his experience at 5:03 a. m. August 9th that he could stop questioning at any time by invoking his Miranda rights. The record indicates that Manning was allowed to return home after making statements at 5:08 a. m. and 9:51 a. m. for practical rather than psychological reasons — statements made at those times were exculpatory.

The inconclusive testimony of defendant’s expert witnesses failed to corroborate defendant’s allegation that the confessions were involuntary and. their contents suggested by the police. One of the defense psychiatrists labeled the defendant a “passive-aggressive” type of individual who would make up answers rather than admit ignorance; the other defense psychiatrist denied that Manning was “passive-aggressive.” One psychiatrist stated that Manning believed he. would be allowed to go home to football practice if he confessed to the murder, while the other psychiatrist did not believe that Manning thought he could go home if he confessed.

Defense contentions that untrustworthy information contained in defendant’s confessions casts doubt on the voluntariness of the confessions is not convincing. Defendant relies primarily on the fact that Manning implicated three black males from Monroe who in fact did not participate in the murder of Vonda Harris as evidence that the confessions were involuntary. Manning admitted to a police officer the morning after implicating the three alleged accomplices that he “had lied on the three dudes.” The court obviously believed that the untrustworthy portions of the confessions resulted from the defendant’s fabrications.

Conclusions of a trial judge on the credibility and weight of testimony relating to the voluntariness of a confession are given great weight and will not be overturned unless they are not supported by the evidence. State v. Simmons, 340 So.2d 1357 (La.1976). An examination of the trial record shows that the trial court’s decision on the voluntariness of the confession is amply supported by the evidence.

The third argument advanced by defendant to suppress the defendant’s confessions is that the trial court did not for the record articulate the burden of proof that the state must meet in proving that a confession was made freely and voluntarily. This assignment is without merit; the record contains no indication that the court in fact used any standard other than proof of voluntariness beyond a reasonable doubt. State v. Coleman, 369 So.2d 1286 (La.1979); State v. Volk, 369 So.2d 128 (La.1979).

In brief the defendant urges us to follow the New Hampshire Court in State v. Gulliek, - N.H. -, 396 A.2d 554 (N.H.1979), and require the trial court to make an explicit finding in the record that a confession was voluntary beyond any reasonable doubt. While defendant’s argument is not frivolous and trial judges might do well to state for the record the standard of proof which governs their rulings in such situations we are not disposed to conclude that the absence thereof adversely affects the ruling.

Defendant’s other assignment of error deals with allegedly exculpatory information withheld from the defense. The defense contends that the following material evidence should have been disclosed to the defendant:

(1) The fact that the defendant confessed to two rapes (in addition to the rapes of Vonda Harris and the neighbor) which the defendant may not have committed.
(2) A September 10, 1976 receipt from a Monroe auto-shredder which the defense contends would prove that the car which defendant in the confession had acknowledged was being used by him on the night of the Vonda Harris rape-murder was in fact destroyed five months prior to the night of Vonda Harris’ death.

Upon request by the defense the state has a constitutional duty to disclose evidence material to the guilt or punishment of the accused. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Falkins, 356 So.2d 415 (La.1976). Preter-mitting whether the evidence here should have been disclosed by the state before trial, the second question which must be answered affirmatively before a reversal of a conviction is required, is whether the nondisclosure deprived defendant of a fair trial. State v. Falkins, 356 So.2d at 417. Error of constitutional dimensions is committed only if the omitted evidence creates a reasonable doubt that did not otherwise exist. See United States v. Agurs, supra. The omitted material must be evaluated in the context of the record as a whole. Where there is no reasonable doubt as to guilt even when the additional evidence is considered, a new trial is not required. If some doubt as to the validity of the judgment already exists, additional evidence of relatively minor importance might create a reasonable doubt. United States v. Agurs, 427 U.S. at 113, 96 S.Ct. at 2402.

Defendant contends that the withheld evidence that on August 9th and 10th Manning confessed to additional rapes which he may not have committed would create a reasonable doubt that he was guilty of raping and murdering Vonda Harris. Defendant’s argument is without merit. When the omitted material is evaluated in the context of the record as a whole, the additional evidence does not create a reasonable doubt.

The other evidence withheld by the prosecution, the receipt for the shredding of a black Impala on September 10, 1976, was specifically requested by the defendant to prove that the black Chevrolet owned by Morris Perkins that Manning in his confession had stated he was riding in on the night of the rape-murder of Vonda Harris had been junked by Perkins five months before the crime, on September 17, 1976. (the date of the crime was February 21, 1977)

The defendant introduced into evidence the middle copy of an Auto-Shred receipt for an automobile junked on September 17, 1976. This copy of the receipt did not have the color, registration number or make of the ear written on it. When the defense called an employee of Auto-Shred as a witness, the employee matched defendant’s receipt with the receipts in her file and discovered that defendant’s receipt apparently was for a white Chevrolet.

Defendant then called a witness (at trial) who initially testified that he and his cousin had junked a car for Morris Perkins in September of 1976. But on cross-examination the witness stated that he did not remember the date the car was taken to the auto-shredder. Defense counsel called an employee of the District Attorney’s office who testified at trial that after the earlier hearing on the motion to suppress he had gone to the Auto-Shred and picked up two receipts in addition to the September 17, 1976 receipt, one of the former of which indicated that a black Chevrolet Impala had been junked on September 10, 1976. In an effort to link the receipt of September 10, 1976 with defendant’s argument that Perkins’ car had been junked in September, 1976 defendant called Ronald Ross who testified that he and his cousin had junked Morris Perkins’ black Chevrolet in September of 1976, but defense counsel did not ask Ross to identify the September 10, 1976 receipt. When cross-examined Mr. Ross could not remember the exact date the car was junked.

The record indicates that the September 10,1976 receipt for a black Chevrolet Impala was never positively identified as the receipt for Morris Perkins’ car, but the jury could have drawn that inference from the evidence presented, and in fact that September 10, 1976 receipt which the District Attorney should have furnished earlier on defendant’s request was presented at trial and introduced into evidence for the jury’s consideration. Thus, we are not faced with the typical Brady issue of what effect omitted evidence would have had on a jury, because the requested evidence, the September 10, 1976 receipt for a black Chevrolet Impala, did reach the jury. We need not decide whether evidence of the September 10, 1976 receipt would have created a reasonable doubt when evaluated in the context of the record as a whole, for the jury considered the September 10, 1976 receipt together with the other evidence and found defendant guilty beyond a reasonable doubt. There is no indication that the lateness of the disclosure prejudiced defendant so that he was prevented from receiving his constitutional right to a fair trial. United States v. Miller, 529 F.2d 1125 (9 Cir. 1976).

This assignment of error has no merit.

Decree

For the foregoing reasons the conviction and sentence of defendant Gerald Manning is affirmed.

AFFIRMED.

       Chief Judge PAUL B. LANDRY, Retired, sat by assignment as Associate Justice Ad Hoc in place of former Justice ALBERT TATE, Jr., now Judge, United States Court of Appeals, Fifth Circuit, upon this case.

      . Conviction for rape of defendant’s neighbor is the subject of the appeal in State v. Manning, La., 380 So.2d 54, handed down this date.

      . The police may ascertain whether the defendant’s true intention is to exercise his right to silence and right to counsel. United States v. Rodrigues-Gastelum, 569 F.2d 482 (9 Cir. 1978). And several federal courts have held that a defendant may be confronted with evidence against him so long as no “interrogation” occurs. United States v. Hodge, 487 F.2d 945 (5 Cir. 1973); United States v. Davis, 527 F.2d 1110 (9 Cir. 1975). But see Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 431 (1977).

      . The defendant urges us to adopt the reasoning of the Pennsylvania court in Commonwealth v. Johnson, 399 A.2d 111 (Pa.1979), where the court found that a suspect had not knowingly and intelligently waived his rights after being given a Miranda warning which told defendant that the police had no way of providing defendants a lawyer immediately, but a lawyer would be appointed if and when the defendant went to trial. Without passing on the merit of the Pennsylvania decision, we note two distinctions in the present case. (1) The Miranda warning in the Pennsylvania case did not make it clear to defendants that they could have an attorney present during questioning prior to trial, and (2) in the Pennsylvania case the officers did not explain to the defendant that he could not be questioned until an attorney was present.

      . While defense counsel perhaps did not know before trial the names of the other women defendant had confessed to raping, at the preliminary examination he had learned from a policeman who questioned defendant that Manning had confessed to several other rapes.

      . In United States v. Agurs, 96 S.Ct. at 2399, the court stated that a prosecutor who receives a specific and relevant request should furnish the information to the defense or submit the issue to the trial court.


source: Caselaw Access Project

author: CALOGERO, Justice. DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Gerald MANNING.
    No. 65408.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      Ann Woolhandler, George M. Strickler, Jr., New Orleans, Paul Henry Kidd, A Law Corporation, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Gerald Manning was charged by grand jury indictment with the aggravated rape of his sixty year old neighbor, a Monroe woman, and with the rape-murder of one Vonda Harris. The rape-murder case was severed and tried separately. Trial for the aggravated rape of the neighbor resulted in a hung jury. Thereupon the aggravated rape indictment was amended, the charge being reduced to forcible rape. Upon a second trial a twelve member jury returned a verdict of guilty of attempted forcible rape. The defendant was sentenced to serve ten years at hard labor. On appeal to this Court defendant argues five assignments of error.

At 1:41 a. m. on August 9, 1977, a sixty year old Monroe woman called the police and told them that she had just been raped by a young man who lived next door. When the police arrived, she identified the defendant, Gerald Manning, as her assailant. After the policeman went next door and called him to the door, defendant was taken to the police station. At 5:08 a. m. August 9, 1977, he made a statement in which he said that he had not been in the neighbor’s residence that night. Over the next ten to eleven hours defendant was questioned intermittently, released to go home twice, and voluntarily returned to the station twice. Over this period of time defendant first denied then admitted to being in the neighbor’s house, but denied having sex with her. (8:00 a. m.) Later defendant admitted to having had sex with his neighbor, but claimed that the sex was consensual. (12:45 p. m.) Finally defendant admitted to having raped the neighbor (between 1:00-3:00 p. m.). After defendant confessed to raping the neighbor he admitted his participation in the rape-murder of Vonda Harris. At 2:51 p. m. defendant made a taped confession to the rape-murder of Vonda Harris, followed by a separate recorded confession to the rape of the neighbor at 3:31 p. m. Shortly thereafter defendant confessed to raping several other women. At 10:35 a. m. the next morning (August 10, 1977) defendant made another recorded oral statement concerning the rape-murder of Vonda Harris.

Defendant’s first assignment of error is concerned with the admissibility* of his statements concerning the instant rape, that of the neighbor. Defendant contends that the statements he made to the police were not freely and voluntarily made, were obtained in violation of his Miranda rights, and that the trial judge did not state for the record the burden of proof he applied in ruling on the admissibility of the statements. The facts and arguments raised by defendant in this case are discussed at length in State v. Manning, 380 So.2d 46, handed down this day January 24, 1980, and the reasons for holding the confessions in that case admissible are equally applicable to the statements at issue here. This assignment is without merit.

Defendant contends in assignment of error number three that the trial court erred in denying his motion to quash the petit jury panel on the grounds of racial composition. The only evidence defendant offered to substantiate his allegation that the state had systematically excluded blacks from the jury lists was information showing that blacks made up approximately thirty percent of the over eighteen population in Oua-chita Parish. At defendant’s request the trial court took judicial notice of the fact that five of the fifty-five members of the petit jury venire were black. The trial judge also took judicial notice of the fact that twenty persons had been excused from the petit jury venire by reason of illness, legal exemption, or other personal reasons. No one noted the race of these persons.

The ruling of the trial court is correct. Defendant is required to demonstrate that the state has systematically excluded a particular group from juries. State v. Western,, 355 So.2d 1314 (La.1978). The fact that blacks may have been underrepresented on a particular petit jury venire does not establish that the state has systematically excluded blacks from petit jury ve-nires. See State v. Gray, 351 So.2d 448 (La.1977); State v. Daigle, 344 So.2d 1380 (La.1977); United States v. Wiman, 304 F.2d 53 (5 Cir. 1962). This assignment is not meritorious.

In his fourth assignment of error defendant argues that the trial court erred in holding that defendant’s request to waive jury trial was not made timely. Manning made the request on the second day of trial after the jury had been sworn in, but before opening statements. He concedes that jury waiver is a request which should be made within the time allowed for pre-trial motions, but he contends that valid grounds for jury waiver did not exist until jury selection was complete, i. e., after the state peremptorily challenged every black in the petit jury venire. Essentially defendant contends that he had the right to elect to waive the jury when the state used peremptory challenges to exclude blacks, exercisable even after the trial by jury had commenced, and he also contends that he had a constitutional right to be tried without a jury.

C.Cr.P. Art. 780 does not state the time when defendant must waive trial by jury. Comment (d) thereunder states, however, that the courts have general authority to determine when a defendant may elect to exercise his right to waive jury trial. Though conceivably defendant’s attempted jury waiver could have been construed as timely, the trial court was not unreasonable in ruling that defendant’s attempted jury waiver was untimely. There is no need to require a trial court to honor such a belated attempt at jury waiver to facilitate respecting defendant’s constitutional right to equal protection of the law when other procedures to protect those rights are equally effective and available. If defendant has a claim that he has been denied equal protection of the law by the state’s use of peremptory challenges to systematically exclude blacks from jury service, he can raise that objection by making a motion to quash the jury panel, motion for a mistrial, or motion for a new trial. See State v. Washington, 375 So.2d 1162 (La.1979); State v. Brown, 371 So.2d 751 (La.1979); State v. Bias, 354 So.2d 1330 (La.1978). These motions provide an adequate procedural remedy for discriminatory selection of jurors and that remedy was available to defendant.

Turning to defendant’s contention that we should construe his objection to the racial composition of the petit jury venire or his attempted jury waiver as in effect objections to the state’s use of peremptory challenges to systematically exclude blacks from jury service, we note that defendant did not argue this objection at trial. However, even if we construe defendant’s motions as encompassing such an objection, defendant’s claim is still without merit. To substantiate a claimed equal protection violation a defendant must make a prima facie showing- that the state has systematically excluded blacks from jury service over a period of time. Once defendant has done so, the state bears the burden of proving that there was no discrimination. State v. Brown, 371 So.2d at 753. Defendant in the instant case failed to make a prima facie showing. He presented no evidence of systematic exclusion of blacks from jury service over a period of time.

Defendant’s complaint about denial of a constitutional right to trial without jury is without merit. Defendant has not shown that a fair trial by jury in this case was impossible or unlikely. State v. Muller, 351 So.2d 143 (La.1977). In this case defendant had the right to be tried by judge, but chose not to exercise that right timely. Article I Section 17 of the Louisiana Constitution of 1974, C.Cr.P. Art. 780.

Defendant contends (Assignment of Error No. 5) that the judge ad hoc erred when he denied defendant’s motion to re-cuse the trial judge. The trial judge had presided over the earlier trial of the defendant in the same case which had resulted in a hung jury. Prior to the trial defense counsel asked the trial judge whether he had formed an opinion regarding the guilt or innocence of the defendant. The judge replied that he had formed an opinion, but did not disclose what that opinion was. Despite the fact that the trial judge urged the defendant to file his recusal motion prior to trial, the defendant waited until the second day of the trial before moving to recuse the trial judge.

The judge ad hoc ruled correctly that defendant’s recusal motion was untimely. C.Cr.P. Art. 674 requires a motion for recu-sal to be filed prior to the commencement of the trial unless the party discovers the facts constituting the ground for recusal after the trial begins. Defendant knew that the judge had formed an opinion about the case before trial and should have filed the recusal motion at that time.

Defendant’s final assignment of error (Assignment of Error No. 6) is that the trial court erred in denying his motion for a new trial based on newly discovered evidence. The evidence alleged to have been discovered after trial was contained in the presen-tence investigation report. The report stated that after defendant confessed to the rape-murder of Vonda Harris (See 380 So.2d 46, handed down this day, January 24, 1980) and the rape in the instant case, Manning confessed to raping two other women. The police officers who had questioned Manning testified at the hearing for a new trial that these victims could not identify the defendant as their attacker.

In considering a motion for a new trial based on newly discovered evidence, the test employed is whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Kelt, 362 So.2d 751 (La.1978); State v. Lovett, 359 So.2d 163 (La.1978). The trial court has considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its ruling will be disturbed only where there is a clear showing of abuse of that discretion. State v. Huckaby, 368 So.2d 1059 (La.1979).

We find no abuse of discretion here. Defendant’s confession to the other rapes was not sufficiently relevant to the issues involved in this case, and in any event defense counsel was armed prior to trial with the knowledge that his client had in fact confessed to the rape of two additional victims.

Decree

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

AFFIRMED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I concur, since it appears that the defendant did not establish a prima facie case of racially motivated peremptory challenges even within the context of the present case.

      . The rape-murder of Vonda Harris is the subject of our opinion in State v. Manning, 380 So.2d 46, handed down this day, January 24, 1980.

      . Assignment of error number two was not argued and is assumed to be abandoned.

      . Official Revision Comment (d) to Code of Criminal Procedure Article 780 provides:
      “This article makes no mention of the time when the defendant must elect nor of the situation in which the defendant wishes to revoke his waiver. The provisions of this article have been operative since 1921, and there has been no problem with such matters. They have been handled satisfactorily under the general authority of courts to regulate their business.”

      . Interestingly, there is a provision in our law which requires a defendant to exercise his right to waive jury trial prior to the commencement of the trial. That requirement applies only in the legislative transition period between the 1921 and 1974 constitutions. Acts 1975, 1st . Ex.Sess. No.- 16 amending C.Cr.P. Art. 780 provides in Section 2 as follows:
      “A defendant charged with the commission of an offense alleged to have been committed prior to midnight December 31, 1974, shall, except as hereinafter provided, be tried in accordance with the jury provisions applicable at the time of the commission of the offense. Prior to the commencement of trial in such cases, the court shall advise the defendant that he may elect to be tried under the jury provisions of the Louisiana Constitution of 1974, and failure of the defendant to so elect prior to the commencement of the trial constitutes a waiver of his right to be tried under the jury provisions of the Louisiana Constitution of 1974.”

      . The case had been scheduled for Monday morning. On Friday defense counsel discussed with the judge the possibility of his moving to recuse the judge and/or waiving jury trial. The judge urged defendant to file his recusal motion or jury waiver that day. Defendant’s case was. first on the docket and scheduling another judge to hear a recusal motion after defendant’s trial commenced would have entailed a serious disruption of the court’s affairs. See State v. Robinson, 43 La.Ann. 383, 8 So. 937 (La.1891).

      . We do not imply that defendant’s claim was meritorious. In a trial before a judge a preconception of guilt is probably grounds for recusation. This is not necessarily so in a jury trial. State v. Wilson, 362 So.2d 536 (La.1978). We note that the judge’s tentative opinion in this case (which for present purposes we assume was unfavorable to defendant) was prompted by his having presided over a previous trial of defendant for the same offense (which ended in a mistrial) in which all the evidence was presented.

      . Defense counsel prior to trial did not know the names of the other women Manning had confessed to raping but he did know from testimony given at the preliminary hearing that his client had confessed to several other rapes.


text:
    STATE of Louisiana v. Patrick THIBODEAUX.
    No. 64893.
    Supreme Court of Louisiana.
    Jan. 30, 1980.

      J. Harold Fontenot, Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appel-lee.
   CALOGERO, Justice.

Defendant Patrick Thibodeaux was charged by bill of information with distribution of amobarbital and secobarbital, in violation of R.S. 40:964 III B(l) and R.S. 40:968. After trial, the jury returned a verdict of “guilty of possession with intent to distribute a controlled dangerous substance.” The trial court sentenced defendant to six years at hard labor. On appeal defendant, relies on two assignments of error. Because there is an error patent on the face of the record (an error “discoverable by a mere inspection of the pleadings and proceedings” as per Article 921), we reverse defendant’s conviction and sentence and remand to the district court.

Under Article 814 A(45) of the Code of Criminal Procedure, the only responsive verdicts which may be rendered to the charge of distribution of controlled dangerous substances are the following:

“Guilty
“Guilty of attempted production, manufacture, distribution or dispensation of [a] controlled dangerous [substance].
“Guilty of possession of controlled dangerous substances.
“Guilty of attempted possession of controlled dangerous substances.”
“Not guilty.”

When responsive verdicts are mandated by Article 814, the trial court is without authority to vary or to add to the prescribed verdicts. State v. Simmons, 357 So.2d 517 (La.1978).

The trial court, however, submitted to the jury before it retired for deliberation a list of responsive verdicts which included two verdicts which are not responsive under Article 814 A(45), i. e., possession with intent to distribute and attempted possession with intent to distribute. There was no objection by defendant to the charges and the jury following the trial court’s instructions returned a verdict of guilty of possession with intent to distribute a controlled dangerous substance.

Although this Court has held that absent an objection, deficiencies in the responsive verdicts can not be availed of upon appeal, in those cases the error existed only in the list of possible verdicts submitted to the jury and not in the actual verdict returned by the jury. In State v. Turner, 337 So.2d 1090 (La.1976) we held that an alleged error concerning the sufficiency of the list of responsive verdicts submitted to the jury may not be considered unless an objection is made in the trial court in time for the trial judge to correct the error. In Turner, however, despite the error in the list of verdicts submitted to it, the jury did in fact return a verdict which was responsive to the offense charged.

In the instant case not only were the list of verdicts and the judge’s charge incorrect, but the jury actually returned a verdict which was not responsive under Article 814 A(45). Although the jury’s non-responsive verdict was induced by the trial court’s unobjected to erroneous instructions, we find that the verdict is clearly non-responsive and therefore should have been refused by the trial court in accordance with Article 813.

It has been suggested that although the verdict of “guilty of possession with intent to distribute a controlled dangerous substance” is not responsive under Article 814, that verdict does fall within the ambit of the responsive verdict “guilty of possession of [a] controlled dangerous [substance]” and that the addition of “with intent to distribute” is merely a “qualification” of the verdict which under Article 817 is without effect upon the finding of the jury. It is argued therefore that defendant was validly found guilty of possession of a controlled dangerous substance and should merely be resentenced accordingly.

This argument lacks merit. The addition of “with intent to distribute” to the crime of possession of a controlled dangerous substance does not simply qualify the verdict; rather it transforms it into a verdict of guilty of another statutory offense, one which in this case is not responsive to the instant charge.

Code of Criminal Procedure article 920(2) provides that this Court shall consider on appeal “an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” The jury’s verdict is part of the pleadings which this Court must review for errors. State v. Egena, 347 So.2d 1106 (La.1977). Because the verdict was invalid and because a sentence based on an invalid verdict is itself invalid (La. C.Cr.P. art. 872), the conviction and sentence of defendant must be set aside.

Because we find an error patent and reverse defendant’s conviction and sentence, discussion of defendant’s assignments of error would, in the ordinary case, be superfluous; however, because the error might occur on retrial, we deem it advisable to consider defendant’s assignment two which has possible merit.

This assignment arises out of testimony which the trial judge allowed a police officer to give, over objection by the defense. A defense witness, Patty Andrus, had testified on direct and cross-examination that defendant had never provided her with drugs. Later in the trial, however, the state placed a police officer on the stand for the purpose of testifying that Patty Andrus had made a statement on May 9, 1978 that the defendant had indeed given her drugs. Defense counsel objected to the officer’s testimony on the ground that it was inad-. missible hearsay. The trial court overruled the objection and allowed the officer to testify.

The trial court’s ruling was erroneous. The officer’s testimony was clearly hearsay and inadmissible. Furthermore, it was not admissible under the exception to the hearsay rule which allows hearsay concerning a witness’ prior statements for the impeachment of a witness. That exception is applicable only when the witness is impeached in accordance with R.S. 15:493 which requires that a foundation first be laid (before the witness can be impeached with a prior inconsistent statement). In this case the witness, Ms. Andrus, was not asked whether she had made any prior inconsistent statement, nor was she given an opportunity to explain inconsistencies between her testimony and the prior statement. Therefore the officer’s testimony should properly have been excluded as inadmissible hearsay.

Decree

For the foregoing reasons defendant’s conviction and sentence are set aside and the case remanded to the district court for a new trial.

REVERSED; REMANDED.

       Chief Judge PAUL B. LANDRY, Retired, sat by assignment as Associate Justice Ad Hoc in place of former Justice ALBERT TATE, Jr., now Judge, United States Court of Appeals, Fifth Circuit, upon this case.

      . Defendant assigned the following errors:
      1. The trial court erred in denying the motion for a new trial on grounds that there was insufficient evidence to support a verdict of possession with intent to distribute.
      2. The trial court erred in allowing hearsay testimony by a state’s witness that a defense witness had told him that the defendant had distributed drugs to her.

      . The jurors were instructed that the following verdicts were responsive to the charge:
      “1) We the jury, find the accused, Patrick Thibodeaux, guilty of distribution of a controlled dangerous substance, to wit: Amobar-bital and Secobarbital.
      “2) We the jury, find the accused, Patrick Thibodeaux, guilty of attempted distribution of a controlled dangerous substance, to wit: Amobarbital and Secobarbital.
      “3) We the jury, find the accused, Patrick Thibodeaux, guilty of possession with intent to distribute a controlled dangerous substance, to wit: Amobarbital and Secobarbi-tal.
      “4> We, the jury, find the accused Patrick Thibodeaux, guilty of attempted possession with intent to distribute a controlled dangerous substance, to wit: Amobarbital and Sec-obarbital.
      “5) We, the jury, find the accused, Patrick Thibodeaux, guilty of possession of a controlled dangerous substance, to wit: Amobar-bital and Secobarbital.”

      . Article 813 provides the procedure to be followed when the jury returns an improper verdict:
      “If the court finds that the verdict is incorrect in form or is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. In such a case the court shall read the verdict, and record the reasons for refusal.”

      . Article 817 provides:
      “Any qualification of or addition to a verdict of guilty, beyond a specification of the offense as to which the verdict is found, is without effect upon the finding.”

      . R.S. 15:493 provides as follows:
      “Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.”

      . Although the trial court’s ruling was erroneous, the error would not necessarily be reversible had this been the only trial error. Before the officer testified as to the substance of the witness’ prior statement, the trial judge ruled that he would permit the testimony and would thereafter allow recall of the witness so that a foundation could be laid. Thereupon defense counsel stated that he saw no need to recall the witness. While the trial judge reversed the proper procedure and seemingly would first have admitted the testimony, then the foundation, it could be argued that counsel’s expression that he saw no need to recall the witness (Andrus) foreclosed the possibility that in the face of defense persistency in the objection, the judge would have followed the proper procedure.


author: PER CURIAM.

text:
    STATE of Louisiana v. Lionel FORET and Judith McWhorter.
    No. 65382.
    Supreme Court of Louisiana.
    Feb. 6, 1980.

      Miriam W. Waltzer, New Orleans, A. J. Boudreaux, New Orleans, Indigent Defender Bd., 24th Judicial Dist. Court, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott Reeves, G. Michael Grosz, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Defendants Lionel Foret and Judith McWhorter were indicted together for distribution of heroin in violation of LSA-R.S. 40:966(A)(1), Acts 1973, No. 207, § 3. After joint trial before a jury, beginning on January 26, 1977, defendant Foret was found guilty as charged, and defendant McWhorter guilty of possession of heroin. LSA-R.S. 40:966(C). The trial court sentenced Foret to life imprisonment at hard labor, and McWhorter to seven years’ imprisonment at hard labor. Defendants have appealed their convictions and sentences to this Court, urging the sixteen assignments of error filed in the court below.

We have reviewed defendants’ assignments as they relate to the underlying convictions in this case, and find them without merit. Accordingly, we affirm as to both defendants. With respect to Foret alone, however, we note that the trial court has indicated that it sentenced defendant to jail because, in its view, it had no other choice under the statute. The trial court erred and we now set aside its sentence.

Defendant Foret was alleged to have committed this offense on July 1, 1976. At that time LSA-R.S. 40:966(B) provided for a sentence of life imprisonment and, optionally, for a fine not exceeding fifteen thousand dollars. It did not deny the offender eligibility for suspension of sentence and probation. State v. Hopkins, 367 So.2d 346 (La.1979). In September, 1977, well after the offense here, the legislature eliminated that alternative by amending R.S. 40:966(B) to its present form.

Therefore, the imposition of the life sentence in this case appears erroneous, as it indicates a disregard for the sentencing alternatives available to the trial court under the appropriate law. State v. Hopkins, supra.

Accordingly, we affirm the conviction as to both defendants, but set aside the sentence of defendant Foret and remand his case for resentencing in accordance with the views expressed herein, and in conformity with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1.


text:
    CITY OF BATON ROUGE v. Norman J. BOURGEOIS.
    No. 65580.
    Supreme Court of Louisiana.
    Feb. 6, 1980.

      M. Glenn Hawkins, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ralph Tyson, City Prosecutor, City of Baton Rouge, for plaintiff-respondent.
   PER CURIAM.

On December 12,1974, petitioner Norman J. Bourgeois pleaded guilty to a charge of driving while intoxicated (first offense), a violation of La.R.S. 14:98. The trial court deferred sentencing, pending receipt of the requested presentence investigation report. It appears that no further action was taken in this case until December 21,1978, when a bench- warrant was issued for petitioner’s arrest. During the interim, petitioner had moved to another parish, but learning of the warrant’s issuance, he appeared in court, through counsel, to obtain its recall. Before sentence was imposed, petitioner filed a motion to quash on grounds of unreasonable delay. Although the motion was not opposed by the city prosecutor, the court denied it. Petitioner was ordered to pay a $200 fine and serve 30 days in prison, but jail time was suspended and petitioner was placed on one year’s unsupervised probation. We granted writs to review the court’s ruling on the motion to quash.

A defendant is statutorily entitled to the imposition of sentence “without unreasonable delay” and the sanction for noncompliance is divestiture of the trial court’s sentencing jurisdiction. La.C.Cr.P. Art. 874; State v. Johnson, 363 So.2d 458 (La.1978); State v. McQueen, 308 So.2d 752 (La.1975). What constitutes an “unreasonable delay” is determined on a flexible case-by-case basis.

The present record discloses an extreme and unjustified delay. There is no indication that petitioner was notified of a sentencing date, nor that he concealed his whereabouts nor that any effort was made to locate him before a bench warrant was issued in December of 1978, four years after his conviction for this relatively minor offense. Accordingly, we find error in the denial of the motion to quash.

The ruling below is reversed and the case is remanded for further proceedings consistent with this opinion.


text:
    STATE of Louisiana v. Ricky WASHINGTON.
    No. 66101.
    Supreme Court of Louisiana.
    Feb. 6, 1980.

      J. David Garrett, Giddens, McKenzie & Garrett; Paul M. Cooke, Simon, Fitzgerald, Cooke & Reed, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., B. Woodrow Nesbitt, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

We have granted defendant’s application for supervisory writs to review a single question raised below: whether the state may seek the death penalty on retrial of a capital offense in a case where defendant has received a life sentence in the first prosecution and successfully attacked that conviction on appeal. We hold consistent with the accused’s constitutional right of appeal in Louisiana, La.Const.1974, Article I, § 16, that the state may not.

Defendant was charged by grand jury indictment with first-degree murder, La. R.S. 14:30; Acts 1976, No. 657,' § 1. On October 12, 1979, after trial by jury, he was found guilty as charged. In the sentencing hearing that followed, the jury could not agree on penalty. The trial court accordingly discharged the jury and on October 29, 1979, sentenced defendant to life imprisonment at hard labor as provided by La.C. Cr.P. Art. 905.8. After pronouncing sentence, the court then advised defendant of his right to appeal.

In response to the court’s advice, defense counsel filed a motion to determine the effect of that appeal. Counsel explained to the court that “because of the uncertainty of the law right now it is not clear whether or not the state, if a new trial is granted after an appeal . . . could seek the death penalty on the second trial . we are unable [therefore] to intelligently decide whether to exercise [defendant’s] constitutional right to an appeal.” The trial court thought the motion premature and denied it.

In granting defendant’s application, we agreed with defense counsel that the question here does more than call for an advisory opinion. Defendant has not yet taken his appeal and his fate in that regard as the possibility of retrial remains unsettled. As set forth in In Re Baer, 310 So.2d 537, 538 (La.1975), “[t]his Court will not ordinarily rule upon abstract questions where no practical results can be effectuated by its ruling.” See also, Edwards v. Parker, 332 So.2d 175 (La.1976); Abbot v. Parker, 259 La. 279, 249 So.2d 908 (1971); Aucoin v. Dunn, 255 La. 823, 233 So.2d 530 (1970).

Nonetheless, we take as reasonable defendant’s claim that resolution of the question here will influence his constitutional election with respect to appeal of the case. Defendant has received a life sentence in a case that could have brought death. Whether or not he will face a second prospect of death as a measure of success on appeal may well, as a practical matter, enter into his decision to pursue the appeal in the first place. In Re Baer, supra. We therefore reach the merits.

We are satisfied that at the federal level, neither the protection against double jeopardy nor the due process clause absolutely bars the state from seeking the death penalty on retrial after appeal of a capital case in which the defendant has received a life sentence. “At least since 1896, when United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, was decided,” the United States Supreme Court noted in North Carolina v. Pearce, 395 U.S. 711, 719, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969), “it has been settled that [the] constitutional guarantee [against double jeopardy] imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside . And at least since 1919, when Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, was decided, it has been settled that a corollary of the power to retry a defendant is the power upon the defendant’s reconviction to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.” [emphasis the court].

We are also satisfied that under the analysis in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), prospect of a more severe sentence on retrial after a successful appeal will not, in the ordinary course, “chill” the accused’s right of appeal. Chaffin points out, Id. 93 S.Ct. at 1986 that for those cases in which a realistic apprehension of vindictiveness plays no part, North Carolina v. Pearce, supra, “the likelihood of actually receiving a harsher sentence is quite remote at the time a convicted defendant begins to weigh the question whether he will appeal. Several contingencies must coalesce [and] we cannot agree with petitioner that such speculative prospects interfere with the right to make a free choice whether to appeal.”

Chaffin, however, did not directly address the issue raised by defendant’s application here and we resist its conclusion in the present context. In more recent times, the Supreme Court has itself emphasized that the death penalty is “unique in its severity and irrevocability.” Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976). We think that uniqueness decisive here. Weighing the chances for some future increase in the number of years on his sentence, a defendant may well pursue his appeal undeterred. On the other hand, confronted with only two possible sentencing alternatives and a chance of winding up much worse off than before (death for life), the accused may forego his appeal of a life sentence in a capital case and accept what he otherwise feels is an unjust verdict and punishment.

We find, therefore, that a different result in this case would “impair [ ] to an appreciable extent,” Crampton v. Ohio, reported sub nom., McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711 (1971), the policies underlying the constitutional right to appeal in Louisiana. Accordingly, we hold that the state may not subject a defendant to a second prospect of death on retrial of a capital case in which he has received a sentence of life imprisonment. This ease is therefore remanded to the district court for proceedings not inconsistent with this opinion.

REMANDED.

      . In Stroud v. United States, supra, the defendant was tried for murder three times. The first trial ended with a death sentence; his second, with a sentence to life imprisonment; and his third, in death again. In affirming his last conviction, the Supreme Court rejected counsel’s argument that the last trial had placed defendant twice in jeopardy for the same offense. It is not clear from the opinion in Stroud itself whether defendant argued that double jeopardy barred the retrial altogether or only the imposition of the more severe, death sentence. In any event, Pearce would give Stroud a decisive reading, 89 S.Ct. at 2078: “A new trial may result in an acquittal. But if it does result in a conviction, we cannot say that the constitutional guarantee against double jeopardy of its own weight restricts the imposition of an otherwise lawful single punishment for the offense in question.” Pearce thus rejected any sentencing analogies to the decision in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) which held that conviction on a lesser included offense operates as an acquittal, for double jeopardy purposes, of the greater crime charged. North Carolina v. Pearce, supra, 89 S.Ct. at 2078, n. 16.

      . The holding in this.case is consistent with the law of Louisiana as it existed prior to the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Former La.C.Cr.P. Art. 598 provided in pertinent part that “[w]hen a jury returns a verdict of guilty without capital punishment [in a capital case], the defendant cannot thereafter on a new trial be sentenced to death.” At the time, prior to Furman v. Georgia, supra, La.C.Cr.P. Art. 817 authorized the return of a qualified verdict of guilty (without capital punishment) in all capital cases. In response to the decision in Furman, the legislature eliminated those verdicts from capital cases, thereby making the death penalty mandatory . on return of a verdict of guilty as charged. Acts 1973, No. 125, § 1. The legislature also amended Art. 598, eliminating the reference to qualified capital verdicts.
      We agree with defense counsel that the legislature made the change in Art. 598 in 1973 primarily for the purpose of bringing that article in line with Art. 817 as amended. We note, however, that the legislative enactments which followed the decision in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) did not include a return of Art. 598 to its former language, despite the fact that the jury could again return of a life sentence in a capital case. La.C.Cr.P. Art. 905 et seq. Unlike the defense, we find that silence too ambiguous to draw any firm conclusions with regard to the legislature’s intentions. In any event, given the constitutional status of the right to appeal in Louisiana, the legislature could not unnecessarily trammel upon that right even if it chose to do so.
      We note that other jurisdictions have dealt with this problem in different ways. In Shagloak v. State, 597 P.2d 142 (Alaska, 1979), for example, the Alaskan Supreme Court expressly declined to follow North Carolina v. Pearce, supra, and held as a matter of state law that an increased sentence after an appeal is never justified. The West Virginia Supreme Court adopted a similar approach in a two-tier trial de novo setting, refusing to apply Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), State v. Eden, 256 S.E.2d 868 (W.Va.1979).
      Neither Shagloak v. State nor State v. Eden, supra, are death cases, although their holdings of course encompass the problem here. Other jurisdictions have met the question directly and adopted the result reached here for a variety of reasons: People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963); Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969); Roberson v. State, 258 So.2d 257 (Fla.1971), cert. dend., 409 U.S. 885, 93 S.Ct. 112, 34 L.Ed.2d 141 (1972). In view of our holding here, we express no opinion with regard to the prophylactic rules established in Alaska and West Virginia. With regard to the other decisions, we note only that their rationale, if not their result, have been undercut at least in part by the decisions in North Carolina v. Pearce and Chaffin v. Stynchcombe, supra, insofar as they rest on double jeopardy or due process considerations.


text:
    STATE of Louisiana v. Sidney DELOCH.
    No. 65594.
    Supreme Court of Louisiana.
    Feb. 6, 1980.

      C. Jerome D’Aquila, Chief Indigent Defender, 18th Judicial Dist. Court, New Roads, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Ca-shio, Dist. Atty., Houston C. Gascon, III, First Asst. Dist. Atty., for plaintiff-appel-lee.
   PER CURIAM.

On March 19, 1979, the Iberville Parish Grand Jury indicted defendant Sidney De-loch for the crime of aggravated rape, La. R.S. 14:42. A three day trial before a twelve person jury resulted in a guilty verdict. Thereafter, the court sentenced defendant to serve life imprisonment at hard labor without benefit of parole. On appeal he urges two of the three assignments of error filed below.

With regard to assignment of error number one, the record of the juror’s responses on the whole supports the court’s conclusion that she could serve fairly and impartially. Cf., State v. Carthan, 377 So.2d 308 (La.1979).

The issue of whether defendant was denied effective assistance of counsel is more properly raised in this case by application for a writ of habeas corpus in the district court, where a full evidentiary hearing may be conducted if warranted. See State v. Malveaux, 371 So.2d 820 (La.1979); State v. Smith, 369 So.2d 136 (La.1979).

Finding no reversible error on the record before us, we affirm defendant’s conviction and sentence.

       An assignment of error not briefed or argued is considered abandoned. State v. Williams, 366 So.2d 1365 (La.1978).


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON, a/k/a Gerald Williams v. Sheriff Charles C. FOTI et al.
    No. 65086.
    Supreme Court of Louisiana.
    Nov. 1, 1979.
   In re Garrett Decatur Richardson, applying for writ of habeas corpus. Orleans Parish. No. 267-703.

Writ denied.' Appeal pending.


text:
    Bob R. RICHARDS v. FARMERS EXPORT COMPANY et al.
    No. 66331.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Bob R. Richards, applying for cer-tiorari, or writ of review, to the Court of Appeals, Fourth Circuit. Parish of St. Charles. 377 So.2d 859.

Writ denied.


text:
    CUTE-TOGS OF NEW ORLEANS, INC. v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY.
    No. 66413.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Aetna Fire Underwriters Ins., Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 376 So.2d 999.

Writ granted.


text:
    Leroy JONES et ux. v. CITY OF BATON ROUGE.
    No. 66480.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re City of Baton Rouge, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 376 So.2d 1003.

Writ granted.


text:
    Robert G. SUHOR, Jr. v. Richy J. GUSSE and Donald Bellow et al.
    No. 66518.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Robert G. Suhor, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 377 So.2d 1259.

Granted.


text:
    Mrs. Frances H. HOOD v. U. S. I. F. WYNNEWOOD CORPORATION et al.
    No. 66575.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Mrs. Frances H. Hood, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 377 So.2d 480.

Granted.


text:
    The SUCCESSION OF Lucille Meraux ROWLEY.
    No. 66545.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Dorothy Rowley Davis, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 378 So.2d 555.

Denied.


text:
    Sandra S. FREE v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 66571.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Sandra S. Free, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 377 So.2d 410.

Denied.

CALOGERO, MARCUS and WATSON, JJ., would grant the writ.


text:
    John L. HUGHES et ux. v. GRAVES CONSTRUCTION, INC., et al.
    No. 66579.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Glen E. Graves, Graves Construction, Inc., Mutual Funds of La., Inc., Growth Investments, Inc., applying for cer-tiorari, or writ of review to the Court of Appeal, Second Circuit. Parish unknown. 377 So.2d 435.

Denied. On the showing made, writ denied.


text:
    Mike BROYLES v. Henry C. YARBROUGH et al.
    No. 65998.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Mike Broyles, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 374 So.2d 705.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    Gene KILE v. LOUISIANA LIMESTONE AGGREGATES, INC.
    No. 66392.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Louisiana Limestone Aggregates, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 378 So.2d 978.

Denied.

CALOGERO and BLANCHE, JJ., would grant the writ.

WATSON, J., recused.


text:
    Alfred L. WARRINER, Jr. v. Anthony J. RUSSO, Jr., and Mignon, Inc.
    No. 66398.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Anthony J. Russo, Jr., and Mignon, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 376 So.2d 571.

Denied.

MARCUS, J., would grant the writ.


text:
    Mrs. Joann Thompson REID et al. v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS.
    No. 66473.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Mrs. Joann Thompson Reid et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 376 So.2d 977.

Denied.

SUMMERS, C. J., and CALOGERO and WATSON, JJ., would grant the writ.


text:
    UNIT TWO ARCHITECTS, INC. v. Guy MODICA et al.
    No. 66476.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Guy Módica, Karl Pizzolotto, Harris Copenhaven, Gustavo Gonzales and Teddy W. Airhart, Jr., applying, for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 376 So.2d 979.

Writ denied.

SUMMERS, C. J., would grant the writ.


text:
    Buford HAND v. Johnny REEVES, d/b/a Dixie Self Storage.
    No. 66483.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Buford Hands, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachi-ta. 378 So.2d 1064.

Writ denied.

DIXON, J., would grant the writ.


text:
    UNIT TWO ARCHITECTS, INC. v. Guy MODICA et al.
    No. 66477.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Unit Two Architects, Inc., applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 376 So.2d 979.

Writ denied.

SUMMERS, C. J., would grant the writ.


author: DIXON, J.,

text:
    James H. RAWLS v. Harry DAMARE et al.
    No. 66538.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re James H. Rawls, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 377 So.2d 1376.

Denied.

DIXON and DENNIS, JJ., would grant the writ.

DIXON, J.,

is of the opinion the court of appeal was in error and would grant. Any “party” may be called on cross-examination at trial; this right is not dependent on service on the “party” CCP 1634. Further, the case probably should have been reopened.


text:
    Bob R. RICHARDS v. FARMERS EXPORT COMPANY et al.
    No. 66331.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Bob R. Richards, applying reconsideration of writ denial of January 11, 1980. Parish of St. Charles. No. 10306.

Not considered. See Rule IX, Section 6.


text:
    STATE of Louisiana v. Carey CORAN.
    No. 66489.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re State of Louisiana through the District Attorney John M. Mamoulides applying for writs of certiorari, prohibition and mandamus. Jefferson Parish. No. 79-371.

Writ granted.


text:
    STATE of Louisiana ex rel. Thaddeus A. HAMLIN v. Municipal Court Judge Eddie SPAIR.
    No. 66248.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Thaddeus A. Hamlin, applying for writ of habeas corpus. Parish of Orleans, Municipal Court. Number unknown,

Denied. Moot.


text:
    STATE of Louisiana ex rel. Louis DONAHUE et al. v. WEST BATON ROUGE PARISH JAIL, PORT ALLEN.
    No. 66169.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Louis Donahue et al., applying for remedial writs. Parish of West Baton Rouge. Number unknown.

Writ granted. Application transferred to district court limited to consideration of relator’s access to the courts set forth in paragraph II of his application.


text:
    STATE of Louisiana v. James Edward McGHEE.
    No. 66400.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re James Edward McGhee, applying for remedial writs. Parish of Jefferson. No. 75-1452.

Writ granted. The ambiguity of the restitution provision of the sentence considered, this case is hereby remanded to the trial court to hold another hearing and to clarify for the record the amount of restitution to be paid by defendant and to grant relator a reasonable time to make restitution of said amount.


text:
    STATE of Louisiana v. Ray A. ALEXANDER.
    No. 65477.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Ray A. Alexander, applying for writ of habeas corpus, certiorari and mandamus. Orleans Parish. No. 265-842.

Denied; appeal pending, C.Cr.P. Art. 363.

DENNIS, J., would grant as to allegations of lack of counsel at multiple offender hearing and consolidate with the appeal.


text:
    STATE of Louisiana ex rel. Cyril BROWN v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66279.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Cyril Brown, applying for writ of mandamus. Parish of Orleans. Number unknown.

Denied. The trial court, after our order of 9/21/79, ruled on 11/9/79 on relator’s application.


text:
    STATE of Louisiana ex rel. Charles J. SYLVEST v. CLERK OF COURT, ORLEANS PARISH, SECTIONS “D” AND “H”.
    No. 66135.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Charles J. Sylvest, applying for writ of mandamus. Parish of Orleans. Nos. 256-247 and 265-906.

Granted. District court is ordered to furnish relator the transcripts of his Boykin examinations in 256-247 and 265-906.


text:
    STATE of Louisiana ex rel. George HOWELL v. Hon. Oliver SCHULINGKAMP, Orleans Criminal Judicial District Court.
    No. 66308.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re George Eddie Howell, applying for remedial writs. Parish of Orleans. Number unknown.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Edward Earl HARRIS v. CLERK OF COURT, 4TH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA.
    No. 66089.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Edward Earl Harris, applying for remedial writs. Parish of Ouachita. Number unknown.

Writ granted. Trial judge ordered to furnish relator with copy of Boykin transcript.


text:
    John C. OLINDE, Sr., etc. v. AMERICAN EMPLOYERS INSURANCE COMPANY et al.
    No. 66474.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re John C. Olinde, Sr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. No. 12,769. Parish of East Baton Rouge.

Writ denied.

CALOGERO and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. Vernard TURNER.
    No. 66568.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Vernard Turner, applying for writ of eertiorari, prohibition and mandamus and/or review. Parish of Winn. Nos. 19,-597 and 19,599.

Out of time appeal granted.


text:
    STATE of Louisiana v. Lillie Mae COLEMAN.
    No. 66672.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Lillie Mae Coleman, applying for supervisory and remedial writs. Parish of East Carroll. No. 19,897.

Granted. Remanded for hearing on motion for new trial on newly discovered evidence.


text:
    STATE of Louisiana v. George E. BROOKS, Jr.
    No. 66723.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re George E. Brooks, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Livingston. No. 3034.

Writ granted. The findings based on report of Lunacy Commission are set aside; the case is remanded for appointment of a new and properly constituted Lunacy Commission and further proceedings according to law.


text:
    Alfred EDWARDS and Paula Toliver v. Martha T. Smith, Wife of /and Loring SMITH, Jr., and the U-Haul Company of Southern Louisiana.
    No. 66746.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re U-Haul Company of Southern Louisiana applying for writs of certiorari, prohibition, mandamus and review. Parish of Jefferson. No. 225-662.

Writ granted. Judgment of trial court overruling exception of venue reversed. Case remanded to district court to grant change of venue to either Orleans Parish or St. Tammany Parish.


text:
    STATE of Louisiana ex rel. Arthur MITCHELL v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 65888.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Hon. Charles R. Ward, Judge, Section A, Criminal District Court, applying for reconsideration of writ granted on January 11,1980. Parish of Orleans. No. 249-486.

Previous writ recalled. Defendant’s conviction and sentence previously affirmed on appeal. Hence, no basis for out-of-time appeal. There being no merit to relator’s other claims, the writ is denied.


text:
    STATE of Louisiana v. Gerard EDWARDS.
    No. 66565.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Gerard Edwards, applying for appointment of new counsel in connection with the remand of appeal.

Motion denied.

CALOGERO and DENNIS, JJ., would grant the motion.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. Sheriff Charles C. FOTI, Jr., et al.
    No. 63288.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Garrett Decatur Richardson, applying for reconsideration of writ denial on, December 1, 1978, Orleans Parish. Nos. 266-530; 266-531.

Not considered.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON, a/k/a Gerald Williams v. Sheriff Charles C. FOTI et al.
    No. 65086.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Garrett Decatur Richardson, applying for reconsideration of writ denial. Parish of Orleans. No. 267-703.

Writ denied.


text:
    LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Willie L. PRINE and Minnie Ott Prine.
    No. 66487.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Liberty National Life Insurance Company, applying for supervisory writs. Parish of East Baton Rouge. No. 225,112.

Denied.

SUMMERS, C. J., and MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. John K. HEIL.
    No. 66514.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re John K. Heil, applying for writs of certiorari, prohibition, mandamus. Parish of East Baton Rouge. No. 5-79-368. Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Edward Lee GIOVANNI, Jr.
    No. 66519.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Edward Lee Giovanni, Jr., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Calcasieu. No. 9705-78.

Writ denied. Relator has an adequate remedy by appeal.


text:
    JOHN JAY ESTHETIC SALON, INC. v. Frances WOODS and Neubie Culver.
    No. 66524.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re John Jay Esthetic Salon, Inc. applying for certiorari or writ of review to the Court of Appeal, 4th Circuit. Parish of Jefferson. No. 10433.

Denied.

SUMMERS, C. J., and MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Gregory SMITH v. Judge Matthew S. BRANIFF, Orleans Criminal Judicial District Court.
    No. 66542.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Gregory Smith, applying for supervisory writs. Parish of Orleans. No. 265— 774.

Writ denied. Appeal pending.


text:
    S. W. HAILE et al. v. Parilee WOMACK et al.
    No. 66547.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Parilee Womack et al., applying for certiorari, or writ of review to the Court of Appeal, Second Circuit. No. 13,945. Parish of Jackson.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. Melvin Kim NEITTE.
    No. 66557.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Melvin Kim Neitte, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Natchitoches. No. 43799A.

Denied.

MARCUS and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Dan WATKINS.
    No. 66749.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Dan Watkins, applying for writs of certiorari, prohibition and mandamus. Parish of Tangipahoa. No. 44183.

Writ denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Kenneth Earl DENNIS v. Hon. L. E. HAWSEY, Jr., Judge, 14th Judicial District Court.
    No. 66570.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Kenneth Earl Dennis, applying for writs of certiorari, prohibition, and mandamus. Parish of Calcasieu. No. RC1152-79.

Writ denied. The problem addresses itself to the legislature.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Thomas SCHOEN and Bert Smith.
    No. 66619.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Thomas Schoen and Bert Smith, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of St. Tammany. No. 72,711.

Writ denied. Adequate remedy by appeal.


text:
    STATE of Louisiana ex rel. Billy DAVIS v. Judge Oliver SCHULINGKAMP, Orleans Criminal Judicial District Court.
    No. 66620.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Billy Davis, applying for remedial writs. Parish of Orleans. No. 264-708.

Writ denied. Moot.


text:
    SOUTHERN NATURAL GAS CO. v. Billie Jean Cummings POLAND, et al., Ernest Clayton Poole, et al., James K. Hays, et al., Mary James Loe, et al., Steven W. Sutton, et al., Ernest C. Atkins, Martha Poole Roe, et al., Charles Bryan, et al., and Idell C. Jordan, et al.
    No. 66695.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Southern Natural Gas Co., applying for writs of certiorari, prohibition, mandamus and supervisory writs. Parish of Bien-ville. Nos. 24-557; 24-560; 24-563; 24-568; 24-573; 24-586; 24-590; 24-591 and 24-597.

Denied.

SUMMERS, C. J. and MARCUS, J., would grant and order an expedited hearing.


text:
    STATE of Louisiana ex rel. Joseph FLANAGAN v. Hayden J. DEES, Warden, Dixon Institution.
    No. 65306.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Joseph Flanagan, applying for writ of mandamus. Parish of Orleans. Number unknown.

Denied. Relator must first file with the district court.


text:
    STATE of Louisiana v. Carol RICHARDSON.
    No. 65345.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Carol Richardson, applying for supervisory writs. Orleans Parish. No. 257-125.

Denied.

CALOGERO, J., would grant and order an evidentiary hearing.

DIXON, J.,

assigns additional concurring reasons: Although relator makes a showing which would entitle him to an evidentiary hearing, the allegations are so incredible and stale that the application should be denied. See the reasons for judgment of the trial judge dated June 28, 1979.


text:
    STATE of Louisiana ex rel. Samuel LANG, Jr. v. Judge ZACCARIA, Jefferson Parish.
    No. 65555.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Samuel Lang, Jr., applying for remedial writ and writ of mandamus. Parish of Jefferson. Nos. 78,1284 and 78,2935.

Writ denied.


text:
    STATE of Louisiana ex rel. Vincent SIMMONS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65708.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Vincent Simmons, applying for writ of habeas corpus. Parish of Avoylles. No. 39,849.

Denied.


text:
    STATE of Louisiana ex rel. Albert BERNARD v. ORLEANS PARISH INDIGENT DEFENDER PROGRAM.
    No. 65752.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Albert Bernard, applying for habeas corpus. Parish of Orleans. No. 268-045.

Denied.


text:
    STATE of Louisiana ex rel. Dennis SHEPHERD v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66012.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Dennis Shepherd, applying for writs of certiorari, prohibition, mandamus, and habeas corpus. Parish of East Baton Rouge. Nos. 10-75-2374 and 8-76-572.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Robert SAMAHA.
    No. 66020.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Robert Samaha, applying for supervisory writs. East Baton Rouge Parish. No. 2-79-109.

Denied.


text:
    STATE of Louisiana ex rel. Theortric GIVENS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66047.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Theortric Givens, applying for writs of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Orleans. No. 253-215.

Writ denied.


text:
    STATE of Louisiana ex rel. Dalton JOSEPH v. Sheriff John O. ST. AMANT and Warden Richard Benoit.
    No. 66050.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Dalton Joseph, applying for writ of habeas corpus. Parish of St. Charles. No. 79,206.

Denied.


text:
    STATE of Louisiana v. James E. WILLIAMS.
    No. 66055.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re James E. Williams, applying for remedial writs. Orleans Parish. Number unknown.

Writ denied. Relator’s conviction was affirmed with a record sufficient to review his claim.


text:
    STATE of Louisiana ex rel. Francis J. SERIGNY v. Frank C. BLACKBURN, Warden, et al.
    No. 66066.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Francis J. Serigny, applying for writ of habeas corpus and mandamus. Parish of Lafourche. Number unknown.

Writ denied. It appears relator has sufficient record of Boykin examination to enable him to attack guilty plea in a writ of habeas corpus.


text:
    STATE of Louisiana ex rel. Leo WILLIAMS v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 66072.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Leo Williams, applying for writ of habeas corpus. Parish of Benton. No. 53,-299.

Denied.

CALOGERO, J., would grant an out-of-time appeal.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. Sheriff Charles C. FOTI et al.
    No. 66074.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Garrett Decatur Richardson, applying for remedial writs. Parish of Orleans. Nos. 266-530, 266-531.

Denied. Relator must first apply in the trial court.


text:
    STATE of Louisiana ex rel. Joe Nathan TUBBS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66094.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Joe Nathan Tubbs, applying for remedial writs. Parish of Caddo. No. 95,-112-HC.

Writ denied.


text:
    STATE of Louisiana ex rel. Arthur HILLS v. Judge Matthew S. BRANIFF, Orleans Criminal Judicial District Court.
    No. 66128.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Arthur Hills, applying for writs of review and mandamus. Parish of Orleans. No. 264-975.

Denied.


text:
    STATE of Louisiana In the Interest of Kip Jerome DUCROS.
    No. 66153.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Kip Jerome Ducros, applying for remedial writs and writ of review. Orleans Parish. Family Court, number unknown!

Writ denied. The application is moot.


text:
    STATE of Louisiana ex rel. Leroy PERKINS v. Judge Frank V. ZACCARIA, 24th Judicial District Court, Parish of Jefferson.
    No. 66175.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Leroy Perkins, applying for writ of mandamus. Parish of Jefferson. No. 78-1044.

Denied.


text:
    STATE of Louisiana v. Arthur TURNER.
    No. 66204.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Arthur Turner, applying for writ of mandamus and supervisory writs. Orleans Parish. No. 267-391.

Writ denied.


text:
    STATE of Louisiana ex rel. James W. TAYLOR v. Ross MAGGIO, Warden, Hunt Correctional Center.
    No. 66237.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re James W. Taylor, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of Washington. Nos. 33-962, 34-055, and 34-173.

Denied.


text:
    STATE of Louisiana ex rel. Michael O’Shea COOK v. CLERK OF COURT, PARISH OF LINCOLN, THIRD JUDICIAL DISTRICT COURT.
    No. 66238.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Michael O’Shea Cook, applying for writ of mandamus. Parish of Lincoln. No. 24,095.

Denied.


text:
    STATE of Louisiana ex rel. John T. MARTIN v. Hon. Oliver SCHULINGKAMP, Judge, Orleans Criminal Judicial District Court.
    No. 66240.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re John T. Martin, applying for writ of mandamus. Parish of Orleans. No. 257— 714.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Andrew T. MILLER v. Judge Eddie SAPIR, Orleans Municipal Court.
    No. 66247.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Andrew T. Miller, applying for writ of habeas corpus. Parish of Orleans. Municipal Court, number unknown.

Writ denied. Moot.


text:
    STATE of Louisiana v. William McNABB.
    No. 66795.
    Supreme Court of Louisiana.
    Feb. 11, 1980.
   In re William McNabb, applying for supervisory writs. Parish of Orleans. No. 271-536.

Denied. On the showing made we will not exercise our supervisory jurisdiction to change the trial judge’s ruling.


text:
    STATE of Louisiana v. Ricky GRAY.
    No. 66842.
    Supreme Court of Louisiana.
    Feb. 14, 1980.
   In re State of Louisiana through the Attorney General, William J. Guste, Jr., applying for writs of certiorari, mandamus, prohibition and stay order. Parish of Lincoln. Number unknown.

Denied.


text:
    In re Carole Shelby Carnes TUCKER, Applying for Permission to take the Louisiana Bar Examination and, Contingent on Passing the Examination, to be Certified for Admission to the Louisiana State Bar Association.
    No. 66745.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Carole Shelby Carnes Tucker, applying for rehearing of denied writ of February 8, 1980.

Reconsideration denied.

DIXON, CALOGERO and DENNIS, JJ., would grant reconsideration.


text:
    Application of James E. SMITH to take the Louisiana State Bar Exam.
    No. 66824.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re James E. Smith, applying to take the Louisiana State Bar Exam.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ., would grant.


text:
    STATE of Louisiana v. Ricky GRAY.
    No. 66842.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re State of Louisiana through Attorney General, William J. Guste, Jr., applying for reconsideration of denial of writ. Parish of Lincoln.

Reconsideration request denied.


text:
    STATE of Louisiana ex rel. Gregory SMITH v. Judge Matthew S. BRANIFF, Orleans Criminal Judicial District Court.
    No. 66306.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Gregory Smith, applying for writ of mandamus. Parish of Orleans. No. 265-774.

Denied.


text:
    STATE of Louisiana ex rel. Vance S. BROWN v. The FIFTEENTH JUDICIAL DISTRICT COURT et al.
    No. 66322.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Vance S. Brown, applying for writ of mandamus. Parish of Vermillion. No. 20394.

Writ denied; moot.


text:
    STATE of Louisiana v. Gregory KITT.
    No. 66324.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Gregory Kitt, applying for writ of habeas corpus. Parish of Orleans. No. 264-178.

Denied.


text:
    STATE of Louisiana ex rel. Ronald BRAUD and Floyd K. Tyler v. Honorable Jerome M. WINSBERG.
    No. 66356.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Ronald Braud and Floyd K. Tyler, applying for writ of mandamus. Orleans Parish. No. 268-294.

Writ denied. Relator’s complaint is reviewable in his forthcoming appeal.


text:
    STATE of Louisiana ex rel. Damon HANCE v. LOUISIANA BOARD OF PARDONS AND PAROLES et al.
    No. 66444.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Damon Hance, applying for remedial writs. Parish of East Baton Rouge. No. 3-79-402.

Denied.


text:
    STATE ex rel. Carl Dennis HICKS v. Honorable Charles BROWN, Judge 11th Judicial District Court, Parish of Sabine.
    No. 66448.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Carl Dennis Hicks, applying for writ of mandamus. Parish of Sabine. Number unknown.

Denied. The motion to designate record must be filed again in district court.


text:
    STATE of Louisiana ex rel. William MORK v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66451.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re William Mork applying for writ of mandamus. Parish of St. Mary. Number unknown.

Denied. Moot. The District Judge has acted.


text:
    STATE of Louisiana ex rel. Darrow BOWMAN v. STATE of Louisiana.
    No. 66560.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Darrow Bowman, applying for remedial writs. Parish of Avoyelles. No. 21,564.

Denied.


text:
    STATE of Louisiana v. Margaret ROY.
    No. 66597.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Margaret Roy, applying for remedial writs. Parish of Jefferson, First Parish Court. No. 366742.

Writ denied.


text:
    STATE of Louisiana v. Patricia KING.
    No. 66688.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Patricia King, applying for remedial writs. Parish of La Salle. No. 20,386.

Denied. Defendant has an adequate remedy by appeal in event of conviction. (See 66,677, 380 So.2d 89)

DIXON and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana v. Phillip BARRON.
    No. 66677.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Phillip Barron, applying for remedial writs. Parish of La Salle. No. 20,385.

Denied. Defendant has an adequate remedy by appeal in event of conviction. (See 66,688, 380 So.2d 89)

DIXON and CALOGERO, JJ., would grant the writ.


text:
    Stephen PADELEWSKI v. Judge Lawrence CHEHARDY; Jim Garrison, Judge; and John T. Hood, Jr., Judge, 4th Circuit Court of Appeals.
    No. 66674.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Stephen Padelewski, applying for remedial writs. Parish of Orleans. No. 76-14297.

Denied.


text:
    KATIE NEVELS CASHIO, INC., etc. v. BATON ROUGE GENERAL HOSPITAL.
    No. 66667.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Katie Nevels Cashio, Inc., etc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 12,841.

Denied.

DIXON and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. Howard F. FRYE.
    No. 66666.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Howard F. Frye, applying for writs of review.- Parish of Bossier, City Court. Nos. 30,366 and 30,367.

Writ denied.


text:
    STATE of Louisiana v. Edward Charles WEBB.
    No. 66662.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Edward Charles Webb, applying for writs of certiorari, prohibition and mandamus. Parish of Madison. No, JM-1711.

Denied.


text:
    STATE of Louisiana ex rel. Willie BISHOP v. Frank C. BLACKBURN, Warden.
    No. 66649.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Willie Bishop, applying for writs of habeas corpus, certiorari, mandamus and remedial writs. Parish of Ouachita. No. 38,386.

Denied.


text:
    Willie COATES et ux. v. Mrs. Elizabeth HYNES et al.
    No. 66639.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Willie Coates and Wilma Coates, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. No. 12,973. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Ray VEILLON.
    No. 66635.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   Iri re Ray Veillon, applying for writs of certiorari, prohibition, mandamus. Parish of Evangeline. No. 21,928.

Denied; adequate remedy by review in the event of conviction.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. Davis HORAIST.
    No. 66629.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re State of Louisiana applying for writ of certiorari. Parish of Orleans. No. 272-634.

On the showing made, writ denied.

SUMMERS, C. J., would grant the writ.


text:
    STATE of Louisiana ex rel. Earl J. VOLPE v. STATE of Louisiana.
    No. 66622.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Earl J. Volpe applying for remedial writs. Parish of West Feliciana. Nos. W-78-8-852; W-78-8-853; W-78-8-854.

Denied. Relator must first apply to the District Court.


text:
    STATE of Louisiana v. Larry Joseph HEBERT.
    No. 66618.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Larry Joseph Hebert, applying for writ of habeas corpus. Jefferson Parish. Nos. 77-744 and 72-1417.

Denied.

SUMMERS, C. J., would grant the writ.


text:
    STATE of Louisiana v. Jerome GREEN.
    No. 66616.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Jerome Green, applying for remedial writs. Parish of Orleans. Number unknown.

Denied.


text:
    Jacquelyn Abernathy, wife of/and Joseph W. RAUSCH v. Mrs. Lydia B. HANBERRY.
    No. 66603.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Lydia B. Hanberry, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 10378.

Writ denied.

SUMMERS, C. J., would grant the writ.


text:
    STATE of Louisiana v. James Craig KEYS.
    No. 66791.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re James Craig Keys, applying for writs of certiorari. Parish of St. Landry. City Court of Opelousas. No. 80,418.

Denied.


text:
    STATE of Louisiana v. Roger Lynn HEBERT.
    No. 66790.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Roger Lynn Hebert, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Grant. No. 34,-612.

Writ granted. Ruling of trial judge reversed. Case remanded for reconsideration in light of C.Cr.Procedure art. 716 as amended by Act 515 of 1977.


text:
    UNION SERVICE AND MAINTENANCE COMPANY, INC. v. E. Reid POWELL.
    No. 66470.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Raymond S. Walters, applying for remedial writs. Parish of Orleans. No. 602-634.

Granted.


text:
    Raymond CARDOVA v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and Dr. A and Dr. B.
    No. 66585.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Raymond Cardova, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. No. 7270. Parish of Lafayette.

Granted.


text:
    Robert I. SONFIELD v. Anita Deluca, wife of Robert I. SONFIELD.
    No. 66610.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Anita Deluca Sonfield, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 10675.

Granted.

SUMMERS, C. J., would approve the opinion of the Court of Appeal.


author: SUMMERS, C. J.,

text:
    Sue Wiley Johnston COPELAND v. Charles F. JOHNSTON, Jr., et al.
    No. 66631.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Sue Wiley Johnston Copeland, applying for writ of certiorari and review. Parish of Webster. No. 38,457.

Writ granted. The order of the district judge granting the quashing of the subpoena duces tecum is overruled.

SUMMERS, C. J.,

dissents from the grant. No good cause has been shown to compel production of documents.