author:
DIXON, Chief Justice.
     MARCUS, Justice BLANCHE, Justice

text:
    STATE of Louisiana v. Terry HALSELL.
    No. 81-KA-0055.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoul-ides, Dist. Atty., David C. Loeb, Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-ap-pellee.
    Robert Garrity, New Orleans, Joseph Montgomery, Metairie, Office of Indigent Defender, for defendant-appellant.
   DIXON, Chief Justice.

Defendant was charged with armed robbery (R.S. 14:64). He retained private counsel. At a hearing on some preliminary matters, defendant withdrew his former plea of not guilty and entered a guilty plea. He was subsequently sentenced to ten years imprisonment at hard labor, without benefit of probation, parole or suspension.

On this appeal, three assignments of error are urged. The central issue is whether defendant’s guilty plea was intelligently and voluntarily made under the standards established in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); see State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

Essentially, the Boykin decision held that a guilty plea is not valid unless it is an intelligent and voluntary choice on the part of the accused. The Boykin decision explained that a guilty plea constitutes a conviction without a trial; for that reason, a defendant should be made aware of the rights that are automatically waived when the choice is made to forego trial: the privilege against compulsory self-incrimination; the right to trial by jury; and the right to confront one’s accusers. As interpreted by this court, the Boykin decision requires “an express and knowing waiver of at least these three federal constitutional rights.” State ex rel. Jackson v. Henderson, supra, 260 La. at 103, 255 So.2d at 90.

If a defendant is not apprised of the basic triad of rights available to him, he may be handicapped in evaluating his chances of success at trial. See State v. Martin, 382 So.2d 933 (La.1980). For this reason, the decision to plead guilty is not deemed an intelligent and understanding choice unless the defendant is informed of the rights which attach at trial. And, while an understanding of the triad of rights may be the sine qua non for the acceptance of a guilty plea, it is also true that other factors may have a bearing on the validity of the plea. A mere recitation of rights does not always insure the intelligent and voluntary nature of the plea. See, e. g., State v. Galliano, 396 So.2d 1288 (La.1981); State v. Beatty, 391 So.2d 828 (La.1980).

The Boykin decision has another aspect. For evidentiary purposes, the record must contain an affirmative showing that demonstrates the understanding and voluntary nature of the plea. When the record is thus completed, the task of review is greatly facilitated, and the need for post conviction hearings is obviated. While it is preferable for the trial judge to conduct a colloquy with the defendant to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.

In the present case, no allegation is made that defendant’s plea was not voluntary; the record would not support such an assertion. Instead, it is contended that defendant did not fully understand the nature and consequences of his plea. The record does affirmatively indicate that defendant was informed of his right to a jury trial and his right to confront his accusers. In addition, the defendant was informed of the charge against him and the basic facts supporting the charge; he was told the maximum and minimum sentences he could receive, and was advised that any sentence imposed would be without benefit of parole, probation or suspension. Defendant admitted his guilt, and expressly stated that his plea was a voluntary one.

What we are solely concerned with, then, is whether there is affirmative proof in the record showing that defendant was adequately informed of the privilege against self-incrimination. This right was not specifically mentioned in defendant’s colloquy with the trial judge. Instead, the following exchange took place:

“BY THE COURT: Your attorney has gone over your notification of rights with you in writing, paragraph by paragraph, is that correct.
BY MR. HALSELL: Yes, sir.
BY THE COURT: . . . you understand your rights, is that correct.
BY MR. HALSELL: Yes, sir.
BY THE COURT: You are telling the Court that you signed this document which notifies you of your rights freely and voluntarily, is that correct.
BY MR. HALSELL: Yes, sir.”

Defendant claims that this exchange does not satisfy the requirement of the Boykin decision.

Simply as a matter of due process, a defendant may plead guilty and directly challenge the validity of his conviction by way of an appeal. State v. Williams, 384 So.2d 779 (La.1980). Defendant does not allege that his plea was not voluntary and intelligent, so our review is confined to the question of whether the record affirmatively establishes the validity of the plea. In this regard, a written form containing a waiver of rights is a part of this record, and can be examined to determine the free and knowing nature of the plea. State v. Dunn, 390 So.2d 525 (La.1980). The relevant portions of the form are reproduced here:

"DEFENDANT’S ACKNOWLEDGEMENT OF CONSTITUTIONAL RIGHTS AND WAIVER OF RIGHTS ON ENTRY OF A PLEA OF GUILTY
TO THE DEFENDANT, BY THE TRIAL JUDGE PERSON-TO-PERSON:
Your attorney has indicated to me that he has advised you of your rights (1) to a trial by jury, (2) to confront your accusers, and (3) against self-incrimination and that by entering a plea of guilty, you are waiving or giving up these rights. He has also indicated to me that you have advised him that you understand these things. Is that correct?
2. Do you understand that the plea of guilty is your decision, and no one can force you to so plead? To plead guilty is your voluntary act and must be free from any vice or defect which would render your ability to plead guilty inadequate. Has anyone used any force, intimidation, coercion or promise or reward against either you or any member of your family for the purpose of making or forcing you to plead guilty?
3. You have the right to a trial by jury, which jury may either find you guilty as charged, guilty of a lesser crime, or not guilty. You have the right to hire an attorney of your choice to defend you at that trial. If you cannot afford an attorney, one will be appointed for you, which will cost you nothing. By entering a plea of guilty, you are waiving or giving up these rights. Do you understand that?
4. At any jury trial, you have the right to confront your accusers and to compel testimony on your behalf from your witnesses. By entering this plea of guilty, you are waiving or giving up these rights. Do you understand that?
5. If you were to go on trial, and in the event of a conviction, that is, if the jury finds you guilty, you would have the right to appeal. Again, in the event of an appeal, if you could not afford an attorney, one would be appointed for you, which would not cost anything. By entering a plea of guilty, you are waiving or giving up these rights. Do you understand that?
6. If you plead guilty, and this court accepts your plea, you do not have the right to assert any allegations of defects, such as: (a) an illegal arrest; (b) an illegal search and seizure; (c) an illegal confession; (d) an illegal line-up, and (e) the fact that the state might not be able to prove said charge or that a jury would find you guilty. Do you understand that by pleading guilty you are waiving or giving up these rights?
7. Do you understand that by pleading guilty, you are telling this court that you have in fact committed the crime to which you are pleading guilty?
BY DEFENDANT’S ATTORNEY:
I, as attorney for the defendant, was present during the recitation of the foregoing colloquy between the defendant and the trial judge at the time of the defendant’s plea of guilty.
I, also, have informed the defendant of his or her rights, particularly the nature of the crime to which he or she is pleading guilty, the maximum sentence the court could impose under the law, and the fact that the defendant, by entering this plea of guilty, is waiving his or her right to trial by jury, his or her right to confront his accusers, his or her right against self-incrimination, and lastly, that his or her only appeal is for review of jurisdictional defects; and I am entirely satisfied that the defendant knowingly, willingly, intelligently and voluntarily has entered this plea of guilty knowing the consequences.
s/ Stephen L. Stinson
ATTORNEY
BY THE DEFENDANT:
I, as the defendant in this case, acknowledged that the foregoing has been read to me, that my attorney and the trial judge have explained the nature of the crime to which I am pleading guilty, all of my rights to me, and what rights I am waiving or giving up, as listed above, and that I have been given every opportunity by the trial judge to ask questions in open court about anything I do not understand and about all of the consequences regarding my plea of guilty. I am completely satisfied with the explanations of my attorney and the judge.
I FURTHER ACKNOWLEDGE THAT MY ACT OF PLEADING GUILTY IS A KNOWING INTELLIGENT FREE AND VOLUNTARY ACT ON MY PART. I know that no one can force me to plead guilty. I know that by pleading guilty I admit I committed the said crime. I know this plea of guilty is more than a confession. It is also a conviction. Nothing remains except for the Judge to give
judgment and give me my punishment. I waive all delays for sentencing and acknowledge I am ready for sentencing.
s/ Terry Halsell
DEFENDANT
BY THE TRIAL JUDGE:
I, as trial judge, have entered into the foregoing colloquy with the defendant. I am entirely satisfied that the defendant was aware of the nature of the crime to which he or she has plead guilty, that the defendant did in fact commit said crime, understands the consequences of said plea of guilty and has made a knowing, intelligent, free and voluntary act of pleading guilty to above mentioned crime. I, therefore, accept the defendant’s plea of guilty.
6-18-80
DATE
s/ Nestor L. Currault. Jr.
JUDGE”

It is well established that a trial judge cannot rely upon a defendant’s statement that his rights were explained to him out of court. State v. Williams, 400 So.2d 868 (La.1981); State v. LaFleur, 391 So.2d 445 (La.1980); State v. Williams, 384 So.2d 779 (La.1980); State v. Martin, supra. In the present case, though, the trial judge had before him the written assertion of defendant’s counsel that he had informed defendant of his right against self-incrimination, and that counsel was entirely satisfied that the plea was made knowingly and voluntarily. The judge had a right to rely upon this assertion.

Any other holding by this court would tend to undermine the relationship of trust that must necessarily exist between the bench and bar. Defense counsel was duty bound by the Canons of Ethics to give a full and honest disclosure of the facts essential to the guilty plea; he was forbidden to misrepresent the truth. See DR 7—102(A)(3)(5) and (6). We cannot find, on the record before us, that counsel betrayed that trust. Defense counsel specifically avowed that he had informed his client of the three basic rights waived by a plea of guilty, and that he was satisfied that his client understood those rights. The signed statement by defense counsel distinguishes this case from the cases cited above, where the record did not affirmatively show that either the judge or an attorney had explained a defendant’s rights to him.

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

BLANCHE and MARCUS, JJ., concur and assign reasons.

MARCUS, Justice

(concurring).

Based on the totality of the facts and circumstances at the time the guilty plea was entered, I consider that the guilty plea was intelligently and voluntarily made. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Accordingly, I respectfully concur.

BLANCHE, Justice

(concurring).

Boykin does not require an express, ritualistic articulation of the three rights as we have required in Jackson, supra. Boykin stands solely for the proposition that guilty pleas should be knowingly and intelligently made. In Boykin, the record was silent as to this issue and the Court correctly stated that it could not presume the defendant waived his constitutional rights when his plea was taken.

The totality of the circumstances surrounding the case will determine whether the plea was voluntarily and intelligently made. See this writer’s dissenting opinion in State v. Williams, 400 So.2d 868 (La.1981), and concurring opinions in State v. Warren a/k/a Mason, 402 So.2d 662 (La.1981) and State v. Cusher, 400 So.2d 601 (La.1981).

       Judges J. Burton Foret, Jimmy M. Stoker and P. J. Laborde, Jr. of the Third Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . Defendant’s first assignment of error contains the argument that he should have been given a mental examination to determine whether he had the mental capacity to understand the proceedings against him and to assist in his defense. Such an examination must be conducted if the trial judge “has reasonable ground to doubt the defendant’s mental capacity to proceed.” C.Cr.P. 643. On the record before us, no such reasonable ground is presented. The trial judge did not abuse his discretion in refusing to appoint a sanity commission.
      The only other assignment of error involves a claim that the sentence imposed is excessive. The record indicates that defendant was armed with a revolver when he committed the crime, and that he fired a shot at the victim. The trial judge considered defendant’s youth (nineteen years old) and recommended that he be sent to a facility for first offenders. Considering the maximum and minimum sentences which could have been imposed, the ten year sentence was not excessive or inappropriate.
      These assignments of error are without merit.

      . State v. Martin was overruled by State v. Williams, 392 So.2d 448 (La.1980), but only to the extent that the Martin decision allowed an attack on a conviction used as a predicate for a felon with a firearm charge. While the Williams decision disallowed collateral constitutional attacks of predicate felonies in such cases, it did not invalidate the views expressed in Martin regarding the need for proper “boyk-inization.”


source: Caselaw Access Project

author:
STOKER, Justice Ad Hoc.
     DIXON, Chief Justice

license: Public Domain

text:
    STATE of Louisiana v. Elmer J. KELLER.
    No. 81-KA-0057.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Michael Fanning, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    James C. Lawrence, Gerdes, Valteau & Cade, New Orleans, for defendant-appellant.
   STOKER, Justice Ad Hoc.

On July 17, 1980, the defendant, Elmer J. Keller, was charged by bill of information with unlawful possession of phencyclidine (PCP), in violation of LSA-R.S. 40:967(C). The defense filed a motion to suppress evidence which was denied after a hearing on August 28, 1980. The defendant thereupon pled guilty to unlawful possession of phen-cyclidine, reserving the right to appeal the trial court’s denial of the motion to suppress evidence. State v. Crosby, 338 So.2d 584 (La.1976). The defendant was sentenced to pay a fine of $250.00 or to serve sixty days in the parish prison.

The following facts were adduced from the hearing on the motion to suppress evidence. On June 27, 1980, at approximately 3:00 AM, the defendant was driving in the French Quarter area of New Orleans when he allegedly became drowsy and parked his car on the 200 block of Dauphine Street, so that he could rest. The defendant thereupon fell asleep in the driver’s seat. The motor of his car was running, the lights were on and music was playing from either a radio or tape deck.

Sergeant Paul M. Melancon, the arresting officer, stated that upon noticing the defendant slumped over the steering wheel, he approached the vehicle, opened the driver’s door, cut off the ignition, and tried to awake the defendant. Sergeant Melancon was accompanied by two other officers and they were all in plain clothes. Melancon then described the ensuing events as follows:

“When I got out the car, we approached from the passenger side first, stooped in and looked into the window and I saw the subject, and like I said he was over the wheel and his right hand was over the floor shift with his head towards the steering wheel. I walked around to the driver’s side of the vehicle, reached in, opened the door and cut off the ignition. At this time, I tried to wake him. I shook him a couple of times and I didn’t get any response. As I stood there looking at him he appeared to be breathing normally. I shook him again and he sat back in the seat and looked at me and I told him I was a Police Officer, showed him my identification, and asked him to step out the car. He hesitated for I guess a good minute or so before he put his feet on the ground then he sat up on the driver’s side of the car. As he did that I patted his pants pocket and as I put my hand on his pants pocket he reached up with his right hand, and he had on a light colored white shirt, he grabbed a clear plastic bag with his right hand, hit me with his left hand and put his back towards me. I grabbed him hollering to my partners, ‘Watch out. He has something.’ And a struggle took us around to the back side of the car on the sidewalk, against the building, onto the sidewalk before we were able to subdue him and we handcuffed him. When I stood him up I checked his hands and the bag was gone. I told them to look around the car and all that he had to throw it in the vicinity. We looked on the ground and we look (sic) all around and we couldn’t find it. At this time, I conducted a search of him, found the bag, right inside his waistband where he had placed it during the struggle. When he turned around, he placed the bag in his waistband. I retrieved the bag ...”

The defendant claims that after he fell asleep the following events ensued:

“. . . and I ended nodding by (sic) head when I was behind the wheel. The next thing I remember the door was unlocked. My door on my side was unlocked and I was being just pulled out of the car about five or six individuals who just yanked me out the car and threw me against it. I was still kind of sleepy and I tried to turn around to ask what was going on and I was hit by one of these individuals. At that time, this is when I turned back around and the struggle began. We struggled from that point in the car to around the back where I was tripped over the curb and knocked to the ground. I was kicked in the head and in the side several times. One was on this arm and one on the other. They forced my arms around the back of me and handcuffed me from the back. I was then picked up and patted down. My money and I.D. was taken out of my back pocket. One of the Officers just took it out, opened it up and took the money and the I.D. and slipped it into his pocket. Around that time a blue and white car had pulled up and I was placed in the back of this car and taken off. At that time, I saw them going through the car as I was leaving in the blue and white ear. They were searching the inside of the car and they had opened the trunk and they were going through it. The next time I saw these individuals was down at the Homicide Division where I was taken by the uniformed Officers.”

The plastic bag found on the defendant contained white powder which proved to be phencyclidine.

ASSIGNMENT OF ERROR

Defendant has assigned only one error. The defense contends that the trial court erred in denying the motion to suppress the evidence seized in a warrantless search of the defendant’s person. The defense argues that the search did not qualify as a search incident to an arrest or an investigatory stop and frisk. The alleged error is broken down into the following contentions:

1. At the time defendant was ordered from his car and patted-down no probable cause existed for his arrest.

2. The search of defendant’s person cannot be justified as incidental to an arrest for resisting an officer.

3. Assuming that the police may have been justified in investigating the defendant, the pat-down search which ultimately culminated in the seizure of the evidence was illegal.

Inasmuch as the defendant entered a plea of guilty following the denial of his motion to suppress the evidence with a reservation of his right to appeal that issue under State v. Crosby, supra, the factual questions relate only to the validity of the search and seizure. The trial court evidently accepted Officer Melaneon’s version of the facts rather than the defendants. The question turned on credibility and we find no error in the trial court’s finding to which we must give great weight. State v. Kent, 371 So.2d 1319 (La.1979).

The United States and Louisiana Constitutions prohibit unreasonable searches and seizures. U.S.Const. Amend. 4; La.1974 Const. Art. 1, § 5. These provisions prohibit all warrantless searches, except in limited and exigent circumstances established by well-recognized exceptions. State v. Aguillard, 357 So.2d 535 (La.1978); State v. Lain, 347 So.2d 167 (La.1977). The State has the burden of proving the admissibility of any evidence seized without a warrant. LSA-C.Cr.P. art. 703(D); State v. Bazile, 386 So.2d 349 (La.1980); State v. Franklin, 353 So.2d 1315 (La.1978).

In State v. Wade, 390 So.2d 1309 (La.1980) we said:

“The landmark case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), established that the constitution permits a police officer to investigate possible felonious criminal behavior by temporarily stopping and questioning a suspect where there is reasonable cause to believe that a crime has been or is about to be committed. This ‘stop’ can be effected even though there is not sufficient probable cause to subject the suspect to a full custodial arrest. Further, a police officer has the right to conduct a limited ‘frisk’ for weapons after making the investigatory stop when he has drawn a specific reasonable inference from facts and experience that he is dealing with an armed and dangerous individual. The principles embodied in Terry and its progeny provide the constitutional basis for C.Cr.P. art. 215.1, the Louisiana ‘stop and frisk’ statute.”

The facts of this case do not fall specifically within the rationale of the Terry progeny. Officer Melancon testified that he initially approached the defendant slumped over the steering wheel because he thought the defendant might have been injured, as opposed to being suspicious that defendant had just committed a crime. The officer stated that he did not initially intend to arrest the defendant. We feel that a person slumped over a steering wheel in a vehicle with the engine running, at 3:00 AM in the French Quarter of New Orleans provides an officer with sufficient reasonable suspicion to make an investigatory stop short of an arrest. Whether the officer thought the person was injured, asleep, intoxicated or drugged, the officer was entitled to further investigate the situation.

This court has defined reasonable cause sufficient to justify an investigatory stop. We have said that reasonable cause to justify an investigatory stop is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Chopin, 372 So.2d 1222 (La.1979); State v. Taylor, 363 So.2d 699 (La.1978); State v. Dixon, 337 So.2d 1165 (La.1976); and State v. Weathers, 320 So.2d 892 (La.1975).

Inasmuch as Officer Melancon was entitled to awake the defendant the issue becomes whether the ensuing search was within lawful bounds. Officer Melancon stated that upon awakening the defendant, he conducted an initial pat-down search for weapons. In State v. Wade, supra, this court upheld a Terry-type frisk in the French Quarter which revealed a handgun, after noting that the French Quarter is a high crime area especially noted for violent crimes. Under Wade Officer Melancon had sufficient basis to conduct this initial pat-down frisk.

Considering the circumstances we do not think it was at all unreasonable for Officer Melancon to attempt to pat-down the defendant when the latter began to swing his legs out of the car. Several possibilities could reasonably have suggested themselves to Officer Melancon. Officer Melancon might have concluded, for example, that the defendant had been injured or was sick, intoxicated or drugged.

Officer Melancon did not know what the problem was, but he testified that after arousing the defendant, the defendant was either dazed or intoxicated and he took some time before responding by beginning to move. Tr. 12 and 13. A reasonable person could easily fear the possibility of a violent response under such circumstances. The officers were in plain clothes although defendant had been informed by Officer Melancon that he was a police officer and was shown his I.D. card. Nevertheless, Officer Melancon could have easily anticipated that the defendant might react defensively for several reasons. Defendant might have assumed that he was about to be robbed or be made the victim of foul play. The question is not what defendant actually thought, but rather what Officer Melancon could reasonable anticipate that defendant might think upon being suddenly waked up from sleep or possibly stupor.

This court said in State v. Hunter, 375 So.2d 99 (La.1979):

“While it is true that an officer is never justified in conducting a pat-down for weapons unless the original detention itself was justified, a lawful detention for questioning does not necessarily give the officer the authority to conduct a pat-down for weapons. Even after a lawful investigatory stop, a police officer is justified in frisking the subject only under circumstances where a ‘reasonably prudent man . . . would be warranted in the belief that his safety or that of others was in danger.’ Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. Further, the officer’s belief is not reasonable unless the officer is ‘able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.’ Sibron v. New York, 392 U.S. at 64, 88 S.Ct. at 1903, 20 L.Ed.2d at 935. It is not necessary that the investigating officer establish that it was more probable than not that the detained individual was armed and dangerous; it is sufficient that he establish a ‘substantial possibility’ of danger. See Comment, Terry Revisited: Critical Update on Recent Stop-and-Frisk Developments, 1977 Wis.L.Rev. 877, 896.”

We conclude that the pat-down begun by Officer Melancon was justified and was not unlawful.

Inasmuch as the initial stop and frisk were lawful, subsequent events justified the search which revealed the bag of phencyclidine tucked into the waistband of defendant’s pants. It was the sudden precipitate action of the defendant in reaching up inside the car and taking the plastic bag, exposing it to Officer Melancon’s view, and his action in striking the officer with his left hand and then turning to conceal the plastic bag which provided probable cause for subduing the defendant and searching his person.

After Officer Melancon was assaulted he was entitled to arrest the defendant. Upon resisting arrest he was entitled to arrest the defendant for resisting arrest. The subsequent search was then justified as a search incident to an arrest under Article 213 of the Louisiana Code of Criminal Procedure.

DECREE

For the reasons assigned the conviction and sentence are affirmed.

AFFIRMED.

DIXON, C.J., concurs with reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur.

Under the circumstances of this case the officer was justified in the initial entry of the car and pat-down of defendant.

       Judges J. Burton Foret, Jimmy M. Stoker, and P. J. Laborde, of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, and Jack C. Watson.

      . State v. Neyrey, 383 So.2d 1222 (La.1980).

      . Article 213 of the Louisiana Code of Criminal Procedure provides as follows:
      “A peace officer may, without a warrant, arrest a person when:
      (1)The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;
      (2) The person to be arrested has committed a felony, although not in the presence of the officer;
      (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
      (4) The peace officer has received positive and reliable information that another peace officer holds a warrant for the arrest.
      A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this article may enter another jurisdiction in this state and make the arrest.”


author: MARCUS, Justice. LEMMON, Justice,

text:
    David M. FERRELL v. SOUTH CENTRAL BELL TELEPHONE CO.
    No. 81-C-0163.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      E. Drew McKinnis and Joseph E. Juban of McKinnis, Juban & Bevan, Baton Rouge, for plaintiff-applicant.
    Pamela A. Prestridge of Breazeale, Sachse & Wilson, Baton Rouge, for defendant-respondent.
   MARCUS, Justice.

Great River Funding Company was organized in January of 1975. The company sought telephone service from South Central Bell Telephone Company at a certain location. Bell informed Great River that it would have to deposit $300 with Bell or obtain a letter of guaranty. David M. Ferrell, who at the time was an officer and stockholder of the company as well as being its landlord, signed an unlimited contract of guaranty in which he guaranteed to Bell the payment by Great River of all of its charges for telecommunications. Subsequently, Bell issued five credit cards to Great River on the telephone number at its service location. The last three cards were issued in December of 1975. Great River was current on all charges prior to January 1976 but due to the company’s history of delinquent payments, NSF checks and large telephone expenses, Bell requested $1,000 deposit from Great River on January 19, 1976. William T. Hunter, organizer and operator of Great River, asked for an extension to pay the deposit, stating that the situation looked brighter for the company and that Mr. Ferrell was personally responsible for the account. Bell granted a ninety-day extension to pay the deposit. Thereafter, Bell received several payments by checks, some of which were returned marked NSF. Payments were also received to cover the NSF checks. The last payment on the account ($533.53) was received on April 12, 1976. When no further payments were made, Bell found it necessary to temporarily interrupt service on May 12, 1976. Service was completely disconnected on May 21. At the time service was terminated, Bell’s records showed that Great River owed $2,404.24 but due to a time lag in recording charges for long distance calls and the return of an NSF check, this amount increased to $4,807.28 of which $1,836.69 represented credit card calls.

In June 1976, a Bell representative phoned Mr. Ferrell informing him of Great River’s delinquent account and advising him that his personal phone service would be terminated if he failed to pay the bill. On August 23, 1976, he was sent formal notice that Great River owed $4,807.28 and that this amount would be transferred to his account and be reflected on his next telephone bill. On September 17, 1976, Mr. Ferrell filed suit seeking a declaratory judgment decreeing that the contract of guaranty be null and void and that he owed nothing to Bell in connection with said contract. Bell filed an answer to the petition and incorporated in its answer a reconven-tional demand against Ferrell for the sum of $4,807.28. The trial judge, finding that the contract was a “valid unlimited contract of guaranty,” rendered judgment in favor of Bell and against Ferrell on the principal demand, dismissing Ferrell's suit at his cost, and in favor of Bell on its reconventional demand and against Ferrell in the sum of $4,807.28 together with legal interest thereon from September 17, 1976 until paid and all costs. Ferrell appealed. The judgment of the trial court was affirmed by the court of appeal. On Ferrell’s application, we granted certiorari to review the correctness of that decision.

On January 22, 1975, Mr. Ferrell signed the following document entitled “UNLIMITED CONTRACT OF GUARANTY”:

WITNESSETH: That, whereas South Central Bell Telephone Company, hereinafter called “Telephone Company”, as a condition to furnishing the above named Applicant, at the above stated service location, telecommunications, has requested Applicant to establish credit by making a cash deposit with the Telephone Company to secure payment for telecommunications or in lieu of a deposit at this time, to furnish a satisfactory guarantor for payment of charges for telecommunications; NOW, THEREFORE, the undersigned GUARANTOR, residing at the address shown above, in consideration of the Telephone Company furnishing the Applicant telecommunications without requiring a deposit at this time, hereby absolutely and unconditionally GUARANTEES to the Telephone Company the PAYMENT BY APPLICANT OF ALL CHARGES FOR TELECOMMUNICATIONS, for which Applicant may now be liable or for which Applicant may in the future become liable.
Guarantor covenants and agrees that, if Applicant at any time shall be in default in the payment of the charges for said telecommunications, the undersigned Guarantor will pay all outstanding charges at the Telephone Company’s business office designated below. In the event Guarantor defaults in making payment at the business office as aforesaid, Guarantor agrees that the amount due from Applicant may be transferred to any account Guarantor has with the Telephone Company, and Guarantor understands and agrees that Guarantor’s telephone service is subject to suspension if all charges, including the charges due from Applicant which have been transferred to Guarantor’s account, are not promptly paid when due.
Guarantor hereby waives notice of acceptance of the guaranty, notice of default and non-payment by Applicant, demand and presentment to Guarantor for payment, protest and diligence in bringing suit against any party hereto, and consents that time of payment may be extended by the Telephone Company without notice thereof. If suit be brought to enforce Guarantor’s obligation herein assumed, Guarantor agrees to be further liable and indebted for the court costs and reasonable attorney fees thereby incurred.
This contract of Guaranty shall remain in full force and effect until 30 days after receipt by the Telephone Company of Guarantor’s written notice to terminate this contract delivered to the Telephone Company’s business office designated below; provided, however, that Guarantor’s liability hereunder shall remain in effect after the termination of this contract with respect to any and all charges for telecommunications incurred by Applicant at any time prior to the effective date of the termination of this contract. This contract of Guaranty shall apply to all telecommunications which Applicant may from time to time be furnished at the above listed service location.
The sole issue for our determination is whether under the above contract of guaranty Mr. Ferrell, as guarantor, is obligated to pay Bell the $4,807.28 owed by Great River.

Contracts of guaranty or suretyship are subject to the same rules of interpretation as contracts in general. American Bank & Trust Co. v. Blue Bird Restaurant & Lounge, Inc., 279 So.2d 720 (La.App. 1st Cir. 1973), aff’d, 290 So.2d 302 (La.1974). Agreements legally entered into have the effect of laws on those who formed them and must be performed with good faith. La.Civ.Code art. 1901. Courts are bound to give legal effect to all such contracts according to the true intent of the parties, and this intent is to be determined by the words of the contract when these are clear and explicit and lead to no absurd consequences. La.Civ.Code art. 1945. All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act. La.Civ.Code art. 1955.

Applying these principles of contract interpretation to the contract of guaranty, we agree with the courts below that Mr. Ferrell is obligated to pay Bell the $4,807.28 owed by Great River. The contract clearly and explicitly states that Mr. Ferrell absolutely and unconditionally guarantees to Bell the payment by Great River of all charges for telecommunications for which Great River might become liable. Despite Mr. Ferrell’s contention that his liability should be limited to $300 since the guaranty was given in lieu of a $300 deposit and that someone at the phone company told him that his liability was limited to $300, the express and unambiguous terms of the guaranty specify no such limit and Bell permitted the balance due on the phone bill to increase in reliance thereon.

Next, Mr. Ferrell contends that he cannot be liable for any charges made on the credit cards issued to Great River because the calls were placed from locations other than the “service location.” The credit cards were issued to that location and calls were billed to that location. Hence, the charges were for telecommunications furnished to that location. While the credit cards gave the employees of Great River a more convenient way to charge long distance calls to the company, it did not expand the guaranty agreement as that contract states that it shall apply to “all telecommunications.”

Finally, there is no merit to Mr. Ferrell’s contention that, in failing to notify him of the accumulating arrearages, Bell was in bad faith and therefore breached the guaranty contractor. Bell had no such obligation under the contract and Mr. Ferrell had specifically waived notice of non-payment and default and agreed that the time of payment could be extended by Bell without notice thereof. Moreover, under the facts of this case, we are unable to say that Bell was in bad faith by not terminating service at an earlier date.

In sum, Mr. Ferrell signed a valid unlimited contract of guaranty in which he absolutely and unconditionally guaranteed to Bell the payment by Great River of all charges for telecommunications incurred by Great River. As guarantor, Mr. Ferrell is obligated to pay Bell the $4,807.28 owed by Great River.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting in part.

Bell required a $300 deposit from the corporate customer or a guaranty in lien thereof. Ferrell’s guaranty was expressly accepted by Bell as a substitute for the $300 deposit. In view of these facts, clearly understood by both Bell and Ferrell, the parties impliedly intended that the guaranty was limited to $300, the amount of the required deposit. Accordingly, the judgment should be reduced to $300.

      . 392 So.2d 138 (La.App. 1st Cir. 1980).

      . 397 So.2d 802 (La.1981).


author: LABORDE, Justice ad hoc.

text:
    STATE of Louisiana v. Johnny B. MASON.
    No. 81-KA-0190.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, Asst. Dist. Atty., for plaintiff-appellee.
    Charles E. McConnell, Springhill, Indigent Defender Board, for defendant-appellant.
   LABORDE, Justice ad hoc.

Defendant Johnny Mason was charged in a two-count bill of information with armed robbery and aggravated burglary, violations of LSA-R.S. 14:64 and 14:60, respectively. Following trial before a twelve-member jury, defendant was convicted of simple robbery and aggravated burglary, and sentenced to consecutive terms of five and ten years imprisonment at hard labor. In his sole contention of error on appeal, defendant reurges his previously filed motion for new trial, claiming that the state’s evidence failed to demonstrate, beyond a reasonable doubt: (1) his identity as the victim’s assailant, and (2) his theft of property which was in the victim’s immediate control. Defendant phrases this contention in terms of the recently adopted Jackson standard of review. Under this standard, a convicted appellant’s attack upon the sufficiency of the state’s evidence to prove his guilt is judged by determining whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980).

Evidence adduced at trial revealed the following. During the early morning hours of May 12, 1980, Alice Kennon sat in the living room of her Minden, Louisiana home entertaining her son Elmer, who lived in an adjacent apartment, and a neighbor. Shortly after midnight, the neighbor left and Elmer returned to his next door apartment. Mrs. Kennon called to her departing son, asking if he wanted a glass of juice before going to bed. Elmer responded affirmatively and Mrs. Kennon then proceeded into his apartment with a container of juice in her hand. Upon returning to her apartment, Mrs. Kennon started toward the kitchen to lock it up, passing through her darkened bedroom on the way. As she did so, an unknown assailant threw a piece of cloth over her face and pushed her onto the bed. Mrs. Kennon’s screams alerted Elmer, who entered the apartment and grabbed the attacker from behind. Following a brief struggle, the assailant eluded Elmer, snatching Mrs. Kennon’s purse as he fled from the residence.

Investigating officers of the Minden City Police Department obtained the alleged assailant’s nickname from the Kennons and arrested the defendant later that evening. In addition, the officers recovered a ban-ion T-shirt and a %" copper pipe which the attacker apparently left on Mrs. Kennon’s dresser. A subsequent search of the accused’s residence revealed complementary segments of pipe leading to a disconnected kitchen stove. Coupled with Mrs. Kennon’s in-court identification of the accused as her assailant, as well as her and Elmer’s lineup identifications, this evidence formed the heart of the prosecutor’s case against defendant.

At trial, the defense sought to undermine Mrs. Kennon’s credibility through the use of inconsistent statements made to its investigator, Don Huffty, approximately one week earlier. According to Huffty, Mrs. Kennon had stated that she was unable to see her assailant “because there was not sufficient light in the room,” and that her identification of defendant came only after “someone had told her that they thought it was ‘Bumblebee’ Mason that was in the house.”

For her part, Mrs. Kennon conceded that she had never previously known the accused and that her bedroom was dark at the time of the offense. During rebuttal she clarified the representations made earlier to Mr. Huffty, stating that she saw the defendant “when my son snatched him away from this little nook and at the foot of the bed where the light glared from the living room and from the kitchen.” Vehemently denying the allegation that she had named the defendant only after others had suggested his involvement, Mrs. Kennon was unhesitating in her identification of defendant:

“Q. Can you identify the person who did it?
A. There.
Q. Where is he?
A. There he sits right there. I’d know him anywhere I seen him.
Q. It that him seated over there?
A. Without a doubt.
S{! SjC * 5ft
Q. You knew it was him by name?
A. I didn’t know his name. I know him by that profile.
Q. What profile?
A. The way he looks, his face, features.”

The defense also assailed the assertion that the piece of pipe found on Mrs. Ken-non’s dresser had come from the accused’s residence. In this regard, Doy B. Miller, a licensed plumber who had practiced his trade for over forty years and who qualified as an expert witness, testified that there was no way that the stove in the Mason home could have been tied into the pipe found in the Kennon home without bending the copper pipe on the stove, and that the copper pipe had not been bent. Furthermore, Bill Gene Specks, the owner of the house where defendant resided, testified that the stove had been disconnected prior to defendant’s lease of the residence and that he had never seen the piece of pipe identified by the officers.

All other testimony concerning this pipe appeared clearly adverse to the defense. In searching defendant’s home, Webster Parish Deputy Jimmy Batton observed that a “cook stove” located in the kitchen had been disconnected and the gas supply pipe coming out of the floor had been recently capped. Batton compared the diameter of the gas supply pipe with that of the pipe found in the Kennon home and concluded that the two pipes would fit together if the cap were removed from the supply line. Checking the connections at the stove itself, Batton discovered a female coupling which would fit the other end of the pipe left by Mrs. Kennon’s assailant. The witness then demonstrated that this variety of pipe could easily be curved without using any tools and without leaving any kinks in the metal. Testimony by Minden City Police Officer Jack Tucker coincided with that of Batton, and even defense witness Doy Miller conceded that the pipe introduced by the prosecution could have been employed in connecting the stove, though not directly.

Plainly, this evidence was sufficient to establish the accused’s identity as Mrs. Kennon’s assailant beyond a reasonable doubt. Jackson v. Virginia, supra.

Counsel’s further contention that the snatching of Mrs. Kennon’s purse constituted only a theft poses a more interesting question. Noting that defendant was in full flight when he took the purse, defense counsel argues that the purse was not within Mrs. Kennon’s immediate control, and that, in any event, concurrence of the intimidating conduct and the requisite intent to effect a theft thereby is necessary in order to convict an accused of robbery. In the instant case, defendant contends that the incidental taking of property from a residence following an aborted rape attempt is not robbery, but rather theft.

La.R.S. 14:65 defines the offense of simple robbery as follows:

“Simple robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.”

By providing a more severe grade of theft for those instances in which a thief uses force or intimidation to accomplish his goals, the legislature apparently sought to emphasize the increased risk of danger to human life posed when a theft is carried out in face of the victim’s opposition. Because the possibility of such a violent confrontation may exist in situations other than those where property is taken directly from the person of another, it has been recognized that it is sufficient for robbery that the property taken be sufficiently under the victim’s control, such that, had the victim not been subjected to violence or intimidation by the robber, he could have prevented the taking. State v. Refuge, 300 So.2d 489 (La.1974); State v. Verret, 174 La. 1059, 142 So. 688 (1932); LaFave & Scott, Criminal law (Hornbook ed. 1972), § 94, p. 696. In addition, most jurisdictions have not required that the defendant’s acts of violence or intimidation be done for the very purpose of taking the victim’s property; rather, it is enough that he takes advantage of a situation which resulted from the prior use of force or intimidation. LaFave & Scott, supra, p. 702; State v. Covington, 169 La. 939, 126 So. 431 (1930).

In the case at bar, the accused pushed Mrs. Kennon onto her bed and started to “pull up her clothes”, clearly suggesting that his intentions, at least initially, were not directed toward robbing the victim. Mrs. Kennon attempted to ward off the defendant until her son arrived and grabbed him from behind, thereby prompting the accused to flee, purse in hand. Though no testimony was ever adduced as to the precise location of Mrs. Kennon’s purse in the residence, the evidence clearly suggested that the theft had been accomplished only as a result of the defendant’s prior acts of aggression toward Mrs. Ken-non. Under the aforementioned jurisprudence, this evidence was sufficient to permit the accused’s conviction of simple robbery.

For the above and foregoing reasons, the conviction and sentence are affirmed.

       Judges J. Burton Foret, Jimmy M. Stoker and P. J. Laborde, Jr. of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and associate justices Marcus, Blanche and Watson.


author: ELLIS, Justice Ad Hoc.

text:
    STATE of Louisiana v. Melvin RAYFORD.
    No. 81-KA-0203.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Sheila Myers, John Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Bernard Jack Usprich, New Orleans, for defendant-appellant.
   ELLIS, Justice Ad Hoc.

Melvin Rayford was charged by information with receiving stolen property valued at $12,700.00 under circumstances which indicate that he knew or had good reason to believe that the property was the subject of a theft. R.S. 14:69. He was tried by a jury, found guilty, and sentenced to serve ten years in the custody of the Director of the Department of Corrections. He has appealed both the conviction and the sentence.

From the evidence, it appears that on December 8, 1979, a 1979 Buick Riviera belonging to Dean Atkinson was stolen while parked on St. Peter Street in New Orleans. The vehicle was less than one year old and had cost $14,000.00 when purchased.

On December 19, 1979, two officers observed the car speeding and attempted to pull it over. The driver of the vehicle attempted to escape by driving away, but eventually struck two other vehicles and stopped. The driver, who escaped on foot, was identified as the defendant by the officers and by a passenger.

During the trial of the case, Mr. Atkinson, the owner of the vehicle, testified, over the defense’s objection, that when the vehicle was stolen, it contained about $4,000.00 worth of personal property. Subsequently, a list of the items was introduced in evidence, once more over the objection of the defense. None of these items was found in defendant’s possession, nor otherwise recovered.

Defendant’s first assignment of error is that the trial court erred in overruling the objections to both the testimony and the admission in evidence of the list. In proving the crime of receiving stolen things, the State is required to prove, inter alia, that the thing in defendant’s possession was stolen. R.S. 14:69; State v. Walker, 350 So.2d 176 (La.1977). The testimony relative to the items in the automobile is related to the immediate circumstances of the theft, and therefore forms part of the res gestae of the crime. As such the evidence was admissible. R.S. 15:447, 448.

Defendant was sentenced to serve a term of ten years, the maximum sentence permitted under R.S. 14:69. In pronouncing sentence, the judge said:

“The defendant was convicted after trial by jury. The evidence presented in the course of the case indicates that the crime was more serious [than] I had contemplated at any time in our prior discussions. Property in the amount of twelve thousand, seven hundred dollars was stolen, at least alleged to be stolen in the Bill of Information and the jury found the defendant to be guilty of that particular charge as to possession of that property.
“However, the record also indicates that other property was also contained in the vehicle and a substantially more aggravated case than I first assumed when speaking with you in chambers.
“So, based upon the defendant’s conviction for the crime of possession of stolen property, I sentence the defendant to serve ten years in the custody of the Director of the Department of Corrections for the State of Louisiana. The basis of this sentence is that defendant has committed a crime which I believe to be a very serious crime. I believe he’s in need of incarceration for rehabilitation if that is possible. I’m aware, also, defendant, after the charge, was arrested for another crime. Another basis for this sentence is the defendant, in my opinion, caused substantial damage to property which is irreparable at this time and the victim in the case was substantially harmed because the property stolen is irreplaceable, heirlooms and matters which cannot be purchased. I feel that it is a reprehensible crime and defendant’s entitled — excuse me, deserving rather, of the maximum sentence.”

Defendant’s second and third assignments of error are that the judge erred in basing his sentence on the fact that other valuables were in the stolen vehicle at the time it was stolen, that he failed to follow the guidelines for sentencing imposed by Article 894.1 of the Code of Criminal Procedure, and that he thereby imposed an excessive sentence.

The record reflects that defendant is a 19-year-old first offender. There is nothing in the record to show that he stole either the automobile or its contents. Therefore, the facts and assumptions on which the judge based his finding of the seriousness of the crime form no part of the record before us. Article 894.1(C) requires that the court “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” Since some of the facts and circumstances relied on by the trial judge are not supported by the record, we find that the requirements of Article 894.1(C) have not been met, and that sentence was therefore improperly imposed.

The sentence is therefore set aside and the case remanded to the trial court for resentencing in accordance with the guidelines imposed by Article 894.1 of the Code of Criminal Procedure.

DENNIS, J., concurs.

LEMMON, J., concurs in the result.

       Judges Ellis, Lottinger and Ponder of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Dennis, Watson and Lemmon.


author:
STOKER, Justice Ad Hoc.
     BLANCHE, Justice MARCUS, Justice

text:
    STATE of Louisiana v. David M. HARVILL.
    No. 81-KA-0213.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles Bice, Dist. Atty., Douglas H. Allen, Kermit Simmons, Asst. Dist. Attys., for plaintiff-appel-lee.
    Martin S. Sanders, Jr., Herman A. Cas-tete, of Sanders & Castete, Winnfield, for defendant-appellant.
   STOKER, Justice Ad Hoc.

David M. Harvill was charged by bill of information with simple burglary, in violation of LSA-R.S. 14:62. Following trial before a six-member jury, defendant was convicted and sentenced to six years’ imprisonment at hard labor. By this appeal, defendant urges four assignments of error as grounds for reversal of his conviction and sentence.

Upon returning from evening church services on October 31, 1979, Floyd Stroud discovered six rifles missing from his Winn Parish home. Stroud reported the apparent thefts to local law enforcement authorities, whose investigative efforts eventually led them to question the defendant, a suspect detained at the Grant Parish jail on unrelated burglary charges. In a taped interview, defendant admitted entering the Stroud residence for the express purpose of stealing Stroud’s hunting rifles. At trial, this confession formed the entirety of the prosecution’s case against the defendant.

Testifying during the State’s voluntariness predicate, LSA-R.S. 15:451, Winn Parish Deputy Sheriff Arnold Fredericks stated that he and Deputy Glen Mixon had interviewed the accused at the Grant Parish Sheriff’s Department on November 13, 1979. Fredericks then identified a printed Miranda card which he claimed to have read to the accused prior to interrogation. This card contained a detailed explanation of the accused’s right to remain silent and his right to assistance of counsel. Though defendant was never directly asked to waive these rights, both Fredericks and Mixon testified that defendant appeared to understand their explanation and that he freely accepted their invitation to discuss his complicity in the Stroud burglary. According to Fredericks, no force or intimidation was ever used, and no threats or promises were ever made to induce defendant’s participation in the interview.

Following this conversation, defendant’s responses were tape recorded. Later a formal transcription of the interview was brought to the Grant Parish Jail for defendant’s verification. Deputy Fredericks watched as the accused read the typed statement and then witnessed his signature thereto; defendant also initialed each page of the statement. On the basis of this evidence, the trial court ruled the accused’s confession voluntary and permitted its introduction into evidence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

By these initial assignments, defendant complains that he was not given the warnings required by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) prior to the tape recording of the statement implicating him in the Stroud burglary.

At trial, defendant was permitted to testify before the jury regarding the free and voluntary nature of his confession, without being cross-examined as to other aspects of the case. State v. Lovett, 345 So.2d 1139 (La.1977). Defendant conceded that Deputy Fredericks had mentioned the right to counsel immediately prior to taping his confession, but denied ever having been advised of his rights to remain silent or his right to halt the interrogation at any time. The transcript of defendant’s statement does not, on its face, reflect that the accused was advised of these rights.

On appeal, defendant argues that the absence of a recorded enumeration of the Miranda warnings rendered his subsequent taped confession inadmissible. The defense in brief does not dispute the fact that Deputy Fredericks had previously advised the accused of his rights, but instead characterizes the taped interview as a second distinct interrogation session which mandated an independent explanation of the Miranda warnings. Defendant further argues that the trial court erred in admitting a Miranda card in order to evidence a prior advice of rights which bore no relation to his taped statement.

In Miranda v. Arizona, supra, the United States Supreme Court held that the “prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” See also La. Const.1974, Art. I, § 13. Specifically, the detained individual must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The Court found these safeguards necessary to combat the inherently compelling pressures which “work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Miranda v. Arizona, supra.

However, neither Miranda nor its progeny has ever accepted the construction urged by defendant. In the case at bar, the interrogating officer testified that he read defendant his Miranda rights from a card, which was later identified and filed into evidence. This card detailed the entire panoply of Miranda rights, including defendant’s right to remain silent and assistance of counsel. Absent some significant break in the interrogation process, such as a specific request for assistance of counsel, repetition of these warnings prior to the taping of defendant’s statement is not required. A requirement that the Miranda warnings be repeated before each separate interrogation period would quickly degenerate into a formalistic ritual.

Nevertheless, mere recitation of Miranda warnings is not sufficient to permit admission of an accused’s statement at trial. As the Miranda court noted:

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.
“. . . an express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a valid waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” 384 U.S. at 475, 86 S.Ct. at 1628.

There was no explicit oral or written waiver of rights in this case. Deputy Fredericks testified that defendant “appeared” to understand the Miranda warnings, but conceded that defendant was never specifically asked to waive these rights. Nevertheless, the Supreme Court has recently recognized that a waiver of Miranda rights need not be explicit but may be inferred from the actions and words of a person interrogated. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). In that case the court said:

“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecutor’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.”

Waivers of Miranda rights are matters depending upon “the particular facts and circumstances surrounding [the] case, including the background, experience and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); North Carolina v. Butler, supra, and Edwards v. Arizona, - U.S. -, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

In this case, the twenty-three year old defendant testified that he was unable to read. He denied ever having been advised of his rights by Deputy Fredericks and further claimed that his confession had been procured only in face of promises that his girlfriend and his brother would not be arrested. These allegations were thoroughly refuted by the prosecution. Deputy Fredericks and Deputy James Jordan both testified that defendant had read the transcribed version of his statement prior to signing it. Defendant even conceded that he had received a sixth grade education, adding that the last school which he had attended was “Buras High.” During rebuttal, Deputies Fredericks and Mixon specifically denied making any promises to the accused concerning his family and friends. The officers’ earlier testimony that defendant appeared to understand his rights was corroborated at the close of the accused’s statement:

“Q. David, this statement that I just took from you, did you make it of your own free will?
A. Yes sir.
Q. You understand your rights?
A. Yes sir.
Q. That you didn’t have to tell us anything if you didn’t want to?
A. Yes sir.
Q. You make this statement just to get things cleared up?
A. Yes sir.?”

We feel that the above quoted portion of defendant’s taped statement indicates a knowing and intelligent waiver by defendant. This coupled with the absence of any specific allegations of coercive measures or intimidation is sufficient to satisfy the implicit waiver requirement of Butler.

ASSIGNMENT OF ERROR NO. 3

By this assignment, defendant argues that the trial court erred in refusing to declare a mistrial when the prosecutor made reference to his failure to testify.

The evidence linking defendant to the instant burglary consisted solely of the accused’s taped confession. The victim did not identify the defendant as the burglar and the stolen rifles were never recovered. Defense counsel’s closing argument sought to capitalize on the deficiencies in the State’s case by focusing solely on the involuntary character of the accused’s confession. In rebuttal, the prosecutor emphasized the failure of the defendant’s statement itself to corroborate his claims of inducement:

“You have heard a lot of testimony here today about rights and all the things that he was told and wasn’t told him and everything else. Think of some of the other things you have heard today. You read the statement. Do you see anywhere in there a complaint from Mr. Har-vill of mistreatment? Do you see anywhere in there an indication that, thank you, you are not going to charge me with this crime because I made this statement. Did you hear one word up here today that said it wasn’t true. One word. You didn’t. I submit to you that we have proved the offense of simple burglary.” (Emphasis added). Tr. pp. 123-124.

At this point defense counsel objected and unsuccessfully requested a mistrial.

Reurging this motion on appeal, defendant relies on LSA-C.Cr.P. art. 770, which provides, in pertinent part:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument refers directly or indirectly to:
“(3) The failure of the defendant to testify in his own defense;
“An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. . . . ”

This rule is designed to safeguard a defendant from unfavorable inferences which might otherwise be drawn from his silence, thereby implementing the Fifth Amendment’s protection against self-incrimination. State v. Fullilove, 389 So.2d 1282 (La.1980); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Under the LSA-C.Cr.P. art. 770, any reference by the prosecution to the accused’s failure to take the stand, whether direct or indirect, constitutes grounds for mistrial.

Prosecutorial comments regarding the lack of refuting evidence produced by the defense have not generally been construed as prohibited references to the accused’s silence since such remarks focus upon the entirety of the defense evidence. State v. Perkins, 374 So.2d 1234 (La.1979). If, however, the defendant is the only one who can dispute the State’s evidence, then “a reference to the testimony as uncontroverted focuses the jury’s attention on the defendant’s failure to testify.” State v. Perkins, supra. See also United States v. Buege, 578 F.2d 187 (7th Cir. 1978).

In this case the defendant’s taped confession was the State’s entire proof. The prosecutor’s reference to the unrebutted character of the State’s evidence was clearly a comment upon the failure of the defendant to testify in his own defense, as only the defendant could recant the taped confession which formed the entirety of the prosecution’s case against him.

In commenting as he did, the prosecutor violated the prohibition of LSA-C.Cr.P. art. 770. The trial court’s refusal to grant the requested mistrial was erroneous.

ASSIGNMENT OF ERROR NO. 4

In his final specification of error, defendant urges the total lack of evidence to establish venue of the alleged offense within Winn Parish. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Though not previously urged below via either motion for new trial or motion for acquittal, this issue has been preserved for review on appeal by defendant’s present assignment of error. State v. Temple, 394 So.2d 259 (La.1981); State v. Peoples, 383 So.2d 1006 (La.1980).

It is well-established that the prosecution must establish beyond a reasonable doubt that the charged offense was committed within the parish where the prosecution was held. State v. Atkins, 360 So.2d 1341 (La.1978); State v. Hollingsworth, 292 So.2d 516 (La.1974); State v. Paternostro, 224 La. 87, 68 So.2d 767 (1954). In the case at bar, the bill of information alleges that defendant committed a simple burglary of a dwelling belonging to Harold Stroud. As regards the whereabouts of the allegedly burglarized structure, Stroud was questioned as follows:

“Q. Mr. Stroud, on that date, specifically October 31st, 1979, did anything unusual occur at your home?
A. Yes, sir. We went to church and when I come back from church I noticed the door to the . . . the bedroom door was open where I kept my guns and I turned the lights on to see why the door was open and the guns was gone.
Q. This is at your home in Winn Parish, correct?
A. That’s right.”

This testimony discharged the State’s burden of proof with regard to venue.

For the reasons given in the discussion of assignment of error number 3, defendant’s conviction and sentence are reversed and the case is remanded to the district court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

WATSON, J., dissents.

BLANCHE, J., dissents for reasons assigned.

MARCUS, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent. In this writer’s opinion, the words used simply do not focus upon the defendant’s failure to take the stand. Assuming, however, that it was an indirect reference to his failure to take the stand prior decisions of this Court hold that the inference must be plain “that the remark was intended to bring to the jury’s attention the failure of the defendant to testify.” A fair reading of the remark made by the prosecution was not a plain reference to the defendant’s failure to take the stand.

This writer construes the remark as an attempt to influence the jury of the strength of the state’s case rather than to refer to the defendant’s failure to take the stand.

MARCUS, Justice

(dissenting).

I dissent. See my dissent in State v. Fullilove, 389 So.2d 1282 (La.1980), and State v. Perkins, 374 So.2d 1234 (La.1979).

       Judges J. Burton Foret, Jimmy M. Stoker, and P. J. Laborde, of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, and Jack C. Watson,

      . This aspect of State v. Lovett has been legislatively overruled. See LSA-C.Cr.P. art. 703(E). The statute withstood constitutional attack in State v. Day, 391 So.2d 1147 (La.1980).

      . United States v. Springer, 460 F.2d 1344 (7th Cir. 1972); Miller v. United States, 396 F.2d 492 (8th Cir. 1968); Puplampu v. United States, 422 F.2d 870 (9th Cir. 1970). See also State v. Scott, 355 So.2d 231 (La.1977).

      . An older line of cases, originating with State v. Howard, 262 La. 270, 263 So.2d 32 (La.1972) and State v. Reed, 284 So.2d 574 (La.1973), suggested that only direct references to the accused’s failure to take the stand constituted grounds for reversal on appeal. However, these holdings were clearly contrary to the express language of LSA-C.Cr.P. art. 770 and are no longer followed. See State v. Fullilove, 389 So.2d 1282 (La.1980) and State v. Perkins, 374 So.2d 1234 (La.1979).


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Joseph V. MEREDITH.
    No. 81-KA-0214.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Glenn B. Gremillion, John F. Johnson, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Leo Boothe of Smith, Taliaferro, Seibert, Boothe & Purvis, Jonesville, Roy S. Hal-comb, Alexandria, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Joseph V. Meredith, was charged with simple burglary of an inhabited dwelling in violation of R.S. 14:62.2. Defendant was convicted and subsequently sentenced to three years imprisonment at hard labor. The following is a painful rendition of the facts brought forth at defendant’s trial.

On October 1, 1978, Mrs. Aliene Thompson returned to her Jonesville home after a weekend outing with her family. Noticing broken glass in one of the home’s doors, a bucket filled with champagne and wine glasses sitting outside, and an inside light on, Mrs. Thompson surmised that a burglary was in progress. She ran across a vacant lot to the home of her neighbors, J. V. Meredith and Routh Lee Meredith, for assistance. After getting a gun from them, she returned to her house with the Mere-diths.

Upon entering the house, they found it had been ransacked and left in complete disarray. Several pots with leftover food were on the stove and meat and grease was smeared into the carpet in various places in the house. On the dining room table, Mrs. Thompson saw a twenty-inch piece of galvanized pipe, three drink glasses, several soda bottles, and a partially filled bottle of liquor. Instinctively, Mrs. Thompson removed the pipe from the glass table top and placed it on some newspaper before putting it back on the tabletop. Meanwhile, Mrs. Meredith gathered the glasses from the table and washed them.

Leaving the Merediths in the kitchen area, Mrs. Thompson surveyed the rest of the house, noting the various items which had been stolen. Virtually everything of significant value was gone. Among the most valuable were her china, sterling and crystal glassware, three rifles, pendulum clock, black onyx clock, silver trays, brass candlesticks, jewelry and $3000 in cash. As the accounting was being completed, Mr. Thompson, who was not with his wife when the burglary was discovered, arrived on the scene. Mr. Meredith, the defendant, was in and out of the house as he was making drinks for the Thompsons. Sometime in this period, the iron pipe disappeared.

Mrs. Thompson called the sheriff’s office but experienced difficulty in speaking with the officers as Mrs. Meredith “snatched” the phone out of her hand. Finally, she was able to use the phone and contacted the sheriff’s office. Deputies arrived shortly thereafter.

The actual police investigation was fraught with difficulties. When Deputy Blunschi arrived, both the Merediths and Thompsons were present. He attempted to secure the crime scene, but was hampered by a nervous Mrs. Meredith who said she had touched a lot of things in the house and continued to do so during the investigation.

On-the-scene investigation, according to estimates, continued for at least three hours. During this time, the defendant was continually returning to his house to make drinks for the Thompsons, his wife and himself. At one point, he brought some gumbo over for the officers to eat. During one of his absences, Deputy Price requested fingerprints from Mrs. Meredith, who vehemently refused. Months later, it was established that her prints were on a metal cash box which she said she had not touched that night. The only fingerprints the police obtained that night were the Thompsons’.

The case quieted as the officers found no clues regarding the identity of the burglar. Then, in July 1979, approximately ten months after the burglary, Deputy Blunschi talked with Mrs. Sue Newman King, the wife of Mrs. Meredith’s son by a previous marriage. Mrs. King told Deputy Blunschi that sometime prior to Christmas in 1978 that Mrs. Meredith had brought two suitcases filled with silverware and china, as well as boxes containing other items, to the Kings’ grocery store in Frogmore. At this time, Mrs. Meredith told Mrs. King she wished to give the articles to her children by a previous marriage as Christmas presents, thereby avoiding the necessity of “splitting them with J. V.’s kids”.

Mrs. King further stated that in February 1979, following a shooting incident between her husband and the defendant, Mrs. Meredith became concerned that officers might search her house. To avoid the detection of five guns she had hidden in a closet behind the refrigerator, she asked her son and his wife (Mrs. King) to come get them and to take them to the home of Norville Box in Natchez, Mississippi. In compliance with the request, they removed the three rifles, while Mrs. Meredith removed two pistols and a pendulum clock from the closet. The defendant was not at home when this incident occurred. In fact, upon being notified that someone was taking guns out of his house, the defendant called the police. However, they found none of the defendant’s guns had been taken.

Shortly after the guns were removed, Mr. and Mrs. Beard, Mrs. Meredith’s parents, travelled to the Kings’ grocery to get the other articles. They took these items to Mrs. King’s father’s home in Ferriday. In March 1979, Mrs. King’s brother, Mr. Newman, helped the Beards load up these items again. They then transported the articles to some unknown location and, to this day, they have not been recovered.

Once Mrs. King told her brother, Mr. Newman, a medically retired Memphis policeman, of her involvement, he advised her to notify the authorities. She did so, and after making these disclosures, Mrs. King accompanied Deputies Blunschi and Toler to Natchez in an effort to retrieve the stolen guns. The officers searched her van before sending her to the Box residence to get the guns while they waited at the Ramada Inn. She returned thirty minutes later with the three guns which matched the serial numbers and descriptions of those taken from the Thompson home.

Both Mrs. King and Mr. Newman gave videotape statements implicating Mrs. Meredith in the Thompson burglary. In July 1979, both Mrs. Meredith and the defendant were arrested for simple burglary of an inhabited dwelling.

At trial the state put on quite a number of witnesses to bring forth the above facts. Additionally, the state attempted to link a truck seen by Deputy Delhoste parked outside the Thompsons’ home the afternoon of the burglary with the defendant. On cross-examination, the defendant explained he had had such a truck, but it had been sold prior to the burglary to a fellow worker.

After hearing all the testimony the jury, by a vote of ten to two, found the defendant guilty of simple burglary of an inhabited dwelling. On appeal, the defendant urges five assignments of error as grounds for reversal of his conviction and sentence.

Defendant contends that the trial judge erred in admitting Mrs. Meredith’s hearsay statement which implicated him in the crime. The statement was made by Mrs. Meredith to her daughter-in-law, Mrs. King, and was an explanation of how she was involved in the burglary. The statement which Mrs. King testified that Mrs. Meredith made to her was as follows: “J. V. had got her [Mrs. Meredith] drunk and told her to go in and take the stuff and he sat outside.”

The statement was hearsay, as it was testimony in court of a statement made out of court, and was offered as an assertion to show the truth of the matters asserted therein. Its value rested entirely on the credibility of the out-of-court asserter, Mrs. Meredith, who was not present to testify. State v. Martin, 356 So.2d 1370 (La.1978). Thus, Mrs. King’s in-court testimony of what Mrs. Meredith said was to show the truth of the matter therein asserted, namely, that J. V. joined in the conspiracy with his wife to burglarize their neighbor’s home.

The state, acknowledging the hearsay nature of the statement, nevertheless contends that it is admissible under the co-conspirator exception.

According to R.S. 15:455:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.”

In State v. Dupree, 377 So.2d 328 (La.1979), we explained these requirements:

“Before a co-conspirator’s declaration may be introduced under this exception, a prima facie case of conspiracy must have been established and it must be shown that the declaration was made in furtherance of the common enterprise and during its continuation, [cites omitted] Introduction of a hearsay declaration without fulfillment of these requisites violates both the statute which prohibits the admission of hearsay evidence not falling within any exception to the rule, La.R.S. 15:434, and the constitutional guarantee of an accused’s right to confront and cross-examine the witnesses against him. [cites omitted]”

With these principles in mind, we conclude that the hearsay declaration of Mrs. King was incorrectly admitted in evidence.

To begin with, it was the state’s obligation to establish a prima facie ease of conspiracy and, in this endeavor, they failed. As may be observed from the detailed recitation of evidence set forth in this opinion, there is, except for the hearsay statement of Mrs. Meredith, no showing whatsoever of the defendant’s involvement in the burglary. The best of the evidence to show a conspiracy is as follows: (1) The defendant was Mrs. Meredith’s husband and should have known what was going on in his own home. We are unable to speculate to that extent. (2) The defendant was present in the Thompson home after the burglary, but then, both Merediths were there at the request of Mrs. Thompson after she discovered that her home had been burglarized. (3) The defendant may have had something to do with the disappearance of the pipe, as he was in and out of the Thompson home during the police investigation. However, in this connection, it should be pointed out that Mrs. Thompson did not discover the pipe’s disappearance until well after the defendant’s departure, and even this evidence, at best, is equivocal. During the time interval involved, both of the Mere-diths had been alone in the Thompsons’ kitchen and, obviously, either one of them could have disposed of the pipe. Again, we find this speculative as to the defendant’s involvement in the burglary. (4) That Mrs. Meredith could not possibly have acted alone in carrying out the quantity of thefts here involved and that the defendant, as her husband, was the most likely assistant. The evidence shows that Mrs. Meredith did not require defendant’s help in disposing of the rifles and other items taken from the house when she feared they might be discovered by the police. In fact, when the defendant heard that guns were being taken from his home, he must have thought they were his own, as he called the police and when they arrived on the scene, they found that his guns had not been taken and were in the gun cabinet. One may likewise speculate that if the defendant was involved in the burglary, it should not have been necessary for Mrs. Meredith to ask others to help her dispose of the stolen goods. It is mere speculation to assume that defendant knew the articles stolen from the Thompson home were in his home.

Last, the trial judge relied upon the statement of Mrs. Meredith in order to establish that a prima facie case of conspiracy had been established. This loses sight of the fact that the prima facie case must first be established by separate admissible evidence before the hearsay statement is admitted, and it was wrong for the trial judge to utilize the statement to supply a prima facie case. State v. Millet, 356 So.2d 1380 (La.1978).

There is an additional reason which the trial judge could have utilized to exclude the statement. The statement was not made in furtherance of the common enterprise or during its continuation. The burglary occurred on September 30, 1978 and the statement by Mrs. Meredith to Mrs. King was not made until after the February 1979 shooting incident between the defendant and Mrs. Meredith’s son. The conspiracy’s prime objective, the theft of the Thompsons’ possessions, had been completed months earlier. Even if the renewed efforts at concealment of the rifles brought about by the shooting incident, can be regarded as a continuation of the conspiracy, the comment of Mrs. Meredith cannot be construed as a furtherance of the common enterprise. If anything, Mrs. Meredith’s statement which, essentially, was a confession of guilt, would directly impede the common enterprise. State v. Dupree, supra.

Without the statement, we are of the opinion that no rational trier of fact could have found the defendant guilty of simple burglary of an inhabited dwelling. Unless the defendant is regarded as a co-conspirator with his wife and, as such, fully responsible for her actions, R.S. 15:455; State v. Kimble, 375 So.2d 924 (La.1979), there is no evidence of the essential elements of intent and unauthorized entry by the defendant.

At the risk of being redundant, when the hearsay statement of Mrs. Meredith is excluded, only the following facts could conceivably be utilized against the defendant: The defendant was home when the burglary occurred; his wife had a role in the burglary; an iron pipe disappeared while the defendant was helping his neighbor; guns were found in a closet behind his refrigerator, and a truck similar to defendant’s was seen at the house. Without the hearsay statement of Mrs. King, these facts fall far short of proving a conspiracy.

On the other hand, the following facts exculpate the defendant: He was merely helping his neighbors after the burglary; he was never seen by any witness with any of the goods (Mrs. Meredith told Mrs. King she wanted her children to get the goods); he was not present when the stolen guns were moved from his house and, in fact, called the police because he believed his guns were being taken; there is conflicting testimony over how many people it took to move the refrigerator; and he never received any of the spoils of the burglary.

Where the state’s entire theory of the ease is predicated upon the defendant’s guilty by association with an alleged co-conspirator (his wife), proof beyond a reasonable doubt that such a conspiracy existed should be required. Even considering the evidence in a light most favorable to the prosecution, no rational trier of fact could have found the defendant guilty of conspiracy beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

CONCLUSION

We find that a prima facie case of conspiracy had not been proven when the trial court admitted the hearsay evidence of a co-conspirator. Also, that statement was not made in furtherance of the crime. Thus, the statement, “J. V. had got her drunk and told her to go in and take the stuff and he sat outside”, was improperly admitted.

Furthermore, the facts absent this statement do not show the defendant was guilty of a conspiracy. Finally, no facts are presented that convince us the defendant did the crime on his own — there was no intent nor unauthorized entry proven against this defendant.

Thus, we reverse the defendant’s conviction and sentence, and order the defendant discharged.

REVERSED.

       Judges J. B. Foret, P. J. Laborde and Jimmy M. Stoker of the Third Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . Mrs. Meredith’s conviction for attempted simple burglary of an inhabited dwelling was affirmed by this Court on June 23, 1981. State v. Meredith, 400 So.2d 580 (La.1981).

      . Trial transcript of trial judge’s finding of a prima facie case of conspiracy:
      “Judge:
      “On that occasion. You, yourself, have mentioned the iron pipe episode tied directly to Mr. Meredith. Then in addition to that . . . of course, I’ve lost my train of thought now. I knew what I was going to say till you interrupted me. And following through, in addition to that, of course, the . . . one of the things that pops into my mind that ties directly into Mr. Meredith, is the fact that the weapons were found, at one time, in his house ... in his home ... behind the icebox, which, of course, the space was there as corroborated by Mr. Oxley. Therefore it’s conceivably believable that things in his home ... if somebody wanted to believe that could have been under his dominion. There are counter arguments to that, I’ll admit, and . . . but I’m adding it piece by piece and bit by bit ... the statement of Mrs. King, as I appreciate that she is going to testify to and the one that I just read out of here, that she was told that J. V. and Routh Lee took the material . . . the fact that . . . well, of course, there’s overwhelming proof of the fact that there was a burglary . . . there’s overwhelming proof of the fact that ... it seems to me . . . that Mr. Meredith’s wife was intimately involved in it. The only question, as I see it, is whether Mr. Meredith had anything to do with and these things that I say establish I think at least a prima facie case tieing him into it. Now, as to whether the Jury will accept that on ... as proof of guilty beyond reasonable doubt is something else and . .. but giving the record and the totality of the circumstances here, together with those things, that specifically tie him into this, and the statement of Mrs. King, if believed, that one of the co-conspirators told her that he was involved in it, I think it is reasonable to assume that a prima facie case has been made, so for that reason I would allow the State to introduce the . . . any statement that Mrs. King may have made.”


author: WATSON, Justice.

text:
    CITY OF BASTROP v. Lavinia D. JOHNSON.
    No. 81-K-0367.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Travis M. Holley, Bastrop, for defendant-relator.
    William J. Guste, Jr., Atty.Gen., Barbara Rutledge, Asst.Atty.Gen., James Boddie, Asst. City Atty., for plaintiff-respondent.
   WATSON, Justice.

Effective March 9, 1980, the driver’s license of defendant, Lavinia D. Johnson, was suspended for sixty days by the Louisiana Department of Public Safety, Office of Motor Vehicles. On October 7, 1980, defendant was ticketed for driving while her license was under suspension in violation of LSA-R.S. 32:415a. She was found guilty and sentenced to thirty days in jail. A writ was granted to review the conviction and sentence.

Since the period of suspension had expired when defendant was ticketed, she contends she was not guilty of driving under suspension. At most, defendant contends she was operating a vehicle without a driver’s license.

The State makes two answering arguments. First, it contends that defendant’s license remained under suspension because she had not paid the $15 required by LSA-R.S. 32:874B. This argument is unsound. Prior to its amendment by Act No. 229 of 1976, the statute stated that a license would remain suspended until the reinstatement fee was paid. That language was deleted by the 1976 amendment. At the conclusion of the suspension period, defendant’s license was not reinstated but was no longer suspended.

City of Lake Charles v. Iford, 375 So.2d 937 (La., 1979) dealt with the question of financial responsibility under LSA-R.S. 32:896, after a conviction of driving while intoxicated. Financial responsibility is not at issue here. Defendant Johnson was eligible for a license whereas Iford was not because the requirements of LSA-R.S. 32:896 had not been satisfied.

Second, the State relies on LSA-R.S. 32:415B which provides that a period of suspension shall automatically be extended for one year upon conviction of a motor vehicle offense during the suspension period. On May 8, 1980, defendant Johnson had been cited for driving under suspension; she pled guilty and received a fine.

Assuming the validity of an automatic extension, the facts do not support one here. The suspension was for a period of 60 days, beginning March 9, 1980. The 8th day of May, 1980, is the 61st day thereafter. The offense on May 8 was committed after the suspension period, and the statute does not apply.

For the foregoing reasons, the conviction and sentence of the defendant are reversed and set aside.

REVERSED.

       Judges J. Burton Foret, Jimmy M. Stoker and P. J. Laborde of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . LSA-R.S. 32:415A provides:
      “It shall be unlawful for any person to operate a motor vehicle upon any public highway of this state during the period of suspension, revocation or cancellation of any license which may have been issued to him by this state or by any other state.”

      . LSA-R.S. 32:874B provided at the time defendant’s 60 day suspension period ended, before the effective date of the 1980 amendment:
      “Any person whose license has been suspended, revoked, or withdrawn under any provision of this Chapter shall, after complying with the requirements of this Chapter, be required to pay a reinstatement fee of fifteen dollars before such license may be returned, and the license shall remain withdrawn and shall not be renewed, nor shall any such license be issued to such person, until payment of this reinstatement fee has been made. Upon receipt of said fee such license shall be returned within ten days.”

      . LSA-R.S. 32:896 provides:
      “A. When the director under Section 414(A) or 414(B)(2) of this Title suspends the license or nonresident operating privilege of any person upon receipt of evidence of conviction, entry of guilty plea or forfeiture of bond of any person charged with operating a motor vehicle while under the influence of intoxicating beverages or narcotic drugs or stimulants of the central nervous system, or under Section 667 of this Title for refusal to submit to chemical tests of blood, breath, urine, or other bodily substance for determining the alcoholic content of his blood, no license shall be reinstated or reissued to the person unless such person previously has given or immediately gives and thereafter maintains proof of financial responsibility with respect to all motor vehicles registered by him and shall show financial responsibility individually as a non-owner for a period of three years.
      “B. If a person is not licensed, but by final order or judgment is convicted of or forfeits any bail or collateral deposited to secure an appearance for trial for any offense requiring the suspension or revocation of license, or for operating a motor vehicle upon the highways without being licensed to do so, or for operating an unregistered motor vehicle upon the highways, no license shall be thereafter issued to such person until he shall give and thereafter maintain proof of financial responsibility, when required.
      “C. Proof of financial responsibility shall also be required upon the part of any resident or nonresident licensed driver upon notice of first conviction, first entry of guilty plea, or first forfeiture of bond for driving while intoxicated, although the judge recommends that the license not be suspended upon such first conviction, first entry of guilty plea, or first forfeiture of bond.
      “D. Whenever the commissioner suspends or revokes a non-resident’s operating privilege by reason of a conviction or forfeiture of bail, such privilege shall remain so suspended or revoked unless such person shall have previously given or shall immediately give and thereafter maintain proof of financial responsibility.
      “E. Proof of financial responsibility shall also be required upon the part of any resident or nonresident licensed driver upon notice of first conviction for driving while intoxicated although the judge who has convicted such driver recommends that the license not be suspended upon such first conviction.”

      . LSA-R.S. 32:415B provides:
      “Any period of suspension or revocation shall automatically be extended for a period of one year from the date the licensee would otherwise have been entitled to apply for a new license upon his conviction for any offense involving the operation of a motor vehicle committed during such period. No driver shall use a license issued to him in another state for the purpose of operating a vehicle in this state while his license from this state is under suspension. The department is authorized to suspend or revoke the license of any resident of this state or the privilege of a nonresident to drive a motor vehicle in this state, upon receiving notice of his conviction, or of the entry of a plea of guilty and sentence thereupon, or of the forfeiture of bail in another state or federal jurisdiction for any offense, which if committed in this state, would be grounds for suspension or revocation of the license.”