author: LEMMON, Justice.

text:
    STATE of Louisiana v. Charles R. DOUGLAS.
    No. 67134.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, W. C. Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-appellee.
    Jack Quarles, Indigent Defender Program, Gretna, Thomas M. Gereighty, New Orleans, for defendant-appellant.
   LEMMON, Justice.

Defendant was convicted of the armed robbery of Henry Murphy and was sentenced to serve a term of imprisonment for 99 years at hard labor without benefit of parole, probation, or suspension of sentence.

The robbery occurred at Murphy’s house, a rented room located at 1402 Pailet Street in Harvey, Louisiana. When Murphy responded to a knock at his door, an unidentified person called out that he thought he had run into Murphy’s automobile. Murphy opened the door and was confronted by an armed man, who pushed a pistol into Murphy’s stomach and entered the house. The robber ordered Murphy to give him his money, and Murphy handed over his wallet containing about $1,100 in cash. As the robber fled, he left with a parting admonition: “If you come out, you’re dead.”

Murphy gave the police a detailed description of the robber and the details of the robbery. Two days later Murphy picked out defendant from an array of photographs as the person who robbed him. Murphy again positively identified defendant at trial as the perpetrator of the robbery.

On appeal defendant’s principal contention is that the trial court abused its discretion in imposing the maximum sentence, also arguing the separate but related contention that the trial court failed to comply with the sentencing procedure required by C.Cr.P. art. 894.1. He also contests rulings on suppression of identification and request for mistrial.

Photographic Identification Procedure

Defendant contends that the trial court erred in denying his motion to suppress the pretrial identification by the victim at the photographic line-up. He argues that the identification procedure was so suggestive as to create a substantial risk of misidentifi-cation because he was portrayed as wearing a jacket in the photograph after the officers knew that the perpetrator had worn a jacket. Defendant further urgues that, after he had been identified from the five pictures, the officers improperly showed the victim a police photograph (mug shot) to confirm the identification. The state responds that the identification procedure was proper and not suggestive.

The photographic display used in the pretrial identification consisted of five color photographs of the head and shoulders of individuals who were similar in sex, race, age and general physical characteristics. Two of the subjects wore what appeared to be black jackets. Defendant contends that since the robber was described as wearing a jacket, he was prejudiced by the victim’s being shown his photograph in a jacket.

At the motion to suppress the investigating officer testified that the victim indicated the robber wore a blue-jean jacket. At trial the victim indicated that the robber possibly wore a blue-jean jacket during the robbery, but was wearing a camel tan coat when the victim saw him on the day after the robbery. Thus, while the witness was uncertain whether the robber wore a blue-jean jacket or tan vinyl jacket, it is clear that the perpetrator was not wearing a black jacket similar to the one defendant was wearing in the photograph.

Inasmuch as the photograph of defendant depicted him wearing clothes different from the robber, the possibility of suggestiveness is minimal. Additionally, one of the other photographs depicted a subject wearing a dark jacket. Under these circumstances the photograph identification was not impermissibly suggestive. Compare State v. Cass, 356 So.2d 936 (La.1978); State v. McSpaddin, 341 So.2d 868 (La. 1977); State v. Hargrove, 330 So.2d 895 (La.1976).

Defendant’s contention that the viewing of the second photograph was prejudicial to the identification lacks merit, because it is clear from the record that this second photograph was not shown to the victim until after defendant had already been identified from the photographic lineup and the victim had given a written statement to that effect to the investigating officer. The officer testified that he then showed the victim the second photograph of defendant in order to minimize the possibility of misidentification in such a serious crime.

Moreover, even if the identification procedure might be considered suggestive, this alone does not indicate a violation of the defendant’s right to due process. It is the likelihood of misidentification which violates due process and not merely the suggestive identification procedure. Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In the instant ease, the victim observed the robber clearly during the armed robbery. The following day, he again observed the suspect in a nearby restaurant. The photographic identification occurred within two days of the offense. The victim’s identification of defendant was unequivocal. Thus, there was no substantial possibility of misidentification due to the fact that defendant was shown wearing a jacket or the victim was shown a second photograph of defendant after identifying him as the robber from the first group of photographs.

Refusal to Order Mistrial

In his supplemental brief defendant contends that the trial court erred in failing to grant a mistrial due to prejudicial remarks made by a police officer during his testimony.

The officer testified that after he obtained a description of the robber from Murphy, he received a report that a person fitting the description of the robber had been seen in a bar in the area and that the person seen in the bar had recently been released from Angola. Defense counsel objected and moved for a mistrial, arguing that the officer’s testimony clearly implied that the defendant had recently been released from Angola and thus constituted impermissible reference to other crimes.

C.Cr.P. art. 770(2) prohibits reference by a district attorney or court official to other crimes by the defendant as to which evidence is not admissible, under penalty of a mandatory mistrial. However, such a remark by a witness does not require declaring a mistrial if the court is satisfied that an admonition to the jury is sufficient to assure defendant a fair trial. C.Cr.P. art. 771.

An investigating officer is a witness, but is closely related to the district attorney in presentation of the prosecutor’s case. Therefore, a prejudicial remark by an experienced police officer should be viewed with considerable concern as to the fairness of the trial, and may require granting a mistrial, especially if the remark was precipitated by or should have been anticipated by the district attorney. Nevertheless, the decision as to the necessity of granting a mistrial in these circumstances was left to the sound discretion of the trial court. See State v. Madison, 345 So.2d 485 (La.1977); State v. Brown, 322 So.2d 211 (La.1975); State v. Schwartz, 354 So.2d 1332 (La.1978). The present case does not reveal a manifest abuse of discretion warranting the substitution of our judgment for that of the trial judge who conducted the trial, heard the remark, and was in the best position to assess its impact.

Sentencing Procedure

In sentencing defendant, the trial judge stated for the record that he was imposing the harsh sentence because of defendant’s extensive criminal history which reflected an incorrigible and violent nature.

Despite the brevity of his reasons, the trial judge adequately complied with the sentencing guidelines in C.Cr.P. art. 894.1, which requires the sentencing judge to “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” The purpose of the statute is to guide and assist the trial court in the exercise of its broad discretion regarding the imposition of a fair and proper sentence in a particular case by adapting the sentence to the offender as well as to the offense. State v. Jackson, 360 So.2d 842 (La.1978). Further, the articulation of factors considered in imposing sentence facilitates review by this court to assure that sentences imposed are not arbitrary or based on impermissible factors.

In this case the sentencing judge has given more than a verbatim recitation of the language of the statute. He has cited the factual basis for his conclusion that the “apparently severe” sentence imposed in this ease was appropriate. State v. Jones, 381 So.2d 416 (La.1980). Although the sentencing judge did not enumerate each factor listed in art. 894.1, we accept the judge’s assertion that he based his very lengthy sentence on defendant’s prior criminal history and the violent manner in which defendant perpetrated the offense in question. Thus, while a more detailed recitation would have been more helpful, the record provides this court with an adequate basis for review and constitutes adequate compliance with C.Cr.P. art. 894.1. Excessiveness of Sentence

We also cannot conclude from this record that the sentence constituted excessive punishment prohibited by La.Const. 1974, Art. 1, § 20. Defendant committed a violent and dangerous crime, strongly condemned by our legislature. An armed robbery creates an atmosphere “fraught with danger” to the victim and to others who may be present, as well as to the accused himself. State v. Levi, 250 So.2d 751, 753 (La.1971). The armed invasion of the victim’s home at night presents an especially terrifying scene in this particular case.

Defendant’s criminal history reflected three prior felony convictions: two for simple burglary (1968 and 1974) and one for possession of heroin (1974). This record certainly manifests a propensity for felonious behavior.

This record does not reflect any abuse of discretion which mandates interference by the appellate court in the sentencing process. Rather, one can plainly see that the trial court’s sentence was founded on non-arbitrary considerations based on record facts. The danger that defendant will continue to perpetrate dangerous felonies, if not institutionalized for an extensive period, is obvious. Furthermore, defendant apparently presented no mitigating facts to the trial court, and none were apparent from the circumstances of the case. While defendant urges that the sentence was excessive, any factors weighing in favor of a lesser sentence were not presented to the trial court and have not been argued on appeal.

This court does not lightly consider the matter of a 99-year sentence imposed without hope of release on parole. There may be sound arguments against the frequent use of such sentences, but these arguments address themselves to the reasoned discretion of the sentencing judge. The function of the reviewing court is not merely to substitute this court’s judgment for that of the trial court, but to determine whether the court below manifestly abused its discretion. In this case we cannot find such abuse.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

      . In giving reasons for sentence, the judge said:
      “Okay, the court has satisfied itself with having looked at the rap sheet of the defendant, and the previous convictions involved in this man’s criminal history, and the court is satisfied that Mr. Douglas is, in the court’s opinion, an incorrigible, violent criminal, and at this point the court will sentence Mr. Charles R. Douglas, also/known/as Robert Charles Douglas, or whatever the case may be, to the Louisiana Department of Corrections to serve, at hard labor, a period of time in the amount of ninety-nine years, and will remand the prisoner for the execution of that sentence. May God bless your soul. Okay, remand the prisoner. And that’s without the probation or parole or suspension of sentence.”

      . For example, the United States Supreme Court has held that a sentencing court may not consider prior convictions obtained in violation of the defendant’s right to counsel. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1972). Of course, the sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. See United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

      . A recitation such as that suggested in the Louisiana Judges’ Bench Book is of immense value to a reviewing court and also serves to assist the trial judge in properly assessing the appropriateness of the sentence he proposes to impose.

      . A penalty provision denying the opportunity for probation or parole, in addition to the length of the maximum term, reflects the severity of the punishment which the legislature expects to be imposed for this offense.

      . The state apparently chose not to prosecute for aggravated burglary, R.S. 14:60, which is also involved when one without authority enters an inhabited dwelling while armed with a dangerous weapon with intent to commit theft. See State v. Lozier, 375 So.2d 1333 (La.1979); State v. Powers, 344 So.2d 1049 (La.1977).

      . There are additional convictions for less serious offenses appearing in his record of arrests and prosecutions on “rap sheet”.

      . We do not mean to imply that mitigating factors should be presented or argued to this court for the first time on appeal. Mitigating factors are properly introduced in the trial court for consideration in sentencing.


source: Caselaw Access Project

author: LEMMON, Justice. CALOGERO, Justice,

license: Public Domain

text:
    Ruby B. SMITH v. WILLIS-GERTRUDE GEDDES FUNERAL HOMES, INC., Robert King and the Continental Insurance Company and Fireman’s Insurance Company of Newark, New Jersey.
    No. 67328.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.
    Olden C. Toups, Jr., Singerman, Cosenti-no, Broussard, Toups & Troyer, New Orleans, for plaintiff-appellant.
    David M. Packard, New Orleans, for defendants-respondents.
   LEMMON, Justice.

The issue in this case is whether the driver of a funeral limousine breached a duty to plaintiff, a passenger in the vehicle, which caused her injury.

Desiring to attend a funeral, plaintiff and three friends arranged to be picked up by a funeral limousine at plaintiff’s home. During the trip to the funeral parlor plaintiff and two other passengers occupied the rear seat, plaintiff sitting directly behind the driver, while the fourth passenger occupied the front seat. The two jump seats in the limousine were unoccupied.

After the services at the funeral parlor, the driver opened the left rear door, and the passengers reentered the limousine and assumed the same positions. Two additional passengers entered and seated themselves in the two jump seats.

When the limousine arrived at the cemetery, Mrs. Jackson, an obese, elderly woman seated in the jump seat in front of plaintiff, decided to remain in the limousine because a light rain had begun to fall. Plaintiff exited the vehicle by squeezing past Mrs. Jackson with great difficulty.

Following the burial the driver accompanied plaintiff back to the limousine and opened the left rear door. At plaintiff’s request the driver asked Mrs. Jackson to move, but she refused, and plaintiff again squeezed by her into the rear seat.

The limousine then proceeded to plaintiff’s home to deliver the four passengers. Upon arrival the driver parked on the left side of the street and opened the left rear door. The front seat passenger got out, and the jump seat passenger on the right moved into the front. Mrs. Jackson, however, refused a request to move into the jump seat on the right so that the passengers could easily exit through the left rear door. The other two rear seat passengers then exited without difficulty through the right rear door, but plaintiff again tried to squeeze past Mrs. Jackson through the left rear door. According to plaintiff’s version of the incident, Mrs. Jackson leaned forward and tilted the jump seat as she squeezed between the seats, but the jump seat “sort of came back” and struck plaintiff’s leg causing a fracture.

Plaintiff sued the limousine driver and his employer, the operator of the funeral home. The trial court rendered judgment in favor of plaintiff, but the court of appeal reversed, holding the driver blameless and stating the injury resulted from Mrs. Jackson’s unexpected action in allowing the jump seat to move back suddenly. 380 So.2d 752. We granted certiorari. 384 So.2d 799.

Plaintiff assigns as errors the intermediate court’s (1) failure to decide whether the limousine was a common carrier and thus held to the highest degree of care, and (2) the reversal without a showing of manifest error of the trial court’s judgment in favor of plaintiff implicitly based on a factual finding that the driver was negligent. We find both assignments meritless.

The decision does not turn on factual findings or on the applicable standard of care, but on whether under the undisputed facts the driver did or omitted to do anything which under any standard of care would constitute a breach of duty. Whether the driver owed plaintiff a duty to exercise reasonable care or a duty to exercise the highest degree of care, we cannot say that the driver breached any duty under the record facts most favorable to plaintiff as the prevailing party in the trial court. The manifest error rule only requires that the reviewing court accept the factual findings of the trial court unless those finding are clearly wrong. When we accept the implicit factual findings most favorable to affirmation of the judgment, those facts do not support a legal conclusion that the limousine driver breached a duty owed to plaintiff, even under the highest standard of care.

Plaintiff argues the driver was negligent in three respects: (1) in making no attempt to move Mrs. Jackson so that plaintiff could exit safely; (2) in doing nothing to get Mrs. Jackson moved after she refused the requests; and (3) in opening the left rear door on every occasion, thereby inviting plaintiff to the known danger in exiting through that door.

The driver did ask Mrs. Jackson to move. Her refusal made plaintiff’s exit through the left rear door difficult and perhaps uncomfortable, but not unsafe, as long as the jump seat was flat on the floor, and no duty devolved on the driver to do anything further in attempting to move her. Moreover, there was another door through which passengers could and did exit. Plaintiff chose to squeeze through the less comfortable, but equally safe, route. Only when Mrs. Jackson tilted the jump seat forward did any possibly unsafe situation develop, but the driver had no reason to expect such action by Mrs. Jackson or to protect against it. Even when measured against the highest standard of care, the driver could not reasonably be expected to protect plaintiff against this sudden and unforeseen forward movement of the seat, which just as suddenly fell back and injured plaintiff.

The judgment of the court of appeal is affirmed.

AFFIRMED.

DIXON, C. J., and DENNIS, J., dissent.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

Because thq driver of a limousine is bound to see to the immediate physical well-being of his passengers, I believe the driver’s actions in this case constituted negligence. The trial court so found and, in my opinion, a reversal of that determination is warranted neither in the facts nor in law.


author: PER CURIAM.

text:
    STATE of Louisiana, v. Thomas GOLDBERG.
    No. 67264.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, W. C. Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-appellee.
    Jack Quarles, Indigent Defender Board, Gretna, for defendant-appellant.
   PER CURIAM.

Defendant Thomas Goldberg was charged by bill of information with aggravated crime against nature, in violation of R.S. 14:89.1. On May 16, 1979, he was tried before a twelve person jury on a plea of not guilty and not guilty by reason of insanity; the jury found him guilty as charged. Thereafter the court sentenced defendant to serve seven years at hard labor.

On appeal he presents three arguments in support of four of the assignments of error filed below, and the additional contention that his trial court counsel rendered ineffective assistance by virtue of his failure to file a pre-trial motion to suppress the identification.

Each of his contentions is without merit. The trial court’s determination that defendant was competent to stand trial was not erroneous. The trial court’s appointment of a single physician to inquire into defendant’s capacity to stand trial does not constitute the appointment of a sanity commission (See C.Cr.P. art. 644). However, since defense counsel did not object but rather submitted the issue on the basis of the one doctor’s opinion and certain lay testimony, defendant’s complaint cannot now be urged. No prejudice to defendant is shown by the state’s apparently having lost all line-up photographs but that of defendant, and the complaint of ineffective counsel is best preserved for consideration by application for writs of habeas corpus.

Decree

Defendant’s conviction and sentence are therefore affirmed.

AFFIRMED.

       The victim of the crime, a four year old male, Christopher, was daily left in the care of a baby-sitter while his mother went to work. On February 19, 1979, as Christopher’s mother was dressing him to take him to the sitter’s house, the child admonished her, “Now mama, don’t you suck my BB [penis] like that man did.” Shocked, Christopher’s mother asked what he meant. Christopher related that two days earlier, a man had come up to Christopher while he was playing with David, the sitter’s son, in her backyard, and had led him into a utility shed, where he pulled down Christopher’s pants and put his mouth over the boy’s penis. After hearing Christopher’s story, his mother called the police.
      Sheriff’s deputies brought Christopher to the sitter’s house, where he repeated his story, pointing out both the shed in which the crime had taken place and the house in which his assailant lived. Aided by young David, Christopher recalled that the man’s name was Tommy. Finding that defendant Thomas Goldberg resided with his parents in the house indicated by Christopher, the officers obtained a photograph of defendant and displayed it to the boy with several other photographs. Christopher identified defendant from the line-up and at trial.


author: WATSON, Justice.

text:
    STATE of Louisiana v. James R. LANGENDORFER.
    No. 67035.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., for plaintiff-appellee.
    Howard M. Fish, Shreveport, for defendant-appellant.
   WATSON, Justice.

Defendant, James R. Langendorfer, was indicted for aggravated rape and aggravated crime against nature contrary to LSA-R.S. 14:42 and LSA-R.S. 14:89.1 because of an alleged attack on Amy F. Williams. A jury voted 10 to 2 to convict of simple crime against nature and 11 to 1 to convict of forcible rape. A multiple offender hearing established that defendant had been convicted in the State of California of assault with intent to commit rape and sentenced to an indeterminate term of one to twenty years. Langendorfer was found to be a multiple offender and sentenced to sixty years for the forcible rape and five years for the simple crime against nature, to run concurrently. Langendorfer has appealed, relying on seventeen of thirty-two assignments of error, grouped into fourteen arguments.

Amy Flynn Williams, a small woman weighing about ninety pounds, was a sales person at the T-Shirt Plus Shop in Shreve City, Caddo Parish, on January 19, 1979. Since separated, she was then married and living with her husband. Defendant Lan-gendorfer came in that afternoon about 2:00 P.M. and represented that he was a lighting fixture salesman. He remained about a hour and then left, returning about 4:00 or 4:30. in the afternoon. The two visited. Amy Williams went into the back room to smoke a cigarette and Langendor-fer accompanied her, bringing a beer from his car. Her mother, Dell S. Flynn, came by for a few minutes to discuss a birthday dinner for Amy’s father. As Amy Williams was getting ready to close the store at 6:00 P.M., vacuuming and sweeping up, Langen-dorfer started strangling her. He then ordered her to take off her clothes. Some people came into the outer part of the store at this point. Langendorfer indicated he had a knife in his pocket, and told Amy to stay where she was while he went and attended to the customers. He then locked the door to the back room and required her to perform fellatio before raping her. Lan-gendorfer left but returned to give Amy $20 to buy a birthday present for her father. She then discovered that all the money in the cash register and $110 from her purse were missing. Amy Williams called her boss, the police, her parents and her husband but did not tell the police about the rape until she went to the station. Amy Williams had a lump on her head, torn clothing and bruises on her throat. Hospital tests indicated recent sexual intercourse, but Amy testified that it had been over three weeks since she had had intercourse with her husband. Both Amy Williams and her mother identified Langendorfer. James Langendorfer admitted in a statement that he had been present in the store and had slapped Amy Williams. He also admitted telling her to take off her clothes and that she did so while he told the customers outside that the store was closed for the day. He denied any intercourse or oral sex.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the indictment charging aggravated crime against nature, LSA-R.S. 14:89.1, as defined by LSA-R.S. 14:89, should have been quashed.

Langendorfer was indicted for aggravated crime against nature. However, the aggravated charge is dependent on the other for definition. Counsel contends that LSA-R.S. 14:89, which defines crime against nature as “unnatural carnal copulation” involving “the genital organ” is unconstitutionally vague. State v. Phillips, 365 So.2d 1304 (La., 1978) held that the statutory terms “.. . have acquired historically and jurisprudentially a definite meaning.” 365 So.2d 1306.

Defendant also contends that, since he was convicted of simple crime against nature, the oral sex which occurred was found by the jury to be consensual. There was testimony by Dr. Abraham Plemenbaum that consensual oral-genital sex is completely normal. Defendant contends that the statutory prohibition against oral sex is an unconstitutional invasion of privacy, citing People v. Onofre, 72 A.D.2d 268, 424 N.Y.S.2d 566 (1980) and LSA-Const., Art. 1, § 5.

It is unnecessary to consider what the disposition of this argument would be in a truly consensual case. Langendorfer was charged with aggravated crime against nature. The evidence fully supports the charge. Even though the jury exercised its discretion to return a lesser verdict, this does not affect the validity of the indictment. The trial court was correct in refusing to quash the indictment.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBER THREE, FOUR AND FIVE

There is no merit to the two arguments presented in these assignments.

ASSIGNMENT OF ERROR NUMBER SIX

It is contended that the verdicts on the two charges are invalid because not unanimous. This assignment lacks merit. State v. Jones, 381 So.2d 416 (La., 1980); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).

ASSIGNMENT OF ERROR NUMBER EIGHT

The defense undertook to question prospective jurors about their support for District Attorney Paul Carmouche. Car-mouche took office on January 1, 1979, and this was the first case he tried personally. The trial court limited questioning to whether prospective jurors had been actively involved in the campaign. This was sufficient to identify those with a predisposition toward the State. There was no abuse of discretion. State v. Murray, 375 So.2d 80 (La., 1979). This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TEN

A kit distributed to coroners and doctors was identified as “a rape kit”. It is contended that use of this phrase at trial was prejudicial. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SIXTEEN

The State questioned Amy Williams about the last time she had sexual intercourse with her husband before the rape. It is contended that this was evidence of prior sexual conduct in violation of R.S. 15:498.

LSA-R.S. 15:49s is intended to prevent rape victims from being attacked and impeached on the irrelevant issue of general unchastity. The statute is contained in Part X of Chapter 2, “Impeaching and Corroborative Evidence”. Only evidence of prior sexual conduct which impeaches a victim’s general “reputation for chastity” is excluded by the statute. Any sexual relations between Amy Williams and her husband would not fall in this category and are not within the purview of the statute.

The Coroner, Dr. Robert E. Braswell, said he could not identify the sperm in Amy Williams as defendant’s. Defense counsel admitted that he intended to argue that the sperm might have come from the spouse. The testimony was proper to rebut this possibility. The evidence related to proof of the crime and not “reputation”. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER SEVENTEEN

It is contended that a mistrial should have been granted after the prosecutor elicited testimony that one of the doctors Ms. Williams had seen between the rape and the trial was a psychiatrist, Dr. Marceau. It is contended that this evidence was inflammatory and irrelevant. The trial judge stated that there was no prejudice from the one question posed and denied the mistrial.

The State was not allowed to explore the issue. The trial court indicated agreement with defense counsel’s objection, and the line of questioning was dropped. Any prejudice was insufficient to warrant a mistrial. LSA-C.Cr.P. art. 771.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER NINETEEN

After the victim’s mother testified, one of the jurors, Ms. Pauline R. Overdyke, realized that she had taught Amy Williams in elementary school. Ms. Overdyke could not recognize Amy herself and remembered her only as a quiet child. It is contended that a mistrial should have been granted.

Ms. Overdyke did not intentionally mislead the defendant. Questioning by the court showed that she could serve without bias as a fair and impartial juror. There was no error in denial of a mistrial. See State v. Daniel, 378 So.2d 1361 (La., 1979).

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBER TWENTY-FIVE, TWENTY-SIX AND TWENTY-SEVEN

It is contended that the California crime of which Langendorfer was convicted is analogous to the Louisiana misdemeanor of simple assault and that the evidence was insufficient to prove that the crime “... if committed in this state would be a felony,” LSA-R.S. 15:529.1.

The California records show that Langen-dorfer was imprisoned on May 10,1973, and paroled on August 13, 1976. Caddo Parish District Attorney Paul Carmouche testified from California documents in evidence that Langendorfer was convicted in California of a violation of Section 220 of the California Penal Code, assault to commit rape, which is defined as follows:

“Every person who assaults another with intent to commit rape, infamous crime against nature, mahem, (sic) robbery or grand larceny is punishable by imprisonment in the State prison for not less that (sic) one year and not more than twenty years.” (Tr., Vol. 4, p. 20)

District Attorney Carmouche also testified that a felony in California is a crime punishable by imprisonment in the state prison and that in Louisiana a felony is a crime punishable at hard labor which means, in effect, imprisonment in the state penitentiary.

The California crime to which Langen-dorfer pled guilty in 1973 was the equivalent of attempted forcible rape in Louisiana. The crime would have been a felony if committed in Louisiana.

There is no merit to these assignments of error.

ASSIGNMENT OF ERROR NUMBER TWENTY-EIGHT

There were two multiple offender hearings. At the first, the trial court ruled that defendant was not a multiple offender because the State failed to make an affirmative showing that his guilty plea in California was obtained with a proper waiver of rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). This court granted the State’s writ and ordered a new sentencing, citing State v. Holden, 375 So.2d 1372 (La., 1979).

The trial court did not err in following this court’s mandate at the second hearing and placing the burden of proof on defendant.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWENTY-NINE

Defendant contends that his California conviction should not have been used to enhance his sentence because he was not properly advised of his rights at the time of the guilty plea according to Boykin v. Alabama, supra. Langendorfer pled guilty in California to two charges, one being:

“a violation of 220 of the Penal Code in that in the County of Riverside, State of California, you did willfully (sic) and unlawfully make an assault on Gail D. Vasily, a female person not then and there the wife of the said James Langendorfer, with the intent then and there by force and violence to have and accomplish an act of sexual intercourse with and upon the said Gail D. Vasily.”

Langendorfer and his attorney were advised by the court that his plea bargain did not include any stipulation about punishment. Langendorfer, accompanied by counsel, was then instructed of his rights as follows:

“THE COURT: . .. you have the right to a speedy trial by jury and you have the right to a lawyer at all stages, to be confronted by witnesses against you at your trial. You have the right to present evidence on your behalf in defense of these charges and you have the process of the Court which is available to compel the witnesses to appear on your behalf and you have the privilege against self incrimination. Do you know what the privilege against self incrimination is?
“THE DEFENDANT: Yes I do.
“THE COURT: You realize by pleading guilty to each charge you give up the right of a jury trial.
“THE DEFENDANT: Yes.
“THE COURT: You waive your right to a jury trial?
“THE DEFENDANT: Yes.
“THE COURT: You realize you are giving up your rights to be confronted by witnesses against you.
“THE DEFENDANT: Yes.
“THE COURT: Do you waive your right to be confronted by witnesses against you?
“THE DEFENDANT: Yes.
“THE COURT: You know you have a right to remain silent at the trials that require the prosecution to prove their case against you beyond reasonable doubt?
“THE DEFENDANT: Yes.
“THE COURT: You realize you give up that right and admit the commission of the crime charged in each case?
“THE DEFENDANT: Yes.
“THE COURT: Do you give that up?
“THE DEFENDANT: Yes.
“THE COURT: And you understand what the charge in each case is against you?
“THE DEFENDANT: Yes.
“THE COURT: And you realize they are each a felony?
“THE DEFENDANT: Yes.
“THE COURT: And you realize in regard to an assault with intent to commit rape you could be committed from one to two years in State’s prison?
“THE DEFENDANT: Yes.”

Langendorfer testified that he believed his maximum sentence was two years and only learned afterwards that he had been sentenced to from one to twenty years. The “two” should have been twenty. However, this error, either an inadvertent slip of the tongue by the judge or a failure in transcription, does not invalidate the plea.

Langendorfer was advised that he was waiving his privilege against compulsory self-incrimination; the right to trial by jury, and the right to confront his accusers. Langendorfer was represented by counsel and entered his plea knowingly and voluntarily. The requirements of Boykin v. Alabama, supra, were met.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER THIRTY

It is contended that the second multiple offender hearing placed defendant twice in jeopardy as a multiple offender. However, a multiple offender proceeding is not the trial of a criminal charge. Such a proceeding is merely part of sentencing and allows enhanced penalties for repeat offenders. A second multiple offender hearing does not involve double jeopardy. State v. Jackson, 298 So.2d 777 (La., 1974); State v. Montana, 332 So.2d 248 (La., 1976); State v. Alexander, 325 So.2d 777 (La., 1976); State v. Sanders, 337 So.2d 1131 (La., 1976).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THIRTY-TWO

Defendant contends that the trial court erred in failing to provide defendant with a copy of the victim’s statement to police.

The trial court made an in camera inspection of the statement to determine if any exculpatory material was present and stated that the following aspects might be regarded as exculpatory: that Amy Williams did not see a weapon; that Langendorfer was drinking a beer; and that Langendor-fer gave Amy Williams $20 after the attack took place.

In her statement, Amy Williams said the defendant:

“. . . talked about girls he had dated and uh talked about sex and . .. ”.

It is contended that this information was also exculpatory and relevant to the issue of consent; that it might have created a reasonable doubt in the collective mind of the jury.

At trial, Amy Williams testified that she and Langendorfer, also married, discussed the problems of marriage, particularly her marriage and “different things in general.” (Tr. 129) It was clear to the jury that the two had a fairly lengthy and detailed chat. The mere fact that Langendorfer talked about sex during the discussion does not imply a consent to sexual relations by his listener. In view of the condition of Amy Williams and her clothes after the rape, the jury could not reasonably have believed that she had consented to the act.

Although the trial court may have erred in not revealing the statement or more of its content to the defense, the omission did not deny defendant a fair trial. The evidence does not raise “. . . a legitimate doubt on the issue of guilt.” United States v. Aqurs, 96 S.Ct. 2392, at 2400, 427 U.S. 97, at 109, 49 L.Ed.2d 342 (1976).

This assignment of error lacks merit.

For the foregoing reasons, the conviction and sentence of James R. Langendorfer are affirmed.

AFFIRMED.

      . LSA-R.S. 15:498 provides:
      “Victims of rape and carnal knowledge; Impeachment
      “Evidence of prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused.”

      . See 40 La.L.R. 268 for an excellent discussion of the statutory purpose.


author: LEMMON, Justice. PER CURIAM.

text:
    Calvin A. REVERE v. Karen Hiller REVERE.
    No. 67434.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.

      M. J. LeGardeur, Jr., Burns, Farmer & LeGardeur, Brady M. Fitzsimmons, Coving-ton, for defendant-applicant.
    Michael T. Stone, Jack A. Blossman, Cov-ington, for plaintiff-respondent.
   LEMMON, Justice.

The sole issue at this stage of the child custody contest between the mother and the parents of the deceased father (who had been awarded custody when he obtained a divorce from the mother) is the correctness of the judgment overruling an exception to the jurisdiction of the district court in St. Tammany Parish. The decision turns on the application of R.S. 13:1700 et seq., the Uniform Child Custody Jurisdiction Law, enacted in 1978.

I.

Calvin and Karen Revere married in June, 1974, establishing their matrimonial domicile in St. Tammany Parish where both had lived most of their lives. After one child, Christopher, was born in June, 1975, Karen Revere abandoned her husband and child in August, 1976. Calvin Revere obtained a judgment of separation in St. Tammany Parish later that year and a judgment of divorce in 1977, being awarded child custody in both judgments.

Calvin Revere’s parents took care of and helped raise the child from the date of the mother’s abandonment until the father was killed on June 18, 1979. The mother had remarried and was living in Texas at the time.

On June 26, 1979 the mother took physical control of the child from the paternal grandparents and obtained an ex parte custody order from the district court in St. Tammany Parish on June 28, 1979. The child has since lived in Texas with the mother and her present husband.

On December 28, 1979 the paternal grandparents filed a rule to change custody in St. Tammany Parish, alleging the mother’s unfitness and forfeiture of parental rights. The mother excepted to the court’s jurisdiction. The trial court overruled the exception, and the court of appeal denied the mother’s application for supervisory writs. We granted certiorari to review the judgments' below. 384 So.2d 804.

II.

The Uniform Child Custody Jurisdiction Law was proposed in an effort to have states impose uniform legislative rules on themselves regarding jurisdiction in child custody cases. A custody decree in one state is subject to modification not only by the courts of that state, but also by the courts of another state, since the Full Faith and Credit clause has limited application in custody cases. New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). In an age of fluid population trends many cases are presented in which jurisdiction may be concurrent in several states. In order to provide some stability to reasoned custody decrees by discouraging relitigation, to deter custody determinations by physical abduction, to avoid jurisdictional competition and conflicting custody decrees in several states, and primarily to attain the security of home environment necessary for a child’s well being, the National Conference of Commissioners proposed the uniform law adopted in Louisiana by Act 513 of 1978. See R.S. 13:170o. At that time numerous other states had adopted the uniform law.

Under the statutory scheme a Louisiana court competent to adjudicate child custody has jurisdiction to render initial decrees or modifications in two principal situations: (1) when Louisiana is the child’s home state [R.S. 13:1702A(1)]; and (2) when the child and at least one contestant have a significant connection with Louisiana so that it is in the best interest of the child that Louisiana assume jurisdiction [R.S. 13:1702A(2)]. Section 1702 also covers emergency situations because Louisiana is the more appropriate forum.

The “home state” standard provides a jurisdictional concept which is easy to apply without need of further inquiry. Under this rule jurisdiction is automatic if the child lived in Louisiana with a parent or a person acting as a parent for at least six consecutive months at the time the proceeding was commenced, or if the child within six months of commencement is removed from Louisiana or retained elsewhere while the parent or person acting as a parent continues to live in Louisiana.

The theory is that the court of the home state is in the best position for evidence gathering and for exercising continuity of control, so that when the home state has jurisdiction, courts of other states should generally defer to and cooperate with that jurisdiction.

The “significant connection” standard is a more flexible one, based on strong contacts of the child and the contestant with the state in which the proceeding is commenced. This standard provides a “best interest” basis for jurisdiction when Louisiana has a legitimate concern as to custody and has superior access to evidence concerning the child’s care, training, well being and personal relationships.

It is evident that jurisdiction may exist in two different states under the home state and significant connection standards. When this occurs, it is not necessary that the significant connection state defer in every case to the home state. The conflict is avoided by reference to priority of filing (see R.S. 13:1705, which requires a court with jurisdiction under the uniform law to defer to the court of another state with uniform law jurisdiction when the first proceeding was filed in the latter state) and to factors indicating Louisiana is an inconvenient forum (see R.S. 13:1706, which encourages judicial restraint when another state with jurisdiction under the uniform law appears to be in a better position to determine custody).

III.

In the present case it is a close question whether Louisiana qualified as the child’s home state on December 28, 1979, the date the grandparents commenced the present proceeding.

If the child remained in Louisiana through June 28 or later, then Louisiana is clearly the home state and automatically has jurisdiction. The mother’s motion for change of custody was signed by her and filed on June 28, 1979, exactly six months before the commencement of this proceeding. Since the pleading does not allege that the child had been removed to Texas, the inference is raised that on June 28 she had not'yet removed the child to Texas. (According to the grandparents’ motion, the mother took the child from them on June 26.)

The trial of the exception was conducted on February 12, 1980. The parties stipulated many pertinent facts, but disagreed as to the last date that the child lived in St. Tammany Parish, and no evidence was presented to rebut the inference drawn from both parties’ pleadings.

The trial judge pretermitted that question and decided the case on the basis of the substantial connection standard of Section 1702A(2). Under this standard the trial judge was clearly correct in exercising jurisdiction.

Both parents lived in St. Tammany Parish for many years, were married there, and established their only matrimonial domicile there. The child was born there and spent his entire life.there until being moved to Texas six months before the commencement of this proceeding. The grandparents on both sides live in St. Tammany Parish. The district court in that parish rendered the judgment of divorce and the awards of child custody. When the grandparents’ motion for custody was set for trial (before being continued after the ruling on the exception), every one of the 16 witnesses for both sides was from St. Tammany or an adjoining parish, except for the mother and her present husband. Furthermore, the grandparents’ motion raised a substantial issue as to the mother’s moral unfitness and forfeiture of parental rights, and they asserted that most of their evidence on these issues involved events occurring in Louisiana. (The mother’s conduct, which led to the judgment of separation based on abandonment and prompted the custody award to the father, is certainly important evidence for consideration in determining these issues.) Finally, the child’s major asset is a pending claim for his father's wrongful death, which has been filed in Louisiana.

On the other hand, Texas’ only significant connection with the mother and the child involved relationships established during the child’s six-month period of residence (the minimum for applicability of the home state standard). These relationships, while relevant and important, arguably have less significance for a pre-school child than family relationships of longstanding.

Louisiana therefore appears to be a state with such significant connections with the child and one contestant that it is in the child’s best interest for the state to assume jurisdiction. Even if Louisiana does not qualify as the home state, this state has at least concurrent jurisdiction. Additionally, if there is concurrent jurisdiction, Louisiana, at the time this proceeding was commenced, was the only state where any proceedings relating to this child’s custody had ever been filed. Because of this history and the significant connections discussed above, the Louisiana court should consider modification of the custody decrees previously rendered here. And Louisiana clearly is not an inconvenient forum for determining the issues raised in this custody contest.

Under the overall circumstances presented by this case, jurisdiction under the uniform law may properly be exercised by the district court in Louisiana.

Accordingly, the judgment of the district courts is affirmed, and the case is remanded for further proceedings.

AFFIRMED.

On Application for Rehearing

PER CURIAM.

The court did not consider the pleadings in the Texas custody action, because these pleadings were filed in this record after the trial court rendered the judgment under appeal and are properly entered into the record by means of a motion to remand to the trial court, which is the forum where evidence is introduced. No such motion was filed, and an examination of the pleadings reveals no compelling reason for the court to order a remand on its own motion.

The application for rehearing is denied.

APPLICATION DENIED.

      . See also Legislative Symposium, 39 La.L.Rev. 107 (1978); Foster and Freed, Child Snatching and Custodial Fights; The Case for the Uniform Child Custody Jurisdiction Act, 28 Hastings L.Jour. 1011 (1977); Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand.L.Rev. 1207 (1969).

      . R.S. 13:1702 provides in its entirety as follows:
      “A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      “(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
      “(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
      “(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
      “(4) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
      “B. Except under Paragraphs (3) and (4) of Subsection A, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
      “C. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.”

      . Texas has not enacted the uniform law. The act, however, is not a reciprocal act, and by adopting the uniform law, Louisiana has obligated itself to adhere to the terms of the act even though the other concerned state has not done so.

      . R.S. 13:1705 and 1706 provide:
      “A. A court of this state shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Part, unless the proceeding is stayed by the court of the state because this state is a more appropriate forum or for other reasons.
      “B. Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under Section 1715 concerning the penden-cy of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
      “C. If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with Sections 1718 through 1721. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.” Section 1705.
      “A. A court which has jurisdiction under this Part to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
      “B. A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a curator ad hoc or other representative of the child.
      ‘‘C. In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others: “(1) If another state is or recently was the child’s home state.
      “(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
      “(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.
      “(4) If the parties have agreed on another forum which is no less appropriate, and “(5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in Section 1700.
      “D. Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
      “E. If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.
      “F. The court may decline to exercise its jurisdiction under this Part if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.
      “G. If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses. Payment is made to the clerk of the court for remittance to the proper party.
      “H. Upon dismissal or stay of proceedings under this Section the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.
      “I. Any communication received from another state informing this state of a finding of inconvenient forum because a court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction, the court of this state shall inform the original court of this fact.” Section 1706.

      . The mother’s affidavit appears in the record, but it was never offered as evidence at trial, and opposing counsel had no chance to object to its admissibility. Since the trial judge did not consider the affidavit, we likewise decline to do so.

      . R.S. 13:1702A(2) refers to the availability of substantia] evidence concerning the child’s present and future care, protection, training, and personal relationships. However, evidence of past misconduct and immoral behavior by a parent is relevant to the child’s present and future care, training and personal relationships.

      . The mother subsequent to the judgment under review filed a custody proceeding in Texas.


author: DIXON, Chief Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Willie FULLILOVE.
    No. 67169.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Philip J. Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
    Jack Quarles, Indigent Defender Program, Gretna, for defendant-appellant.
   DIXON, Chief Justice.

Willie Fullilove was convicted of simple robbery and sentenced to five years at hard labor. He has appealed, assigning as error the trial judge’s refusal to grant a mistrial when the prosecutor made reference to the defendant’s constitutional right not to testify in his own behalf.

The evidence adduced at trial consisted of testimony by the victim of the robbery and by the off-duty deputy sheriff who, upon seeing the assailant flee from the scene of the robbery, apprehended him moments later at a nearby funeral home. The victim’s identification of Fullilove as the robber was made on the basis of his clothing and distinctive hair style. The clothing was not introduced into evidence. The sole witness for the defense was a prison officer who testified that the defendant had been incarcerated since his arrest on the day of the robbery. This testimony was apparently designed to underscore the failure of the state to introduce the clothing. Defense counsel’s closing argument, stressing the importance of the clothing to the victim’s identification of Fullilove as the robber, repeatedly focused on the failure of the state to produce the clothing.

In rebuttal argument, the prosecutor told the jury that the state could have produced the clothing but did not do so because such evidence' would have been cumulative:

. That is why the evidence was not introduced. The State’s case is clear and simple. I really cannot add any more. The only thing that I would like to tell you is that at every phase of these proceedings, this man has been afforded his constitutional right. He has been afforded the right not to take the stand. He has been afforded the right that he has an attorney appointed for him if he can’t afford one. His constitutional rights-”

At this point defense counsel objected and unsuccessfully requested a mistrial. Reliance is placed on C.Cr.P. 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 safeguards a defendant from unfavorable inferences which might otherwise be drawn from his silence, thereby implementing the Fifth Amendment’s protection against self-incrimination. Even without this statute, however, a prosecutor would not be free to comment upon the defendant’s failure to take the stand, for the United States Supreme Court recognized in 1965 that such remarks violate the self-incrimination clause of the Fifth Amendment, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), made applicable to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Although article 770(3) was not adopted until 1966, the year after Griffin was decided, this court has repeatedly held that such comments constitute reversible error. See, e. g., State v. Marceaux, 50 La.Ann. 1137, 24 So. 611 (1898).

The state has contended in brief and in oral argument that the reference by the prosecutor in the instant case is nothing more than a recondite, or concealed allusion to defendant’s silence. To constitute reversible error, the state argues that the remark must be “. . . manifestly intended or ... of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. . . . ”

The purpose behind the rule embodied in article 770(3) is to prevent attention from being drawn to the fact that the defendant has not testified in his own behalf. When the remark directly points out that the defendant has not testified, it is irrelevant whether the prosecutor intended the jury to draw unfavorable inferences from defendant’s silence. See State v. Johnson, 345 So.2d 14 (La.1977). Nor is this court allowed to speculate on the effect that the remark had on the jury. State v. Hall, 297 So.2d 413 (La.1974). When a remark directly refers to the defendant’s failure to take the stand, the statute mandates that the defendant be granted a mistrial if he requests one. State v. Marcello, 375 So.2d 94 (La.1979).

This court will inquire into the intended effect on the jury only to distinguish between indirect references to the defendant’s failure to testify and statements that the prosecution’s case is unrebutted. State ex rel. Clark v. Marullo, 352 So.2d 223 (La. 1977); State v. Frank, 344 So.2d 1039 (La. 1977); State v. Reed, 284 So.2d 574 (La. 1973); State v. Bentley, 219 La. 893, 54 So.2d 137 (1951); State v. Antoine, 189 La. 619, 180 So. 465 (1938). The latter reference is generally permissible. If, however, the defendant is the only one who can dispute the testimony, then “. . . a reference to the testimony as uncontroverted focuses the jury’s attention on the defendant’s failure to testify. . . . ” State v. Perkins, 374 So.2d 1234, 1237 (La.1979).

Although the remark in the instant case ostensibly was a mere enumeration of the accused’s constitutional rights, the prosecutor pointed out in direct language that the defendant has been “afforded the right not to testify.” (Emphasis added). The prosecutor here did more than objectively state for the jury the rights that any criminal defendant has. At the close of his rebuttal argument, right before the jury retired, he called attention to the fact that the defendant had not testified. Furthermore, the rebuttal argument by the prosecutor was addressed to the allegations by defense counsel that the clothing, if produced, would have injured the state’s case. The defense attorney wanted the jury to draw inferences from the fact that available evidence was not produced. It is plausible that the prosecutor wanted the jury to draw unfavorable inferences from the fact that the defendant was afforded, and obviously exercised, his right to remain silent at his own trial. However, it is not necessary for this court to attempt to read the mind of the prosecutor. His remark directly focusing the jury’s attention to the defendant’s failure to take the stand constituted a violation of C.Cr.P. 770(3). A mistrial should have been granted.

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded for a new trial.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I dissent. See my dissent in State v. Perkins, 374 So.2d 1234 (La.1979).

      . Article 770(3) had no counterpart in the predecessor Code of Criminal Procedure adopted by the legislature in 1928. See 1928 La. Acts, No. 2 (codified as R.S. Title 15). The commissioners who drafted the 1928 Code had intended to allow comment by the prosecutor on the accused’s silence, but the legislature deleted this clause when enacting the Code. This court subsequently held that, despite the legislative omission, comment by the prosecutor would infringe the constitutional rights of the accused. State v. Bentley, 219 La. 893, 54 So.2d 137 (1951).
      Article 770(3), in disallowing prosecutorial comment, is a codification of jurisprudence. That article, however, also prohibits remarks by either the court or by a court official. At one time the judge was required to charge the jury that the defendant’s “failure to testify shall not be construed for or against him,” 1886 La.Acts, No. 29, but in 1916 the legislature omitted this requirement, 1916 La.Acts, No. 157. In State v. Dierlamm, 189 La. 544, 180 So. 135 (1938), this court rejected the argument that a judge’s sua sponte giving of this charge “. .. directs the attention of the jury to the fact that defendant did not testify in his own behalf, which is, in effect a comment on the facts and an invasion of defendant’s constitutional rights.” 189 La. at 553, 180 So. at 137. We note in passing the difference between a jury charge (requested or not) on the defendant’s right to silence and the remarks in closing argument by the prosecutor in the instant case.


author: CALOGERO, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Randolph Wayne SCOTT.
    No. 67199.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Dist. Atty., Evelyn M. Oubre, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    James Miguez, Scotty G. Rozas, Lake Charles, for defendant-appellant.
   CALOGERO, Justice.

Defendant Randolph Wayne Scott was convicted of manslaughter in violation of R.S. 14:31. Defendant appealed his conviction, relying on thirteen assignments of error. This Court found that, while all other assignments lacked merit, defendant raised a serious issue regarding the denial of his motion to suppress a confession. Finding that the state had made an inconclusive showing of either probable cause to arrest defendant or a break in the causal connection between the arrest and the confession, we remanded the case for another hearing on the motion to suppress and reserved to the defendant the right to appeal anew should the ruling be adverse to him. State v. Scott, 355 So.2d 231 (La.1977). On remand, after another hearing, the trial judge again denied the motion to suppress, ruling that there was probable cause to arrest defendant. Defendant now appeals from that ruling.

In our earlier consideration of this case, we stated:

“In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the United States Supreme Court held that a confession obtained as a direct result of an arrest made without probable cause should be suppressed. When the defendant challenges the admissibility of a confession on the ground that it was the result of an arrest made without probable cause, ‘the burden of showing admissibility rests ... on the prosecution.’ Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). This affirmative showing must be made by establishing that probable cause existed to arrest the defendant or, if the arrest was unlawful, by showing that the causal connection between it and the subsequently obtained confession was so attenuated that the confession could not properly be considered as a fruit of the illegal arrest. Wong Sun v. United States, supra. See, State v. Jenkins, 340 So.2d 157 (La.1976).
“Any lawful arrest, whether warrant-less or pursuant to an arrest warrant, must be based upon probable cause to believe that the person arrested has committed or is committing an offense. State v. Herbert, 351 So.2d 434 (La.1977); State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976). Although the measure of probable cause does not require that the arresting officer have sufficient proof to convict the accused, the arrest may not be predicated upon mere suspicion. State v. Randolph, 337 So.2d 498 (La.1976).”
“In State v. Thomas, 349 So.2d 270, 272 (La.1977), we set forth the applicable principles:
‘A warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on probable cause, [citations omitted] Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense, [citations omitted] While the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest, [citations omitted]
‘LaFave, “Streets Encounters” and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich.L.Rev. 40, 73-74 (1968) observes:
‘As to the probability required for an arrest, it may generally be stated that it must be more probable than not that the person has committed an offense, although this is less certain as to the probability that a particular person is the offender than to the probability that a crime has been committed by someone. In the latter situation, which assumes central importance when there is no doubt who the offender is if a crime has been committed, courts ordinarily require that criminal conduct be more probable than non-criminal activity. This approach is reflected in those decisions which say that there must be “more evidence for [the existence of criminal conduct] than against” or that the suspect’s actions must be “inconsistent with any innocent pursuit,” and also in the many cases where grounds for arrest have been found lacking because the conduct of the suspect was equivocal, that is, where the possibility of criminal conduct was no greater than the possibility of innocent behavior.’ ” [Footnotes omitted.] 355 So.2d at 234, 235.

In that earlier consideration this Court noted that the failure of the defendant to appear for his voice analyzer test and other circumstances caused by the termination of his employment and the breakup of his marriage did not establish a probability that defendant committed the offense. Neither did the testimony of two deputies regarding the person they saw in the vicinity of the victim’s apartment on the night of the killing establish probable cause for defendant’s arrest.

At the second hearing on the motion to suppress, only the state introduced witnesses. Deputy Fruge testified that he had seen a man resembling defendant about 20 feet from the victim’s apartment and walking away from the area at approximately the time of the crime. However, the deputy admitted that he was at least 90 feet away from the individual and that it was misting rain at the time. Further, the deputy saw only the side of the man’s face as the man turned momentarily in response to the beam of a flashlight being shone on him. At trial Deputy Allen, Fruge’s partner, had identified defendant as the man sighted the night of the crime. Allen incidentally did not testify at the second hearing. Thus, with the additional information that the deputies saw the man from a considerable distance and under poor conditions of visibility, the identification of defendant as the man seen at the crime scene is weaker after the remand than when we first considered this case.

The only new evidence presented during the second hearing on the admissibility of the confession was hearsay testimony by the police that they had been told that defendant was acting strangely on the night of and shortly following the murder. The first such report allegedly came from Curtis Richards who had discovered the body of the victim. Richards reportedly said that defendant was “acting strange in the apartment that morning when the body was discovered.” However, we note that defendant was present when the police arrived to investigate the crime and none of the investigating officers remarked about strange behavior on the part of the defendant. During his testimony, which had taken place at the trial, Curtis Richards neither mentioned or was questioned regarding defendant’s strange behavior. Richards did not testify at the hearing we are currently reviewing.

The second report upon which the police testified they had relied, that defendant was “acting weird,” came from Calvin Pitre with whom defendant was staying at the time of his arrest. Pitre, like Richards, did not testify at the second hearing on the motion to suppress. His testimony at the first hearing and during trial was that defendant seemed upset while staying with him but did not appear to be evading the law. Instead, Pitre ascribed the behavior to the fact that defendant’s wife had left him and he had lost his job. His actions, therefore, seem as consistent with innocent behavior as with criminal conduct. As we have stated in the past, conduct giving rise to the decision to arrest an individual must be more consistent with criminal activity than with innocent behavior. State v. Pee-bles, 376 So.2d 149 (La.1979); State v. Mendoza, 376 So.2d 139 (La.1979).

Upon reconsideration of the issue of probable cause to arrest defendant in light of the entire record, and particularly the second hearing on the motion to suppress, we find no more showing than before that there existed probable cause for defendant’s arrest.

Our decision finds further support in the fact that the victim’s young son told the police that “Agnes” had been hurting his mother. Lt. Smith who was in charge of the investigation and made the decision to arrest defendant testified that he had no information tying the name “Agnes” to defendant, but did know that one of the Richards brothers was called “Agnes.” Having difficulty interviewing the child, the police did not pursue this information, nor did they attempt to have the child interviewed by someone skilled in such interviews.

Having found that the police did not have probable cause to arrest defendant, we must examine the circumstances surrounding his confession to determine whether the confession, which in our earlier decision we upheld against an attack that it was involuntary, is sufficiently attenuated from the illegal arrest to render it admissible notwithstanding the prior illegal arrest. Dun-away v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed. 824 (1979); Brown v. Illinois, supra; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 441 (1963). When we consider attenuation under Brown, we examine the record for Miranda warnings, the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and the purpose and flagrance of the official misconduct.

As concerns defendant’s confession, the case for attenuation is difficult to build, considering the totality of the evidence before us. Defendant was arrested at 9:39 p. m. on October’20, 1975. After being advised of his rights, defendant was interrogated from 10:00 p. m. until approximately 1:30 a. m. the next morning. Toward the end of this interrogation, defendant, complaining to the officers that he was tired and had a headache, confessed to the offense, but was unable to relate any details. Due to the accused’s inability to relate any details of the offense, the officers agreed to allow defendant to get some rest. Defendant was formally booked and then brought to the parish prison at about 3:00 a. m. Defendant claims that he was moved to the “hole” at about 5:30 a. m. After sleeping only briefly, defendant was awakened shortly after 7:00 a. m. A formal statement in which defendant admitted the offense and supplied the details omitted from the earlier oral confession began around 7:30 a. m. and concluded less than one hour later. Defendant signed this statement, but claims that he thought it was a doctor’s release. Defendant was taken to a doctor immediately thereafter.

On this record, the temporal proximity of the arrest and the confession are very close. Defendant was interrogated almost continuously from the moment of his arrest until the oral confession. This questioning proceeded despite the officers’ knowledge of defendant’s poor physical condition. The written confession, little more than a formality once defendant confessed orally, followed a very brief break in the interrogation.

It is apparent that when defendant failed to appear for the voice analyzer examination, the officers simply decided that he was guilty of the offense and halted any other investigation. Once Scott was arrested, the police abandoned the plan to use a voice analyzer examination in favor of intensive police questioning. Under these circumstances, there was not a sufficient break in causality between the arrest and the confession to purge the latter of the initial taint.

Accordingly, we hold that the police did not have probable cause to arrest defendant and that his confession is not sufficiently attenuated from the illegal arrest to render it admissible.

Decree

For the reasons expressed above, we reverse defendant’s conviction and sentence and remand the case to the trial court for further proceedings not inconsistent with the views expressed herein.

REVERSED AND REMANDED.

MARCUS, J., dissents.

WATSON, J., concurs and is of the opinion that the case should not have been remanded originally.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The question of probable cause to arrest is a very close one. Defendant was seen in the vicinity of the victim’s apartment around the time of the murder (early morning hours on Thursday). He and another man discovered the body. He did not show up for work on Thursday or Friday. He did not appear at the police station as scheduled for further investigatory questioning and testing on Friday, at which time the four other principal suspects had been cleared. He could not be found at home. Curtis Richard told the police defendant “acted strange at Ann Melancon’s apartment” after the homicide. Defendant’s automobile was found at a closed store on Sunday. The store manager told police defendant had been with a store employee on Saturday, and that employee told police defendant was at his apartment acting strangely.

Nevertheless, even if probable cause to arrest was not established, the arrest was not purposefully illegal. I would therefore find attenuation, and since the confession was detailed and reliable and was proved to be voluntary, the confession was properly admitted.

I would affirm the conviction.

      . Our earlier opinion in this case sets forth the factual background of defendant’s arrest in-eluding the reasons why he and others were considered suspects. State v. Scott, supra.

      . State witnesses denied that defendant had ever asked for a doctor. However, a parish prison trustee stated that defendant appeared very tired when taken from his cell earlier on the morning of the 21st and that he had requested a doctor at that time.

      . Note that Curtis Richards appeared a particularly likely suspect as of this time. Not only had Richards discovered the body initially, but the victim’s child, who was found asleep beside the deceased’s body, told police that Uncle Agnes (Richards) was hurting her mother. Also, the police were aware that Richards had a criminal record.

      .Because we again find that the state failed to establish probable cause for the arrest, we pre-termit consideration of defendant’s argument that allowing a second, full-scale hearing on the motion to suppress exposes him to double jeopardy.


author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Willie J. BAKER.
    No. 66698.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Dissenting Opinion Nov. 24, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Richard Pitre, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    William R. Ary, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Willie J. Baker was indicted by the grand jury for possession with intent to distribute heroin in violation of La.R.S. 40:966. Defendant entered a plea of not guilty at the arraignment. After a hearing, the trial judge denied defendant’s motion to suppress physical evidence. Thereafter, defendant moved to withdraw his former plea of not guilty and to enter a plea of guilty as charged, expressly reserving his right to appeal the court’s denial of his pre-plea motion to suppress. The trial judge accepted the plea of guilty and sentenced defendant to life imprisonment at hard labor. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

Defendant contends the trial judge erred in denying his motion to suppress physical evidence seized from his residence pursuant to a search warrant. He argues that the affidavit supporting issuance of the search warrant failed to set forth facts demonstrating probable cause to believe that illegal drugs were in his residence.

The search warrant in question was issued to search the premises located at 914 Leboeuf Street, New Orleans, Louisiana, for the purpose of seizing “controlled dangerous substances, particularly opium and its derivatives, administering paraphernalia and supporting documents.” It was issued based upon facts recited in an affidavit by Officers Donald Laderer and James Lewis. The affidavit was executed and the warrant issued on March 30, 1979, following a four-day investigation by police officers combined with information obtained from a confidential informant. The officers asserted in the affidavit that due to the information received from the confidential informant and the surveillance conducted by the officers, it was their belief that defendant was distributing illegal drugs to “Blanky,” a self-admitted narcotics user, who in turn would sell the contraband to individual drug users in the uptown section of New Orleans, and that the drugs, and more particularly heroin, were being concealed at 914 Leboeuf Street. The property seized pursuant to execution of the warrant at defendant’s residence at 914 Leboeuf Street consisted of 207 tinfoil packets of white powder, 1700 talwin tablets, 1700 pyribenzi-amine tablets, 8 orange tablets, $4527 in cash, a blue steel revolver and an automatic pistol. The affidavit generally recited the following facts to establish probable cause for issuance of the warrant:

(1) On March 26, 1979, a reliable confidential informant whose information has led to the arrest and subsequent convictions of persons engaged in narcotics trafficking within New Orleans contacted affiants and advised them that on that date he had purchased heroin from a negro male known as Blanky. The informant advised affiants that Blanky drives to various areas of uptown New Orleans to secure necessary funds from purchasers and then proceeds across the river to a location at which he purchases heroin from a negro male known as “Toe Joe.” Blanky then proceeds back across the river to uptown locations to deliver the heroin to the buyers.

(2) On March 26, 1979, officers followed Blanky as he left his residence (place where informant had purchased heroin) and drove to the west bank. Blanky was immediately recognized as a self-admitted narcotics user. Blanky stopped his car at a convenience food store to use the phone and then proceeded to the Moonlight Lounge where he met with defendant. Blanky then returned to uptown New Orleans and stopped his car at Third and S. Claiborne where a group of men, one of whom was a self-admitted heroin user, gathered around the driver’s window and then quickly disbursed.

(3) On March 27, 1979, officers observed Blanky park at the intersection of Willow Street and Washington Avenue where a group of men gathered around the driver’s window.

(4) On March 28, 1979, officers observed Blanky again meet with defendant at the Moonlight Lounge. The officers then fol-. lowed defendant to 914 Leboeuf Street. A computer check revealed that Willie Baker a/k/a “Toe Joe” had given this location as his address.

(5) On March 29, 1979, officers followed defendant from his residence at 914 Le-boeuf Street and observed him meet with Blanky at a street in Gretna where Blanky entered defendant’s car for a short period of time before they went separate ways. The officers followed Blanky as he drove across the river to Third and S. Claiborne where once again a group of men gathered around the driver’s window and then disbursed.

(6) A computer check revealed that defendant had five felony arrests with three convictions, two misdemeanor arrests and eight city arrests. Defendant was last handled by the Narcotics Division on November 3, 1979, at which time he was charged with possession with intent to distribute 174 dosage units of heroin.

Constitutional provisions insure a person from unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S. Const, amend. IV; La.Const. art. 1, § 5. Conformably, our Code of Criminal Procedure in article 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Richards, 357 So.2d 1128 (La.1978); State v. Smith, 350 So.2d 1178 (La.1977); State v. Williams, 338 So.2d 1365 (La.1976); State v. Sierra, 338 So.2d 609 (La.1976); State v. Hightower, 272 So.2d 363 (La.1973). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Richards, supra; State v. Smith, supra; State v. Williams, supra; State v. Sierra, supra; State v. Holmes, 254 La. 501, 225 So.2d 1 (1969).

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court set forth, in a “two-pronged test,” the criteria which a magistrate must follow in determining if an affidavit based upon hearsay has established probable cause for the issuance of a search warrant: (1) the affiant must articulate the basis for his belief that the informant is trustworthy, and (2) the affidavit must indicate the underlying circumstances from which the informant concluded that the narcotics were where he contended they would be. State v. Richards, supra; State v. Joseph, 351 So.2d 1162 (La.1977). Hence, the reliability of both the informant and his information must be demonstrated in the affidavit. Later, the Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), made the criteria more flexible by allowing an informant’s tip which is inadequate under Aguilar standards to be corroborated by independent sources. These rules were adopted by this court in State v. Paciera, 290 So.2d 681, 685-86 (La.1974):

The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the infor mation reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons insufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.

The affidavit in the instant case satisfies the first Aguilar standard. It states that the informant has given reliable information in the past that has led to the arrest and subsequent convictions of persons engaged in narcotics trafficking within New Orleans.

In addition, an affidavit must satisfy the second Aguilar standard by demonstrating the reliability of the informant’s information.

In the instant case, the information supplied by the confidential informant, standing alone, fails to satisfy the second prong of the Aguilar test. The affidavit states that the informant told the affiants that Blanky purchases his drugs across the river from a negro male known as Toe Joe. It fails to indicate the underlying circumstances from which the informant reached this conclusion.

The finding that the informant’s tip, standing alone, fails to satisfy the second prong of the Aguilar test does not, however, end our inquiry into the sufficiency of the affidavit supporting the warrant. State v. Richards, supra; State v. Williams, supra. Affidavits must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Williams, supra; State v. Roach, 322 So.2d 222 (La.1975). The magistrate is obligated to render a judgment based upon a common sense reading of the entire affidavit. Thus, when an informant’s statement fails to meet Aguilar’s two-pronged test, the affidavit may nevertheless be sufficient if corroborating facts from police observation permit “the suspicion engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” Spinelli v. United States, supra; State v. Williams, supra. An informant’s tip can be significantly buttressed if either independent observations by the affiant corroborate sufficient details of the tip (whether suspicious or not) to negate the possibility that the informant fabricated his report, or independent observations by the affiant contribute to a showing of probable cause by revealing not merely normal patterns of activity but activity that reasonably arouses suspicion. Gonzales v. Beto, 425 F.2d 963, 969 (5th Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970), cert. denied, Acosta v. Beto, 400 U.S. 1001, 91 S.Ct. 476, 27 L.Ed.2d 452 (1971).

In the instant case, the results of police surveillances are sufficient to give rise to a reasonable suspicion that defendant was committing the crime alleged by the informant. The informant gave an account of how Blanky, the person from whom he had that day purchased heroin, drove to various areas of uptown New Orleans to secure funds from purchasers, met with defendant Toe Joe on the west bank to obtain heroin, and then returned to uptown locations to distribute the heroin. On three occasions within four days, officers observed Blanky, who was recognized immediately as a narcotics user, meet with defendant. After two of these meetings, officers followed Blanky from the west bank to uptown New Orleans where a group of men gathered around the driver’s window of his car and then quickly disbursed. Officers recognized one of these men as a self-admitted heroin user. Clearly, it was reasonable for the officers to suspect that Blanky was distributing heroin to these men. Furthermore, police were aware that defendant’s record contained five felony arrests with three convictions, including a charge for possession with intent to distribute 174 dosage units of heroin. Although a suspect’s reputation, standing alone, is insufficient to establish probable cause, it is clearly a factor-a practical consideration of everyday life upon which an officer or magistrate may properly rely in assessing the reliability of an informant’s tip for purposes of preparing an affidavit and in determining whether an affidavit establishes reasonable cause for issuance of a search warrant. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); State v. Williams, supra. Thus, the informant’s tip about Blanky’s pattern of drug purchases from defendant and subsequent distributions in uptown New Orleans was sufficiently corroborated by independent observations to negate the possibility that the informant fabricated his report.

The informant’s tip is further buttressed by the officers’ observing defendant engaged in activities that reasonably arouse suspicion. Although defendant’s three meetings with Blanky, a heroin narcotics user and suspected dealer, are not in and of themselves suspicious conduct, these meetings do arouse suspicion when other relevant factors are considered: Blanky’s conduct after these meetings, defendant’s criminal record, and the informant’s allegations. It is important to note that the corroborating facts taken alone need not give rise to suspicion strong enough to create probable cause; the affidavit also contains the informant’s tip and information on his reliability. Gonzales, supra.

Defendant further contends that, because no one observed heroin or any other evidence at his residence and because the informant did not allege that heroin could be found at defendant’s residence, there was no probable cause to search his residence. In State v. Guidry, 388 So.2d 797 (1980), this court adopted the views of the Supreme Court of Minnesota regarding an affidavit’s failure to contain an allegation as to the location of evidence:

Although the affidavit did not contain any averment of firsthand information that fruits of the crime would be found at defendant’s residence, the Fourth Amendment does not make such information essential. All that is required is that the affidavit, interpreted in a commonsense and realistic manner, contain information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched.

Rosillo v. State, 278 N.W.2d 747, 748-49 (Minn.1979). Although the affidavit in the instant case did not state that the informant knew defendant kept heroin at his residence, it was reasonable for the officers and the magistrate to infer that defendant would store his illicit drugs at his residence.

In discussing judicial review of warrants, the Court in United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. at 745 stated:

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements, of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

In State v. Paciera, supra, at 687, we stated:

As Spinelli observed, “in judging probable cause magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense” and “their determination of probable cause should be paid great deference by reviewing courts.” 393 U.S. 419, 89 S.Ct. 590. Further, where the law enforcement officers have respected the constitutional mandate to secure a warrant before searching, “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Ventresca, at 380 U.S. 109, 85 S.Ct. 746. See also Jones at 362 U.S. [257] 270, 80 S.Ct. [725] 735-736 [4 L.Ed.2d 697].

We are satisfied that the affidavit, taken as a whole, contains sufficient facts for a magistrate to reasonably determine that probable cause existed for issuance of the search warrant in the instant case. Therefore, it would be inappropriate for this court to strike down the warrant’s validity due to any technical shortcomings it might contain.

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.

DIXON, C. J., dissents.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent. The affidavit fails to disclose the informant’s basis of knowledge for saying that “Blanky” purchased his drugs from “Toe Joe.” See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Such a defect in the basis of knowledge prong of Aguilar cannot be cured by independent police observations. See Moylan, Hearsay and Probable Cause: An Aguilar and Spinelii Primer, 25 Mercer L.Rev. 741, 779-80 (1974). Thus, viewing the affidavit in the most favorable light to the prosecution, it at most establishes that the police had an articulable suspicion that the defendant was engaged in illicit drug related activity; it does not establish probable cause to believe that any drugs were present at 914 Leboeuf Street.

      . State v. Crosby, 338 So.2d 584 (La. 1976).