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

text:
    Fannie GODWIN v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.
    No. 81-C-0946.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    Rehearing Denied Feb. 19, 1982.

      Woodrow W. Wyatt, Baton Rouge, for plaintiff-applicant.
    John F. Ward, Jr., and Robert L. Ham-monds, Baton Rouge, for defendant-respondent.
   MARCUS, Justice.

Fannie Godwin instituted this action against the East Baton Rouge Parish School Board and its president, George H. Richard, seeking a declaration that Rule VII of the Rules of Procedure of said board, both on its face and as applied to her, violated her rights of freedom of speech, to assemble peaceably and to petition government for a redress of grievances under the first amendment to the federal constitution and sections 7 and 9 of article 1 of our state constitution. She further sought an injunction prohibiting the enforcement of said rule.

After a hearing, the trial court upheld the constitutionality of Rule VII and denied the application for a preliminary injunction. Plaintiff appealed. The court of appeal affirmed. On plaintiff’s application, we granted certiorari to review the correctness of that decision.

The sole issue presented for our consideration is whether that portion of Rule VII that provides that “[n]o sign, placard, or poster which is carried by hand shall be permitted in the School Board office building or any of its rooms” is unconstitutional either on its face or as applied to plaintiff under the first amendment to the federal constitution and sections 7 and 9 of article 1 of our state constitution guaranteeing freedom of speech and the right to assemble peaceably and petition government for a redress of grievances.

At the hearing on the application for a preliminary injunction, certain facts were stipulated between the parties which may be summarized as follows:

On December 4, 1980, the East Baton Rouge Parish School Board adopted new “Rules of Procedure” which became effective January 5, 1981. On January 5, 1981, the school board met at the Instructional Resource Center of the school board, a publicly-owned building. The principal purpose of the meeting was to discuss, deliberate and take official action toward adopting a proposed plan for desegregating the public schools in the parish. Mrs. Godwin attended the meeting as a member of the public and sat at the rear of the meeting room with no one seated behind her. She carried a sign approximately 15 X 23 inches in size which she displayed by standing next to her chair and holding it above her head. The sign depicted a black and a white child and stated: “Desegregation can help people know one another better so they can work together better.” At no time did Mrs. God-win engage in any loud or boisterous conduct nor did her behavior threaten the orderly conduct of the meeting. She conducted herself in a quiet and orderly manner at all times. The school board president, George Richard, interrupted the agenda and requested Mrs. Godwin to remove the sign or herself from the meeting. He read her the rule prohibiting signs of which she was already aware. When she failed to comply, he recessed the meeting, left the bench or podium and approached Mrs. Godwin in the rear of the room where he again asked her to remove the sign or herself. Upon her refusal to do so, she was arrested for trespass and removed from the building by the police.

In addition to the above stipulation of facts, Mrs. Eileen Armstrong, immediate past-president and ten-year member of the board, testified that in past meetings, hand signs had created a problem by blocking the view of others at the meetings; by distracting the members of the school board from their deliberations; and by creating a potential safety hazard to others at the meetings. She also stated that Mrs. Godwin could have expressed the same sentiments on the sign at the microphone verbally or by submission of a written document. A written agenda is prepared for each regular school board meeting. Rules permit a person to speak for five minutes on any subject on the agenda. Discussion of a subject not on the agenda requires the vote of two-thirds of the board. Mr. Richard, president and six-year member of the board, also testified that signs had been disruptive of the meetings in the past. Both he and Mrs. Armstrong stated that past disruptions had led to the promulgation of Rule VII.

Communication by signs, placards, or posters is closely akin to “pure speech” and is entitled to comprehensive protection under the first amendment. See Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The first amendment, however, does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Thus, Mrs. Godwin’s display of a hand-carried sign, like other forms of expression protected by the first amendment, is subject to reasonable time, place and manner restrictions. As stated by the United States Supreme Court in Heffron, supra, 101 S.Ct. at 2564:

We have often approved restrictions of that kind provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing so they leave open ample alternative channels for communication of the information.

The issue here then is whether Rule VII is a permissible restriction on the place and manner of communicating the views of citizens attending school board meetings, more specifically, whether the school board may exclude from its meetings all hand-carried signs.

A major criterion for a valid time, place and manner restriction is that the restriction “may not be based upon either the content or subject matter of the speech.” Heffron, supra. Rule VII qualifies in this respect since it applies evenhandedly to all who wish to bring hand-held signs into school board meetings. No sign, placard or poster which is carried by hand is permitted in the school board office building or any of its rooms.

Moreover, since all hand-carried signs are forbidden by the rule, no discretion is vested in the school board to permit some hand signs while not allowing others. Hence, Rule VII is not open to the kind of arbitrary application that has been condemned as inherently inconsistent with a valid time, place and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view. Heffron, supra, and eases cited therein.

A valid time, place and manner restriction must also “serve a significant governmental interest.” Heffron, supra. Here, the principal justification asserted by the school board in support of Rule VII is the need to ensure that its meetings are conducted in an orderly and dignified manner.

School board meetings are held in a room of the school board office building. A written agenda is prepared for each school board meeting. Rules permit a person to speak for five minutes on any subject on the agenda. Discussion of a subject not on the agenda requires the vote of two-thirds of the board. The purpose of school board meetings is to allow the duly elected representatives of the people to consider and act upon matters of importance to the operation of the school system. It is in the best interests of the citizens of East Baton Rouge Parish that such meetings be conducted in an orderly and expeditious manner permitting full presentation of information and viewpoints by interested citizens. Any individual, group or organization may orally address the board on an agenda item for a period not to exceed five minutes or submit a written presentation of his, her or their views. It is apparent that the board’s interest in conducting its meetings in an orderly and dignified manner is a substantial consideration and a valid governmental objective.

In addition, consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved. Heffron, supra. For example, there are significant differences between city streets (which have “immemorially been held in trust for the use of the public and, ... have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” Hague v. C.I.O., 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939)) and school board meetings. As stated in Hef-fron: “A street is continually open, often uncongested, and constitutes not only a necessary conduit in the daily affairs of a locality’s citizens, but also a place where people may enjoy the open air or the company of friends and neighbors in a relaxed environment.” On the other hand, a school board meeting, as described above, is a weekly event attracting great numbers of citizens who come to view the meeting and/or express their opinions on items listed on the agenda for that meeting. The demand for decorum is much more compelling in the context of a school board meeting.

Given these considerations, we find that the school board’s interest in excluding all hand-carried signs from its meetings is sufficient to satisfy the requirement that a place or manner restriction must serve a substantial governmental interest.

Finally, we conclude that the restriction imposed by Rule VII leaves open ample alternative channels for communication of the information. The rule does not prevent Mrs. Godwin from carrying her sign anywhere outside the school building and its rooms. More importantly, the rule does not deny access within the forum in question. Mrs. Godwin may attend the school board meeting and communicate her ideas within the forum by expressing her views orally on an agenda item for a period of five minutes or by submitting a written document setting forth her views. The school board meeting is a limited public forum in that it exists to provide a means for a great number of citizens to present their views on school board agenda items in an efficient and orderly fashion. Considering the limited function of the school board meeting and the area in which it operates, we consider that there are ample alternative channels for communication of the information.

In sum, we conclude that Rule VII is neither unconstitutional on its face nor as applied to plaintiff. It is a permissive restriction on the place and manner of communicating views of citizens attending school board meetings. Accordingly, we affirm the judgments of the courts below.

DECREE

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

DIXON, C. J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DIXON, C. J.

DENNIS, J., dissents for reasons assigned by DIXON, C. J.

LEMMON, J., concurs and assigns reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The law seems simple enough.

“No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.” Art. 1, Section 7, La.Const. 1974.

Sometimes the breach of a clear provision of law is justified by necessity. Absolutely no necessity for the abridgment of Fannie Godwin’s freedom of speech (words on posters are a form of speech) has been or can be shown; nor has she abused that right.

The majority has ignored this clear, unanswerable, applicable provision of the Louisiana Constitution.

LEMMON, Justice,

concurring.

The prohibitory rule could have been more narrowly circumscribed. But when competing interests are balanced in determining constitutionality, the rule limiting freedom of expression for a legitimate governmental interest must only be drawn reasonably, not perfectly. The fact that a more nearly perfect rule might have been adopted does not render unconstitutional the rule that was adopted, as long as that rule provides a reasonable balance between the competing interests.

The courts should not require modification of this reasonable rule simply because the rule is susceptible of further refinement, in the absence of an unnecessary and significant limitation on freedom of expression. When other available methods of expression are considered, this rule is not unconstitutionally restrictive as to the time, place and manner in which visitors in the office building may express themselves.

      . Rule VII of the Rules of Procedure of the East Baton Rouge Parish School Board provides:
      ORDER AND DECORUM AT SCHOOL BOARD AND COMMITTEE MEETINGS.
      It is in the public interest, and the public demands, that meetings of the School Board or its Committees, in handling the public’s business, be conducted in an orderly and dignified manner. To this end, the following rules are established for the conduct of all persons, including Board members and staff members, attending a meeting of the School Board or its Committees.
      No signs, poster, placards, etc. shall be affixed to the walls, doors, etc. of the School Board office building or any room therein, except by the School Board staff in connection with School Board business and then only with permission of the Superintendent. No sign, placard, or poster which is carried by hand shall be permitted in the School Board office building or any of its rooms. All persons attending meetings of the School Board or of its Committees must be recognized by the presiding officer before speaking. In return, the presiding officer and other Board members shall courteously receive the comments made by such persons.
      Any person who fails or refuses to obey the rulings and directions of the presiding officer, or otherwise disrupts the meeting in any manner, shall be requested by the presiding officer to leave the meeting room for the remainder of that meeting.
      If any person refuses to follow the directions of the presiding officer, the presiding officer shall cause such person to be removed from the meeting as authorized by L.R.S. 42:6.1(C) and other applicable laws of the State of Louisiana.

      . U.S.Const. amend. I, as applied to the states through the fourteenth amendment, provides that: “Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” La.Const. art. 1, § 7 provides that: “No law shall curtail or restrain the freedom of speech ....” La.Const. art. 1, § 9 provides: “No law shall impair the right of any person to assemble peaceably or to petition government for a redress of grievances.”

      . 403 So.2d 72 (La.App. 1st Cir. 1981).

      . 404 So.2d 1238 (La.1981).

      . Heffron involved a Minnesota state fair rule requiring organizations desiring to distribute and sell religious literature and to solicit donations to conduct those activities only at an assigned location within the fairgrounds. The asserted governmental interest was the need to maintain the orderly movement of the crowd given the large number of exhibitors and persons attending the fair. The United States Supreme Court found that the restriction was not based upon either the content or subject matter of the speech, it was not open to arbitrary application, it served a substantial state interest, it was not an unnecessary regulation because less restrictive means would not adequately deal with the problem and alternative forums for the expression of the protected speech existed despite the effects of the rule. Accordingly, the Minnesota State Fair Rule was upheld as a valid place and manner restriction. Four Justices concurred in part and dissented in part. These Justices agreed with the majority insofar as it upheld the rule’s restriction on sales and solicitations. They dissented, however, from the majority’s approval of the rule’s restriction on the distribution of literature.

      . In addition, the school board asserted the following interests: (1) safety of persons in the audience; (2) the right of all persons present to be able to observe the deliberations of the school board; and (3) the need to curb the distracting and disruptive exhibition and waving of signs during the course of the meeting.

      . In view of this finding, plaintiffs contention that Rule VII is unconstitutionally overbroad has no merit. Likewise, plaintiffs contention that Rule VII violates La.Const. art. 12, § 3 and Louisiana’s Open Meeting Law, La.R.S. 42:4.1 et seq., is also without merit.

      . For example, the rule could have allowed those hand held signs which are of a certain 'size, which are held against the wall in the rear, which are not waved, etc.

      . Visitors may hang signs around their necks, wear signs on clothing, wear arm bands or use other forms of communication other than hand held signs. All persons are allowed to address the Board for limited periods as to agenda items, and plaintiff had done so many times.


source: Caselaw Access Project

author:
CALOGERO, Justice.
     JOHN C. BOUTALL, Justice Ad Hoc,

license: Public Domain

text:
    STATE of Louisiana v. William Lee MOORE, Jr.
    No. 81-KA-0439.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Thomas M. Yeager, Asst. Dist. Atty., for plaintiff-appellee.
    James S. Gravel, of Gravel, Schley & Van Dyke, Alexandria, for defendant-appellant.
   CALOGERO, Justice.

On January 12, 1981, defendant William Lee Moore, Jr., represented by counsel, entered a plea of guilty to operating a vehicle while intoxicated, third offense, in violation of La.R.S. 14:98(D) (DWI-3). Defendant, with the court’s approval, conditioned his guilty plea on his right to appeal to this Court, under State v. Crosby, 338 So.2d 584 (La.1976), the issue of whether the court minutes showing his two prior guilty pleas to charges of violation of La.R.S. 14:98 could serve as a valid predicate for the present charge. Defendant was sentenced to one year in parish prison, subject to work release, and a $400.00 fine. Defendant appealed, urging the Crosby reservation.

On October 16, 1980, defendant was arrested by Alexandria City Police for driving while intoxicated. Based on two prior guilty plea convictions for DWI, one entered on March 24, 1977 to DWI-1 and the second entered on August 29,1979 to DWI-2, defendant was charged as a third offender. Defendant appeared for trial on January 12, 1981, represented by counsel, and filed a motion to quash the previous guilty pleas. Subsequent to the trial court’s denial of his motion and the court’s ruling that evidence of his two prior DWI convictions could be introduced in the trial of defendant for third offense DWI, defendant withdrew his not guilty plea and entered a plea of guilty conditioned on his right to appeal the denial of the motion to quash. Defendant’s appeal was lodged here on February 18, 1981.

On September 10, 1981, this Court rendered a Per Curiam opinion in State v. Jones, 404 So.2d 1192 (La.1981), in which the Court addressed the identical issues presented in this case. First the Court held that a defendant could make a conditional guilty plea, reserving his right to appeal from the alleged violation of his Boykin rights in using the two prior guilty plea based convictions to enhance the present charge against him. The Court further held that “whenever a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where it is applicable; (c) his right to confront his accusers, and to make sure that the accused has a full understanding of what the plea connotes and its consequences.” Finally, it was held that the decision in Jones would be applicable to any case filed and pending at the time of its rendition.

Since the appeal in the present case was lodged here seven months before rendition of the Per Curiam opinion in State v. Jones, it is readily apparent that the Jones decision applies to this case. It is also clear, as was conceded by the state in brief, that under Jones the guilty plea taken on August 29,1979 cannot be used to enhance the defendant’s penalty, since the minutes do not reflect that the trial judge properly informed defendant of the rights he would be waiving by that misdemeanor guilty plea. Consequently, defendant’s third offense DWI conviction and sentence must be set aside because the invalid 1979 conviction was an essential element thereof.

Decree

For the foregoing reasons, defendant’s guilty plea to the charge of DWI-3 is set aside, as well as the resulting conviction and sentence, and the case is remanded to the trial court for further proceedings not inconsistent with the views expressed herein.

REVERSED AND REMANDED.

WATSON, J., dissents.

See State v. Jones, 404 So.2d 1192 (La.1981).

JOHN C. BOUTALL, J. Ad Hoc, dissents with reasons.

JOHN C. BOUTALL, Justice Ad Hoc,

dissenting.

I dissent, being of the opinion that State v. Jones goes beyond constitutional rights and is overly solicitous of the prospective multiple offender who may choose to break the law at some future time. I adopt the dissent of Justice Watson therein.

       Judges O. E. Price and Fred W, Jones of the Court of Appeal, Second Circuit and Judge John C. Boutall of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis and Jack Crozier Watson.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Ulysses LONG.
    No. 81-KA-0592.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    David Randall Buckley, M. Michele Four-net, Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

Ulysses Long was convicted on two counts of armed robbery, R.S. 14:64, and sentenced to serve consecutive terms of fifty years at hard labor on each count without benefit of probation, parole or suspension of sentence. After defendant fired his attorney, the East Baton Rouge Parish Public Defender’s Office was appointed counsel for defendant on appeal and now argues one of the three assignments of error filed below as grounds for reversal of defendant’s conviction. Defendant also filed a pro se brief and assigned eight trial errors. Because we find that none of these assignments have merit, defendant’s conviction is affirmed.

At the time of his arrest on the present charges, Long was serving a thirty year sentence for armed robbery at the Louisiana State Police Barracks Maintenance Program in East Baton Rouge Parish. On June 27,1976, an article containing a photograph of defendant appeared in the Baton Rouge Sunday Advocate citing Long’s status as an inmate and honor student at Southern University. Awaiting approval of his release following a sentence commutation from the Board of Pardons, Long had, at that time, served 8V2 years of his original sentence.

As a result of the picture appearing in this article, Baton Rouge City Police received reports of defendant’s involvement in at least two armed robberies occurring on May 27, 1976. In the first of these offenses, defendant allegedly placed a gun to the head of Pearlie Lee Babin as she sat in her car parked at a Baton Rouge shopping center. When Mrs. Babin refused to surrender her purse to the assailant, defendant responded by driving off in her automobile. Approximately V2 hour later, defendant allegedly struck again, this time at a maternity shop owned and operated by one Evelyn Randall. Upon entering the store, defendant pulled a gun from his waistband and demanded cash. Defendant then proceeded to empty both the cash register and Ms. Randall’s purse before locking Ms. Randall and an employee in the rear of the store and departing. At trial, both victims related the above facts and each positively identified the defendant as their assailant. Ms. Babin’s identification was corroborated by Shirley Price, who noticed defendant driving out of the parking lot; Randall’s identification was corroborated by Evelyn Erdurum, an employee at the dress shop. Aside from these identifications, the state presented no additional evidence. It is to be noted that the defendant was originally charged with a second robbery at the maternity shop which purportedly occurred on June 4, 1976. However, because defendant’s alibi for this date was readily verifiable, these charges were dismissed.

Pro Se Assignments of Error Numbers 1, 4 and 6

These assignments of error deal with alleged improprieties in the admission of identification testimony at defendant’s trial.

To verify complaints prompted by the photograph of Long in the Sunday Advocate, the Baton Rouge City Police conducted two lineups. The first, on June 28,1976, involved all witnesses to the May 27 and June 4 robberies of Evelyn Randall’s dress shop as well as witnesses to the June 4 robbery of Mary’s Uniform Shop, another Baton Rouge clothing establishment.

The owner of the Anticipation Dress Shop, Evelyn Randall, and one of her employees, Kathleen Johnson, both identified Long at this first lineup as their assailant. Ms. Randall was present only during the May 27 offense and Ms. Johnson only during the June 4 robbery. Another store employee, Ella Erdurum, who was a witness to both holdups at the Anticipation Dress Shop, was not able to implicate Long until the first preliminary hearing on August 26, 1976.

The second lineup was held on September 2, 1976 and involved witnesses to the May 27 commandeering of Ms. Babin’s automobile from the shopping center parking lot. Ms. Babin positively identified Long as her assailant at this lineup. A witness to this offense, Shirley Price, did not identify defendant at this lineup. However, she later confirmed Ms. Babin’s identification at a second preliminary examination held on February 27, 1977 wherein she identified Long as the holdup man. At trial, Ms. Price again positively identified Long as the perpetrator and explained her inability to single out defendant during the September 2 lineup. Though Ms. Price clearly observed the accused driving Pearlie Lee Ba-bin’s auto and was able to give the police his description, the only physical traits she observed were the assailant’s facial characteristics and upper torso. Shirley Price stated that great emphasis was placed upon physical characteristics other than facial features, and that the overall setting at the lineúp distracted her. Thus, she felt precluded from identifying defendant at the time of the lineup.

In January 1977, defendant filed a motion to suppress all identifications made during these lineups, alleging that they were conducted under constitutional violations. Though the court minutes reflect that this motion was heard on February 24, 1977, there is no transcript of this hearing in the record. Long alleges that the hearing on this motion was deferred until the date of trial, but was never taken up by the district court.

Long urges that this alleged failure to consider the motion to suppress constituted reversible error. However, even if the accuracy of Long’s assertion is accepted, it does not appear that any of Long’s substantial rights were violated. This Court previously held in State v. Walker, 260 So.2d 618 (La.1972) that the failure of the trial judge to hear evidence as to defendant’s identification on a motion to suppress, instead of at trial, was harmless error and not cause for reversal. In Walker, as in the present case, the question of identification was properly disposed of during trial when the victim made a positive identification.

Further, the main issue to be resolved in the prosecution was the accuracy of defendant’s identification by the state’s witnesses. As the record shows, the witnesses’ opportunities for observation, the accuracy of these observations, and their credibility were all issues which the defendant fully litigated. It was not error for the trial judge to decide that these matters were more properly decided at trial rather than on a motion to suppress. In any event, it did not prejudice the defendant and was a proper exercise of judicial discretion.

Long also contends that the trial court should not have accepted the testimony of those witnesses who viewed the first lineup held on June 28, 1976. He claims that testimony given at the preliminary hearing of August 26, 1976 regarding the robberies of the dress shops, clearly established that the police conducting the lineup suggested to the witnesses which subject to select. Concerning this, defendant relies on the preliminary hearing testimony of Sylvia Singleton, a witness to one of the June 4 robberies in which Long was never more than a suspect:

“I had some questions about my being able to identify the man and I talked to detective Dupuy about that .... There was general conversation during this time but at one point the detective made the statement that the suspect was five eight and weighed two hundred pounds. This immediately disturbed me that we would be given that kind of information before going in for a line-up. Other conversation was in regard to a newspaper picture. I knew nothing about it. There was some discussion about the man looking like Harry Bellafonte and the detective told us that the suspect did .... I knew immediately who the suspect was because [he was] the only man that looked like Harry Bellafonte.”

Further, defendant argues that a comparison of the lineup subjects supports his position that the June 28 lineup was conducted in an unfair manner. This lineup consisted of six participants who, with the exception of the 32-year-old defendant, were all teenagers. Though all of the subjects in the lineup were of similar height, their weight ranged from 160 to 215 pounds. Long also claims that all participants in this lineup were required to wear his eyeglasses, which did not fit anyone other than himself. Defendant urges the disparity in physical appearance created circumstances that were “unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny him due process of law. See State v. Maggio, 368 So.2d 1016 (La.1979); State v. Williams, 341 So.2d 370 (La.1976).

Though Long has presented serious charges regarding suggestive lineup procedures, his present contention actually challenges only the identification testimony of Evelyn Randall, who was the only witness at the June 28 lineup who provided an identification which was ultimately used against the accused. However, Ms. Randall’s trial testimony plainly supports the conclusion that her identification of Long at trial was founded on her independent judgment and not based on the June 28 lineup. As noted by this Court in State v. Boss, supra:

“. . . Therefore, even if the out-of-court identification was tainted, if the in-court identification had a source independent of the out-of-court identification, the in-court identification does not violate defendant’s due process rights.”

Ms. Randall testified at trial that she first observed the accused as he entered her store on May 27, 1976. Further, she stated that Long lingered about the shop long enough to learn how to open the register, take money from Ms. Randall’s purse and then lock the store owner and her employee in a rear room. According to Ms. Randall, defendant was “right up in my face with a gun” during the holdup and her description of Long to the police proved to be entirely accurate.

Defendant’s position that the failure of Ms. Price and Ms. Erdurum to identify him at the lineup was grounds to bar their identification testimony at trial is wholly without merit. A pre-trial identification is not a prerequisite to an in-court identification. The failure of these witnesses to single out Long at the pre-trial lineup is a matter that bears on the weight, not the admissibility, of their testimony. State v. Jackson, 337 So.2d 508 (La.1976). Accordingly, these assignments of error lack merit.

Pro Se Assignment of Error Number 2

Defendant contends that the trial eourt erred when it refused to grant an oral motion for a continuance when certain defense witnesses failed to appear on the day of the trial. This contention is plainly without merit.

C.Cr.P. art. 712 provides that the granting of a motion for a continuance is within the discretion of the trial court. Absent a clear showing of abuse of discretion, the denial of a continuance by the trial judge will not be disturbed. State v. Ordonez, 395 So.2d 778 (La.1981); State v. Lee, 364 So.2d 1024 (La.1976).

Our review of the record fails to reveal that any such motion was ever made. Further, even if a continuance was requested, Long has failed to show any “specific prejudice” caused by the denial of the motion. State v. Jones, 395 So.2d 751 (La.1981). The problems posed by the absence of these defense witnesses were resolved by stipulations between counsel and by an agreement to submit the preliminary hearing testimony of such witnesses. Accordingly, the defense was not prejudiced by their absence. C.Cr.P. art. 921; State v. Jones, supra.

Pro Se Assignment of Error Number 5

During the trial, a signed lineup identification card was introduced in evidence by the state during its examination of Detective Louis Dupuy. Though Dupuy was able to identify the identification card, Long argues that this evidence should have been excluded because another witness, Pearlie Babin, testified that she never signed the card and that none of the writing on the card was hers. Defendant’s argument is without merit. Once the card was identified by Detective Dupuy, it was properly admitted. State v. Trosclair, 350 So.2d 1164 (La.1977). Once introduced in evidence, connexity was a matte? to be determined by the trier of fact. State v. Trosclair, supra.

Further, though Ms. Babin was unable to identify the lineup card nor the writing on the card, she stated unequivocally that she did fill out an identification card at the lineup in which she selected Ulysses Long as her assailant.

Finally, the record reveals that no objection was made when the state attempted to introduce the lineup card in evidence. It is well established that in the absence of a contemporaneous objection, an alleged error in the proceedings cannot be availed of after verdict. C.Cr.P. art. 841; State v. Mitchell, 356 So.2d 974 (La.1978), cert. den. 439 U.S. 926, 99 S.Ct. 310, 58 L.Ed.2d 319 (1978); State v. Williams, 343 So.2d 1026 (La.1977).

Pro Se Assignment of Error Number 7

The accused urges that the trial court erred when it allowed the state to instruct witnesses in answering questions during the preliminary hearing. Appellant’s position is based on alleged leading questions and the prosecution’s request that a witness respond with a simple “yes” or “no” answer. However, any error by the trial court in permitting questions at the preliminary hearing was rendered moot by Long’s subsequent trial and conviction. State v. Stewart, 357 So.2d 1111 (La.1976).

Pro Se Assignment of Error Number 8

At trial, both Ms. Randall and Ms. Babin positively identified Long as their assailant. Pearlie Babin’s identification was corroborated by Shirley Price and Evelyn Randall’s identification by Ella Erdurum. Aside from these identifications, the state presented no additional evidence. Thus, the trial court’s finding of guilt was based entirely upon identification testimony.

By this assignment of error, Long challenges the sufficiency of the state’s identification testimony to establish his guilt of the charged offenses.

In presenting his defense, Long sought to challenge the credibility of the state’s witnesses by establishing that some of the witnesses present during the two robberies committed on June 4 were mistaken in their identification of defendant, thereby calling into question the credibility of witnesses who were present during the May 27 robberies.

Mr. C. Paul Phelps, then Secretary of the Louisiana Department of Corrections, was a key witness in this defense strategy. Phelps testified that defendant called him on the morning of June 4 and requested an appointment. When defendant arrived, he had to wait for Phelps to conclude an 11:00 appointment. Long eventually entered Phelps’ office at approximately 11:30 and spoke with the corrections officer who escorted defendant from the police barracks while Long waited outside Phelps’ office. He was returned to the barracks at approximately 1:30. Because of Phelps’ testimony, the charges against Long, entailing the June 4 robberies which occurred between 12 noon and 1:00 p. m., were dismissed. Thus, Long urges that he established that Ms. Randall was mistaken in her belief that Long committed the June 4 robbery of her maternity dress shop and that the credibility of Ella Erdurum in regarding her identification testimony was effectively destroyed.

Ms. Erdurum stated unequivocally that the man responsible for the June 4 robbery of the Anticipation Dress Shop was the same man who robbed the store on May 27. Defendant argues that because he could not have carried out the June 4 offense, Ms. Erdurum’s identification of him as the May 27 perpetrator was mistaken.

Further, both Randall and Erdurum testified that they had observed Long in the maternity shop on a previous occasion with a large, heavy set woman who appeared to be pregnant. To refute this identification testimony, defendant relied on the statement of Willie Humphrey, who was arrested on June 8, 1976 in connection with a uniform store holdup in New Orleans. Humphrey testified that he frequently travelled to Baton Rouge to visit his girlfriend, who was pregnant during the Spring of 1976.

Defendant attempted to raise additional doubts about the accuracy of Ms. Randall’s identification of him through the testimony of Deatra Nobles, a witness to the June 4 holdup of Mary’s Uniform Shop. Ms. Robles testified that Evelyn Randall “got very mad at me and we got into an argument” when she failed to identify Long at the June 28 lineup and that Ms. Randall tried to influence her identification of Long as the perpetrator.

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. Harveston, 389 So.2d 63 (La.1980). Thus, under the Jackson rationale, it appears that the state was required to negate any reasonable probability of mis-identification in order to carry its burden of proof.

Approximately Vz hour after the commandeering of Ms. Babin’s auto, the Anticipation Dress Shop was the object of an armed robbery. Only two individuals, Evelyn Randall and her employee Ella Erdurum, were present when this offense occurred. Both women positively identified Long as the perpetrator. Evelyn Randall was able to clearly observe her assailant, accurately described him to the police, and identified him at the lineup as well as at trial. Ms. Randall forcefully rejected the position of the defendant that Willie Humphrey, the defendant’s alleged look-alike, was the holdup man.

Though Deatra Robles testified that Evelyn Randall attempted to sway her identification decision, Ms. Randall repeatedly denied such improper conduct. Thus, the trial judge was faced with conflicting testimony and was required to determine which witness’s testimony was more credible. As noted in State v. Collins, 328 So.2d 674 (La.1976):

“Credibility of witnesses is a matter in which the trial judge’s discretion is broad, and it is a matter concerning which he is particularly well situated to judge.”

Our review of the testimony leads us to conclude that the trial judge did not abuse this broad grant of discretion. Neither Mr. Phelps nor Ms. Robles were present during the May 27 offense. Hence, neither defense witness was competent to testify as to Ms. Randall’s ability to observe the defendant’s physical traits nor the correctness of the description she supplied to the police. We find it most significant that the shop owner’s description not only accurately portrayed the physical characteristics of Ulysses Long, but was totally consistent with the description supplied by Pearlie Ba-bin and Shirley Price, the only two witnesses present at the scene of the offense which occurred earlier that day.

The only other testimony by an eyewitness to the May 27 holdup of Ms. Randall’s dress shop came from Ella Erdurum. Ms. Erdurum, who was the only witness present for both the May 27 and June 4 robberies could not identify Ulysses Long at the lineup. Further, she stated at trial that she was positive that the same man robbed the store on both occasions. Defendant urges that because he could not have committed the June 4 offense, Ms. Erdurum’s testimony established that he was not responsible for the offense which occurred on May 27.

However, Ms. Erdurum’s testimony indicates that though she misidentified Ulysses Long as the perpetrator on June 4, she was correct in her identification of defendant as the May 27 assailant. First, Ms. Erdurum stated that when Ulysses Long’s picture appeared in the Sunday Advocate, she recognized him as the holdup man without being informed or influenced by any other person. Second, she recognized Long as the perpetrator while he waited outside of the courtroom at an earlier hearing, as well as at trial. Third, though the lighting conditions at the lineup prevented Ms. Erdurum from selecting Long, she did give the police an accurate description of Long shortly after the May 27 holdup. Her description was corroborated by all the other witnesses who gave identification testimony concerning the robberies of May 27.

Concerning the robbery of Pearlie Lee Babin, the identification testimony presented by the state conclusively established that Long was the perpetrator. Ms. Babin stated at trial that she was positive that Ulysses Long was her assailant. Further, she testified that she observed the accused as he entered her auto and put a gun to her head before she fled from the vehicle. When Long exited the parking lot in Ms. Babin’s auto and attempted to run her down, she again got a clear view of defendant. Afterward, Pearlie Babin gave the police an accurate description of the holdup man, adding that he was very distinct and very neat. During the September 1976 lineup, Ms. Babin positively identified Ulysses Long as her attacker. Further, Shirley Price, a witness to this offense, got a good look at the assailant. Ms. Price stated that as the perpetrator fled in the Babin vehicle, she yelled and he turned to look directly at her. Ms. Price was also able to give the police a description which corroborated Ms. Babin’s description. At trial, Ms. Price stated that Ulysses Long had “the face of the person in the car.” No evidence was produced by the defense to refute this identification testimony other than the misiden-tification of Long as the holdup man to the June 4 robbery of the Anticipation Dress Shop. However, we are of the opinion that the misidentification of Long as the perpetrator of another offense by witnesses who were not present when the auto was commandeered does not destroy, nor even lessen, the credibility of the identification testimony given by Ms. Babin and Ms. Price. Consequently, the uncontradicted testimony established without any doubt that Ulysses Long was Ms. Babin’s attacker.

Accordingly, we are of the opinion that a review of the evidence in the light most favorable to the prosecution established beyond a reasonable doubt that Ulysses Long was responsible for the attacks upon Pearlie Babin and the Anticipation Dress Shop.

Assignment of Error Number 7

Pro Se Assignment of Error Number 3

By this final assignment of error, Long claims that his attorney’s unauthorized decision to opt for a bench trial deprived him of his constitutional right to trial by jury. La. Const.1974, Art. 1, § 17. Defendant alleges that immediately before his trial commenced, his attorney, Nathan Fisher, walked over to the defense table and told Long that “I’m going to waive the jury and go with just the judge.” According to Long, he objected vigorously to this decision, but could not prevail upon his counsel. In the presence of the jury venire, the trial court then asked the state and defendant if they were ready to begin trial. At this point, according to the record, Fisher responded, “Your Honor, at this time I think we will waive the jury in this case.” Long contends that the absence of such a colloquy between the judge and himself precluded any knowing and voluntary waiver of the right to a jury trial.

Though the trial transcript does not reflect that the trial court, immediately pri- or to excusing the jury venire, questioned the accused as to whether or not he wished to forego his right to jury trial, this exchange does appear in the court minutes.

“Counsel for the accused then informed the Court that the accused wished to waive his right to trial by jury and elected to be tried by the Court alone. The Court inquired of the accused if this was his wish and he responded affirmatively.”

Taking- the minutes as an accurate reflection of what was said in court, the record supports the conclusion that the accused was personally informed by the court of his right to trial by jury before the trial judge accepted this waiver. Further, even if Long did not personally waive his right to jury trial, his claim cannot stand in light of our holding in State v. Phillips, 365 So.2d 1304 (La.1979). In Phillips, defendant’s counsel spoke for defendant and waived the right to a jury. This Court found no error there, as the judge informed defendant directly of his right, and defendant had prior experience as an accused in a criminal trial. In the present case, defendant’s alleged pretrial discussion with his attorney demonstrated his understanding of the choice between a bench and jury trial. Further, because Mr. Fisher’s waiver occurred before the defendant and the prospective jurors, it was logical for the trial judge to assume that Long not only understood his right to jury trial, but that he had given his consent to the waiver made in his presence. See State v. Phillips, supra. Thus, we are of the opinion that defendant made a knowing and voluntary waiver of his right to trial by jury.

Accordingly, the conviction and sentence of Ulysses Long are affirmed.

AFFIRMED.

DENNIS, J., concurs, agreeing that the trial court’s actions pertaining to the motion to suppress were not reversible error in a judge trial.

LEMMON, J., concurs and will assign reasons.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. James Michael DUPRE.
    No. 81-KA-0683.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., Joseph H. Simpson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Eric L. Pittman, Springfield, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of attempted aggravated rape and a sentence of 50 years imprisonment. The principal assignments of error involve the denial of a motion for continuance and the denial of a motion for mistrial based on improper closing argument by the prosecutor.

Defendant and Richard Dunn abducted a young woman at gunpoint as she entered her automobile in the parking lot of a Baton Rouge shopping center. Defendant then drove the victim’s car to a lonely country road in Livingston Parish, threatening on several occasions to kill her and to force her to take drugs. After defendant and Dunn both raped the victim, they forced her to accompany them as they continued to drive around. Defendant eventually departed, leaving the victim in Dunn’s company. Dunn brought her back to the site of the initial rape and again raped her before he finally released her. The victim then drove back to Baton Rouge, where she sought medical attention and reported the incident to the police.

Eventually, defendant and Dunn were arrested and were identified by the victim at a line-up. After both confessed, they were indicted by the East Baton Rouge Parish grand jury for aggravated kidnapping and by the Livingston Parish grand jury for aggravated rape. The state later amended the indictment to charge attempted aggravated rape. Defendant principally relied on the defense of insanity, which was rejected by the jury.

Denial of Motion for Continuance

Defendant was indicted on June 22, 1976, and counsel was appointed to represent defendant prior to the June 30 arraignment. At an October 25, 1976, hearing on defendant’s capacity to stand trial, the court ordered defendant committed to a mental hospital in accordance with a joint stipulation.

In February, 1977, the court ordered that defendant be returned to the Livingston Parish jail. On September 28,1977, defendant was tried in Baton Rouge and convicted of aggravated kidnapping.

The rape case was set for trial on December 6, 1977. Although the minutes do not reflect the date of the setting for trial, counsel asserted in a motion for continuance, filed on the date of trial, that he was not notified of the prospective trial date until a week before the December 6 date. Counsel contended he did not have adequate time to prepare for trial because defendant was shuffled back and forth to East Baton Rouge Parish in connection with the kidnapping charges and to the East Louisiana State Hospital in connection with proceedings to determine his capacity to stand trial.

If the assertions by appellate counsel (who did not represent defendant at trial) are accurate, there was indeed a very short period of time between the notice of trial and the date of trial. Nevertheless, trial counsel had been representing defendant for over a year prior to the trial and had made several court appearances in connection with the insanity defense. Therefore, the actual preparation of the insanity defense was ongoing over a period of time, and trial counsel, who was familiar with the medical examinations and treatments, apparently had only to subpoena the experts and their records in order to present this sole defense.

Counsel has not made any specific allegations of prejudice resulting from the denial of the continuance, nor has he shown how the defense or the preparation of evidence was in any way impaired because the case was brought to trial on December 6. When the defendant does not allege specific prejudice, a conviction will not be overturned because of the denial of a continu-anee, unless the preparation time was so minimal as to cast doubt on the basic fairness of the proceedings. State v. Durio, 371 So.2d 1158 (La.1979).

Here, defendant failed to carry his burden of showing that the trial court abused its discretion in denying the motion for a continuance. See C.Cr.P. Art. 712; State v. Durio, above. Compare State v. Winston, 327 So.2d 380 (La.1976); State v. Benson, 368 So.2d 716 (La.1979). There was no serious dispute as to the identity of the rapist or the facts of the rape. Trial counsel for defendant had ample “preparation time” to develop the insanity defense for the trial which was held more than one year after his appointment following defendant’s indictment. The rather short notice of trial, under these circumstances and in the absence of an allegation or showing of specific prejudice, did not amount to a denial of due process, insofar as this record shows.

Denial of Motion for Mistrial

In his closing argument the prosecutor (who is not the prosecutor representing the state in this appeal) assailed the defense of not guilty by reason of insanity. Under the guise of explaining the consequences of such a verdict, he ridiculed the law pertaining to the commitment of an accused to a mental hospital. Interspersed in the prosecutor’s reading of the statute were “folksy” comments which were apparently designed to convey the impression that the legislative scheme in practice is a farce.

When defense counsel belatedly objected at the end of the prosecutor’s disparaging remarks about the insanity defense, the trial court sustained the objection and admonished the jury to disregard the prosecutor’s comments. No motion for a mistrial was urged. Therefore, these comments present nothing for this court to review. See State v. Williams, 375 So.2d 364 (La.1979). See also State v. Cumbie, 380 So.2d 1031 (Fla.1980).

Later, in rebuttal argument, the prosecutor characterized defendant’s lack of attention to the proceedings as a trick to feign insanity. The prosecutor used a joke to compare defendant’s behavior to that of a young soldier who tricked an army psychiatrist into certifying him to be insane, thereby obtaining a discharge. The objection following the prosecutor’s joke was overruled.

Although the prosecutor’s use of a joke was arguably an acceptable method of illustrating his theory that defendant’s lack of attention during the trial was “part of an act” to support his insanity defense, the prosecutor had previously made disparaging remarks about psychiatrists and about legislative and judicial efforts to deal with the complex problem of criminal behavior by insane persons. The joke in all probability was a further effort to demean the legislative scheme. Nevertheless, we cannot say that the story was so prejudicial as to warrant the drastic remedy of mistrial or reversal.

Finally, the prosecutor quoted an editorial writer’s comments about the repugnance of the crime of rape. The trial court also overruled defense counsel’s objection to these comments as an attempt to inflame the jury.

The prosecutor’s comments constituted arguments outside the record. Arguments which allude to facts outside of the record are not permitted by C.Cr.P. Art. 774. Similarly, while counsel may argue “the law applicable to the case”, he should not endeavor to influence the jury’s verdict by making the legislative scheme appear ridiculous or overly protective of a defendant’s rights (as opposed to society’s rights). Although this court has admonished prosecutors not to argue outside of the record and not to demean the law in closing argument, we have also repeatedly adhered to the theory that a conviction will not be reversed because of improper closing argument unless this court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. See State v. Prestridge, 399 So.2d 564 (La.1981); State v. Bretz, above.

Since we do not believe the comments contributed to the verdict, we affirm the conviction. Nevertheless, as Chief Justice Dixon pointed out in State v. Michelli, 301 So.2d 577 (La.1974) (dealing with an unrelated issue), there is some danger that trial judges and lawyers, being practical men and women, may misread a rather consistent application of “harmless error” principles to certain types of erroneous rulings involving misconduct as tacit approval by this court of such practices. We here reemphasize that such practices must be avoided and that reversals will be rendered, if necessary to curb misconduct.

We are not unsympathetic to the fact that closing statements are made in the “heat of battle”. Some prosecutors (and some defense counsel) are fond of conveying colloquial wisdom to jurors, and they feature themselves (often accurately) as masters of oratory skills. Indeed, a forceful and thought-provoking closing statement by a skillful lawyer is an important tool in convincing a jury that the evidence presented is (or is not) sufficient. Nevertheless, the restrictions imposed by the Legislature (basically confining argument to the law and the facts and to the inferences to be drawn therefrom) are not unreasonable and do not involve undue limitations. Each counsel has ample latitude without extending his comments beyond the bounds of propriety.

In terms of precious judicial time spent retrying cases which (like the present case) fulfill the essential demands of fairness and justice, the reversal of a conviction after a fair trial is generally regarded as too high a price to exact for rigid and unyielding enforcement of Art. 774. Furthermore, a great deal of credit should be accorded to the good sense and fairmindedness of jurors who have heard the evidence and who know what was and what was not proven. In light of these considerations, we have adopted a reasonable standard for review, leaving academic standards of enforcement to the sound judgment of trial judges, as well as to self-restraint which ought to be practiced by the bar. We decline to reject that standard in this case, but we stand ready to do so if prosecutorial misconduct may affect the determination of guilt or if a prosecutor continues a practice of disregarding the statutory limitations on argument.

Defendant’s conviction and sentence are affirmed.

DIXON, C. J., concurs.

       Judges Pike Hall, Jr., Charles A. Marvin and Jasper E. Jones of the Second Circuit Court of Appeal participated in this decision as Associate Justices ad hoc, along with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . The remaining assignments of error involve only settled principles of law and are treated in an unpublished appendix attached to this opinion.

      . Defendant was convicted of aggravated kidnapping by a Baton Rouge jury. That conviction has been affirmed. See State v. Dupre, 369 So.2d 1303 (La.1979).

      . The amendment was necessary because of the United States Supreme Court’s decision in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), declaring the death penalty unconstitutional in cases of aggravated rape of an adult female who was not killed. See also Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). The effect of these decisions was to leave the 50-year penalty for the lesser responsive offense of attempted aggravated rape as the only remaining legislatively authorized penalty for defendant’s 1976 crime. See State v. Bryant, 347 So.2d 227 (La.1977); State v. Craig, 340 So.2d 191 (La.1976); State v. Sledge, 340 So.2d 205 (La.1976).

      . The trial court, at the state’s suggestion, erroneously instructed the jury that the state must carry the burden of proving the sanity of the accused beyond a reasonable doubt. Nevertheless, the state carried the burden, and there is no question as to the sufficiency of the evidence on that issue. See State v. Price, 403 So.2d 660 (La.1981); State v. Lee, 395 So.2d 700 (La.1981).

      . Defendant made several trips to East Baton Rouge Parish and to the East Louisiana State Hospital. He was by no means residing exclusively in the Livingston Parish jail during his lengthy period of pretrial incarceration. However, Livingston Parish is adjacent to East Baton Rouge Parish, and an interstate highway connects them. Both are in close proximity to East Feliciana Parish, the site of the state mental hospital. Defense counsel does not allege or show that he was denied access to defendant at either place.

      . The prosecutor said:
      “Now, I want to read to you, since one of the defenses is not guilty by reason of insanity, Article 654 and 657 [655], which are also a part of the charge that was requested by us. Okay. What happens if you find him legally insane? ‘When a verdict of not guilty by reason of insanity is returned in a capital case, the court shall commit the defendant to a proper mental institution for custody, care and treatment.’ That does not apply to you.
      “ ‘When a defendant is found not guilty by reason of insanity’, that’s one of your verdicts, ‘. . . not guilty by reason of insanity in any other felony case, the court shall remand him to the parish jail’, that means send him upstairs, ‘[or to a private mental institution approved by the court] and shall promptly hold a contradictory hearing at which the defendant shall have the burden of proof, to determine whether the defendant can be discharged or can be released on probation, without danger to others or to himself.’ It wouldn’t surprise me if the Supreme Court now changed that and says the State has got to prove it, but be that as it may, that’s the law today. So, in other words, you go upstairs and you have a hearing and you have psychiatrists come in here and one of them say [sic] he can be turned loose on society and another one say [sic] he can’t be and then the judge makes up his mind. ‘If the court determines that the defendant cannot [be] released without danger to others or himself, it shall order him committed to a proper state mental institution [or to a private mental institution approved by the court] for custody, care and treatment. If the court determines that the defendant can be discharged or can be released on probation, without danger to others or to himself, it shall either order his discharge, or order his release on peobation [sic], subject to specified conditions for a fixed or an indeterminate period.’ If I just read you that you say, all right, they have one hearing and that’s the end of it, but that’s not the end of it. There’s never any end to criminal law, let me assure [you] of this, not as long as they’ve got pardon boards and parole boards and political inñuence and everything else. All right. ‘An application for discharge or release on probation.’ Now, let’s suppose that he is sent to a mental institution. And ‘[W]hen the superintendent of a mental institution is of the opinion that a person committed pursuant to Article 654’, which I just read to you, ‘can be discharged or can be released on probation without danger to others or to himself, he shall recommend the discharge or release of the person in a report to the court by which the person was committed’.
      “ ‘A person committed pursuant to Article 654, may make application to the court’, in other words he can do it himself, ‘by which he was committed, for discharge, or for release on probation’, and if he does his relatives will he there helping him. ‘[S]uch application by a committed person may not be filed until the committed person has been confined for a period of at least six month after the commitment.’ So, big deal, he’d be there at least six months. ‘If the determination of the court is adverse, he shall not be permitted to file another application until one year has elapsed [from the date of determination’]. So, another big deal, he has to wait a year.

      “ ‘Upon receipt of such application the court shall direct the superintendent of the mental institution where the person [was] committed to make a report and recommendation, within a period specified, as to whether the person can be discharged or can be released on probation [without danger to others or to himself’.] So the superintendent, one of these psychiatrists, as they call themselves, which I regret that I did not get the opportunity to cross-examine, when one of them comes down here to report to the judge he says, look, he’s okay, discharge him. What has the Judge got to go on other than that?” (Emphasis supplied.)

      . The prosecutor said:
      “The defendant who you will observe has paid very little attention to you or to me or to his lawyer and I don’t know why he didn’t pay any attention. It could be like the boy who went in the service and kept going around picking up little pieces of paper and saying this is not it, this is not it, for months. Finally they sent him to a psychiatrist and he said, you know, this boy is crazy and he gave him a little piece of paper, says you are discharged, and he took one look and grinned all over and he said this is it. Well, you know, I can;t tell you what he’s not paying any attention but I can say that it may [be] part of the act because when this confession was made he knew what he was doing then and that’s the only time you’re interested in,

      . Thus, no motion for a mistrial was required to preserve the error for review. See C.Cr.P. Art. 841; State v. Williams, 373 So.2d 1278 (La.1979).

      . The prosecutor said:
      “Now, you know we have some acts that are just really beyond the bounds of society that we don’t know what to do with and rape is one of them. In other words, it—I got this idea from William Rasberry, who is a black editorial writer with the Washington Post, in writing about crime, he says certain acts are so far beyond the society’s way of—the pale of what you can accept and what you can’t accept that you really don’t know what punishment will fit the crime and that’s why one man can walk out of the courtroom and say I believe in capital punishment, another one can say I believe in imprisonment and so on. But [what] this man is saying is that some of these crimes are so bad you’ve got to do something about them. And the crime of rape rates among the top three or four crimes in the United States. I’m not sure but with women that it rates number one. And I can tell you, in fact I’ll tell you that I believe it’s the worst crime in the world to most women.”

      . See State v. Hamilton, 356 So.2d 1360 (La.1978); State v. Heads, 370 So.2d 564 (La.1979). See also United States v. Hawkins, 480 F.2d 1151 (D.C.Cir.1973). Some federal appellate courts have seemingly not been willing to reverse the convictions for improper closing argument, when the evidence is overwhelming and the argument does not raise inferences of prosecutorial knowledge of evidence of guilt outside the record or of racial prejudice. For an interesting discussion, see United States v. McRae, 593 F.2d 700 (5th Cir. 1979); United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2nd Cir. 1973); United States v. Morris, 568 F.2d 396 (5th Cir. 1978). See also ABA Standards: The Prosecution Function and The Defense Function, § 5.9 (1971).

      . In State v. Berry, 391 So.2d 406 (La.1980) and State v. Lindsey, 404 So.2d 466 (La.1981), this court recently expressed concern over prosecutorial comment in closing argument regarding defendant’s right to appeal a jury’s death sentence and to seek executive clemency following a life sentence. This court warned in Berry and reversed in Lindsey. The court was concerned that such arguments may cause the jury to consider inappropriate factors in rendering their verdict, which must be based on the law and the facts presented, and not on the speculative possibility that someone may later fail in his duty to protect the legitimate rights of the public. See State v. Johnson, 151 La. 625, 92 So. 139 (1922), and State v. Farris, 147 La. 663, 85 So. 631 (1920).

      . See State v. Sayles, 395 So.2d 695 (La.1981); State v. Bretz, 394 So.2d 245 (La.1981); State v. Henry, 196 La. 217, 198 So. 910 (1941); and State v. Horton, 151 La. 683, 92 So. 298 (1922).

      . See State v. Johnson, above and State v. Farris, above. See also ABA Standards: The Prosecution Function and The Defense Function § 5.8 (1971).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Janet MANUEL and Nelson Manuel.
    No. 81-KA-0786.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., L. K. Knapp, Jr., Dist. Atty., Terry Johnson, Abbott J. Reeves, Eugene Bouquet, Asst. Dist. Attys., for plaintiff-appellee.
    Max M. Morris & Gerald Casey, Lake Charles, for defendants-appellants.
   MARCUS, Justice.

Janet Manuel and Nelson Manuel were charged in the same information with possession of methamphetamine in violation of La.R.S. 40:967(C). After trial by jury, defendants were found guilty. Nelson Manuel was sentenced to serve five years at hard labor. Janet Manuel was sentenced to serve three years at hard labor. On appeal, defendants, who are husband and wife, rely on five assignments of error for reversal of their convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendants contend that the trial judge erred in denying Janet Manuel’s motion for severance on the grounds that her defense would be antagonistic to that of her code-fendant and that a joint trial would force her to waive her statutory privilege against testifying against her husband.

The motion was filed on the first day of trial immediately after the jury had been selected. A hearing was conducted outside the presence of the jury. Janet Manuel was called to the stand. The trial judge cautioned her that by testifying she might be waiving her privilege against self-incrimination subjecting her to cross-examination and the possibility that her testimony would be used against her. The trial judge, however, made it clear that he was not saying that defendant would “open herself up to cross-examination on the entirety of the case.” Nonetheless, defense counsel withdrew defendant from the stand. The trial judge then inquired of defense counsel “whether there was anything else to be presented in connection with the motion for severance.” Defense counsel replied in the negative. The trial judge denied the motion for severance.

La.Code Crim.P. art. 704 provides that jointly charged defendants shall be tried jointly unless the state elects to try them separately or the court, after a contradictory hearing, is satisfied that justice requires a severance. Whether “justice requires a severance” must be determined by the facts of each case. State v. Thibodeaux, 315 So.2d 769 (La.1975). The mere allegation that the defenses will be antagonistic is not sufficient to require a severance. State v. Turner, 365 So.2d 1352 (La.1978); State v. Singleton, 352 So.2d 191 (La.1977); State v. Hunter, 340 So.2d 226 (La.1976); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Thibodeaux, supra. The trial judge’s decision to disallow a severance under art. 704 is a discretionary one which will not be upset by this court absent abuse. State v. Singleton, supra.

In the instant case, we do not consider that the trial judge’s cautionary remarks inhibited Janet Manuel from testifying. She voluntarily withdrew herself from the stand on advice of counsel. No other evidence was offered. The defense did not even assert how the defenses would be antagonistic. Mere allegations are not enough. Nor did the defense allege what Janet Manuel would say that would implicate her husband. In any event, justice does not require a severance simply because she would have to waive her statutory privilege in order to testify on her own behalf. Under the circumstances, we are unable to say that the trial judge abused his discretion in denying the motion for severance.

Defendants further contend under this assignment of error that the trial judge erred in denying their motion to suppress evidence seized from their residence on the ground that their consent was not validly obtained.

The motion was filed on the first day of trial. The state objected on the ground that it was untimely filed.

La.Code Crim.P. art. 521 provides:

Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

La.Code Crim.P. art. 703 (Motion to suppress evidence) provides in pertinent part:

A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.

Defendants argued that, while the allegations contained in their motion to suppress were known to them prior to trial, they did not know until the day of trial that the police had not given defendants a receipt for the evidence seized. The trial judge denied the motion as untimely. Under the circumstances, we are unable to say that he abused his discretion.

In any event, the motion to suppress is without merit. The basis of defendants’ contention is that an illegal seizure occurred when their house was surrounded for about an hour and a half while the police were attempting to obtain a search warrant (which was made unnecessary by the granting of a consent to search). The purpose of securing the residence was to prevent evidence from being removed therefrom. This did not constitute an illegal seizure. Moreover, no showing was made that defendants’ consent to search was in any way affected by the presence of police outside their house.

In sum, Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in refusing to ask the jurors whether they had seen a television newscast on the evening of the second day of trial allegedly reporting that defendants were on trial for distribution of methamphetamine (instead of possession) and had been arrested during a “large drug raid.”

The minutes of June 19, 1980 (third day of trial) reflect that at a conference at the bench, outside the presence of the jury, defense counsel informed the court that on the 10:00 p. m. newscast the night before a local television station had an item about the trial and moved the court to interrogate the jury as to whether or not they had heard or seen it. The motion was denied. Request was made to supplement the record with a transcript of what transpired at that point in the trial. A supplemental record was filed and only reflects the following:

MR. STREETE [Defense counsel]: Your Honor, may we approach the bench?
THE COURT: Granted.
(Bench Conference.)
THE COURT: All right, Mr. Johnson [Assistant District Attorney], you may call your next witness please.

Defendants made no showing in the record that there was actually a newscast at which the trial was mentioned or that it contained any erroneous information that resulted in prejudice to defendants. Moreover, the trial judge had previously instructed the jurors not to watch any newscasts or to read anything in the newspaper about the trial. While the better approach may have been to inquire whether any jurors had seen the newscast, we are unable to say that the trial judge abused his discretion in denying defendants’ motion to interrogate the jurors.

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendants contend the trial judge erred in denying their motions for mistrial grounded on the claims that certain comments made by a prospective juror and a deputy sheriff were prejudicial.

During examination of prospective jurors, Mrs. Dugas, when asked whether she knew either of the defendants, responded: Outside the presence of the jurors, defendants’ motion for a mistrial was heard. The trial judge denied the motion but excused Mrs. Dugas for cause. The trial judge’s offer to admonish the other jurors was rejected by defendants.

Well, I’ve been . . . since we came in here yesterday morning, I’ve been trying to place these two people, and ... because they look familiar to me ... and I think I recall when they lived next door to my mother for a time and I remembered when they were there that they were arrested for drug charges.

During the examination of deputy sheriff John Benton, a state witness who had been qualified as an expert in the identification of drug paraphernalia, he was asked to identify certain drug paraphernalia seized from defendants’ residence. The identification was being made from photographs. During the course of one of his responses, he identified a pair of scissors and then expressed an opinion that they could have been used to package drugs for distribution. Outside the presence of the jury, defendants moved for a mistrial. The trial judge denied the motion. The witness was instructed to refrain from making any further reference to distribution. The trial judge’s offer to admonish the jury was rejected by defendants.

At the outset, we note that neither a prospective juror nor a deputy sheriff are “court officials”; therefore, La.Code Crim.P. art. 770 does not apply. Rather, art. 771 of the Code of Criminal Procedure would be the applicable article. State v. Gray, 351 So.2d 448 (La.1977); State v. Hardy, 344 So.2d 1018 (La.1977); State v. Jones, 332 So.2d 466 (La.1976).

La.Code Crim.P. art. 771 provides in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Defendants have not alleged that either incident was the result of bad faith on the part of the state. The remarks were unresponsive to the questions asked. Moreover, we consider that any prejudice caused by these remarks could have been cured by admonitions which were rejected by defendants. In any event, we are not convinced that any prejudice occurred. The prospective jurors were aware that defendants had to have been “arrested for drug charges” in connection with the instant drug prosecution. Hence, it is reasonable to believe that the jurors considered the remarks in this context. The comment of the deputy sheriff was made when speculating as to a possible use of the pair of scissors that he had identified in the photograph. There is no reason to believe that the jury considered that defendants were involved in distribution merely because of this comment.

In sum, the trial judge did not err in denying defendants’ motions for mistrial. Assignments of Error Nos. 3 and 4 are without merit.

DECREE

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

       Judges O. E. Price, and Fred W. Jones, Jr. of the Court of Appeal, Second Circuit, and Judge John C. Boutall of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Dennis and Watson.

      . Defendants neither briefed nor argued Assignment of Error No. 5; therefore, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . The American Bar Association’s Standards for Criminal Justice provides that the court should question each juror, out of the presence of the others, about their exposure to prejudicial information. See Standard 8-3.6.