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

text:
    STATE of Louisiana v. Lloyd VINCENT.
    No. 65640.
    Supreme Court of Louisiana.
    April 7, 1980.
    Concurring Opinion Nov. 5, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Lloyd Vincent was charged in the same information in separate counts with simple burglary in violation of La.R.S. 14:62 and receiving stolen things in violation of La. R.S. 14:69. After a jury trial, defendant was found guilty of simple burglary on count one and guilty of “possession of stolen property in the amount of $100.00” on count two. Defendant was sentenced to serve twelve years at hard labor on count one and two years at hard labor on count two with credit for time served. Thereafter, the district attorney filed an information accusing defendant of prior felony convictions pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After a hearing, the trial judge found defendant to be an habitual offender. He vacated the sentences previously imposed and sentenced defendant to serve twenty years at hard labor on each of the two counts with credit for time served. The court expressly directed that the sentences be served concurrently. On appeal, defendant relies on three assignments of error for reversal of his convictions and sentences.

PATENT ERROR

We first consider an error which we have discovered in the verdict. Since the verdict is part of the pleadings and proceedings, any error therein is reviewable under La. Code Crim. P. art., 920(2). State v. White, 315 So.2d 301 (La.1975) (on rehearing).

Defendant was charged in count two with receiving stolen things valued at $150.00 in violation of La.R.S. 14:69, which provides in pertinent part:

Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
When the value of the stolen things amounts to one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.

The jury returned the following verdict:

Count 2-Possession of Stolen Property
We, the jury, find the defendant, Lloyd Vincent guilty of possession of stolen property in the amount of $100.00.

La. Code Crim. P. art. 813 provides that, if the court finds that the verdict is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. La. Code Crim. P. art. 814 provides the only responsive verdicts which may be rendered where the indictment charges certain listed offenses. The crime of receiving stolen things is not listed therein. La. Code Crim. P. art. 815 provides:

In all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
(3) Not Guilty.

Accordingly, we must determine whether the verdict returned, “guilty of possession of stolen property in the amount of $100.00,” is equivalent to one of the verdicts listed in art. 815.

There is no crime in Louisiana entitled “Possession of Stolen Property.” Nevertheless, there is no formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury. La. Code Crim. P. art. 810; see State v. White, supra. In determining the intention of the jury, if ambiguous, reference may be had to the pleadings, the evidence, the admissions of the parties, the instructions, and the forms of the verdict submitted. ' State ex rel. Miller v. Henderson, 329 So.2d 707 (La.1976); State v. Broadnax, 216 La. 1003, 45 So.2d 604 (1950). In Miller, defendant was charged with escape from the penitentiary; the verdict returned was “Guilty of Attempted Escape.” We held the verdict to be responsive to the charge despite the failure of the jury to include the words “from the penitentiary.” We noted that the bill of information specifically charged defendant with simple escape from the penitentiary, that the trial judge in instructing the jury informed it that the defendant was accused of violating that specific statute, which he read to the jury, and that the trial judge also instructed the jury that it could find one of the following verdicts: Guilty, guilty of attempted escape from Louisiana State penitentiary, and not guilty.

In the instant case, we do not consider that the language of the verdict clearly conveys an intention by the jury to find defendant guilty as charged or guilty of a lesser and included grade of the offense. While the bill of information specifically charged defendant with receiving stolen things, the judge did not read the specific statute, as in Miller, or a summary of it to the jury as part of the charge, nor did he furnish the jury with a list of verdicts that were responsive to the charge. Rather, the trial judge simply instructed the jury,

As to the Second Count, there are four possible verdicts: 1, Guilty as charged of Possession of Stolen Property in the amount of $150.00; or 2, Guilty of Possession of Stolen Property in the amount of (value to be placed by the jury); and 3, Guilty of Attempted Possession of Stolen Property in the amount of (amount to be placed by the jury); and 4, Not Guilty[,]

and furnished it with a list of those verdicts. There is no indication that the jury was even aware of the elements of the crime charged. We are unable to say that by the use of the term “possession” the jury intended to find defendant guilty of receiving stolen things (the crime charged) or guilty of a lesser and included grade of the offense. Thus, the verdict returned was not responsive to the offense charged. The trial judge erred in receiving it.

Hence, we must reverse the conviction and sentence in count two (receiving stolen things).

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to quash the bill of information. He argues that his prosecution for burglary and for receiving things stolen in that burglary places him twice in jeopardy for the same offense.

Both the Louisiana and federal constitutions provide that no person shall be twice placed in jeopardy for the same offense. U.S.Const. amend. 5; La.Const. art. 1, § 15. Louisiana applies the “distinct fact” test for determining the identity of offenses where the plea of double jeopardy is raised. State v. Doughty, 379 So.2d 1088 (La.1980). This test holds that two offenses are the same for double jeopardy purposes unless each offense requires proof of an additional fact that the other does not. If each offense requires proof of an additional fact that the other does not, then the accused may be tried and convicted on both offenses. State v. Doughty, supra; State v. Solomon, 379 So.2d 1078 (La.1980).

Simple burglary in defined as the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein .

La.R.S. 14:62. Receiving stolen things is defined as

the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

La.R.S. 14:69. Applying the distinct fact test, we conclude that the two crimes are separate offenses, each requiring proof of a fact that the other does require. Simple burglary requires proof of an unauthorized entry with the intent to commit a felony or any theft therein. Receiving stolen things does not require this proof. Conversely, receiving stolen things requires proof that the thing was the subject of a robbery or theft; simple burglary does not require this proof. Hence, the two crimes are not the same offense.

However, even though the crimes charged are separate, a defendant cannot be twice punished for the same conduct. City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972). Nevertheless, in State v. Solomon, supra, we held that, even though the same incident led to charges of burglary and theft, defendant’s double jeopardy rights were not violated as the two charges were not based on the exact same conduct. We stated:

The crime of burglary was completed upon entry into the car with the intent to commit the theft therein, whereas the theft did not occur until the defendant actually took the watch from the glove compartment.

The same is true in the instant case. The same incident led to charges of burglary and receiving things. However, the burglary was completed before the alleged reception of stolen things took place. The two charges are not based on the exact same conduct. Therefore, defendant may be prosecuted for both offenses without being placed twice in jeopardy for the same offense. The trial judge did not err in denying the motion to quash.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in refusing to give defendant’s special written charge to the jury. He argues the requested charge was not covered in the court’s general charge and was necessary to charge the jury properly as to the law applicable to the case.

On the day of trial, but prior to its commencement, defendant submitted to the court the following special written charge:

The defendant has been charged by bill of information with both burglary and with possession of stolen property. However, he may be convicted of either of these offenses or of a lesser degree of either, but he may not be convicted- of both. In other words, if you should find that the State has proven the defendant’s guilt beyond a reasonable doubt of both Counts I and Count II, you may return a verdict of Guilty as to one, but must return a verdict of Not Guilty as to the other.

After closing arguments, the trial judge charged the jury. When he finished, defendant moved that the trial judge give defendant’s special written charge. The motion was denied. The minutes reflect defendant noted his objection.

. La. Code Crim. P. art. 807 provides in part:

A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

For the reasons stated in our discussion of Assignment of Error No. 1, we consider that the requested special written charge was not wholly correct; rather, it was clearly wrong. Hence, the trial judge did not err in refusing to give the charge to the jury.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in finding him to be an habitual offender. He argues that the state failed to prove (1) that more than five years had not elapsed since the expiration of the maximum sentence for his last prior felony conviction and the time of the commission of the felony for which he was convicted herein and (2) that two of his prior convictions which were based on pleas of guilty were taken in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

(1) La.R.S. 15:529.1(C) provides:

This Section shall not be applicable in cases where more than five years have elapsed since the 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 has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said five year periods.

In State v. Anderson, 349 So.2d 311 (La.1977), we held “maximum” sentence in La. R.S. 15:529.1(0) to mean actual “maximum” sentence served. We stated in Anderson:

The statutory intent, thus, is that a sentence expires when the prisoner is discharged from state custody and supervision, not when the theoretical date arrives on which the initial sentence would have terminated. Thus, when the convicted person is discharged earlier (as well as later) than the expiration date of the sentence initially sentenced, then the actual maximum sentence is that determined by his date of legal discharge, whether extended through revocation of parole or shortened by law due to “good time” diminution of the initial sentence. It is not until the date of actual discharge that the individual has fully paid his debt to society, insofar as owed because of an offense for which he has been convicted.

Hence, we must determine whether there is sufficient evidence that five years have not elapsed since the expiration of the actual maximum sentence defendant served for his 1964 conviction (his last prior felony conviction) and the time of the commission of the offense for which he was convicted in the instant prosecution.

At the habitual offender hearing, the state introduced evidence showing that defendant was sentenced to serve twenty years at hard labor in the state penitentiary on November 18, 1964, and that the sentence would expire on November 19, 1984. A Certificate of Parole indicates that defendant was released of parole on January 18, 1973, and was to remain “within the limits of Louisiana until November 19, 1984; or, until other action may be taken by the Board of Parole.” Moreover, La.R.S. 15:574.6 provides that the parole term, when the Parole Board orders a prisoner released on parole, shall be for the remainder of the prisoner’s sentence, without any diminution of sentence for good behavior. La.R.S. 15:574.7(A) provides that each parolee shall remain in the legal custody of the institution from which he was paroled. The instant offense occurred on March 18, 1979.

Thus, absent a showing by defendant that he had been discharged from parole, the state has proven that he was in the legal custody of the Department of Corrections from the date of his release on parole (January 18, 1973) until the time of the commission of the instant offense (March 18, 1979). Hence, the state met its burden of proving-that more than five years had not elapsed since the expiration of the maximum sentence for defendant’s last prior felony conviction and the time of the commission of the felony for which he was convicted herein.

(2) In State v. Holden, 375 So.2d 1372 (La.1979), we held that as to convictions prior to December 8,1971, the state is required only to prove the convictions were by pleas of guilty with representation by counsel. The state is not required to prove that defendant was informed of and made a knowing waiver of his Boykin rights.

In the instant case, the bill of information accusing defendant of being an habitual offender charged him with three prior convictions, two of which resulted from guilty pleas: a 1964 conviction for armed robbery and a 1962 conviction for simple burglary. Both guilty pleas were entered prior to December 8, 1971. Accordingly, the state was not required to prove that defendant was informed of and made a knowing waiver of his Boykin rights.

The trial judge did not err in finding defendant to be an habitual offender. Assignment of Error No. 3 is without merit.

DECREE

For the reasons assigned, defendant’s conviction and sentence for simple burglary are affirmed; his conviction and sentence for receiving stolen things are reversed, and the case is remanded to the district court for further proceedings in accordance with law.

DIXON, C. J., dissents with reasons.

DENNIS, J., concurs with reasons.

DIXON, Chief Justice

(dissenting):

I respectfully dissent.

In this case a policeman caught defendant carrying a TV out the back door of a restaurant kitchen. The same facts to prove the “receiving” proved the burglary, and the Blockburger test was not met. Defendant should not have been tried and sentenced twice for the same conduct and with the same evidence. State v. Doughty, 379 So.2d 1088 (La.1980).

DENNIS, Justice,

concurring.

I concur in the Court’s treatment of the patent error issue but respectfully disagree with the majority’s treatment of double jeopardy. State v. Doughty, 379 So.2d 1088 (La.1980), does not countenance prosecution for both burglary and receiving stolen goods under the facts of this case. In Doughtywe held that offenses are the same for double jeopardy purposes when “the evidence required to support a conviction upon one indictment would have been sufficient to warrant a conviction upon the other.” [emphasis supplied] Id. at 1091. Under the facts of this case the evidence that proved the burglary proved the “receiving charge.”

       Honorable Edward A. de la Houssaye, III participated in this decision as Associate Justice Ad Hoc.

      . The double jeopardy provision of the fifth amendment to the federal constitution was made applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).


source: Caselaw Access Project

author:
de la HOUSSAYE, Justice Ad Hoc.
      DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Alex STEWART.
    No. 65901.
    Supreme Court of Louisiana.
    April 7, 1980.
    Concurring Opinion Sept. 24, 1980.

      Walter L. Sentenn, Jr., Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   de la HOUSSAYE, Justice Ad Hoc.

The principal issue presented for decision in this case pertains to the admissibility of evidence used in a bank robbery seized from an automobile which was parked on a street outside defendant’s residence at the time defendant was arrested, before the automobile was impounded as evidence. The other two assignments of error include denial of the trial court to suppress an in — field identification, and in allowing a state witness to testify who had violated a sequestration rule.

Defendant Alex Stewart was charged with armed robbery in violation of La.R.S. 14:64. A jury returned a verdict of guilty of simple robbery (La.R.S. 14:65). Defendant was found to be a multiple offender (La.R.S. 15:529.1) and was sentenced to serve seven (7) years in custody of the Department of Corrections with credit for time served. On this appeal, defendant argues seven assignments of error; three of which we find necessitate our attention. None of these assignments presents reversible error; we therefore affirm the conviction and sentence.

The robbery of the Carrollton Branch of the Bank of New Orleans occurred May 9, 1978 when defendant Stewart entered and presented a note to the teller demanding money. He was given $2,715 in “bait money” (money with serial numbers kept on separate list by the bank) and fled in a copper-colored Chrysler parked at the curb.

A citizen, John Eaves, who was driving down Carrollton Avenue, noted that defendant was being pursued by a large number of persons. Becoming suspicious, he followed the Chrysler to Spruce Street, where he found it parked on the street in front of 7404. Eaves notified the police.

The police came and questioned several people in the neighborhood as to the ownership of the vehicle. From the information gleaned, they approached 7404 Spruce where they were apparently admitted by a Mr. Gerald Thomas, known to the officers from past offenses, who communicated that no one else was there. One of the officers heard a noise and went to investigate, finding defendant in the process of shaving off his beard. Defendant was placed under arrest for armed robbery. Thomas was arrested as accessory after the fact.

Minutes after the arrest, two detectives arrived, looked into the Chrysler,'and entered the Thomas residence. Permission was given by defendant’s sister to search the residence, and $2,715.00 in U.S. currency was recovered from a towel in the bathroom. A revolver was found under a mattress.

Following their arrest, Thomas and Stewart were taken to the bank for a possible identification. The teller and two other eye witnesses positively identified Stewart, although he had changed clothes.

One of the officers seized a shirt, hat, and a pair of sunglasses from the automobile, which was to be impounded as a fruit of the crime.

Argument No. I

(Assignment of Error No. 2)

Defendant contends that the trial court erred in refusing to suppress the articles seized from the vehicle during a warrant-less search, claiming such actions run awry of his Fourth Amendment right to be secure against unreasonable searches and seizures.

The U.S. Supreme Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the constitution. As a general rule, it has also required the judgment of a magistrate on the probable cause issue and the issuance of a warrant before a search is made. Searches conducted outside the scope of the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically and well delineated exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Lewis, 378 So.2d 396 (La.1979).

Under the “automobile exception,” a search warrant is unnecessary where police have probable cause to search an automobile stopped on the highway and the circumstances require immediate action, beginning with Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The underlying reasons derive from the mobility of the car, that the occupants have been alerted, and that the time necessary to obtain a warrant may mean that the contents of the car may never be found. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970).

The present case is virtually identical with the situation presented in State v. Lewis, supra, wherein the investigating officers, awaiting the arrival of a police tow truck following defendant’s arrest, noticed a white T-shirt lying on the front seat. An officer was able to see that eye holes had been cut from the garment. He seized the shirt as evidence. This Court reasoned:

“Probable cause to search the auto existed because it was identified by description and license number as the likely getaway car, it led to the apprehension of the defendants and recovery of fruits of the crime, and it contained the robber’s mask, plainly visible from the outside, and possibly additional contraband. The automobile was parked in a public place, a city street outside defendant Berry’s apartment. It was therefore accessible to anyone who might have a reason to move it or remove evidence from it, including defendant Berry’s common-law wife whom the police had no probable cause to arrest and allowed to remain at the apartment. Thus, the officers were faced with exigent circumstances requiring that they elect one of two courses ‘reasonable under the Fourth Amendment,’ Chambers, supra, 399 U.S. at 52 [90 S.Ct. at 1981,], either immobilize the car until a warrant is obtained or carry out an immediate search without a warrant. Under all of the circumstances, the election of the latter reasonable course by the officers does not require that we invalidate their search.”
Id. at 399.

The circumstances presented in the instant case are indistinguishable from Lewis. The car found outside the residence at 7404 Spruce Street had been followed from the scene of the robbery to that spot by a suspicious citizen. Further investigation and a search of the premises led to the arrest of defendant and recovery of the currency. Defendant admitted his perpetration of the robbery and even led the officers to the stolen cash and a gun. The sunglasses and suede hat coincided with eyewitnesses’ accounts of defendant’s apparel at the time of the robbery. These items were thus valuable evidence to be used to verify the earlier description of the assailant.

Further tracking Lewis, the vehicle here was parked on a public street, readily accessible to Thomas’ common-law wife or other persons who might have a reason to move it or remove evidence from it. Thus, this case does not present a situation such as that faced by the Supreme Court in Coolidge v. New Hampshire, supra, wherein officers had known for weeks of the probable role played by a vehicle in the commission of a crime and yet had failed to obtain a search warrant.

The record is unclear as to whether the search was conducted before or after the impoundment. However, faced with the apparent exigent circumstances, it would appear, as in Lewis, that either an impoundment or an immediate search would be reasonable.

Argument No. II

(Assignment of Error No. 3)

In this assignment, defendant protests the trial court’s refusing to grant his motion to suppress an in-field identification.

After the arrest, Stewart and Thomas were taken to the scene of the robbery where they were handcuffed and guarded by two non-uniformed officers. The bank employees and a customer present during the robbery were asked to view the suspects through the glass panels of the bank. A teller and a customer gave a positive identification from 25 feet. Ms. Baudier, the teller who was robbed, was able to identify Stewart upon closer examination of his facial features.

Defendant contends this sort of identification to have been impermissibly suggestive leading to a great likelihood of mis-identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

In reviewing the constitutional issue of the identification procedure, the Supreme Court in Brathwaite, supra, made a double inquiry;

1) “Whether the police used an imper-missably suggestive procedure in obtaining the out-of — court identification” and 2) “whether, under all the circumstances, that suggestive procedure gave use to a substantial likelihood of irreparable misidentification.” Manson v. Brathwaite, supra, 432 U.S. at 107, 97 S.Ct. at 2249.

A one-on — one confrontation between suspect and victim has been upheld when justified by the circumstances. State v. Dauzat, 364 So.2d 1000, 1001 (La.1978); State v. Kelly, 362 So.2d 1071, 1072 (La.1978); State v. Dunbar, 356 So.2d 956 (La.1978). One purpose of in — field identifications is the release of suspects who are innocent.

As to the first inquiry in the Brathwaite test, we find that defendant’s being handcuffed at the time of his identification did not alone warrant a finding of undue suggestiveness. State v. Kelly, supra; State v. Dunbar, supra.

As for the second inquiry, (“the totality of circumstances” test), a subsequent in-court identification led again to defendant’s positive identification as the assailant. In Manson v. Brathwaite, supra, the following criteria were established to determine whether such an identification, though suggestive, was reliable and thus not prejudicial to the accused:

1) Opportunity to view 2) Degree of attention 3) Accuracy of the description 4) Witness’ level of certainty; and 5) The time between the crime and the identification.

The record reflects that the teller, Ms. Baudier, made an accurate identification of defendant as to his particular physical characteristics as well as to the brown and gold shirt, the suede hat, and sunglasses used during the robbery. The witnesses were quite certain of their identification which was made only one hour after the robbery which had transpired during daylight hours. Here, we do not find any suggestiveness to be prejudicial, for we find under the totality of circumstances that the identification was adequately supported by independent evidence. State v. Williams, 375 So.2d 364 (La.1979); State v. Stripling, 354 So.2d 1297 (La.1978).

A trial judge’s determination of ad-missability is given great weight and will not be disturbed unless a preponderance of the evidence clearly so mandates. State v. Griffin, 336 So.2d 791 (La.1976).

Argument No. Ill

(Assignment of Error No. 5)

Defendant assigns as error the trial court having allowed the testimony of a state witness who had violated the court’s sequestration order.

The witnesses had been ordered sequestered at the beginning of the trial. One state witness, John Eaves, had been allowed to leave and return later in the afternoon. Upon his return, he sat in the courtroom, and heard the testimony of one state witness, Ms. Baudier. After her testimony, Eaves was told to leave the courtroom, which he did. Defendant then objected to testimony by Eaves on the ground that he had been present during a portion of the trial in violation of the sequestration rule contained in La.C.Cr.P. Art. 764:

Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.

The purpose of this article is to prevent witnesses from being influenced by the testimony of other witnesses. The trial judge, in his discretion, may determine the disqualification of a witness when a rule of sequestration has been violated. State v. Mullins, 353 So.2d 243 (La.1977); State v. Calloway, 343 So.2d 694 (La.1976); State v. Ardoin, 340 So.2d 1362 (La.1976). This ruling will not be disturbed absent a clear showing of abuse.

Mr. Eaves’ testimony was relevant only to events which occurred outside the bank-he pursued the robber, and notified the police. Mr. Eaves could give no identification of the robber himself. On the other hand, the testimony of Ms. Baudier concerned only activities inside the bank. Therefore, Mr. Eaves’ testimony was not influenced by that of Ms. Baudier. Thus, the trial judge did not abuse his discretion in allowing this witness to testify.

This assignment is without merit.

For the foregoing reasons, we find that defendant’s arguments are without merit; therefore his conviction and sentence are affirmed.

Affirmed.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I wish to add additional reasons to the majority opinion’s treatment of Assignment of Error Number Five. Although we have consistently recognized that the action to be taken in the face of a violation of a sequestration order rests within the sound discretion of the trial judge, the discretion in this regard is not unlimited. A defendant’s rights to have compulsory process and to present a defense under either the federal or the state constitutions call for the operation of special considerations if it is his witness involved in the sequestration violation. The trial judge should exclude the witness only if the violation was brought about with the consent, connivance, procurement, or knowledge of the defendant or his counsel. See State v. Jones, 354 So.2d 530 (La.1978).


author:
DIXON, Chief Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Nicky L. MOAK.
    No. 66112.
    Supreme Court of Louisiana.
    April 7, 1980.
    Concurring Opinion Oct. 9, 1980.
    M. Reggie Simmons, Franklinton, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Herbert R. Alexander, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Chief Justice.

On July 29,1978 at approximately 9:00 p. m., the defendant was driving within the proper lane of travel in a westerly direction on Louisiana Highway 38 in Washington Parish. As he was coming around a curve in the road, the defendant saw the bright lights of what he thought was an oncoming car in his lane of the road. Fearing a head on collision he applied his brakes and then eased his car to the right, onto what he thought was the shoulder. Instead, his car went down into a ditch that ran alongside of the shoulder, his car bounced up and hit a car which was parked on the defendant’s side of the road, on the shoulder, facing east with its lights on. Gerald Barber, Jr., a twelve year old boy, was standing by the left front fender of the parked ear. He was hit by defendant’s car and suffered fatal injuries as a result of the collision.

The defendant, Nicky L. Moak, was charged with negligent homicide in violation of R.S. 14:32. He was found guilty after a jury trial and sentenced to serve five years at hard labor. He appeals, relying on seven assignments of error. Because we find merit in the defendant’s contention that no evidence was presented at trial to prove criminal negligence, an essential element of the crime of negligent homicide, it is unnecessary to discuss the remaining assignments of error.

The defendant’s lack of evidence claim was raised in an application styled Motion in Arrest of Judgment. However, none of the grounds listed under C.Cr.P. 859 as grounds for a motion in arrest of judgment are mentioned. The substantive complaint in the motion is: “The verdict is contrary to the law and the evidence in that the evidence fails to establish that defendant was criminally negligent, as that term was defined by the Louisiana Supreme Court in State v. Jones, 298 So.2d 774, 775 (1974).” Because of the reference to State v. Jones we do not interpret this as an attempt on the part of the defendant to have the sufficiency of the evidence reviewed by this court. It was an effort of the defendant to present his claim of no evidence to the trial court. Although such a claim is usually raised by a motion for a new trial, this court has held that a rigid and formalistic approach denying the defendant the relief sought in the body of the motion merely because of the failure to properly caption the motion would retard rather than advance the interests of justice. State v. Nelson, 357 So.2d 1100 (La.1978). Regardless of the style of the motion, the trial judge was apprised of the defendant’s complaint and the grounds therefor. Therefore, we will consider the no evidence issue as properly before this court for review. It is well settled that a contention that no evidence was produced to prove an essential element of the crime charged presents a question of law which can be reviewed by this court. State v. Davis, 371 So.2d 788 (La.1979); State v. Douglas, 278 So.2d 485 (La.1973).

The crime of negligent homicide is defined as “the killing of a human being by criminal negligence.” R.S. 14:32. Criminal negligence is defined in R.S. 14:12, which provides:

“Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”

The Reporter’s Comment to this section states in part: “Criminal negligence, in fact, corresponds to the concept of ‘gross negligence’ in tort law. See Restatement of the Law of Torts (1934) §§ 282-284, 500.” Section 500 provides:

“The actor’s conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also invokes a high degree of probability that substantial harm will result to him.”

In State v. Jones, supra, at 776, this court held: “Under these standards it is clear that proof of ordinary negligence does not constitute proof of criminal negligence. The State is required to show more than a mere deviation from the standard of ordinary care.”

The record reveals that the defendant and a friend who was a passenger in his car at the time of the accident had each bought a quart of beer. A blood alcohol test was performed on the defendant’s blood and the state’s witness testified that the blood contained 0.05% alcohol. R.S. 32:662(A)(l)a provides that if there was at the time 0.05% or less by weight of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of alcoholic beverages. The record also shows that the defendant was traveling within the speed limit. Defendant and the passenger in his car both testified that the parked car looked as though it was an oncoming car traveling in their lane. They were unable to see that the car was actually parked on the shoulder of the road, and likewise unable to discern that people were standing by the parked car.

The defendant’s conduct was not in reckless disregard for the safety of others. Faced with the unusual set of circumstances, which occurred in this case, it was logical for the defendant to perceive the parked car with its lights shining as an oncoming vehicle. He did what any reasonable man would do to avoid the accident-he pulled over to the shoulder on his side of the road. Although the testimony at trial revealed that the defendant did riot reapply his brakes once his car hit the ditch, the wrong choice of action (if it was wrong) in an emergency does not meet the test of criminal negligence. See State v. Harrell, 232 La. 35, 93 So.2d 684 (1957). The facts at best show only ordinary negligence. The state has failed to introduce any evidence of more than a mere deviation from the standard of ordinary care as required by this court under R.S. 14:12. Therefore, there was no evidence presented to show that the defendant was guilty of criminal negligence.

When this court upon review finds no evidence of an essential element of the crime charged, the double jeopardy clause of the Fifth Amendment precludes a second trial and requires the direction of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Liggett, 363 So.2d 1184 (La.1978).

For the reasons assigned, the conviction and sentence are annulled and set aside, and the defendant is ordered discharged.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur. A reasonable trier of fact could not find beyond a reasonable doubt from the evidence herein that the defendant was guilty of a gross deviation below the standards of care expected to be maintained by a reasonably careful man. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

       Honorable Edward A. de la Houssaye, III participated in this decision as an Associate Justice Ad Hoc.

      . See State v. Williams, 354 So.2d 152 (La.1977), contra, apparently overruled in State v. Peoples, 383 So.2d 1006, No. 66091 on the docket of this court, decided this date.


author:
WATSON, Justice.
     CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Keith Allen STEPHENSON.
    Nos. 65937, 65938.
    Supreme Court of Louisiana.
    April 7, 1980.
    Dissenting Opinion Nov. 4, 1980.
    Robert P. McLeod, Law Offices of Robert P. McLeod, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Kenneth A. Rains, Asst. Dist. Atty., for plaintiff-appellee.
   WATSON, Justice.

Defendant, Keith Allen Stephenson, was charged in two separate bills of information with possession of controlled dangerous substances. In one bill Stephenson was charged with possession of marijuana with intent to distribute, in violation of LSA-R.S. 40:966 A, and with possession of Phen-termine with intent to distribute, in violation of LSA-R.S. 40:967 A. By a second bill, defendant was charged with possession of Dextropropoxyphene and possession of Methamphetamine, in violation of LSA-R.S. 40:963, 964 and 966.

After a motion to suppress was denied, defendant withdrew his not guilty pleas. Pursuant to a plea bargaining arrangement, Stephenson pleaded guilty to possession of marijuana with intent to distribute, attempted possession of Phentermine with intent to distribute, and possession of Dextro-propoxyphene. The charge of possession of Methamphetamine was dismissed. On the marijuana charge, defendant was sentenced to three years at hard labor. This sentence was suspended and defendant was placed on supervised probation for five years subject to the special condition that he spend one year in the Morehouse Parish Jail and pay a fine of $500. Defendant received an identical sentence on the attempted possession of Phentermine charge. Defendant received a sentence of two years imprisonment for possession of Dextropropoxyphene, the sentence to run consecutively with the others. Finally, as part of the plea bargain, defendant reserved his right to appeal regarding the trial judge’s denial of his motion to suppress.

On January 1, 1979, Deputy Dyar Eppi-nette of the Morehouse Parish Sheriff’s Office submitted an affidavit to the district court. After describing the location and appearance of defendant’s residence, the oath or affidavit in support of the search warrant stated in pertinent part:

“Within the last twenty-four (24) hours, your affiant has been contacted by a reliable confidential informant whose reliability has been established over the past two weeks by controlled narcotics buys which led to the issuance of a search warrant, a quantity of marijuana seized pursuant to said search warrant, and arrests made in connection therewith. Therefore, the realible (sic) confidential informant knows the appearance of marijuana.
“The reliable confidential informant stated to your affiant, within the last twenty-four (24) hours, that he had occasion to be upon the premises of a house trailer within the last twenty-four hours, and that while there he observed a quantity of marijuana inside the house trailer. The reliable confidential informant indicated that said house trailer is the residence of Keith Stephenson, who is known to your affiant by his previous narcotic offenses.
“The location of said house trailer is known to your affiant and was also pointed out to your affiant personally by the reliable confidential informant.”

When the search warrant was issued and executed, officers of the Morehouse Parish Sheriff’s Office discovered and seized several bags of marijuana, nineteen capsules of Phentermine, two capsules of Dextropro-poxyphene, and one gram of methamphetamine.

Defendant’s motion to suppress the physical evidence claimed that the search was illegal because it was conducted without a valid search warrant supported by an affidavit establishing probable cause. Defendant asserted that the affidavit failed to provide adequate information to show the reliability of the informant or his information. Other arguments in support of the motion were abandoned at the hearing on the motion to suppress.

Defendant assigns as error on appeal the trial court’s denial of the motion to suppress on the ground that the factual allegations in the affidavit were insufficient to establish the reliability of the confidential informant and his information.

The informant was familiar with the appearance of marijuana and personally observed the contraband in defendant’s trailer. Direct personal observation by an eyewitness establishes the reliability of his information. State v. Paciera, 290 So.2d 681 (La., 1974). The only substantial issue is the reliability of the confidential informant.

In order to protect persons against unreasonable searches and seizures, no search warrant shall issue except upon probable cause supported by oath or affidavit. Louisiana Constitution of 1974, Article 1, Section 5. Probable cause must be demonstrated to the issuing magistrate by the affidavit of a credible person “reciting facts establishing the cause for issuance of the warrant.” LSA-C.Cr.P. art. 162.

The affidavit submitted to the issuing magistrate may be based entirely on hearsay. State v. Paciera, supra. But, if the affidavit recites hearsay, it must have enough details to allow a magistrate to reasonably infer that the informant and his information are reliable. State v. Richards, 357 So.2d 1128 (La., 1978); State v. Wilson, 366 So.2d 1328 (La., 1978); State v. Paciera, supra; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The fact that the informant here was involved in “controlled narcotic buys” could not by itself establish his reliability. State v. Tassin, 343 So.2d 681 (La., 1977). In Tassin, the affidavit was insufficient because: (1) it contained a false statement by the affiant that he knew the suspect to be a user and dealer in controlled dangerous substances; (2) the activities of the informer under direct police surveillance did not establish his reliability in other circumstances. Here, the statement by the affiant that he knew Stephenson to have prior narcotics offenses was not traversed. Also, the informant’s past activities had led to the issuance of a search warrant, seizure of a quantity of marijuana and resulting arrests.

Recitations in an affidavit that the informant has previously given information leading to arrests adequately support the informant’s reliability. State v. Jones, 365 So.2d 1359 (La., 1978); State v. Weinberg, 364 So.2d 964 (La., 1978); State v. Anderson, 357 So.2d 547 (La., 1978). In evaluating this informant’s role in past arrests, the magistrate could have made a logical inference that the informant furnished facts to the officers in connection with his narcotics buys, and that the arrests were accomplished because those facts were accurate. The opposite inference, that this informant was merely a voiceless puppet in the hands of the police, is unreasonable and unwarranted.

In State v. Turnipseed, 362 So.2d 486 (La., 1978), the affidavit recited that the unnamed informant had worked under the direct supervision of the affiant for two months and had provided information leading to four arrests. The fact that the informer had worked only under direct personal supervision did not make him unreliable. Where, as here, a showing of prior accurate reports can be inferred from the recitation of resulting arrests, the fact that the purchases were “controlled” is not fatal to a finding of reliability.

The credibility of an anonymous informant can be supported by “any specific independent corroboration of the accuracy of the instant report.” State v. Paciera, supra, at 686. Mere suspicion of prior criminal involvement is entitled to no weight in appraising a magistrate’s decision. Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). However, here, affi-ant’s knowledge of defendant’s previous narcotics offenses, as opposed to rumor or gossip, supports a finding of reliability. The informant’s account of seeing marijuana in defendant’s trailer was consistent with what the deputy knew of defendant’s history. The affiant had an independent basis for believing the report to be true. This knowledge corroborated the informant’s report and bolstered his reliability. State v. Dazet, 378 So.2d 1369 (La., 1979); State v. Paciera, supra.

When this affidavit is read as a whole, a common sense interpretation supports the magistrate’s conclusion that the informant was reliable. U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The trial court did not err in denying the motion to suppress.

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

AFFIRMED.

DIXON, C. J., specially concurring.

CALOGERO, J., dissents with reasons.

DENNIS, J., dissents with reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent from the majority opinion because I am of the view that this case is indistinguishable from State v. Tassin, 343 So.2d 681 (1977), on rehearing. In Tassin, as in the present ease, the warrant was issued on the basis of information obtained from a confidential informant. In both cases, support in the affidavits for the reliability of the confidential informant consisted of assertions that the confidential informant had participated in controlled narcotics buys which led to arrests and convictions, and that the affiant knew the suspect because of past narcotic offenses. Neither affidavit had any other support for the informant’s reliability than the above. Tas-sin held, “The ability to traffic in illegal narcotics, under the immediate surveillance of a directing police officer, does not appear to be related to the informer’s uncoerced probable truthfulness in securing outside of that officer’s presence other information for the latter’s use.” On the second issue, Tassin held, “The assertion of the suspect’s reputation for past criminal activity, unrelated to specific incident giving probable cause for a search, ‘is but a bald and unillu-minating assertion of suspicion that is entitled to no weight in appraising the magistrate’s decision’ to issue a warrant.” Following Tassin, I believe the convictions should be reversed and the motion to suppress granted.

DENNIS, Justice,

dissenting.

I respectfully dissent because the affidavit fails to establish the informant’s credibility. A mere assertion that an informant has participated in controlled narcotics buys which led to the issuance of a search warrant and arrest says nothing at all about the informant’s credibility.

       Honorable Edward A. de la Houssaye, III, participated in this decision as Associate Justice ad hoc.


author: GAUTHIER, Justice Ad Hoc. DENNIS, Justice,

text:
    STATE of Louisiana, v. Calvin Charles THOMPSON.
    No. 66439.
    Supreme Court of Louisiana.
    May 19, 1980.
    Dissenting Opinion Nov. 4, 1980.
    James C. Witcher, II, A Professional Law Corp., New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., J. Kevin MeNary, Asst. Dist. Atty., for plaintiff-respondent.
   GAUTHIER, Justice Ad Hoc.

The relator herein, Calvin Charles Thompson, was charged with two counts of armed robbery and was found not guilty by reasons of insanity on July 19, 1977. The defendant was then found, at a show cause hearing, to be a menace to himself and to society, and the trial court ordered him committed to East Louisiana State Mental Hospital (ELSH) for six months after which time a report and re-evaluation were to be made. La.C.Cr.P. Art. 654.

On May 5, 1978, after a re-evaluation and reexamination by a lunacy commission, the Court found the defendant no longer a menace to himself and/or to society and placed him on court probation conditioned upon his participation in the Orleans Parish Criminal Sheriff’s Restitution Shelter Program for six months. La.C.Cr.P. Art. 657.

Defense counsel then filed an application for release or discharge on probation and the trial court appointed a lunacy commission to re-evaluate the defendant’s condition. A hearing was held on October 2, 1979, and Thompson’s probation was revoked, his application for discharge or release on probation was denied, and he was adjudged to be a menace to himself and to society and was again committed to ELSH. On March 15, 1980, we granted writs to review the decision of the trial court.

The trial record shows that Thompson has had a history of mental problems and has been confined in several mental facilities. On a previous probation he failed to keep his appointments at the Chartres Mental Health Clinic. Most recently while on his present probation, the defendant returned to a “psychotic state” according to the treating physician, and was again committed to ELSH.

Dr. William C. Super, defendant’s treating physician, and the two members of the lunacy commission, Dr. Kenneth Ritter and Dr. Ignacio Medina, all testified at the hearing. The three doctors agreed that the defendant probably would not be a menace to himself or to society as long as he were under supervision and on medication; but that if he did not continue to take his medication there would be a good chance that he would have a recurrence of psychosis within a month or two and that he might possibly be a menace to society by trying something such as robbing a bank.

In regards to the type of supervision the defendant would need, Dr. Ritter testified:

“There has to be more than a probation officer involved in this, we don’t have mental problem service. I think there will have to be some responsible relative, people who are responsible for him, trustworthy people who will monitor him, the mental health center cannot be with him seven days a week, he has to be monitored with someone with common sense and enough responsibility to report to the probation officer or mental health clinic if something is not working right it is not a matter of mental health center and the probation officer, that does not work, it has to be someone near and dear to him, a supervisor.”

(Record at 20)

Defendant’s grandmother and aunts had previously testified that they could provide the needed support for defendant and that he would live with his grandmother. Upon questioning by defense counsel, Dr. Ritter admitted hearing and observing “all of them,” but could not say that they were “trustworthy”.

At the conclusion of the hearing, the trial judge found the defendant to be a menace to society and to himself and that he was dangerous and ordered him committed to ELSH. We granted writs to review that action.

In his writ application defendant contends that the trial judge ignored the overwhelming evidence, both expert and lay, adduced in defendant’s favor; and therefore erred in refusing to release him on probation and in finding the defendant to be dangerous and a menace to society and/or to himself.

The state contends that the trial judge correctly decided that Thompson’s artificially induced sanity could not be maintained if he would once again be released on probation under his grandmother’s supervision.

The court addressed this issue in State v. Collins, 381 So.2d 449, (La.1980). In construing La.C.Cr.P. Art. 657, we said:

“The trial court must certainly be afforded some degree of discretion in making decisions under that statute. It cannot be read, however, to give the court unbridled power to disregard the evidence or to act arbitrarily. It would be meaningless to give a committed person an opportunity to prove that he is not dangerous if the trial court then had the absolute discretion to disregard that proof.”

We went on to hold that the trial judge had erred in light of the uncontested evidence that Collins could safely be released on probation subject to conditions insuring that he follow the prescribed regimen.

The evidence in the case at bar is undisputed that the defendant is in need of supervision to insure he continues to take his medication if released. There is also testimony in the record that the defendant needs much closer supervision than either a probation officer or a mental health clinic could provide. Dr. Ritter felt that the defendant would need someone with common sense and enough responsibility to report Thompson if things were not working right.

The trial judge heard the testimony of the family members who the defense claimed could provide this supervision. He had the opportunity through personal observation to evaluate their qualifications, dedication and ability. He undoubtedly concluded that these family members would not be able to provide the supervision the defendant needed to insure his continued participation in his medical regimen.

Faced with the expert testimony indicating that Thompson needed close supervision and the apparent lack of someone who could provide that supervision, the trial judge made a reasonable decision. We cannot say that he disregarded the evidence or acted arbitrarily.

Furthermore, we find that the revocation of defendant’s probation by the trial court was also justified. Thompson was placed on probation on condition that he participate in the Sheriff’s Office Restitution Program for six months. He became psychotic, was removed from the program and recommitted to ELSH. Since he failed to meet this condition of his probation, as well as the general condition that he not become dangerous to himself or others, the trial court was not in error in revoking probation. See C.Cr.P. Art. 658.

We find that the decision of the trial court is supported by the record and affirm that decision.

AFFIRMED.

DIXON, C. J., dissents.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The evidence is overwhelming that defendant is probably not a menace to society or himself if he continues to receive psychiatric care and medication. Defendant’s freedom should not depend upon whether he has funds to purchase adequate medical services or whether he has relatives who will provide medical supervision of him.


author:
BLANCHE, Justice.
     CALOGERO, Justice, LANDRY, Justice Ad Hoc, DENNIS, Justice,

text:
    STATE of Louisiana v. Wendell McDONALD.
    No. 65228.
    Supreme Court of Louisiana.
    May 19, 1980.
    Dissenting Opinion May 20, 1980.
    Concurring Opinion June 6, 1980.
    Dissenting Opinion Nov. 4, 1980.

      Loyola Law School Clinic, Arthur A. Lemann, III, New Orleans, Melinda M. Tucker, Steven J. Lane, Student Practitioners, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Thomas C. Cowan, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
   BLANCHE, Justice.

The defendant was convicted of first degree murder in violation of R.S. 14:30. In accordance with the jury’s recommendation, he was sentenced to life imprisonment.

The facts adduced at trial indicate that on the night of July 6, 1977, Robyn Seymour was kidnapped from her home by Jerome West and the defendant. She was robbed of her jewelry and about twenty dollars in cash. Thereafter, she was shot and killed.

On July 26,1977, defendant and two companions (one a female) were arrested for traffic violations incident to which a search of the vehicle’s occupants revealed a .32 caliber revolver in the purse of the female acquaintance. That same day, defendant was taken to the station house and questioned by Officer Martin Venezia, who advised defendant that he was a suspect in the Seymour case. Defendant was read and waived his Miranda warning, and thereafter made a statement denying any knowledge of the Seymour incident. Defendant remained incarcerated and at 8:30 p. m., August 2, 1977, he was taken to an interrogation room where Venezia again questioned him as a suspect. After reading the defendant his Miranda warning and obtaining a waiver, Venezia took a taped statement from defendant by means of a cassette recorder belonging to a fellow officer. At 12:26 a. m. on August 4, 1977, Venezia, after having first read defendant his Miranda rights and having obtained a waiver, taped another statement from defendant. Having no other cassette available, Venezia used the previous tape in taking the second statement, thus effectively erasing and destroying the first taping.

After retaping defendant’s statement, Venezia interrogated a female acquaintance of defendant who was being held in connection with another matter, and whom defendant implicated in the Seymour slaying. After questioning the acquaintance, Vene-zia again interrogated defendant at about 3:30 a. m. on August 4, 1977, after first having read him his Miranda rights and having obtained a waiver. This statement was verbal, and Venezia made it clear that defendant was no longer being interrogated as a suspect but as a perpetrator of the Seymour crime. In this statement, defendant made certain inculpatory statements but did not admit guilt.

On August 8, 1977, Gerard Edwards, a friend of defendant, was incarcerated on a weapons and aggravated battery charge. Edwards approached Venezia and offered to share defendant’s cell with the view of obtaining inculpatory information from defendant. It was agreed between Edwards and Venezia (apparently with the knowledge and approval of the district attorney’s office) that if Edwards cooperated with the police, the charges against Edwards would be dismissed. Edwards was placed in defendant’s cell that same day and, within a short time, defendant made inculpatory statements to Edwards concerning the Seymour case. It is conceded that Edwards gave defendant no Miranda warning. On August 9, 1977, one day after Edwards was put into defendant’s cell, defendant was formally arrested and charged with homicide. Following the arrest, defendant made a final statement in which he maintained he was at home at the time of the homicide.

Assignment of Error Number 9

By this assignment, the defendant contends that the trial court erred in admitting statements given by the defendant to Gerard Edwards. He contends the statements are inadmissible because Edwards was, in fact, an agent of the police, and their admission violated his Fifth Amendment right against self-incrimination by failing to give him a timely Miranda warning.

The United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), stated that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” The ruling of Miranda applies to statements taken during a custodial interrogation which the Court defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, supra at 444, 86 S.Ct. at 1612.

The rationale of Miranda is:

“[11] . . . that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity.” Miranda, supra, at 457, 86 S.Ct., at 1619.

Applying these principles to the case before us, we find that the statements given by the defendant were not the result of a custodial interrogation, and thus, he was not entitled to Miranda warnings.

Although it is apparent that at the time defendant made incriminating statements to Edwards that he was in custody, and although it is also a fact that Edwards, upon volunteering to the authorities to learn what he could from defendant became, in this sense, an agent of the state; nevertheless, absent from this factual setting are two salient facts which brought forth the necessity of the warnings prescribed in Miranda.

First, there was no interrogation of defendant by any figure of authority and second, there was no interrogation environment or atmosphere which in any way could be described as intimidating.

The case presented here is that of one friend misplacing confidential information with another who, in turn, used it to his own advantage. The misplacement of such confidence did not require the safeguards required by Miranda in custodial interrogation.

The defendant also maintains that the admission of these statements violated his right to counsel under the Sixth Amendment.

In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the United States Supreme Court found incriminating statements are, per se, involuntary if induced by officers or their agents from an accused after his indictment and while he is free on bail. In Massiah, an undercover agent surreptitiously listened to incriminating statements made by a defendant who had been indicted for federal narcotics violations, had retained counsel, had pleaded not guilty and had been released on bail. The Court in Massiah held that these statements were inadmissible because the defendant’s Sixth Amendment right to counsel was violated.

It is clear that a person’s right to counsel, under the Sixth and Fourteenth Amendments, attaches only at or after the time that adversary judicial proceedings have been initiated. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Here, the defendant, although arrested, had not yet been indicted and, under the rule of Massiah, his right to counsel had not yet attached at the time of his making the inculpatory statements.

Neither the defendant’s Fifth Amendment “right to remain silent” nor his Sixth Amendment “right to counsel” were violated. The defendant simply chose the wrong confidant.

For these reasons, the assignment is without merit.

Assignments of Error Numbers 6 and 7

Error is alleged in the admission of contradictory statements made by defendant during the investigation of the crime and introduced in evidence before defendant testified. It is argued that this amounted to impeachment of the defendant, who did not testify at trial.

Officer Venezia testified that during the investigation, details of the offense were not released to the news media. Statements by defendant, on tape, were introduced to show defendant’s knowledge of unreleased facts and the motive for the crime. Defendant’s August 4, 1977 statement professed knowledge acquired from Jean Gibson who, on the date of arrest, was in possession of the murder weapon. Defendant stated that Gibson related her shooting the victim with the gun she had .borrowed from defendant the day of the crime. On information given by Gibson, defendant named the street on which the victim was accosted; her being taken to her car and driven to the murder scene; a description of the victim’s automobile; a description of the car used to follow the victim; the manner of operation of the car from which the fatal shots were fired; the subsequent movements of the murder vehicle; the items of jewelry taken; the amount of money involved; and the identification of a particular ring taken from the victim and shown him by Gibson. The state offered the statements as evidence from which the jury might reasonably infer such detailed information could not have been provided except by one present at the scene of the crime.

The state also introduced a statement made by defendant on August 9, 1977 after defendant was advised that Venezia had been given certain information by Jean Gibson and also following defendant’s formal arrest. In this statement, defendant denied any knowledge of the crime and added that Jerome West had defendant’s gun on the date of the offense in question.

We find no merit in defendant’s argument that introduction of the statements amounted to impeachment of defendant who did not testify at trial. The statements were admissible as proof of the extent of defendant’s knowledge of the crime. The August 9, 1977 statement indicates only defendant’s reluctance to elaborate further on the events concerning the crime or his desire to remain silent. At best, it is an exculpatory statement which the state may introduce or withhold. In State v. Guillory, 373 So.2d 133 (La.1979), we upheld the state’s refusal to introduce such a statement before the accused testified and declined to allow the accused to introduce the statement on the ground that to do so would bring his statement before the jury without subjecting him to cross-examination with respect thereto.

Impeachment of an accused does not occur until the accused testifies. La.R.S. 15:462, 486, 493. When introduced in presentation of the state’s case in chief, inconsistent statements, whether inculpatory or exculpatory, are not subject to procedural rules governing impeachment of witnesses. State v. McGraw, 366 So.2d 1278 (La.1979); State v. Paternostro, 219 La. 563, 53 So.2d 673 (1951).

This assignment lacks merit.

Assignment of Error Number 8

Error is urged in the admission of the August 4, 1977 taped statement without admitting the August 3, 1977 taped statement which it supplanted and replaced.

Officer Venezia explained that the statement taped about 12:30 a. m., August 4, 1977 was recorded on the same cassette used to record defendant’s statement given a few hours earlier at about 8:30 p. m., August 3,1977. After listening to the first statement, it proved to be of poor quality, and since no other cassette was available, he took the second statement by using the cassette over again, thus erasing the first statement. He added that the second statement was essentially the same as the first with one exception. In the first statement, defendant selected a ring taken from the murder victim from among several rings shown him. At the retaping, defendant merely confirmed that a certain ring shown him was the one he had previously identified.

Every confession, admission or declaration sought to be used against any one must be used in its entirety to afford the affected party the benefit of any exculpation or explanation the entire statement may afford. La.R.S. 15:450.

The rule that confessions or statements of an accused must be used in their entirety applies also to declarations made at one time or having some connection with each other. State v. Guillory, supra; State v. Cardinale, 251 La. 827, 206 So.2d 510 (1968). While the recordings in question were not made at the same time, they were in some measure connected.

Our jurisprudence holds that to satisfy the requirements of 15:450, supra, if suffices that the substance of the statement be shown. State v. Marmillion, 339 So.2d 788 (La.1976); State v. Domino, 234 La. 950, 102 So.2d 227 (1958); State v. Terrell, 175 La. 758, 144 So. 488 (1932). Venezia’s testimony fulfills this requirement.

Defendant’s alternative contention that the best evidence rule mandates production of the August 2, 1977 tape, is also without merit. It was shown why the tape was not available. Absent contrary proof of a showing of bad faith on the part of the state, Officer Venezia’s testimony as to the content of the first statement was all that was required. State v. Marmillion, supra; State v. Prickett, 305 So.2d 509 (La.1974).

Assignment of Error Number 15

By this assignment, the defendant contends that the trial court erred in denying him a new trial. During the trial on the merits, Edwards testified as to certain statements the defendant had made to him. At the hearing on the motion for a new trial, Edwards recanted his testimony and stated that all of his prior statements were false. This Court has consistently held that the trial court is accorded considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its ruling will be disturbed on appeal only when there is a clear showing of an abuse of discretion. State v. Williams, 343 So.2d 1026 (La.1977). The defendant has made no such showing.

It is well-established that recantations of trial testimony should be looked upon with the utmost suspicion. State v. Tyler, 342 So.2d 574 (La.1977); State v. Linkletter, 345 So.2d 452 (La.1977). Thus, the trial court did not err in refusing to grant a new trial based on Edwards’s recantation.

The assignment is without merit.

Assignments of Error Numbers 8 and 4

By these assignments, the defendant contends that his conviction for first degree murder violated the meaningful appellate review requirement of Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The defendant argues that the infirmity in the Roberts statute was that the jury might choose the lesser offense regardless of the facts. He argues that in his situation, there was the additional problem that the jury would, through Louisiana’s principal statute, R.S. 14:24, elevate evidence which could only sustain a second degree murder conviction to a conviction involving death.

In Roberts, the United States Supreme Court found that the determination of whether the death penalty was to be imposed under the Louisiana statutory scheme was not suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

In doing so, the Court noted:

“Under the current Louisiana system, however, every jury in a First Degree murder case is instructed on the crimes of Seco, 1 Degree murder and Manslaughter and permitted to consider those verdicts even if there is not a scintilla of evidence to support the lesser verdicts. See La. Code Crim.Proc.Ann., arts. 809, 814 (Supp.1975). And if a lesser verdict is returned, it is treated as an acquittal of all greater charges. See La. Code Crim. Proc.Ann., art. 598 (Supp.1975). This responsive verdict procedure not only lacks standards to guide the jury in selecting among first degree murderers, but it plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate. There is an element of capriciousness in making the jurors’ power to avoid the death penalty dependent on their willingness to accept this invitation to disregard the trial judge’s instructions. The Louisiana procedure neither provides standards to channel jury judgments nor permits review to check the arbitrary exercise of the capital jury’s de facto sentencing discretion.”

Roberts, thus, relates to the arbitrary and capricious imposition of the death penalty.

This rationale is not applicable to the defendant’s situation. He was neither sentenced to death nor found guilty of a lesser included offense.

For this reason, the assignments are without merit.

Assignment of Error Number 5

By this assignment, the defendant contends that the trial court erred in refusing to grant the defendant’s motion to quash the jury venire. The defendant was tried on May 4,1978, a day after the City of New Orleans experienced unexpected and quite severe flooding. The Orleans Parish District Attorney’s Office issued news releases informing prospective jurors that they need not report to jury duty on the morning following the flood. As a consequence, a number of prospective jurors failed to appear. The defendant argues that a jury selected from only those jurors who did appear violated his right to a jury drawn from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). Recently, the United States Supreme Court, in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), addressed the issue of jury venire composition. The Court therein established the criteria necessary to show a violation as follows:

“In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in ve-nires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” 99 S.Ct. at 668.

The defendant has shown none of these. The class outlined by the defendant is vague and ill-defined. Further, there is no showing of systematic exclusion of a group. For these reasons, the assignment is without merit.

The conviction and sentence of defendant are affirmed.

AFFIRMED.

CALOGERO, J., concurs with reasons.

LANDRY, J., ad hoc, dissents and assigns reasons.

DENNIS, J., dissents with reasons.

CALOGERO, Justice,

concurring.

I concur. Where a defendant is not subjected to police custodial interrogation, Miranda is inapplicable.

LANDRY, Justice Ad Hoc,

dissenting.

I respectfully dissent from the majority holding that admission of statements given by defendant McDonald to Gerard Edwards did not violate the Miranda mandate applicable to custodial interrogation.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) holds that the prosecution may not use statements whether exculpatory or inculpatory, stemming from custodial interrogation unless it is shown that safeguards effective to secure the privilege against self-incrimination were employed.

Custodial interrogation is defined in Miranda, supra, as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.

One who is incarcerated is in custody for purposes of interrogation. Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968).

In Miller v. California, 392 U.S. 616, 88 S.Ct. 2258, 20 L.Ed.2d 1332 (1968), four members of the Court dissented from dismissal of certiorari as having been improvidently granted; the dissenters being of the view that petitioner’s constitutional rights were violated by the planting of an undercover agent in petitioner’s cell to obtain a confession.

Henry v. United States, 590 F.2d 544 (4th Cir. 1978), involved admissibility of inculpa-tory remarks made by a prisoner to a paid informer. Citing the dissent in Miller v. California, Henry, supra, held that an accused’s right to counsel was violated by the placing of a paid informer in the accused’s cell. In holding the accused’s statements inadmissible under the circumstances the court in Henry, supra, noted:

“An undisclosed government agent may effectively ‘interrogate’ a defendant by simply engaging the defendant in a general conversation and if the response is a confession of guilt, the agent need not make any further more pointed inquiries. Miller v. California, 392 U.S. 616, 88 S.Ct. 2258, 20 L.Ed.2d 1332 (1968) (dissent from dismissal of certiorari).
In the instant case, even if we assume that Nichols obeyed his instructions not to interrogate Henry about the bank robbery, Nichols did testify that he engaged in conversation with his cellmate Henry. If, by association, by general conversation, or both, Henry developed sufficient confidence in Nichols that Henry bared his incriminating secrets to an undisclosed paid informer, we think that there was interrogation within the meaning of Brewer. We hold therefore that Henry’s right to counsel was violated when the government proved incriminating statements made to his cellmate after his indictment and in the absence of counsel.”

Admittedly, Henry, supra, differs from the case at bar in that in Henry, the accused, was under indictment. Here, it is significant, in my opinion, that the defendant had been expressly informed by the police that he was regarded as a perpetrator of the homicide.

In my judgment it is a violation of an accused’s Miranda rights for the police to accomplish by subterfuge and trickery, in the form of a planted paid informer, that which the police cannot do under color of law. In this instance, the informer was not compensated in material form, but in the form of a promise of leniency and the dismissal of criminal charges pending against him. He was acting with the consent of, pursuant to the authority of, and subject to the direction and supervision of the police. He was in law and in fact an agent of the police.

In my judgment the statements made to the informer were tainted and should not be admissible in evidence against him.

I respectfully dissent.

DENNIS, Justice,

dissenting.

I respectfully dissent for the reasons assigned by Landry, J.

       Chief Judge Paul B. Landry, Jr. participated in this decision as Associate Justice Ad Hoc.