author: DIXON, Chief Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Gregory SAYLES.
    No. 80-KA-1577.
    Supreme Court of Louisiana.
    March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David Paddison, William R. Campbell, Jr., Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    William O’Hara, III, Supervising Atty., Susan Adams, Student Practitioner, Loyola Law School Clinic, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Gregory Sayles was convicted of simple burglary of a pharmacy, R.S. 14:62.1, and sentenced to three years in the custody of the Department of Corrections. In this appeal he relies upon two assignments of error. Because neither assignment has merit, we affirm his conviction and sentence.

At midnight on September 25, 1979, a silent burglar alarm was triggered at the Crescent Drug Store in New Orleans. When the police soon arrived, they saw a ladder leaning against the building and heard footsteps on the roof. One of the officers, Roussere, shined his flashlight up at the roof and saw a man. The man hesitated a second then disappeared from view. One of the burglars, Kim Robinson, was captured after he had jumped down from the roof and crawled under a nearby house. George Ferrand, who was standing on the corner, was arrested because the officers thought they saw him give hand signals to the burglars. Sayles walked up moments later ostensibly to bring Ferrand’s wallet to him. He was arrested by Rous-sere who announced that Sayles was the man he had seen earlier on the roof.

Assignment of Error No. 1

By this assignment of error, the defendant contends that the state should not have been allowed to introduce into evidence the shirt he was wearing the night of the burglary. The shirt had been taken from him because it contained traces of white powder similar to the sheetrock dust strewn about the floor of the pharmacy when the burglars knocked in the skylight. The shirt, still bearing remnants of the powder, was introduced at trial.

Defendant points out that the state, in its answer to defendant’s discovery motion, did not announce its intent to use this evidence. Thus, the state breached its duty to inform. It is true that a party’s failure to disclose can lead to exclusion of that evidence at trial. C.Cr.P. 729.5. However, in the instant case, defense counsel specifically told the judge that he had no objections. His failure to object when the evidence’s introduction was sought precludes our review on appeal. C.Cr.P. 841.

Defendant argues alternatively that the trial judge erred in allowing the officers to testify that the powder on defendant’s shirt looked like the sheetrock dust found in the pharmacy. He asserts that these officers were not qualified to render opinions on the nature of the powder found on the defendant’s shirt.

While it is generally true that a lay witness can testify only as to facts within his knowledge, R.S. 15:463, a witness is permitted to draw reasonable inferences from personal observation. State v. Williams, 353 So.2d 1299 (La.1977). The officers in the instant case, having observed both the powder on the defendant’s clothing and the sheetrock dust in the pharmacy, could state that the two substances were similar. We cannot say that the similarity of the substances is a question “involving a knowledge obtained only by means of a special training or experience ...” R.S. 15:464.

This assignment of error lacks merit.

Assignment of Error No. 2

By this assignment of error, the defendant complains of three remarks by the prosecutor during closing argument. The defendant contends that these remarks exceeded the permissible scope of argument and were so inflammatory that his conviction should be reversed.

The scope of argument is defined in C.Cr.P. 774, which provides in part:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.”

In order to overturn a conviction because of improper prosecutorial argument, this court must be convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Lee, 340 So.2d 180 (La.1976); State v. Jackson, 227 La. 642, 80 So.2d 105 (1955).

All three of the allegedly improper statements concern Kim Robinson. Robinson and Sayles were jointly charged by bill of information with the burglary. On the morning of defendant’s trial, Robinson pleaded guilty and was sentenced to three years. Robinson then testified at Sayles’ trial as a defense witness. He stated that his accomplice was a man named Eric, Jr., and not Sayles.

The first remark is permissible argument. The prosecution implied that, since Robinson was already convicted and sentenced, he had nothing to lose by testifying on Sayles’ behalf. The prosecutor implied that Robinson lacked credibility for reasons appearing in the record. Argument on the credibility of a witness is proper where the facts bearing on the witness’ credibility appear in the record. State v. Procell, 365 So.2d 484 (La.1978), cert. denied 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979); State v. May, 339 So.2d 764 (La.1976); State v. West, 319 So.2d 901 (La.1975).

The defendant’s second objection concerns the following statement made by the prosecutor during rebuttal argument:

“... Kim Robinson was represented by a lawyer, a very capable lawyer. That lawyer has the same duty and standards that I’m bound by in this profession and Mr. O’Hara is bound by in this profession. Is he here? Did he ever say anything about him not pulling the crime?”

This statement is cryptic and confusing. Robinson had admitted on cross-examination that he had not told anyone — his attorney included — of Sayles’ innocence, thus highlighting the possibility that Robinson’s testimony at trail was a recent fabrication. The desired inference from the complained of statement appears to be analogous: Robinson ought not be believed because he has never told anyone of Sayles’ innocence until today. The reasoning of the prosecutor’s statement is circuitous: if Robinson is telling the truth, then certainly he would have informed his own attorney, who would have had a duty to come forward with the exonerating information. Since that attorney did not testify in Sayles’ defense, then Robinson never told his attorney this story before and must be lying now.

Of course, since Robinson testified that he never told his attorney of Sayles’ innocence, the prosecutor’s “reasoning” is based upon a hypothetical specifically contradicted by the record. Furthermore, Robinson’s attorney might not have been free to disclose his client’s communication because of the attorney-client privilege. R.S. 15:475. The prosecutor’s argument, if we understand it, was improper because it relied upon erroneous facts and law.

Nevertheless, this court is not convinced that the prosecutor’s remark either influenced the jury or contributed to the verdict, even assuming the jury got the impression that Robinson’s attorney had a duty to reveal what Robinson had told him. If the jury believed that Robinson had previously informed his attorney of Sayles’ innocence, then this prior consistent statement would have bolstered Robinson’s credibility by denouncing the state’s accusation that Robinson’s testimony at trial was a recent fabrication. R.S. 15:497. On the other hand, if the jury believed that Robinson had never commented to his attorney about Sayles’ involvement, then their belief would be consistent with Robinson’s testimony at trial.

We disapprove of the prosecutor’s remarks about Robinson’s attorney, but we cannot reverse Sayles’ conviction on account of these cryptic and confusing statements, for we do not believe that they could have influenced the jury or contributed to the verdict.

During the state’s rebuttal argument, defense counsel objected to a remark as exceeding the proper scope of rebuttal, which is “confined to answering the argument of the defendant.” C.Cr.P. 774. We have not, however, been furnished a transcript of defense counsel’s closing argument. In brief, defense counsel has sought to furnish new grounds for the objection. It is alleged that the prosecutor was stating his personal belief of the defendant’s guilt. We do not agree. When the prosecutor stated that Sayles “did it with Kim Robinson,” he was stating his conclusion of fact based on the evidence in the record. State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964).

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

CALOGERO, J., dissents.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The prosecutor in closing argument commented on defendant’s failure to produce Robinson’s lawyer and suggested that the lawyer had a duty to testify as to what Robinson told him about defendant’s participation in the crime.

C.Cr.P. art. 774 permits the prosecutor’s closing argument to refer to “evidence submitted,” to the “lack of evidence”, and to “conclusions of fact” which may be drawn from the evidence and lack of evidence. By use of the term “evidence,” the article obviously assumes the proper admissibility of the evidence. Here, the prosecutor’s comments were not directed to admissible evidence or the lack of admissible evidence.

The comment by the prosecutor was clearly improper and extremely prejudicial. Since the average lay person is not familiar with the duty of a lawyer under such circumstances, the comment was not only irrelevant, but also misleading. Significantly, the comment could easily have been construed as indicating that the lawyer had a duty to come forward and exonerate defendant, whereas in fact the lawyer could not have testified unless his client waived the attorney-client privilege. Thus, the prosecutor argued a fact outside the record (the lawyer’s duty) and argued it inaccurately.

The very reason the code limits closing argument to relevant comments is because countless inferences might improperly be drawn from irrelevant remarks. Since the conviction was based on identification consisting of a momentary observation at a distance by the light of a flashlight and on circumstantial evidence of white powder on defendant’s clothing at his arrest, the irrelevant and improper comment cannot fairly be disregarded as harmless error.

Furthermore, later in closing argument, the prosecutor asked the jury not to be misled by Robinson’s testimony, arguing:

“(Defendant) did it with Kim Robinson. This is the oldest trick in the book.”

Again the prosecutor stepped outside the realm of the properly admitted evidence in arguing to the jury. By referring to Robinson’s testimony as the “oldest trick in the book,” he implied a knowledge of a pattern of such exonerating testimony which was not (and could not have been) admitted. This type of argument is similar to one which implies knowledge of inculpatory facts beyond those introduced in evidence, and such arguments have formed the basis of past reversals of convictions. See State v. Hamilton, 356 So.2d 1360 (La.1978); State v. Harrison, 367 So.2d 1 (La.1979).

The real issue was the credibility of Robinson’s testimony, and while the prosecutor could properly comment on Robinson’s motivation, the comment he did make was improper. The comment, standing alone, probably would not constitute reversible error, but it became significant when combined with the earlier improper and highly prejudicial reference to the failure of Robinson’s lawyer to perform his duty and reveal what Robinson had told his regarding defendant’s participation in the case. The type of comments made in this case, referring to failure to produce evidence protected by the attorney-client privilege and to a knowledge of facts not offered in evidence, should not be ignored. Although the evidence presented was sufficient to support defendant’s conviction, a fair trial takes place only when sufficient evidence is presented to a jury which has not been exposed to prejudicial evidence or argument. Defendant did not receive a fair trial in this case.

      . The prosecutor stated:
      “Kim Robinson, who incidentally pled guilty this morning. Kim got sentenced this morning, too, to three years. Now, isn’t that funny? He can say anything and there’s nothing anybody can do to him. Nothing. He’s been sentenced already. Now, isn’t that interesting? ...”

      . The closing argument was not transcribed in its entirety. However, that part of the argument which led up to the objection was transcribed as follows:
      “BY MR. PADDISON:
      “Kim Robinson was represented by a lawyer, a very capable lawyer. That lawyer has the same duty and standards that I’m bound by in this profession and Mr. O'Hara is bound by in this profession. Is he here? Did he ever say anything about him not pulling the crime?”
      “BY MR. O’HARA:
      “I’ll object to that, Your Honor. That is highly improper, totally beyond the scope of the case, tremendously beyond the scope of the rebuttal and absolutely improper.”
      “BY THE COURT:
      “Objection overruled.”

      . Because of R.S. 15:475 any communication made by Robinson to his attorney, or for that matter any information obtained by the attorney as a result of the attorney-client relationship, was privileged, and the attorney could not disclose the communication or information without the client’s express waiver of that privilege. This court has previously criticized efforts to place before the jury the invocation of the privilege. See State v. Berry, 324 So.2d 822 (La.1975); State v. Duhon, 332 So.2d 245 (La.1976). See also American Bar Association Standards of Criminal Justice, Relating to the Prosecutor’s Function, Standard 5.7(c).
      Although the prosecutor in this case did not explicitly refer to invocation of privilege, his argument was improper for similar reasons. Neither the prosecution nor the defendant would have been permitted to prove what the witness (Robinson) said to his own attorney, and the prosecutor should not have implied that this evidence was admissible and available to the defendant. The fact that the privileged communication was that of a witness and not of a party is not controlling.

      . As noted in State v. Michelli, 301 So.2d 577 (La.1974), mere warnings of error by this court are often ignored, and the failure to reverse frequently prompts repetition of the error.


source: Caselaw Access Project

author: WATKINS, Associate Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. James Allen LEE.
    No. 80-KA-1695.
    Supreme Court of Louisiana.
    March 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale G. Cox, Tommy J. Johnson, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Daryl Gold, Simms & Gold, Leesville, James R. Dawson, Johnston, Thornton, Dawson & Hunter, Shreveport, for defendant-appellant.
   WATKINS, Associate Justice Ad Hoc.

On July 15, 1977, defendant James Allen Lee was indicted by a Caddo Parish Grand Jury for the offense of First Degree Murder, a violation of LSA-R.S. 14:30. A twelve person jury found the defendant guilty as charged on June 29, 1979. The trial court sentenced the defendant to life imprisonment without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury. On appeal the defendant urges three arguments as grounds for reversal of his conviction and sentence.

FACTS

The facts incident to the murder are not at issue. The defendant was convicted of shooting Jerry Dennis, the owner of the Shady Oaks Cafe, following an altercation over missing car keys. The defendant turned himself in to police several hours later. Following his arrest and indictment the defendant entered a plea of not guilty and not guilty by reason of insanity. The record reveals that a sanity commission was appointed and the defendant was ruled competent to stand trial on October 31, 1977. Three days into trial, however, defense counsel moved that the defendant be re-examined for mental capacity and the trial judge declared a mistrial on the grounds that the defendant was incapable of assisting his attorney in his defense due to a mental disease or defect. Defendant was then committed to East Louisiana State Hospital in Jackson. In March of 1979 the District Court issued an order for the defendant’s return and following reevaluation by a sanity commission, the defendant was deemed capable of standing trial. During trial, the defendant persistently interrupted the proceedings by pseudo-Biblical rhetoric and singing the Star Spangled Banner. After numerous warnings by the trial judge, defendant Lee was removed to an adjoining room where he could hear the trial proceedings. After continued outbursts and interruptions from the next room, the defendant was bound and gagged. The jury rejected defendant’s plea of insanity and found him guilty of First Degree Murder, recommending that the defendant be sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant urges the following three (3) arguments as grounds for reversal of his conviction and sentence.

ARGUMENT NO. I

(Assignments of Error Nos. 5, 6, 8, and 26)

By these assignments the defendant urges that the trial court erred in removing the defendant from the courtroom during trial, in overruling defense counsel’s objection regarding an alleged inability to communicate effectively with his client, and in having the defendant handcuffed, shackled and gagged. The defendant argues that these measures effectively deprived him of the right to be present during trial, and to confront the witnesses against him.

As stated above, the selection of prospective jurors as well as the trial proceedings were repeatedly interrupted by defendant’s disruptive behavior. He began by singing the Star Spangled Banner in front of the prospective jurors. Despite a reprimand and warning from the judge the defendant continued by reciting scripture. The judge initially ordered the defendant removed from the courtroom, but reconsidered and warned both defendant and counsel that he would give defendant Lee another chance but remove him if the behavior continued. After additional outbursts and warnings the defendant was ordered removed to an adjoining room, with the understanding that he would be allowed to return once he agreed to act in an acceptable manner. Arrangements were made for the proceedings to be piped into the adjoining room and an attorney was appointed to sit with the defendant. Jury selection continued and the defendant again began singing the National Anthem, and speaking in a ministerial fashion. Though these outbursts were in the adjoining room, they were loud enough to disrupt proceedings in the courtroom. The defendant at this point had been handcuffed and shackled following an altercation with deputies. The trial judge stated that he had no alternative but to consider gagging the defendant. After some discussion, however, the judge proceeded without having defendant Lee gagged. At some point the defendant was returned to the courtroom only to interrupt the proceedings again by singing the National Anthem. Again the judge warned him that he would be removed and gagged unless he controlled himself. The defendant’s disruptive behavior continued throughout the proceedings, and included a prolonged interruption of the state’s closing argument. In light of the innumerable interruptions at all stages of the court proceedings it appears that the defendant’s arguments objecting to the measures taken by the court are without merit.

In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) the United States Supreme Court held that “a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.” 90 S.Ct. at 1060. The court went on to state three permissible ways of dealing with an obstreperous defendant: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.

The defendant was given every opportunity to remain in the courtroom without restraint if he conducted himself properly. The handcuffs and shackles were utilized only after the defendant struggled with deputies. The judge saw further outbursts as a security risk and only then allowed the restraints. Considering the incessant outbursts it appears the judge acted with considerable restraint. When the defendant was held in an adjoining room he was able to hear the trial proceedings and was accompanied by a second attorney to relay any messages to lead counsel in the courtroom. This Court has stated that: “We recognize that the use of restraining devices, including manacles, is within the sound discretion of the trial judge. In the absence of a clear showing of abuse of discretion on the part of the trial judge, a conviction will not be disturbed on appeal because of restraint imposed upon defendant.” State v. Burnett, 337 So.2d 1096 at 1099 (La.1976). There was no such abuse of discretion here.

We find these assignments to be without merit.

ARGUMENT NO. II

(Assignments of Error Nos. 10 and 28)

By these assignments the defendant urges that the trial court erred in instructing the jury that the defendant was presumed sane and to possess a sufficient degree of reason to be responsible for his acts and further in allowing the prosecutor to argue this in his opening and closing statements. More generally, the defendant argues that the presumption of sanity utilized in our criminal system is constitutionally defective.

Under the Louisiana statutory scheme governing insanity in criminal cases, a defendant is exempt from criminal responsibility “if the,f circumstances indicate that because of a mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question...” LSA-R.S. 14:14. However, LSA-R.S. 15:432 establishes a legal presumption that the defendant is sane and responsible for his actions. This statute also provides that the effect of this presumption is to relieve the state of the necessity of any proof of defendant’s sanity, but that the presumption of sanity may be destroyed by rebutting evidence on the part of the defendant. Under LSA-C.Cr.P. art. 652, insanity is an affirmative defense which the defendant must prove by a preponderance of the evidence. See also State v. Willie, 360 So.2d 813 (La.1978); State v. Watkins, 340 So.2d 235 (La.1976); State v. Craig, 340 So.2d 191 (La.1976).

The defendant urges that this scheme creates an impermissible presumption which improperly invades the province of the fact finder and relieves the state of the burden of proving an essential element of the offense of First Degree Murder.

The judge gave the following instructions to the jury on the presumption of sanity:

“In this case there is a plea of not guilty by reason of insanity at the time of committing the act. Every person is presumed to be sane and possess a sufficient degree of reason to be responsible for his or her acts. Therefore, while the State, in making its case, must establish the guilt of the accused beyond a reasonable doubt, when insanity is set up as a defense, it must be established by the defendant to the satisfaction of the jury. In order to overcome the presumption of sanity and relieve the defendant from legal responsibility when he relies upon his insanity as an excuse for a criminal act, he must establish such insanity to the satisfaction of the Jury by a preponderance of evidence. A preponderance of evidence does not mean a preponderance of witnesses, but it means that, taking all the evidence into consideration, the weight and effect of it is to satisfy your mind that at the time of the commission of the act the defendant was insane. It is for you and you alone to pass judgment upon this plea of insanity. You are the sole judges of how much weight you will give the expert testimony, the non-expert testimony and any documentary evidence, together with all facts brought out on the trial of the case. In other words, a plea of insanity presents a question of fact to be decided by you as any other fact in the case.”

Defendant contends that the requirement that insanity at the time of the offense be proved by the defendant by a preponderance of the evidence, as was the basis on which the trial court conducted its proceedings and charged the jury, constitutes a denial of due process, particularly if the offense charged is one in which intent is an element of the crime, as is the case with murder. The argument that placing the burden on defendant to prove insanity at the time of the offense of murder places an unconstitutional burden on defendant which is violative of Fourteenth Amendment due process rights was raised, and rejected, in State v. Willie, supra. See also State v. Poree, 386 So.2d 1331 (La.1980). We noted that the United States Supreme Court had held that it was not an unconstitutional denial of due process to place the burden on defendant to prove insanity as an affirmative defense. See Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

Defendant argues that in light of recent decisions of the United States Supreme Court in Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), we should reconsider the constitutional validity or the presumption of sanity. We consider Patterson v. New York, supra, to be the latest definitive holding by the United States Supreme Court on the presumption of sanity and thus is controlling. Although certain language in Sandstrom and Allen could be taken to require a contrary result, we are unwilling to decide in a manner contrary to Patterson absent a clear holding of the United States Supreme Court overruling it.

We, therefore, hold that it is not a denial of due process to provide in this state’s statutory law that insanity shall be an affirmative defense, LSA-C.Cr.P. art. 652, nor is the application of that provision a denial of due process under the Louisiana Constitution or the United States Constitution.

In this case, only one psychiatrist was called to testify on trial on the merits, Dr. W. A. McBride, and he testified for the prosecution. Defendant introduced no evidence that would tend to establish his insanity at the time the offense was committed other than his own testimony, in which he spoke in Elizabethan English of a rather Biblical style, sang the Star-Spangled Banner, and generally ranted. As we are aware that defendant may have been putting on an act to procure his acquittal on grounds on insanity, we cannot hold that his obstreperous conduct and testimony, without supporting psychiatric or other testimony of insanity at the time of the commission of the offense meets the burden which we hold is imposed on defendant. If we were to find that defendant had proved the affirmative defense of insanity by a preponderance of the evidence, we would reverse. See State v. Roy, 395 So.2d 664 (1981). As we find that defendant has not proved insanity by a preponderance of the evidence, we deem it improper to set aside the verdict of guilty on the ground that defendant was insane when the offense was committed.

ARGUMENT NO. Ill

(Assignments of Error Nos. 28 and 29)

By these assignments the defendant urges that the trial court erred in giving erroneous instructions and definitions of insanity to the jury. More particularly the defendant challenges the test used to determine a defendant’s criminal responsibility for his actions, urging that it is too simplistic and unrealistic for the complexities of modern life.

LSA-R.S. 14:14 sets forth the test of insanity at the time the commission of the offense as follows:

“If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.”

This statute is an adoption of the McNaughten rule which has its base in an English case decided in 1843 and has been challenged in the more recent past as being unrealistic and oversimplistic. However this Court has rejected these arguments. As stated in the case of State v. Andrews, 369 So.2d 1049 (La.1979):

“This Court is not unaware that the McNaughten test has long been under attack, but our legislature has by R.S. 14:14 expressly adopted the McNaughten test of insanity; whether wise or unwise, this legislative choice does not admit of judicial substitution of another test. State v. Berry, 324 So.2d at 825 (La. 19[76]). Any modification or liberalization of our test of insanity in R.S. 14:14 must start with the legislature.” See also, State v. Weber, 364 So.2d 952 (La.1978); State v. Berry, 324 So.2d 822 (La.1976); State v. Plaisance, [252 La. 212] 210 So.2d 323 (La.1968); State v. Bickham, [239 La. 1094] 121 So.2d 207 (La.1960); State v. Jenkins, [236 La. 256] 107 So.2d 632 (La.1958).

We find these assignments to be without merit.

The conviction and sentence are therefore affirmed.

AFFIRMED.

       Judges Ellis, Cole and Watkins of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson, and Lemmon.

      . Dr. McBride admitted he was uncertain of defendant’s mental condition at that time, as he first saw him considerably later.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Johnny Lee COLEMAN.
    No. 80-KA-1698.
    Supreme Court of Louisiana.
    March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., John Sinquefield, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Andrew Jack Bennett, Jr., Bennett & McLaughlin, Baton Rouge, for defendant-appellant.
   LEMMON, Justice.

The sole issue presented by this appeal from a conviction of attempted aggravated rape is the admissibility of defendant’s confession.

Defendant, an 18-year old man, broke into an L.S.U. coed’s apartment on July 31, 1976. He stabbed her pet dog, ripped out her telephone, and forced her with a knife into a bedroom, where he raped her. He than ransacked her apartment, looking for money and jewelry. Before leaving, he again raped the victim.

Police investigators arrested defendant on the morning of August 16, 1976 for a series of rapes, one of which resulted in the death of the victim. Following his arrest, defendant made a series of confessions, including the confession challenged in this case.

He was indicted for multiple counts of rape and was convicted. That conviction was reversed because of the trial court’s failure to sever the various counts and to require separate trials. State v. Coleman, 369 So.2d 1286 (La.1979).

Defendant was retried on this count alone, and after being convicted, he was sentenced to serve 50 years imprisonment at hard labor.

The sole attack on the admissibility of the confession is based on the contention that defendant did not have the intellectual capacity to discern the meaning of the Miranda warnings and to choose knowingly between silence and speech. There are no complaints of police brutality, police promises or police conduct designed to overcome a suspect’s will and to produce a confession which is not the voluntary product of his own choice.

When the issue on appeal is whether an accused’s level of intellectual disability precluded him from effectively understanding the essential nature of his rights to silence and counsel and of the consequences of his speech, much weight is accorded to the trial court’s assessment. State v. Trudell, 350 So.2d 658 (La.1977); State v. White, 329 So.2d 738 (La.1976). Here, defendant makes no contention that an improper legal standard was applied by the trial court, but contends only that those standards were incorrectly applied under the facts of this case. Hence, we are reviewing only the application of well-settled principles. See Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972); United States v. Glover, 596 F.2d 857 (9th Cir. 1979); State v. Glover, 343 So.2d 118 (La.1977).

The testimony of two psychiatrists, a psychologist, the two interrogating officers, and the defendant himself was presented at the original hearing on the motion to suppress in 1977. After this court remanded the case for separate trials of each count and for reconsideration of the confession’s admissibility, the trial judge conducted a new hearing on the motion to suppress, at which the parties introduced by stipulation all of the evidence taken on the original hearing. The trial judge then undertook another review of that evidence and listened to a tape recording of defendant’s confession in its entirety, concluding that defendant, despite his low level of intellectual capacity, had the ability to understand his rights and to understand the significance of his decision and to speak and admit his wrongdoing. In denying the motion to suppress, the judge rendered the following reasons for judgment:

“This case was reversed by the Louisiana Supreme Court on the basis of improper joinder of six (6) counts. In the majority opinion, the court ordered the trial court to set aside the ruling of the trial judge that the taped confessions were freely and voluntarily given. The Supreme Court ordered that the admissibility of the confessions by [sic] determined anew in the event that the defendant is retried. This opinion concerns the admissibility of the taped confessions on counts one (1) and two (2). There was no confession on count four (4). The court will not render an opinion on the admissibility of the confession in counts three (3), five (5) and six (6) until those matters are set for trial.
“In accordance with the instructions of the Supreme Court a hearing was scheduled on May 11, 1979. At that hearing, both the state and defense offered all of the evidence that had been presented at the Motion to Suppress at the original trial. The court reserved its ruling until it could re-examine all of that evidence and listen to the taped confessions of the defendant. The court has now read all of the evidence on the Motion to Suppress and has listened to the taped confessions on counts one (1) and two (2) in their entirety.
“Evidence in regard to both taped confessions (counts one and two)
“Dr. Curtis Steele, a psychiatrist, was a member of the Sanity Commission. On direct examination Dr. Steele stated that it was his opinion that the defendant was probably psychotic. He further stated that he was likely to react on impulse.
“He stated that at the original examination that he was unable to reach a conclusion as to the defendant’s sanity at the time of the confessions. The original examination occurred on December 26, 1976. He stated that the interview had lasted twenty minutes. On the date of the hearing of the Motion to Suppress, Dr. Steele again examined the defendant. Dr. Steele stated that the defendant would appear to know what was going on. He stated that he was oriented to the time, place and situation. Dr. Steele concluded that although the defendant was a difficult person to work with, he essentially understood the nature of the charges, he knew who his attorneys were and could assist counsel.
“Dr. F.A. Silva, the second member of the Sanity Commission, also testified at the Motion to Suppress. Dr. Silva characterized the defendant as mildly to moderately retarded. The doctor stated that he had listened to the taped confession and it was his opinion that the defendant could not appreciate the depth and magnitude of the rights that he waived. On direct examination, he stated that in his opinion the defendant did not knowingly and intelligently waive his Miranda rights when he confessed on the tape. Dr. Silva stated that he had had a twenty minute interview with the defendant on December 19,1976. Dr. Silva stated that in the interview the defendant didn’t volunteer much information. The doctor concluded that he was not overly psychotic and his thought processes were very concrete. The doctor concluded the defendant was a very suspicious, anxious and hostile person. He stated that the defendant knew right from wrong but in a rather superficial way. On cross examination, the doctor stated that the defendant did understand when they told him he had the right to remain silent and he had a right to an attorney. He further stated that the defendant did understand the difference between right and wrong in a fairly concrete way. Dr. Hayworth L. Bradley, a psychologist from Southern University, stated that he had administered certain tests to the defendant. He stated that based upon these tests it was his opinion that the defendant was severely retarded. He did state that he suspected some malingering by the defendant but that he did not believe that the malingering was such that it would appreciably raise the IQ out of the retarded range. He stated that in view of the testing that he did, the defendant would not have any knowledge of the import of waiving his rights. It must be noted that Dr. Silva, using the same test results, felt that the defendant was mildly to moderately retarded. Dr. Silva also stated that there was a cultural factor built into the tests. He stated that most of the people in the defendant’s cultural background would tend to perform lower on the tests. Also, Dr. Silva stated that it was reflected in one of the tests by Dr. Bradley a lack of cooperation which would have influenced the results of the tests. Dr. Silva concluded that the test in which he came out severely retarded on was influenced by his lack of cooperation. Dr. Silva stated that the other tests showing him mild to moderate is where he was really functioning.
“Both officers involved in the investigation and the recording of the confessions, testified that they fully felt that the defendant freely and voluntarily confessed and that he knew what he was doing. On both confessions he was asked of his educational level and the defendant stated that he had gone to the tenth grade, he was able to read and write and he made C’s and B’s in school.
“The defendant testified at the Motion to Suppress. When asked about whether or not he was given his constitutional rights and defendant indicated that the officers kept reading him his rights every time they wanted to talk to him and that he got tired of hearing that. He further testified he already knew all of that since he had been through it when he was a juvenile.
* * * * * *
“Confession on Count Two—
(Name of victim omitted)
“This interview lasted for twelve minutes. It began at 7:27 A.M. on August 16, 1976. In this confession Gill advised the defendant in detail as to his constitutional rights. The defendant indicated that he understood his rights. In this tape, the defendant gave more of a narrative as to the offense than he did in the tape on count one. He clearly explained the details surrounding the alleged offense.
“Conclusion
“In State v. Trudell, 350 So.2d 358 [658], the court stated:
‘In order for an exculpatory statement to be admissible in evidence against an accused at trial, the state bears the burden of establishing beyond a reasonable doubt that the statement was freely and voluntarily made. La.R.S. 15:451, State v. Glover, 343 So.2d 118 (La.1977); State v. White, 329 So.2d 738 (La.1976); State v. Skiffer, 253 La. 405, 218 So.2d 313 (1969). Once a trial judge has determined that the state has met its burden of proof, his decision is entitled to great weight on review. State v. White, supra; State v. Hall, 257 La. 253, 242 So.2d 239 (1970).’ “The court further stated as follows:
‘While a claim of mental illness normally requires a defendant to establish by a preponderance of the evidence that he has a mental illness, where the voluntariness of his confession is at issue the state, having the burden of establishing that the confession was voluntary, still retains that burden. State v. Glover, supra. In such a case, the state must prove that defendant’s level of mental illness did not preclude him from giving a voluntary statement and that he did do so.’
“After carefully reading and remembering the testimony of those who testified at the original suppression hearing and after listening to both confessions completely, the court is convinced that the state has carried its burden of proof beyond a reasonable doubt and that the statements were freely and voluntarily made. Although there was evidence that the accused was somewhat retarded, considering his testimony, his description of the events and his waiver of rights on the tapes and considering all of the other witnesses and their testimony, the court feels that it is clear that mental illness did not preclude him from giving a voluntary statement. Therefore, the court holds that neither of the two confessions should be suppressed.”

We cannot find that the trial court erred in reaching that conclusion. Defendant was an 18-year old who had gone to the tenth grade. He stated in his confession that he made B’s and C’s in school and that he could read and write. While the psychiatrists and psychologist diagnosed his condition as mild to moderate mental retardation, the officers who questioned him believed that he was aware of his rights and of the consequences of choosing to talk about his crimes. The trial judge, who observed defendant as he testified at the hearing, also concluded that he could appreciate the import of the warnings given by the police and was aware of the consequences of speaking about his crime without the aid of counsel.

Defendant argues, however, that two of the experts opined he was not capable of “intelligently waiving” his rights. We note that one admitted defendant may have been “malingering” during his I.Q. test, while the other admitted defendant could understand the warnings, but questioned whether defendant could appreciate the serious consequences of “waiving” his rights.

The opinions of experts on the question of “waiver” of constitutional rights may be helpful, but are certainly not binding on the trial court. The decision on the validity of a waiver is ultimately one for the court. Experts in psychiatric medicine or psychology can give opinions on an accused’s mental ability to perform certain functions, but the court must decide whether the accused, with the described mental ability, has the capacity to stand trial or the capacity to waive rights. The concept of “knowing” and “intelligent” waiver is one which our jurisprudence has developed. See U.S. v. Glover, above; State v. Trudell, above. There is no controlling psychiatric principle. See State v. Bennett, 345 So.2d 1129 (La.1977), in which' this court cautioned trial courts not to base judgments regarding capacity to stand trial only on conclusory opinions of experts unsupported by enumerated factors.

Just as in cases in which the accused’s capacity to stand trial is at issue, the trial court’s judgment must be accorded much deference in cases involving an accused’s capacity to waive rights. See State v. Rochon, 393 So.2d 1224 (La.1980); State v. Holmes, 393 So.2d 670 (La.1980). After reviewing the record of the hearing on the motion to suppress, we conclude the evidence supports the trial court’s determination that defendant knowingly waived his right against self-incrimination.

Furthermore, we have reviewed the tape recording of defendant’s confession. The interrogating officers did everything possible to inform defendant of his constitutional rights and to explain that he did not have to give a statement and that he was entitled to have a lawyer advise him free of charge. Under these circumstances, in which any person who understands street terms had to know he did not have to talk about the crime, and in which the confession was clearly voluntary, we conclude the privilege against self-incrimination was not violated.

The motion to suppress defendant’s confession was properly denied.

The conviction and sentence are affirmed.

       Judges Guidry, Foret and Laborde of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Prior to this trial the count was amended to charge attempted aggravated rape. Because the United States Supreme Court had declared the death penalty for aggravated rape unconstitutional in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), defendant could only be sentenced to the most serious penalty for a lesser included offense. See State v. Lee, 340 So.2d 180 (La.1976).

      . The state is required to prove that a confession was voluntarily given after full compliance with the warnings required by Miranda and by La.Const. Art. I, § 13 (1974). State v. Glover, above; R.S. 15:451; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See also C.Cr.P. art. 703. The trial judge must find that the state carried its burden beyond a reasonable doubt. State v. Welch, 337 So.2d 1114 (La.1976).

      . Of course, the cases concerning capacity to stand trial involve a trial court’s evaluation of the present mental status of the defendant, while the determination of capacity to waive rights involves a trial court’s evaluation of the defendant’s present mental capabilities as a method of ascertaining his mental capacity at the time of the interrogation.


text:
    STATE in the Interest of the Minors Russell J. GIANGROSSO, Lonnie Ray J. Gros, Scott N. Hood.
    No. 80-C-1793.
    Supreme Court of Louisiana.
    March 2, 1981.

      Benjamin C. Vega, Jr., Donaldsonville, Alan J. Robert, Gonzales, for defendants-applicants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   LEMMON, Justice.

Three male juveniles were adjudicated as delinquents based on violation of R.S. 14:42.1, pertaining to forcible rape. Their adjudications were affirmed on appeal. 385 So.2d 471 (La.1980). The juveniles then filed an application for certiorari. In addition to complaining of trial court error in exempting investigating officers from sequestration and in limiting cross-examination by two defense counsel (who represented different clients), the application pointed out inconsistencies between the testimony of the three victims of the alleged rapes and the other evidence. We granted certio-rari to review the ruling complained of and to determine the possible prejudicial effect of those rulings in a case where choice of credibility is the critical issue. 392 So.2d 666.

I.

The incident which gave rise to the charges began as a relatively harmless frolic among a group of teenage boys and girls at a fair in Ascension Parish, but wound up with accusations of forcible rape. Three teenage girls had met two of the boys at the fair, and they were later joined by two other boys. The group, traveling in two vans driven by two of the boys, eventually proceeded to a spot behind the levee on the banks of the Mississippi River.

The testimony as to the events which thereafter occurred is in significant conflict. Defendants conceded at their adjudication hearing that they engaged in sexual intercourse with two of the girls, but testified that the girls voluntarily participated. All three of the girls (including the girl who did not engage in sexual intercourse) described the incident very differently. Although they admitted they voluntarily accompanied the boys to the isolated spot behind the levee, they testified that one of the boys forcibly raped one of the girls and that all three of the boys then forcibly raped a second girl.

In resolving the conflicting versions of the incident, the trial judge credited the young girls’ testimony and adjudicated the three defendants to be delinquent. C.J.P. arts. 13(7) and 76(A).

The court of appeal affirmed, rejecting defendants’ various complaints about the conduct of the adjudication hearing and finding that the evidence was sufficient to support the adjudication under State in the Interest of Baptiste, 367 So.2d 784 (La.1979).

II.

At the commencement of the adjudication hearing counsel for the petitioners moved that the witnesses be sequestered. C.J.P. art. 69. The trial court granted the motion and placed the witnesses under the rule, but upon motion by the prosecutor the trial judge exempted from the rule the deputies who investigated the case. See F.R.Ev. 615(2).

The Code of Juvenile Procedure essentially tracks the provisions of the codes of criminal and civil procedure, which mandate sequestration upon motion of a party, but leave to the court some discretion to exempt particular witnesses “in the interest of justice”. See C.Cr.P. art. 764; C.C.P. art. 1631; State v. Lewis, 250 La. 876, 199 So.2d 907 (1967). By choosing the language mandating sequestration upon request, the Legislature chose not to place the burden on the party requesting sequestration to show that he would be prejudiced by denial. Compare State v. Carter, 206 La. 181, 19 So.2d 41 (1944); State v. Lewis, above. And by making exemption from sequestration discretionary with the court, the Legislature placed the burden on the party seeking the modification to show that the “interest of justice” would be served by exempting the witness.

Here, there was no showing that the interest of justice would be furthered by the exemption of the investigating officers from the sequestration rule. Louisiana law, unlike the Federal Rules of Evidence, does not envision the presence of a testifying investigative agent at the counsel table throughout the trial. Although federal courts commonly allowed this practice in federal criminal trials [see United States v. Infanzon, 235 F.2d 318 (2d Cir. 1956)], and the practice was approved by Congress in the adoption of the Federal Rules of Evidence [see F.R.Ev. 615(2); see also Senate report reproduced in Moore’s Federal Practice Rules Pamphlet, Federal Rules of Evidence (1975)], the Louisiana Legislature has not approved such a practice. We decline to condone the practice, absent either a specific legislative expression or a showing that the interest of justice requires the presence of a testifying investigative agent in a particular case. We therefore hold that a juvenile is entitled to have witnesses sequestered at an adjudication hearing in the absence of a showing of good cause for exempting a particular witness from the order. Thus, the trial court erred in exempting the deputies from the rule of sequestration without requiring the prosecutor to establish good cause for the exemptions.

Nevertheless, although two deputies were permitted to remain in the courtroom despite the requested sequestration, they subsequently testified primarily to rebut allegations of coercion relating to statements made by the defendants. Inasmuch as the deputies did not give factual testimony relating to the incident behind the levee, their presence in the courtroom during the testimony of the fact witnesses does not require reversal.

III.

Defendants further contend the trial court committed error in improperly restricting their cross-examination of state witnesses by defense counsel.

Two of the juveniles (Giangrosso and Gros) were represented by Mr. Vega, and the third (Hood) was represented by a different lawyer, Mr. Robert. Both lawyers were clearly entitled to cross-examine fully on behalf of their respective clients all witnesses presented by the state. C.J.P. art. 70 accords to each juvenile, against whom a petition has been filed, the right to. cross-examine (with the aid of counsel) each witness called by the state. See also La.Const. Art. I, § 16 (1974).

The right of cross-examination is a significant legislatively and constitutionally protected right in a delinquency proceeding. CJ.P. art. 70; La.Const. Art. I, § 16 (1974); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). A party is entitled to exercise the right of cross-examination personally and cannot be relegated to acceptance of the cross-examination conducted by another party (even one with a similar motive for cross-examination). See Williams v. Jahncke Service, 217 La. 1078, 48 So.2d 93 (1950), in which this court held that a child could not effectively be bound by the cross-examination of a witness conducted on behalf of the child’s mother in a different proceeding, despite their similar motive for cross-examining the witness.

We do not find, however, that the trial court unduly limited any defendants’ right of cross-examination in the present case. While the first alleged rape victim was testifying, the trial court did attempt to restrict Mr. Robert’s questioning in areas already covered by Mr. Vega, and counsel’s complaint as to this instance was probably justified. However, the trial court not only went on to allow extensive cross-examination of this witness by Mr. Robert, but also allowed both counsel to recall this witness (and the other two complaining witnesses) for additional cross-examination during defendants’ case-in-chief.

In the other instances pointed out by counsel as undue restriction on cross-examination, the trial court merely disallowed repetition of the same question that had been asked several times previously by one or both counsel. Trial courts must be accorded some discretion in limiting the examination of witnesses. We have examined the record as a whole, and we do not find that the trial judge abused his discretion or that any defendant was deprived of his right to effective cross-examination or his right to a fair trial in this regard.

IV.

Defendants next contend that the evidence was insufficient to support the adjudication of delinquency.

The court of appeal discussed in detail the testimony of the witnesses. The testimony of the three girls provided essentially the same version of the two rapes with the use of force. The fourth boy in the crowd, Brian Theriot, on direct examination gave testimony contradictory to that of the girls. However, on cross-examination he was confronted with a written statement he had given on the night of the incident, which supported the girls’ version, and when cautioned as to perjury, he admitted the statements about “forcing girls” and about screaming from inside the van sounding like rape.

Furthermore, the man who lived across the levee from the place where the incident occurred testified that two of the girls ran ..to his house and used his telephone to call the sheriff’s office and that they all started crying when the third girl arrived with her clothing all “rumpled up” and sand all over her. While none of the girls specifically used the word “rape” in talking to him, their actions were consistent with the occurrence of that crime. Finally, the coroner testified that his examination revealed tearing of the vaginal area and “definite evidence of trauma”.

We conclude that a rational trier of fact could have found, from the evidence adduced at trial, proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, the evidence was sufficient to support the adjudication. State in the Interest of Baptiste, above.

V.

Defendants’ final contention is that they were prejudiced by the trial court’s denial of their request for examination of Brian Theriot’s recorded statement.

Theriot was a defense witness who, as noted above, provided exculpatory evidence on direct examination. However, his testimony was substantially impeached on cross-examination by use of his answers (which he admitted giving) in a recorded statement. Defense counsel then requested that he be allowed to examine the statement for exculpatory evidence, but the prosecutor refused, and the trial judge declined to order production.

Arguably the trial judge should at least have conducted an in camera inspection of the statement. The refusal to do so, however, cannot be viewed as prejudicial in this case. The statement was that of a defense witness whose in-court testimony was totally favorable to defendants. It is difficult to imagine how defendants would have been aided by discovery at that time of anything favorable in the pretrial statement of the witness who testified at trial. Since the prosecutor excerpted only the unfavorable and inconsistent answers from the statement, one must logically assume that the remainder of the statement was favorable to defendants and was consistent with Theriot’s testimony on direct examination. We conclude there was no prejudice in the ruling.

The adjudications and dispositions are affirmed.

      . Giangrosso and Gros were committed to the Department of Corrections for an indeterminate period not to exceed their 21st birthday. Hood was committed to the Department of Corrections for a determinate period of one year and six months.

      . The court also offered to exempt an investigator for the defense.

      .For example, in both Carter and Lewis the court reversed convictions, even under prior law which left the matter of sequestration to the discretion of the trial court. Both cases involved the trial court’s permitting testifying investigative agents to remain in the courtroom.
      Former R.S. 15:371 provided that the court “may” sequester the witnesses. The matter was left to the sound discretion of the trial court, and reversal was only required upon a showing of abuse of discretion and prejudice to the defendant. See State v. Ferguson, 240 La. 593, 124 So.2d 558 (1961) (a case factually similar to this case); State v. Davis, 241 La. 974, 132 So.2d 866 (1961); State v. Barton, 207 La. 820, 22 So.2d 183 (1945).
      Although the comment following C.Cr.P. art. 764 calls the article a “stylistic revision” of the former R.S. 15:371, it is apparent from the language of art. 764 that the trial court “shall” sequester witnesses upon motion of either party. It is no longer a matter left to the discretion of the court. See State v. Simpson, 259 La. 94, 249 So.2d 536 (1971).

      . The right to have witnesses sequestered is an important right which implements the use of cross-examination as a truth-testing device. As noted by the advisory committee for the Federal Rules of Evidence, “(t]he efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion”. Advisory Committee’s Note, F.R.Ev. 615. See also 6 Wigmore, Evidence §§ 1837-1838 (Chadbourn rev. 1976); State v. Lewis, above.

      . The statements were excluded from evidence by pretrial stipulation, because of non-compliance with Dino warnings. See State in the Interest of Dino, 359 So.2d 586 (La.1978). However, when the defendants took the stand after the state rested, the statements (if proved to have been given voluntarily) could be used for impeachment purposes. See State v. Kent, 371 So.2d 1319 (La.1979). In their testimony defendants claimed the statements were coerced, and the deputies were called to establish voluntariness.

      . The Williams case involved the use of prior recorded testimony, where the witness initially examined was unavailable for testimony in the trial of the later suit. The discussion in Williams is nevertheless helpful, because it reveals this court’s recognition of the importance of the party’s personal right to cross-examine, even in a civil proceeding. See F.R.Ev. 804(b)(1). This logic is far more persuasive in a criminal or delinquency proceeding, where the right is constitutionally protected.

      . The defense did not request an in camera inspection by the court. Neither did the defense seek, by motion for new trial, to obtain the statement after adjudication and to establish exculpatory value or prejudice. See State v. Sylvester, 388 So.2d 1155 (La.1980); see also State v. Robbins, 391 So.2d 1119 (La.1980) (Lemmon, J., concurring).


author:
ELLIS, Justice Ad Hoc.
     LEMMON, Justice, DIXON, Chief Justice

text:
    STATE of Louisiana v. Rand Thomas STOTT and Steven Ledet.
    No. 80KA1826.
    Supreme Court of Louisiana.
    March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Claude R. Sledge, Gemble & Sledge, Mansfield, Don Burkett, Many, for defendant-appellant.
   ELLIS, Justice Ad Hoc.

Steven A. Ledet, also known as Frank Braux, and Rand Thomas Stott were charged by information with simple burglary of a pharmacy. After trial by jury, both defendants were found guilty as charged. Ledet was found to be a multiple offender and sentenced to serve 15 years at hard labor. Stott was sentenced to serve eight years at hard labor. Both sentences were without benefit of parole, probation or suspension of sentence. Both defendants have appealed their convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Both defendants complain of the failure of the trial judge to suppress certain evidence seized at the time of their arrest, and shortly thereafter. Defendants were arrested in New Orleans by Detectives Cook and Morales of the New Orleans Police Department. Cook and Morales were furnished with warrants for the arrest of the defendants and with a list of items taken in the burglary. They went to Stott’s residence where they found both defendants and placed them under arrest. Stott, who was not fully clothed, wanted to get some clothing, and was accompanied by Morales to his bedroom. While in the bedroom, Morales saw some coins, a blue and white baseball cap with some coins in it, some bolt cutters and a shotgun, all in plain view, and seized these items as evidence in the case. All of them were introduced into evidence at the trial. Stott’s truck was taken to police headquarters and subjected to an inventory search, during which a number of tools were found, which were introduced into evidence at the trial.

Defendants seek to exclude the items found by Detective Morales from evidence because they were seized without a warrant, and because the circumstances of the case do not bring it within the “plain view” exception to the warrant requirement. In State v. Banks, 363 So.2d 491 (La.1978), we said:

“In sum, the conditions necessary for the applicability of the plain view doctrine are: (1) there must be a prior justification for an intrusion into a protected area, (2) in the course of which evidence is inadvertently discovered, and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. Parker, 355 So.2d 900 (La.1978); State v. Fearn, [345 So.2d 468, La.1977], supra. See also, State v. Meichel, 290 So.2d 878 (La.1974).”

The facts of this case clearly bring it within the exception. Detective Morales was lawfully on the premises, the discovery of the evidence was clearly inadvertent, and the record shows that the items seized were identifiable as being connected with the burglary.

We find no merit in defendants’ complaint relative to the seizure and introduction into evidence of the tools found in Stott’s truck. In State v. Jewell, 338 So.2d 633 (La.1976), the court said:

“The United States Supreme Court explicitly held that standard police procedure in making reasonable ‘inventory searches’ of the nature above set forth, does not constitute unreasonable searches which offends the Fourth Amendment to the United States’ Constitution; therefore, evidence obtained as a consequence of such search is admissible in evidence in criminal prosecutions. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).”
* * * * * *
“However, in so holding, we adopt the general view of other courts which have reached the same conclusion, that, see Annotation, Inventory Search of Impounded Vehicles, 48 A.L.R.3d 537, 544 (1973):
‘An essential requirement to a valid inventory search is that the police must have acted in good faith in conducting the inventory, and must not have used the inventory procedure as a subterfuge for a warrantless search. It has therefore been held that where the conduct of the police was inconsistent with its contention that the search was conducted for inventory purposes, the search was unlawful.’
‘Another essential prerequisite to a valid inventory search is that the police must have taken lawful custody of the vehicle in the first instance. It has therefore been held that where the circumstances show that the police had no authority to impound the vehicle, or that police custodial care of the vehicle was not necessary, the inventory search was unlawful.’
‘ * * * [L]awful custody of an impounded vehicle does not of itself dispense with the constitutional requirement of reasonableness in regard to searches thereafter made of such vehicle.’ ”

The search herein took place after the vehicle had been impounded for a valid reason, and was carried out pursuant to standard police procedures. The search was not carried out until the morning after the arrest, the vehicle was impounded in an official storage facility and the results of the search were recorded in a “Motor Vehicle Investigation Case Report,” a standard form. We find no evidence that the search was carried out in bad faith or as a subterfuge for a warrantless search. We find no merit in this assignment of error.

Defendant Ledet’s second assignment of error relates to the finding of the court that he is an habitual offender. The record shows that, following his conviction, on March 13, 1980, of the offense charged herein, a bill of information charging Ledet as an habitual offender, alleging that Ledet pled guilty to two prior felonies in Louisiana: The first was in Jackson Parish, Louisiana, when Ledet pled guilty to simple burglary on December 19, 1973, in case no. 17,521; and the second in Terrebonne Parish, Louisiana, when Ledet pled guilty to three counts of distribution of marijuana on February 4, 1977, in cases nos. 47,309, 47,-310, and 47,311. The evidence indicates that the Terrebonne Parish crimes, and the guilty plea and sentence took place in 1973 rather than 1977, and that Ledet was finally discharged from custody on September 12, 1974. The crime herein was committed on January 13, 1979. Based on the above showing the court found Ledet not guilty of being an habitual offender.

Subsequently, the State moved to re-open the habitual offender hearing, arguing that the court erred in its ruling. The State re-offered the evidence taken at the earlier hearing, and pointed out that the crime herein was committed on January 13, 1979, within five years of the date of Ledet’s discharge from custody under the previous convictions. The court thereupon reversed its former ruling, found Ledet to be an habitual offender, and sentenced him accordingly, to 15 years at hard labor, without benefit of probation, parole or suspended sentence.

In this court, Ledet argues that the court erred in reopening the habitual offender hearing, and that it was without authority to reverse its own verdict of not guilty of being an habitual offender.

R.S. 15:529.1(D) provides:

“If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state or of the United States; or any foreign government or country of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and the judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies, as set forth in the information. If the judge finds that he has been convicted of a prior felony or felonies, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he as been so convicted, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated.”

This court has held that the sentence imposed following a finding that the defendant is an habitual offender “is for the new crime only, but it is more severe if the defendant is an habitual offender.” State v. Williams, 326 So.2d 815 (La.1976). The proceeding is in the nature of an enhancement of penalty, rather than of a prosecution for a crime. State v. Hill, 340 So.2d 309 (La.1976). In the Hill case, supra, the court inquired into the applicability of principles of res judicata to a case in which a trial court made a ruling favorable to a defendant in an habitual offender proceeding because adequate evidence was not presented, and later, when the evidence was forthcoming, found the defendant to be an habitual offender. The court said:

“Principles of res judicata dictate that a fact or matter distinctly put in issue and directly determined by a court of competent jurisdiction cannot thereafter be disputed between the same parties, and, as earlier indicated, res judicata is applicable in criminal prosecutions.
“A hearing on a multiple offender bill is a trial in only a very broad sense. It is more pertinently an inquiry into defendant’s prior criminal conviction or convictions, as part of the sentencing process. Technical inadequacies in the state’s documentation at such ‘trial’ mandates a negative determination by the court. On the other hand, such a determination is not a conclusive one ‘on a fact distinctly put in issue,’ as is the case where, relative to prosecution for commission of a criminal offense, there is a judgment that defendant be freed ‘as a matter of substantive law’ (State v. Latil [231 La. 551, 92 So.2d 63], supra).
“We hold therefore, that res judicata is not applicable here.
“We do not mean to suggest that there can be no ruling of any character on the trial of a multiple offender bill which is entitled to finality in the res judicata sense, such for instance, as a ruling that ‘more than five years have elapsed since expiration of the maximum sentence or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he had been convicted.’ R.S. 15:529.1(C). Then, too, there might arise a case in which there is put at issue, and seriously contested, whether the defendant is in fact the identical person whose convictions, properly proven, are described in a multiple bill, and in a re-multiple bill.
“A court determination, favorable to a defendant that a given earlier offense was legally stale or that described convictions were suffered by a person other than defendant, just might as a matter of law be entitled to finality and be the proper subject of res judicata. We need not, however, answer that question in this case.”

In this case, adequate evidence was presented, and the court made an error of law in finding that defendant Ledet was “not guilty” of being an habitual offender. At a subsequent hearing, the court, on having its error pointed out to it, reversed its position. We now hold that the court was not barred by res judicata from reversing its position. The ruling of the court in an habitual offender proceeding is not a definitive judgment as is required before res judi-cata can apply. It is a “finding” ancillary to the imposition of sentence, and is therefore interlocutory in nature. If sentence had been imposed after the first hearing, the result might be different, but, as in this case, the finding of the court is certainly not conclusive prior to imposition of sentence, and the trial judge committed no error in finding defendant Ledet to be an habitual offender.

Defendant Stott’s second and third assignments of error are that the trial judge did not state an adequate factual basis for imposing sentence, and that the sentence of eight years without benefit of probation, parole or suspension of sentence is excessive.

In sentencing Stott, the district judge said:

“Court in all cases of sentencing must consider 894.1 of our Louisiana Code of Criminal Procedure. I have considered that article in light of the information available to me in terms of the Defendant’s background and the circumstances of this offense. I find under that article specifically, Sub-Sections A(l) and (3) that there is an undue risk during the period of any suspended sentence of probation that defendant would commit another crime. Furthermore, I believe in this defendant’s case, there is a prior felony conviction and for that reason, I still find that there is an undue risk during the period of any probation the defendant will commit another crime. Thirdly, that a lesser sentence would depreciate or deprecate the seriousness of the defendant’s crime.”

He then reviewed each of the mitigating factors set forth in Article 894.1B, Code of Criminal Procedure, and found none of them present.

In his brief, defendant Stott contends that the judge was mistaken in finding that there was a previous felony conviction, contending that his only prior conviction was on a misdemeanor charge. Our review of the pre-sentence report reveals that he is mistaken in this contention, and that the district judge was correct in his characterization of defendant’s prior criminal record. We find that the trial judge properly articulated his reasons for the sentence given defendant Stott, and that the sentence given Stott was not beyond the limits of his discretion.

Defendant Stott’s fourth assignment of error is that he was convicted by a non-unanimous jury, which he alleges unconstitutionally erodes the State’s burden of proving him guilty beyond a reasonable doubt. He cites no authority for this proposition of law.

Art. 1, § 17 of the 1974 Louisiana Constitution provides that noncapital cases in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. This scheme of non-unanimous jury verdicts has been approved by the United States Supreme Court, which has recognized that unanimity of twelve member juries is not required in state cases. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); cf. Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979).

This assignment lacks merit.

The convictions and sentences are affirmed.

DIXON, C. J., dissents with reasons.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

The police had probable cause to seize and search the truck. Since the truck was parked on a public street, readily accessible to anyone (including defendants’ relatives or confederates) to move the truck or to remove evidence, and since defendants had been alerted about an hour before their arrest to the possibility that they would be arrested, exigent circumstances existed at the time of seizure. Compare State v. Lewis, 378 So.2d 396 (La.1979).

Moreover, probable cause to seize and search the truck was strengthened after the key evidence was seized in the house when defendants were arrested. While in retrospect the officers could have obtained a search warrant for the truck when they obtained the arrest warrants, the course of action they did pursue was reasonable under the overall circumstances, and there was no unreasonable intrusion into an area where defendants had a high expectation of privacy.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

There was time for the New Orleans detectives to communicate their initial findings to the Sabine Parish deputy, and time for that deputy to get an arrest warrant. Why no warrant was obtained to seize and search the truck does not appear. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1974), is squarely on point. No adequate reason for the war-rantless seizure of the truck appears. State v. Massey, 310 So.2d 557 (La.1975), applied the principles of Coolidge in a case almost exactly like this. See also State v. Hargiss, 288 So.2d 633 (La.1974).

       Judges Ellis, Cole, and Watkins of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson, and Lemmon.

      . The subsequent search was also, justified on the basis of the probable cause and exigent circumstances existing at the time of the seizure.


author: DIXON, Chief Justice. WATSON, Justice,

text:
    Peggy J. NAPOLI v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 80-C-1870.
    Supreme Court of Louisiana.
    March 2, 1981.
    J. Michael Morrow, Morrow & Morrow, Opelousas, for plaintiff-applicant.
    Horace C. Lane, Baton Rouge, for defendant-respondent.
   DIXON, Chief Justice.

Peggy J. Napoli was a passenger in an automobile when it was struck from the rear on November 1,1977. She brought an action against defendant Nick Cicero, the driver of the offending vehicle, and State Farm Mutual Automobile Insurance Company, his insurer.

On the trial of the case, the jury returned the following verdict:

“Judgment in favor of plaintiff, Peggy J. Napoli, and against the defendants in the amount of $0.”

The plaintiff was subsequently cast with the costs of court. The Court of Appeal affirmed the judgment. 387 So.2d 1351 (La.App. 1st Cir. 1980).

About a month after the accident the plaintiff was hospitalized and underwent surgical removal of herniated disc material and fusion of cervical vertebrae. Because of the representation that the collision was of forceful impact, and that plaintiff continued to suffer from injuries which she claimed she received in the accident, writs were granted to review the judgments of the courts below.

The record does not support plaintiff’s claim.

Plaintiff had suffered intermittently from pains in her neck for several years. She had received medical treatment for the pains as recently as a month before the accident. Although she was a young woman, the medical opinion was that she suffered from degenerative disc disease before the accident — a disease which caused her disabling pain both before the accident and after the accident. The medical testimony was that her symptoms were the same before. the accident and after the accident. There was no medical evidence that the accident had caused her neck injury.

Plaintiff testified only that she bumped her knee in the accident, and that she was shaken so that the combs fell out of her hair. At the time of the accident, she denied any injury. There was no testimony from her companions that she suffered in any way at the time of the accident. The record is silent as to any inconvenience she might have been caused. Only her fiance, who was with her, testified that on the night of the accident plaintiff complained about her knee “and a little soreness, say about a week and a half, a week later or so, she said that her neck was real stiff and she had been getting some headaches, and then progressively it got worse.” The knee injury seems to have lost any significance; it is not further explained in the record.

There is no doubt about the progress of plaintiff’s condition in the weeks after the accident. The doctors, however; attributed her complaints entirely to the preexisting degenerative disc disease.

A myelogram made when plaintiff entered the hospital a month after the accident indicated a herniated disc in the cervical area. The medical testimony indicated that the injury was probably of long duration. There is no contradictory testimony. We must agree with the courts below that the record does not support a finding that the accident caused the injury.

As for court costs, C.C.P. 1920 provides:

“Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

Because the plaintiff failed to prove her case, she was properly cast with costs.

The judgment of the Court of Appeal is affirmed, at plaintiff’s cost.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

Plaintiff, Peggy Napoli, was a passenger in a car which was struck from the rear; the impact gave her a sever jolt. The force of the collision is indicated by the fact that defendant’s car was a total loss. She had had a prior problem with her neck but was pain-free and asymptomatic when the accident occurred. Slightly over a month later, she required major surgery. The medical evidence is that it was more probable than not that the accident aggravated a pre-ex-isting condition. The jury was clearly wrong in awarding Peggy Napoli zero damages.

I respectfully dissent.

      . Dr. James Thomas Kilroy, an orthopedic surgeon, saw Peggy Napoli twice before the accident. On September 7, 1977, she had neck pain, and he diagnosed cervical radiculitis, a pinched nerve in the neck. Conservative treatment was prescribed: physical therapy, valium and pain pills. On September 23, 1977, Peggy Napoli had pain inside her left shoulder blade. She received an injection of xylocain, decadron and celestone and was told to apply ice packs. Dr. Kilroy said such an injection sometimes cures a patient by giving total relief from pain but “any little thing” can aggravate a nerve injury. (TR.103.) The testimony of plaintiff and other lay witnesses was that Ms. Napoli’s pain subsided after the injection but flared up again after the accident. The accident occurred on November 1, 1977. Peggy Napoli returned to Dr. Kilroy on December 4, a Sunday, when her fiancé’ called him. She had “severe pain” in the posterior neck and intras-capular area. (TR.94.) She had muscle spasms and was admitted to the hospital. Dr. Kilroy admitted: “she had more spasm and she was hurting more” when she was admitted to the hospital in December than she had in September. (TR.108.) In Dr. Kilroy’s opinion, Peggy Napoli had had a relapse when he admitted her to the hospital. He did not attribute the relapse to trauma, but admitted that the accident could have aggravated her condition.
      Dr. John Tassin, a general practitioner, testified that there was a definite correlation between the accident and Peggy Napoli’s subsequent hospitalization and surgery.
      Dr. David Klein, a neurological surgeon, said that trauma can aggravate a pre-existing condition, particularly a degenerative situation involving the spine. It was difficult in Ms. Napo-li’s case to “be certain, absolutely certain that the accident was an aggravating factor” but that was a reasonable suspicion. (TR.137.)
      Dr. Robert Hanchey, a neurosurgeon, saw Peggy Napoli in the hospital on December 6, 1977. She was in severe pain with muscle spasms in the cervical and shoulder region. According to Dr. Hanchey, a disc problem can be aggravated by movement or injury; the accident could have aggravated Ms. Napoli’s condition. He performed a spinal fusion at the C-6 and C-7 levels. Peggy Napoli still has a problem at the C-4 and C-5 levels which may require surgery in the future. He said it was unusual for someone twenty-seven years of age like Ms. Napoli to have this type of disease at all. In his opinion, the degenerative changes in the neck at C-4 and C-5 and, to a lesser extent, at C-6 and C-7, would have been present before the surgery but not necessarily symptomatic.