author: LANDRY, Justice ad hoc. DENNIS, J.,

text:
    STATE of Louisiana v. Lloyd LANDRY (two cases).
    Nos. 65542, 65780.
    Supreme Court of Louisiana.
    March 3, 1980.

      Benjamin Vega, Jr., Donaldsonville, for defendant-appellant in No. 65542 and for defendant-relator in No. 65780.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert Talbot, Dist. Atty., Malcolm J. Dugas, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee in No. 65542 and for defendant-respondent in No. 65780.
   LANDRY, Justice ad hoc.

Lloyd Landry (defendant) seeks reversal of his bench conviction of aggravated assault (La.R.S. 14:37) and sentence to pay a fine of $100.00 and costs or thirty days in jail, both by appeal and application to this court for supervisory writs. Considering the sentence imposed, we treat this matter as being before us on the supervisory writs granted herein rather than on appeal, La. Const.1974, Art. 5, Section 5(D)(2), and reverse on finding that defendant acted in justifiable self defense.

The charge in this ease stems from a student-teacher altercation which occurred on the premises of Donaldsonville High School, Donaldsonville, Louisiana during the lunch hour on September 21, 1978. It involved Ray Jacob, a sixteen year old male student and defendant, a male adult teacher. Defendant was on duty in the boys’ restroom to prevent smoking when an argument commenced between Jacob and defendant. The evidence is conflicting as to whether Jacob pushed defendant during the argument. The altercation proceeded into an adjacent hallway where a group of students quickly gathered. Defendant requested that one of the students summon the Assistant Principal, Emile Chiquette. Shortly thereafter Chiquette appeared on the scene and stood between Jacob and defendant. Jacob removed his belt and wrapped it around his hand whereupon Chi-quette restrained Jacob and suggested that defendant leave. Defendant left. Chi-quette then instructed Jacob to report to the principal’s office but Jacob refused and left the building instead.

Jacob returned shortly thereafter carrying a piece of two by four approximately 30 inches in length. Whether he obtained the board on or off campus is not clear from, the record. Finding defendant, Jacob inquired whether defendant still wanted to fight. Defendant replied that he would not let Jacob hit him with the board. A group of students quickly gathered and all but surrounded Jacob and defendant. Jacob admits swinging the club at defendant who pulled back to avoid being struck. Whether or not defendant was struck is a matter in dispute. Jacob denies that defendant was struck. Defendant maintains he was struck on the finger inflicting injuries for which he sought medical attention on one occasion. After the first attempted blow, defendant turned and ran, breaking his way through the ring of students and overturning chairs behind him to impede Jacob’s pursuit. Jacob followed and swung the club at defendant at least one more time, striking a table instead of hitting defendant. Defendant proceeded directly to the teacher’s parking lot near the school building. He procured a gun which he kept in his car, walked to the front of his car (to have his vehicle behind him to protect himself from the rear), and stood facing the school building. Shortly thereafter Jacob appeared walking in the general direction of the parking lot, still carrying the board.

At this juncture the prosecution and defense versions of what ensued, varies considerably. Jacob and two alleged eyewitnesses, Tyronne Madison and Ronald Price, testified in essence that Jacob was attempting to leave the school ground via the main gate which was in the general vicinity of where Jacob was heading. Jacob stated he was not looking for defendant and that he was proceeding toward the gate when he suddenly and unexpectedly encountered defendant. Jacob added that defendant cut across his path, pointed the gun at Jacob and told him to run because defendant was going to kill him.

Ronald Price, student, testified, that after the inside altercation, he went outside and was standing near Mrs. Violet March- and, Principal and Emile Chiquette, Assistant Principal. He spoke with the Principal and Assistant Principal while observing Jacob proceed in the general direction of the main gate and teacher parking lot. Although he was not near enough to hear what was said, he saw defendant point a gun at Jacob while Jacob was stopped about 25 or 30 feet away from defendant.

Tyronne Madison, student, followed Jacob out of the building after the initial confrontation. He was walking a few feet behind Jacob. When the outside confrontation occurred, he was approximately 10 to 20 feet distant from Jacob. He heard conversation between Jacob and defendant but could not make out what was said. He did not see defendant point the gun at Jacob but did see defendant waving the gun around in the air.

Defendant denied pointing the gun at Jacob or threatening him in any manner. He was standing in front of his car in' anticipation of a group of students coming out after him. He was also looking toward the school to determine if it were expedient to re-enter the building to see about his wife who also taught at the school. He added that his wife was present during part of the initial confrontation inside the building and that he had requested her to sum- ■ mon help. His wife was one of his principal concerns at that time. They had a mutual agreement that in the event of any emergency neither would leave the school without the other. He had no intention of leaving without his wife. Defendant denied threatening Jacob verbally or pointing the gun at him in any manner. He remained standing in front of his car holding the gun down by his side. When Jacob was about 30 feet away, Jacob must have seen the gun because Jacob stopped, reversed direction and went back toward the school. According to defendant, although the gate was in the general area, Jacob was not proceeding toward the gate but on a line which would have taken him directly to defendant. He added that no words were spoken between them. Upon arrival of the police a short time thereafter defendant surrendered the weapon, a loaded automatic pistol, to an officer.

Assignment Number 1

Error is alleged in the trial court’s refusal to require the prosecution to furnish defendant a reputedly exculpatory statement given by Jacob in the investigation of aggravated assault charges lodged against Jacob for his assault on defendant. Jacob was convicted of that offense. Request for the statement was made prior to trial by discovery motion pursuant to La.C.Cr.P. Articles 718 and 719. The motion was denied on the state showing partial disclosure but refusing full disclosure on the ground that the statement contained no exculpatory matter and did not pertain to defendant’s case. It appears the state read defense counsel part of the statement but declined to permit defense counsel to view or copy the document.

At trial defense counsel renewed his disclosure request. The trial judge ruled he would decide the issue should the state attempt to introduce the statement in full. The state then presented the statement to the trial judge for the judge to determine whether it made reference to Jacob having first pushed defendant immediately before attempting to hit defendant the first time. The trial court incorrectly concluded the statement made no such reference and declined to require the state to produce the document. We find that in so holding the trial court erred, but, under the circumstances of this case, the error was harmless.

La.C.Cr.P. Article 718, provides that on motion of the defense the state shall permit inspection, copying and examination of books, papers and documents which are: (1) material and relevant to the issue of guilt or punishment and which are favorable to the defense.

La.C.Cr.P. Article 719 requires that on defense motion, the state shall permit the defense to copy, photograph or otherwise reproduce reports or physical or mental examinations and scientific tests or experiments made in or material to defendant’s case and in possession, custody or control of the state and intended for use at trial. Exculpatory evidence is required to be produced on defense request even though it is not intended for trial use.

La.C.Cr.P. Article 723 recites that except as otherwise provided in La.C.Cr.P. Articles 716, 718, 721 and 722, the prosecution is not required to furnish statements by witnesses or prospective witnesses other than defendants.

We find no merit in the state’s contention that Article 718(1), supra, is inapplicable to statements given in another case. The article does not so restrict the availability to defense of exculpatory statements. Moreover, Article 719, supra, provides that exculpatory material must be furnished even though the state does not intend to use it at trial. Consequently, we interpret Article 718(1), supra, to mean that any exculpatory statement must be furnished defendant on request, even though made by a witness other than defendant.

Our opinion in this regard is fortified by the recent decision of the United States Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Agurs, supra, declared that for purposes of an accused’s right to fair trial, under the due process clause of the Fourteenth Amendment with respect to state trials, a prosecutor has a constitutional obligation to volunteer exculpatory material to the defense. The decision also holds that this duty is not breached unless the omission is of sufficient gravity to result in denial of defendant’s right to a fair trial. It also decreed the standards of materiality to be as follows:

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

Applying Agurs, supra, we note that the only favorable matter contained in the requested statement was Jacob’s admission, contrary to his testimony at trial, that Jacob pushed defendant before attempting the first blow. It is significant that the trial judge offered to permit this part of the statement to be introduced for impeachment purposes, but defense counsel declined and argued its admissibility in proof of the tendered defense of self-defense.

We deem the matter inconsequential in that the statement is only cumulative evidence of Jacob’s aggression which is otherwise overwhelmingly established by the record in that Jacob admitted he swung the board at defendant and pursued defendant inside the building with the intent to strike defendant again. Whether Jacob first pushed defendant before striking the first blow is insufficient to create a reasonable doubt that did not otherwise exist concerning defendant’s guilt or alleged justification by way of self-defense.

We find this assignment lacking in merit.

Assignment of error Number 2

It is asserted that there is a total lack of evidence to prove the essential elements of assault which is defined in LSA-R.S. 14:36 as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery”. LSA-R.S. 14:18 defines aggravated assault as an assault committed with a dangerous weapon.

In arguing the lack of evidence defendant relies upon his own denial of threats directed at Jacob or his pointing or aiming a gun at the prosecuting witness. Defendant also relies on the testimony of Mrs. Marchand and Chiquette, both of whom testified that when they went outside they saw no threatening actions on the part of defendant and neither saw Price or Madison outside the building. Defendant also notes conflict in the statements of Madison and Price and also that Price was the only witness other than Jacob who stated that defendant pointed the gun at Jacob. It is contended in effect that Jacob, Price and Madison were thoroughly impeached consequently there is no evidence to support the charge.

La.Const.1974, Article 5, Sec. 5, limits review of this court in criminal cases to questions of law only. Pursuant thereto this court has consistently refused to review sufficiency of the evidence in criminal cases except where there is a total lack of evidence, where circumstance presents an issue of law. La.Const.1974, Article 5, Sec. 5; State v. Winzer, 354 So.2d 533 (La.1978); State v. Hatter, 350 So.2d 149 (La.1977).

Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979) appears to dictate a change in our former jurisprudence concerning the scope of review in a criminal matter. Jackson, supra, held that the due process clause of the United States Constitution prohibits conviction of crime except on proof sufficient to convince the trier of fact of the existence of every essential element of the offense beyond a reasonable doubt. Under Jackson, supra, it seems the test may no longer be whether there is some evidence of guilt. Reversal of a conviction is mandated where the proof of guilt is such that no rational trier of fact could find guilt beyond a reasonable doubt.

Applying Jackson, supra, herein, we find that although the evidence is conflicting on the crucial issues of threats by defendant and defendant’s pointing or aiming the gun at Jacob, the record, as a whole convinces us that there is evidence in the record to support a rational trier of fact returning a verdict of guilty beyond a reasonable doubt.

Assignment Number 3

Self-defense

Defendant urges the general justification provisions of LSA-R.S. 14:18 to the effect that justifiable conduct, otherwise criminal, is a defense to prosecution for crime based on such conduct. It also provides that justification can be claimed inter alia: (7) when the offender’s conduct is in defense of a person or of property under circumstances set forth in LSA-R.S. 14:19-22, inclusive.

Section 19, supra, pertinently states that force or violence on the person of another is justifiable to prevent a forcible offense or trespass against property in one’s lawful possession; provided the force or violence used is reasonable and apparently necessary to prevent such offense; and, provided further the force or violence used does not result in homicide.

Justification requires a dual inquiry. First, was the force used reasonable under the circumstances, an objective inquiry. Secondly, was the force apparently necessary to prevent the imminent offense, a subjective inquiry. State v. Ford, 368 So.2d 1074 (La.1979).

As regards the degree of proof required to establish an affirmative defense in a criminal matter, this court, in a sharply divided opinion, recently held that the no evidence test will not henceforth limit criminal appellate review in those cases where the defense bears the burden of proving an affirmative defense. State v. Poree, - So.2d - (La.1979). Poree, supra, which involved the defense of insanity, held that an affirmative defense need be established only by a preponderance of evidence, not beyond a reasonable doubt as is incumbent on the state to prove defendant’s guilt.

Applying State v. Ford, supra, and Poree, supra, we find defendant has successfully met the objective inquiry of whether the force used was reasonable under the circumstances. It is undisputed that Jacob was the aggressor. He struck out at defendant inside the school with an instrument clearly capable of inflicting serious bodily harm. Jacob then pursued defendant as defendant fled for his safety. In the pursuit, Jacob again attempted to strike defendant as defendant was in the act of escaping.

The time element between defendant’s flight from the building, with Jacob in pursuit, and the confrontation later near the parking lot is a most important factor relative to defendant’s plea of self-defense. Although there is dispute concerning the interval between Jacob’s first leaving the building and subsequently returning with the club, there is little or no dispute concerning the time element and sequence of events following defendant’s flight from the building to the parking lot. The record clearly preponderates to the effect that defendant went immediately to his vehicle and obtained the gun he kept in the car. He then, at once, proceeded to a point about 25 feet from the front of his automobile and observed Jacob approaching in defendant’s general direction (if not directly toward defendant), still carrying the board with which Jacob mounted the initial attack on defendant a very short time previously. In this regard the record establishes beyond doubt that only three to five minutes, at most, transpired between the time defendant fled the building and the outside encounter occurred.

We find it was subjectively reasonable for defendant to conclude that Jacob was intent upon continuing the prior attack. Having been just subjected to a violent armed assault, it was reasonable for defendant, upon seeing Jacob coming in defendant’s direction still carrying the weapon, to conclude that Jacob’s purpose in approaching was to carry out his previously demonstrated intent to inflict serious bodily harm upon defendant. We hold that defendant had ample reason to fear imminent serious personal harm at the hands of Jacob.

We also find that defendant’s brandishing the gun at Jacob and threatening Jacob with harm, without actually firing the weapon, was use of reasonable force. Unquestionably, Jacob was the aggressor from the onset of the entire incident. Armed with the club, Jacob was capable of inflicting serious if not fatal injuries on defendant’s person. Jacob’s persistence and the degree of hostility displayed toward defendant was reasonable cause for defendant to believe that unless a considerable deterring force was employed, defendant could expect a continued armed assault on defendant’s person.

We conclude that defendant has established the affirmative defense of legal justification (self-defense) with the degree of certainty required.

Accordingly, defendant’s conviction and sentence are reversed and set aside and the charge against defendant dismissed.

DENNIS, J.,

dissents, being of the opinion that the evidence adequately supports finding that the defendant was the ultimate aggressor and guilty of aggravated assault.

MARCUS, J., dissents.

      . The pertinent part of Jacob’s statement given officers in the investigation of the charge against Jacob, is as follows:
      “I came out of third hour class and I went to the bathroom. Mr. Landry was in the bathroom and I asked him did he need anything to tell me and he said ‘no.’ He said if he had anything to tell me, he would tell me and I told him ok, and said I’ll stay out of his way and he’ll stay out mine. He also said if I would get in his way he would move me out the way and I told him he wasn’t going to do that, then he pushed me. Then after that I pushed him, then he told me to go to the office, then I told him I came in the bathroom for to use, then he grab me again then, he pushed the door open, holding me by my arm, then he told one of the boys standing there to call the principal and the boy called the principal and the principal came in there, and he stood between us then he tried to swing at me again, but he couldn’t because the principal was standing there, then after that I left off the campus and picked up a piece of wood, then went back to the school. I pushed him first, and then swung at him with the wood and then he ran and I was going for the leave off the campus, then he stopped me with a gun and I stopped and then he told me I better run nigger, cause I’m going to kill you, then I ran back toward the office, where alot of people was standing, then thats when the police and my mother came, then after they took me to the police station.”


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Napoleon HARPER.
    No. 65554.
    Supreme Court of Louisiana.
    March 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, First Asst. Dist. Atty., for plain tiff-appel-lee.
    Henry G. Hobbs, Minder, for defendant-appellant.
   DIXON, Justice.

The defendant was arrested on July 11, 1978 and subsequently charged by bill of information with four counts of simple burglary in violation of R.S. 14:62. On July 18, 1978 the defendant appeared in court and declared that he was indigent. The court referred him to the Twenty-Sixth Judicial District Indigent Defender Board for representation. Attorneys from the board represented defendant at his arraignment and at a preliminary examination at which the state showed probable cause to hold the defendant. The defendant then began to file a series of motions on his own behalf. On March 13, 1979 the defendant stated in open court that he did not wish the board to continue representing him and that he wished to have counsel supplied by the Civil Liberties Union. The court relieved the board of its duties, and instructed the defendant to either secure representation or to represent himself. The defendant thereupon declared he did not wish for “pro per” status. When the court understood that the defendant did not wish to represent himself, it noted that it could not appoint the Civil Liberties Union to represent the defendant. The court instructed the defendant that he must either secure his own counsel, defend himself, or be content with appointed counsel. The court instructed Mr. McConnell of the indigent defender board to be present at trial to give the defendant whatever assistance he desired. The defendant objected. Trial was then set for March 19, 1979.

On that date, defendant appeared for trial without having obtained other counsel. Before trial began, the court informed defendant he could either represent himself or be represented by Mr. McConnell. The defendant replied, “I don’t want either.” Mr. McConnell then filed a motion for a continuance on the grounds that the defendant had not had time to prepare to defend himself and that the defendant had an application for writs pending before this court. The court denied the motion. The court then began the voir dire examination of prospective jurors. During that examination the defendant continued to state that he did not wish to be represented by Mr. McConnell. He was equally vehement in declaring that he did not want to proceed “pro per.” The court noted that it was under no obligation to appoint whatever attorney the defendant might request. The defendant responded by charging that Mr. McConnell had been implicated in a conspiracy, and he did not desire his assistance. The court again instructed the defendant that his only alternatives were to accept representation by Mr. McConnell or to represent himself. The defendant again declared that he would not accept either alternative.

The trial then proceeded to its logical conclusion. During its course the defendant made a number of objections, none of which showed much appreciation of the legal issues involved. Mr. McConnell declined any opportunity to participate in the trial, stating that he had been advised by the defendant that his assistance was not wanted and that he would therefore refrain from involving himself in the proceedings in order to avoid prejudicing the defendant’s case in any way. At one point he requested permission to withdraw from the courtroom, but the trial court ordered him to remain and render any assistance that the defendant might request.

The jury found the defendant guilty of four counts of simple burglary. He was sentenced to four three year sentences, two of which were to run concurrently with the other two. Appeal was taken by attorneys from the indigent defender board, but other counsel was appointed for the defendant to pursue the appeal.

By assignment of error the defendant argues that the trial court deprived him of his constitutional right to the assistance of counsel by denying the motion for a continuance and requiring him to go to trial under the circumstances set forth above. In Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530, 538 (1972), the United States Supreme Court stated:

“We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”

This court has adopted and followed that rule. State v. Strange, 308 So.2d 795 (La. 1975); City of Monroe v. Fincher, 305 So.2d 108 (La.1974); State v. Moore, 295 So.2d 161 (La.1974); State v. Coody, 275 So.2d 773 (La.1973). The defendant argues that under the language quoted his conviction must be reversed.

The question presented is whether the trial court erred in presenting the defendant with a choice of accepting the assistance of appointed counsel or proceeding pro se, and in then forcing the defendant to go to trial after he rejected both alternatives.

As a general proposition a person accused in a criminal trial has the right to counsel of his choice. State v. Leggett, 363 So.2d 434 (La.1978); State v. Mackie, 352 So.2d 1297 (La.1977); State v. Anthony, 347 So.2d 483 (La.1977). If a defendant is indigent he has the right to court appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, supra; State v. Adams, 369 So.2d 1327 (La.1979); City of Baton Rouge v. Dees, 363 So.2d 530 (La.1978). An indigent defendant does not have the right to have a particular attorney appointed to represent him. State v. Rideau, 278 So.2d 100 (La.1973). An indigent’s right to choose his counsel only extends so far as to allow the accused to retain the attorney of his choice, if he can manage to do so, but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. State v. Jones, 376 So.2d 125 (La.1979); State v. Leggett, supra; State v. Mackie, supra.

Because an indigent accused does not have the right to pick the attorney who is appointed to represent him, the trial court did not err in insisting that the defendant, if he wished appointed representation, accept the assistance of Mr. McConnell. There was no indication that that attorney was incompetent or unprepared or had a conflict of interest that would render him unable to put on an adequate defense on behalf of the defendant. In the absence of any sound reasons for the disqualification of the appointed attorney, the court did not err in declining to appoint another attorney to represent the defendant. Since the court had no duty to appoint another attorney to represent the defendant, it follows that the court did not err in giving the defendant the choice of either accepting the assistance of appointed counsel or proceeding pro se. See Fillipini v. Ristaino, 585 F.2d 1163 (1st Cir. 1978); Maynard v. Meachum, 545 F.2d 273 (1st Cir. 1976); United States ex rel. Testamark v. Vincent, 496 F.2d 641 (2d Cir. 1974).

Moreover, we believe that the defendant’s refusal without good cause to proceed with able appointed counsel amounted to a waiver of his right to the assistance of counsel. See Boyden v. United States, 427 F.2d 895 (9th Cir. 1970), certiorari denied 400 U.S. 848, 91 S.Ct. 91, 27 L.Ed.2d 86 (1970); Maynard v. Meachum, supra; United States ex rel. Testamark v. Vincent, supra. The defendant at no time specifically requested that he be allowed to proceed pro se. In fact, he repeatedly denied that it was his wish to do so, and that he merely wished to have counsel more to his liking. In City of Baton Rouge v. Dees, supra, and State v. McGowan, 359 So.2d 972 (La.1978), we recognized, however, that a defendant could waive his right to the assistance of counsel by his actions even if his verbal protestations were to the contrary.

“A waiver is ordinarily an intentional abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right of counsel must depend, in each case, upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938).

Expressed more colloquially, it must be determined if the defendant made his decision to forego his rights “with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942). There is no particular formula which must be followed by the trial court in determining if the defendant has waived his rights. See, e. g., Maynard v. Meachum, supra. A defendant need not have the skill and knowledge of a lawyer in making his decision, but he must be aware of the dangers and disadvantages of self representation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

In this case there can be no doubt that the defendant knew of his right to the assistance of court appointed counsel. Such, appointed counsel did in fact assist the defendant in preliminary matters. Counsel was available to the defendant at trial and the court made it clear to the defendant that Mr. McConnell was present at trial in order to give him whatever assistance he requested. The defendant chose to forego that assistance. After a careful examination of the record we conclude that the defendant’s decision was made with the knowledge that appointed counsel was readily available to him. The refusal of the defendant to accept the assistance of appointed counsel was a knowing and voluntary waiver of his right to the assistance of counsel.

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

       Chief Judge PAUL B. LANDRY, Retired, participated in this decision as an Associate Justice Ad Hoc.

      . The defendant stated as his reason for seeking to relieve the indigent defender board, “They haven’t done anything for me. I don’t want them.” It appears from the record, however, that, in addition to representing the defendant at his arraignment and preliminary examination, the board furnished the defendant with the assistance of counsel who filed discovery motions on behalf of defendant and consulted with defendant about discovery motions filed by the state. Mr. McConnell of the indigent defender board stated that the defendant was dissatisfied with his representation because of the defendant’s mistaken belief that his counsel should have secured his release from jail because the defendant had not been arraigned within seventy-two hours of his arrest.

      . It is not clear to what conspiracy the defendant was referring. There is no evidence in the record of any conspiracy, and the defendant made no specific allegations as to any conspiracy. The defendant did at one point state that he thought that there was an attempt to railroad him, but again there is no indication in the record that there was any such attempt.

      . The Sixth Amendment to the Federal Constitution provides:
      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.”
      Article 1, Section 13 of the Louisiana Constitution provides:
      “When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and course of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”


author:
MARCUS, Justice.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. Sidney J. SIMMS.
    No. 65582.
    Supreme Court of Louisiana.
    March 3, 1980.

      Robert Glass, Glass & Reed, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Sidney J. Simms was charged by bill of information with possession of heroin in violation of La.R.S. 40:966. After trial by jury, he was found guilty. After conviction, but prior to sentencing, the district attorney filed an information accusing defendant of a previous felony conviction pursuant to La.R.S. 15:529.1 (Habitual Offender Law). At first, defendant entered a plea of “not guilty,” but at a subsequent hearing, after admitting the allegation of the information, the trial court found him to be an habitual offender and sentenced him to serve nineteen years at hard labor. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to suppress the heroin seized from him. He argues that the seizure of the heroin was a direct result of a previous illegal arrest for giving a false report to police officers relative to the commission of a crime.

According to testimony adduced at a suppression hearing prior to trial, a dispute arose as to the amount of money defendant owed another man in a dice game that took place at the Club Sorrento in New Orleans. Defendant’s refusal to pay the money angered the man who then left the barroom. As defendant exited the bar some five minutes later, the man with whom he had been arguing began shooting at him from across the street. Upon hearing the shots, bartender August Bullette testified he locked the doors to his bar and telephoned the police.

Police officers Ross Mocklin and Richard Drouant responded to the call and were flagged down at the scene by defendant and two companions. Officer Mocklin testified that defendant reported that one Jessie Williams of 4305 Freret Street, a man of about twenty-six years of age and with substantial facial hair, had fired several shots at him. Defendant and his companions stated that they had known Jessie Williams prior to that evening. However, defendant testified that he did not give the officers the name “Jessie” Williams but told them that a “Lionel” Williams had fired the shots.

Several other police officers arrived at the scene, but further investigation disclosed no positive evidence of a shooting. Patrons at the bar refused to cooperate and no one would verify that a shooting had taken place. Meanwhile, a third officer informed Mocklin and Drouant that the alleged assailant, Jessie Williams, had been shot and stabbed three days earlier and had been sent to Charity Hospital. The officers verified the address of Jessie Williams given by defendant with the police department computer and learned from Charity Hospital that Williams was still confined there.

The officers then entered the bar and were told by the bartender that no shots had been fired; he also denied calling the police. The officers then arrested him for an expired permit on his jukebox in an apparent effort to close down the bar and disperse the crowd described by Mocklin as inquisitive and hostile.

Doubting whether a shooting incident had taken place and supposing that defendant and his two companions had purposely misled the police by giving them the name of a man they knew could not have committed the alleged shooting, the officers placed all three under arrest for giving a false report to the police relative to the commission of a crime. Defendant, his two companions, and the bartender were taken to the police station and, while defendant was exiting from the patrol car, he was observed attempting to conceal an aluminum foil packet which later proved to contain heroin.

La.R.S. 14:59 provides in pertinent part:

Criminal mischief is the intentional performance of any of the following acts:
(5) Giving of any false report or complaint to a sheriff, or his deputies, or to any officer of the law relative to the commission of, or an attempt to commit, a crime;

Probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable information are sufficient to justify a man of average caution into belief that the person to be arrested has committed or is committing an offense. State v. Peebles, 376 So.2d 149 (La.1979); State v. Mendoza, 376 So.2d 139 (La.1979); State v. Hunter, 375 So.2d 99 (La.1979).

In the instant case, the existence of probable cause to arrest defendant turns on a finding of whether Officer Mocklin’s testimony was more credible than that of defendant.

After reviewing the record, we find as did the trial judge that Officer Mocklin’s testimony was more credible. According to the facts as related by Officer Mocklin, no one other than defendant and his two companions would verify that a shooting had taken place. In addition, the officers were flagged down by defendant and his two companions and were told the shots had been fired by a man who the police knew could not have fired the shots. The accuracy with which defendant described the man apparently led the police to believe that they were either fabricating the entire incident to frame Jessie Williams, or had flagged them down and given them the wrong name in an attempt to conceal the identity of the real person responsible for the shooting.

Under the circumstances, we find that it was reasonable for the officers to have concluded that defendant’s report relative to the shooting was false, as the possibility of criminal conduct was much greater than the possibility of innocent behavior. State v. Peebles, supra. Hence, we find that the trial judge did not err in concluding that the officers had probable cause to arrest defendant and in denying defendant’s motion to suppress.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge made improper comments during trial which had the effect of bolstering the credibility of an important state witness. He argues that his right to a fair trial was prejudiced as a result thereof.

Officer Richard Drouant testified to having seen defendant reach down in the waist of his pants, remove a small aluminum foil packet containing heroin and attempt to conceal it in the rear seat area of the patrol car. Upon further examination, Drouant testified that general police procedure required a search of the patrol car’s rear seat each time an officer began his duties. The following exchange took place during questioning by the assistant district attorney:

Q Officer, this packet of heroin wasn’t in the car then, was it?
A No, sir.
BY [DEFENSE COUNSEL]:
Object to leading.
BY THE COURT:
Well, he’s answered the question already.
BY [DEFENSE COUNSEL]:
I know, but—
BY THE COURT:
Well, he’s an expert on that particular thing. You can’t lead, or mislead an expert.
BY [DEFENSE COUNSEL]:
He hasn’t qualified as such.
BY THE COURT:
He’s seven years on the Police Department. That’s good enough.
BY [DEFENSE COUNSEL]:
I’d like to note an objection to the comment of the court.

Judicial comment on the facts or evidence in the presence of the jury is prohibited by • La.Code Crim.P. art. 772. However, this court has consistently held that remarks made by the trial judge in the jury’s presence giving reasons for his rulings on objections, for admitting or excluding evidence, or stating the purpose for which evidence is offered or admitted are not objectionable as comments or expression of an opinion provided that they are not unfair and prejudicial to the accused. State v. Young, 337 So.2d 1196 (La.1976), and cases cited therein.

In the instant case, the trial judge improperly referred to Officer Drouant as an expert in police procedures because the officer had never been offered as an expert. However, the testimony of Officer Drouant was proper as a matter within his personal knowledge. We do not consider that the comment by the judge, taken in the context in which it was made, i. e., the officer’s normal procedure of inspecting the rear seat of his patrol car, reflected on the credibility of the witness. Moreover, defendant’s subsequent cross-examination of the officer emphasized the officer’s inability to remember conducting a rear seat inspection on the night in question. Hence, we do not find that the trial judge’s remarks constituted reversible error.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge “improperly interfered with defense cross-examination of Officer Drouant, degrading the defense effort and defense counsel in front of the jury.”

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La.Code Crim.P. art. 841. A review of the record of defendant’s cross-examination of Officer Drouant reveals no objection based on the contentions raised in this assignment of error. Hence, the matter is not properly before us for review. In any event, we find no merit in the alleged contentions.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the prosecutor misstated the applicable law during rebuttal argument.

Defendant, his two companions, and the bartender were taken from where they were arrested to the police station in a patrol car. They were seated together in the rear seat of the vehicle; the testimony was conflicting as to their relative positions. The heroin in question was seized from defendant as he was attempting to conceal it in the rear seat of the car. The main thrust of defendant’s closing argument was that there were four people in the rear seat of the car and only one packet of heroin: “Was he [defendant] the one — if any of the' four did — any of the four.” In rebuttal, the prosecutor questioned why defendant had failed to call his companions to support his position. 'He argued that “if you have evidence under your control, and you don’t use it, the presumption of the law is, the reason you don’t use it, is because it wouldn’t have helped you.” Defendant objected. The trial judge instructed the jury: “The Court is going to give you the law at the end of the trial, and you pay attention to the law as I give it to you.”

The presumption of La.R.S. 15:432 does not arise if the witness is equally available to both the state and the defense, as in the instant case, for then the evidence is not “under the control of” either party. State v. Green, 244 La. 80, 150 So.2d 571 (1963), (overruled on other grounds); State v. Blackwell, 298 So.2d 798 (La.1973). See State v. Stickney, 167 La. 1050, 120 So. 853 (1929). Hence, the prosecutor improperly referred to the presumption. However, La.Code Crim.P. art. 774 permits argument based on the lack of evidence and allows the state in rebuttal to answer the argument of the defendant. We have frequently held that a reference to lack of evidence or the fact that the evidence is unrebutted or uncontradicted is permissible under art. 774. State v. Perkins, 374 So.2d 1234 (La.1979); State v. Smith, 357 So.2d 798 (La.1978). In view of the prosecutor’s right to argue the lack of evidence and to respond to defendant’s argument in rebuttal, we are unable to see how defendant was prejudiced by the prosecutor’s reference to the presumption in the instant case.

In brief, defendant raises for the first time that the trial judge’s instructions to the jury contained an improper reference to the presumption hereinabove referred to (La.R.S. 15:432). Defendant did not object. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La.Code Crim.P. art. 841. Hence, the matter is not properly before us for review.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the prosecutor improperly appealed to jury prejudice in favor of police officers and thereby influenced their ability to judge the credibility of the police officers by the following statements in rebuttal argument:

And, I’ll tell you what it really comes down to — I mean, you can’t have it both ways. You got Off. Drouant, and Off. Mocklin who took that stand, raised their hand to tell the truth, so help them God. Off. Drouant is sitting right here. I think, Mr. Shiell’s questioning of the police — the police are the greatest people in the world when they’re out on the street. They protect the citizens of this community.

Defendant objected. The trial judge instructed the jury that counsel was allowed “to make fair comment on the evidence.” He reminded the jury “to recall the evidence that you heard from the witnesses, and apply the law as I give it to you.”

In State v. Lockett, 332 So.2d 443 (La.1976), we found that the prosecutor’s remarks made during closing argument, that undercover police officers and informants risked their lives to .protect the interest of society, did not violate the requirement under La.Code Crim.P. art. 774 that the argument be confined to the evidence. Similarly, we do not consider that in the instant case the remarks improperly appealed to a presumed prejudice in favor of police officers. Moreover, as stated in Lockett, even in the event of improper argument, we will not set aside a verdict unless we are thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. Such was clearly not the case here.

Assignment of Error No. 5 is without merit.

DECREE

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

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting:

The package of heroin should be suppressed as the fruit of an illegal arrest. State v. Saia, 302 So.2d 869 (La.1974). The police did not have probable cause to arrest defendant for intentionally making a false report to the police. A reasonable police officer of average caution after this investigation of the confusing circumstances surrounding the firing of the gunshot in this case could not have concluded that defendant intentionally gave the police a false report. See State v. Thomas, 349 So.2d 270 (La.1977).

       Chief Judge PAUL B. LANDRY, retired, participated in this decision as an Associate Justices Ad Hoc.

      . Defendant urges that the testimony at trial varied from the testimony at the suppression hearing demonstrating that the officer’s testimony was not credible. We have reviewed the record and find no variance of any significance.

      . La.R.S. 15:432 provides in pertinent part:
      A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption that evidence under the control of a party and not produced by him was not produced because it would not have aided him


author:
DENNIS, Justice.
     WATSON, J.,

text:
    STATE of Louisiana v. Louis J. NELSON and Edwine Guillot.
    No. 65584.
    Supreme Court of Louisiana.
    March 3, 1980.

      Glass & Reed, Robert Glass, New Orleans, for defendant-appellant, Louis J. Nelson.
    Bernard Horton for Edwine Guillot, defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

This case presents questions concerning the constitutional requirement for obtaining a search warrant.

Two New Orleans police officers applied to a criminal district judge on December 3, 1976 for warrants to search for narcotics in four dwellings within the city. In support of their application, the officers submitted an affidavit setting forth their conclusions that the four residences were being used to store and sell heroin. Their affidavit contained, as a basis for their conclusions, the conclusions of reliable confidential informants and underlying circumstances which purported to corroborate the informants’ information.

The informants’ conclusions were, in essence, that:

Louis J. Nelson, who resides at 2323 North Villere Street, and drives a red Cadillac with Texas license plates, has been supplying heroin in large quantities to Ber-nell Webster and her paramour, William Carter. Nelson formerly lived with Bernell Webster at 3311 Louisiana Avenue Parkway, but William Carter moved in with her while Nelson was Texas. Bernell Webster and William Carter are selling drugs from 3311 Louisiana Avenue Parkway and another unknown address. They are also supplying large amounts of heroin for resale to Julius Handy and Sidney Ganier, who reside at 2256 North Villere Street.

An examination of the officers’ affidavit, focusing on the underlying circumstances from which the officers concluded that the informants’ information was reliable as it pertained to drug distribution activities involving Louis J. Nelson and his residence at 2323 North Villere, reveals, in substance, the following:

(1) On August 7,1976 a reliable confidential informant told an officer that he recently purchased heroin from William Carter at 2135 Lafitte Street.

(2) Police surveillance on several occasions detected heavy pedestrian traffic at 2135 Lafitte Street which ceased during the last week of August.

(3) Police records showed that William Carter had been arrested three times and convicted once for a felony narcotics offense.

(4) On September 8, 1976 a reliable confidential informant told an officer that he had purchased heroin from Bernell Webster, William Carter, Louis Nelson, Julius Handy and Sidney Ganier, at their designated locations on numerous occasions. (The affidavit is vague on this point. Our interpretation, for purposes of this opinion only, is the one most favorable to the prosecution. Our reading may exceed the bounds of common sense, however, because it conflicts with the remainder of the affidavit which throughout characterizes Nelson as the wholesale supplier, rather than a retail dealer. See appendix).

(5) On September 13, 1976 the officers saw Julius Handy park a Buick in front of 3311 Louisiana Avenue Parkway and go in at 6:00 p. m. He came out at 6:30 p. m. and left. On October 7, 1976 Handy was arrested for distribution of heroin at an undisclosed location.

(6) On November 7,1976 the officers saw Louis Nelson’s red Cadillac convertible parked at 2323 North Villere Street. At 11:30 p. m. a Negro male came out of 2323 North Villere, entered a 1969 Chevrolet, drove to Sidney Ganier’s residence at 2256 North Villere, and went inside. Later the same man came out, drove to 3311 Louisiana Avenue Parkway and entered.

(7) On November 19, 1976 at 8:30 p. m. the officers saw William Carter and a Negro female come out of 3311 Louisiana Avenue Parkway, drive to 1441 Spain Street, and go in. At 9:00 p. m. the pair left and drove to 2256 North Villere, where they entered and remained.

(8) On November 26, 1976 a confidential reliable informant told the officers that William Carter was residing with Bernell Webster at 3311 Louisianá Avenue Parkway and 1441 Spain Street; that Carter was using Sidney Ganier as a retail dealer; and that the informant had purchased heroin from Carter and Ganier at both of their residences.

(9) On November 30, 1976 at about 7:30 p. m. the officers saw Sidney Ganier come out of 3311 Louisiana Avenue Parkway and enter a green 1966 Chevrolet. He was followed and stopped by the officers at Claiborne Avenue and I — 10. Upon being questioned, Ganier denied having been at 3311 Louisiana Avenue Parkway. The officers saw several pieces of tin foil, the size used to market heroin, scattered about Ganier’s car. At 9:00 p. m. the officers saw Ganier on the porch at 2256 North Villere talking with an unknown Negro female.

(10) On December 2,-1976 at 11:15 p. m., the officers saw William Carter and an unidentified black couple travel from 3311 Louisiana Avenue Parkway to 1441 Spain Street in a 1967 Buick owned by Bernell Webster’s son. The three persons entered 1441 Spain Street with the woman carrying a paper bag. At 11:30 p. m. the woman left the premises, placed a smaller paper bag in her coat pocket, and walked around the corner to 2323 North Villere Street.

(11) On the evening of December 2, 1976 a federal drug enforcement officer told one of the New Orleans officers that a reliable source said William Carter had just received a large amount of heroin which would be stored at 2556 North Villere, 1441 Spain and an undisclosed location.

The criminal district judge on December 3, 1976 issued warrants to search 3311 Louisiana Avenue Parkway, 1441 Spain Street, 2256 North Villere Street, and 2323 North' Villere Street.

In executing the warrants the officers entered the premises at 2323 North Villere Street and seized approximately five ounces of heroin. Defendants, Louis J. Nelson and Edwine Guillot, were arrested inside the house during the search. Indictments were returned against defendants charging them with possession of heroin with intent to distribute. La.R.S. 40:966.

Defendants moved to suppress the substances seized. The district court denied their motion. Defendant Nelson pleaded guilty as charged, reserving his right to appeal from the trial court’s refusal to suppress the evidence. Defendant Guillot went to trial and was found guilty as charged by a jury. Each defendant was sentenced to life imprisonment at hard labor without probation, parole or suspension of sentence. Both defendants appeal and argue primarily that the constitutional requirements were not complied with when the police obtained the search warrant for 2323 North Villere Street.

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. La. Const, of 1974, Art. 1, § 5; La.C.Cr.P. art. 162.

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was “credible” and his information “reliable.” Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Factors which support the credibility of an unidentified informant include pri- or accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the reliability of the informant’s information include (1) direct personal observation by the informant, or (2) if the information came indirectly to the informant, the reasons in sufficient detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information. State v. Paciera, 290 So.2d 681 (La.1974).

Applying these principles to the present case, we conclude that the search warrant affidavit did not establish probable cause to search Louis J. Nelson’s dwelling at 2323 North Villere on December 3, 1976. Since the affidavit does not reflect a direct observation of narcotics that would indicate heroin was located in Nelson’s house on this date, the prosecution’s showing of probable cause depends upon whether the affidavit establishes reasonable cause to believe that Nelson regularly stored and supplied heroin for the Webster-Carter drug operation up through December 2, 1976. The affidavit does not provide a basis for such a reasonable belief, because it does not inform the magistrate of any underlying circumstances from which the informant concluded that Nelson was the supplier for the Webster-Carter operation and it does not furnish independent corroboration of the accuracy of his report.

It is self-evident that the affidavit does not inform the magistrate of any underlying circumstances from which the informant concluded that Nelson was Webster’s former paramour, that he had become the drug supplier for Webster and Carter, or that Nelson was even acquainted with Webster and Carter. However, the affidavit reports observations by the police which provide cause to suspect a link between these individuals. Based on their surveillance, it can be said that: on November 7, 1976 after 11:30 p. m., an unidentified black man visited 2323 North Villere, 2256 North Villere arid 3311 Louisiana Avenue Parkway; and on December 2, 1976 at 11:30 p. m. an unidentified black woman, who earlier left 3311 Louisiana Avenue Parkway with William Carter in Bernell Webster’s son’s car carried something in paper sacks to 1441 Spain Street and 2323 North Villere Street. These reports indicate that the residents of these dwellings had mutual acquaintances and perhaps that they were friends and associates, but ultimately the police surveillance and other information fail to confirm the informants’ report that Nelson was the storer and supplier of drugs for Webster and Carter.

The informant’s tip received by the federal officer cannot be used to corroborate the unverified hearsay in the affidavit,

because the tip itself fails to meet any'of the Aguilar-Paciera tests. The underlying circumstances from which the federal informant-concluded that Carter had just received a large supply of heroin, to be stored at 2556 North Villere, 1441 Spain and an “undisclosed location,” are not set forth in the affidavit. Nor do we know the underlying circumstances from which the federal officer concluded that his informant was credible. Furthermore, there is insufficient specific independent corroboration of the accuracy of this informant’s report in the affidavit. The mere fact that an unidentified woman seen earlier with Carter visited Nelson’s house with a paper bag in her coat pocket on the night of the tip does not confirm its veracity as to the heroin shipment. If a policeman does not have probable cause to arrest a person because he was seen by the police with a paper sack leaving a place designated as a drug outlet by a reliable confidential informant who had seen contraband there, see State v. Kinnemann, 337 So.2d 441 (La.1978), there certainly cannot be probable cause to search Nelson’s house because a person who visited it carrying a paper sack was seen earlier in the company of Carter, from whom confidential reliable informants had bought an unknown quantity of drugs on unspecified occasions. As in Kinnemann “[t]he actions of this person, a stranger to the police, were more consistent with innocence than with guilt.” 337 So.2d 446. Unless the after-the-issuance discovery of the contraband clouds our judgment, we must find that thé reasonable probabilities, when the unidentified woman visited 2323 North Villere, weighed more heavily on the side of innocence than of guilt.

The motion to suppress should have been sustained.

For these reasons, the convictions and sentences are reversed and the case is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

WATSON, J.,

dissents, being of the opinion that the totality of the information in the affidavit constituted probable cause.

APPENDIX

Paragraph 4 of the affidavit states in its entirety:

“On Sept. 8, 1976 Narcotics Officers James Lewis and Stephen Koch met with a reliable Confidential Informant who has supplied the Officers with information in the past which has led to arrests and conviction of Narcotic Violators. The informant stated that a female, Bernall Webster and her paramour, William Carter AKA Blood, were presently engaged in the distribution of Heroin in the New Orleans area, utilizing Bernel Webster’s residence located at 3311 Louisiana Ave. Pky. as a base of their operation in addition to having a residence an unknown location.

The Confidential informant stated that Bernell Webster received her supply of Heroin from a Negro Male known as Louis Nelson, who drove a red Cadillac Converta-ble bearing Texas Plates, and who resided at 2323 N. Villere.

The Informant stated that Louis formerly resided with Bernell Webster at 3311 Louisiana Ave. Pky. but had returned to Texas for a short period of time, and that Blood, William Carter, had recently moved in with Bernell Webster at 3311 Louisiana Ave. Pky.

The informant further stated that a Subject named Julius Handy, B Of I Number 89-092, was presently dealing large amounts of Heroin for Bernell Webster, was Sidney Ganier, NM, B of I Number 124-967, who resides at 2256 N. Villere. It should be noted that Sidney Ganier received two (2) years probation for possession of Heroin. The probation was terminated on 2-26-74.

The informant further stated that he has purchased Heroin from all of the persons at their designated locations on numerous oc-cassions.”

       The Honorable PAUL B. LANDRY, Jr., participated in this decision as an Associate Justice Ad Hoc.

      . Even if we assume that a common sense construction of the affidavit would indicate an unknown number of sales of an unknown quantity of heroin by Nelson to an informant at 2323 North Villere occurring more than 86 days before issuance of the warrant, this would not establish probable cause to believe that heroin was located in the premises on December 2, 1976. See State v. Bonaventure, 374 So.2d 1238 (La.1979); State v. Welsh, 371 So.2d 1314 (La.1979); State v. Thompson, 354 So.2d 513 (La.1978).


author: LANDRY, Justice ad hoc.

text:
    STATE of Louisiana v. Earl CHAMPAGNE.
    No. 65644.
    Supreme Court of Louisiana.
    March 3, 1980.
    Alex W. Wall, Sr., Avant, Wall, Thomas, Riche & Falcon, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
   LANDRY, Justice ad hoc.

Defendant, Earl Champagne, appeals his jury conviction of the crime of manslaughter and sentence to imprisonment at hard labor, pursuant to his indictment by an East Baton Rouge Parish grand jury for the offense of first degree murder. (La.R.S. 14:30)

For reversal of his conviction, Appellant relies- upon a single assignment of error, namely, that the trial court improperly denied his pre-trial motion to quash the indictment on the ground that no proces verbal of the selection of the grand jury and the drawing of thé grand and petit jury venires was made and filed with the Clerk of Court, East Baton Rouge Parish, as required by La.C.Cr.P. Article 417. Finding no merit in Appellant’s assignment of error, we affirm.

The drawing of a general venire is controlled by La.C.Cr.P. Article 408 which provides that in parishes other than Orleans, the jury commission shall impartially select a general venire of at least 300 persons possessing the qualifications to serve as grand jurors. It also provides the mariner in which said list shall be certified, labelled and maintained.

Also, in parishes other than Orleans, grand jury venires must be selected by indiscriminate lot from the general venire box; alternatively, grand jury venires may be drawn with the aid of a properly programmed computer, provided no grand jury venire shall be drawn from a general venire of less than 300 names. La.C.Cr.P. Article 411.

Pursuant to La.C.Cr.P. Article 416, in parishes other than Orleans, petit jury ve-nires must be drawn indiscriminately by lot in the number of 30 jurors, unless the jury commission is directed by the court to draw a larger number. The drawing is required to be made from individual name slips. The statute expressly authorizes an alternative method of computer selection by means of an electronic device programmed to draw names indiscriminately and by lot.

La.C.Cr.P. Article 416 mandates that a proces verbal of the selection of the general venire and grand and petit jury venires shall be made by the clerk of court; shall be certified by a member of the jury commission and shall be filed in the clerk’s office as a public record.

The remaining pertinent statutory provision is contained in La.C.Cr.P. Article 404 B, which states:

“B. .In the parish of East Baton Rouge the function of the jury commission shall be performed by the judicial administrator of the Nineteenth Judicial District Court or by a deputy judicial administrator designated by him in writing to act in his stead in all matters affecting the jury commission. The judicial administrator or his designated deputy shall have the same powers, duties and responsibilities, and be governed by those provisions of law as presently pertain to jury commissioners which are applicable, including the taking of an oath to discharge their duties faithfully. The clerk of court of the parish of East Baton Rouge shall perform the duties and responsibilities otherwise imposed upon him by law with respect to jury venires, shall coordinate the jury venire process, and shall receive the compensation generally authorized for a jury commissioner.”

It is conceded that conformably with Article 404 B, supra, the Judicial Administrator, Nineteenth Judicial District Court, East Baton Rouge Parish, performs the functions ordinarily incumbent upon the jury commissions in other parishes concerning the selection of general venires, grand jury venires and petit jury venires. Likewise, it is undisputed that in the performance of said duties, the Judicial Administrator utilizes a computer as authorized by Articles 411 and 416, supra.

The record discloses that the computer in question is programmed to randomly select names for the general venire from a com-' bined list of licensed drivers and registered voters in East Baton Rouge Parish. Individuals thus selected are furnished questionnaires, the responses to which are utilized to determine their qualifications as jurors as prescribed by La.C.Cr.P. Article 401. The questionnaires and responses are retained by the Judicial Administrator. The grand jury is then randomly chosen from the general venire, as needed. Both lists are retained by the Clerk of Court and Judicial Administrator.

Appellant contends that the absence of a proces verbal makes it impossible to determine whether the general venire and grand and petit jury venires were legally drawn and constituted because there is nothing to show that the venires represent a fair cross section of the community as required by applicable constitutional safeguard provisions. The argument is totally without support in the record.

The computerized method of selection utilized in this instance is expressly provided for by Articles 411 and 416, supra. Additionally, Article 404 B, supra, specifically empowers the Judicial Administrator to perform the duties of venire selection incumbent upon clerks of court in parishes other than East Baton Rouge.

In State v. Sheppard, 350 So.2d 615, p. 651 (La.1977), we approved the use by the Judicial Administrator, East Baton Rouge Parish, of the computerized use of licensed drivers and registered voters lists of said parish as representative of a fair cross section of the community insofar as jury selection is concerned, absent an affirmative showing of discrimination against any particular class of persons. We reaffirm and reiterate our Sheppard, supra, pronouncements on the issue.

Defendant has offered no proof whatsoever of discrimination in this instance. Indeed, defendant has not even alleged discrimination in any form or against any particular class of individuals.

Grounds for a motion to quash an indictment predicated on a challenge of the general venire or the grand or petit jury ve-nires are set forth in La.C.Cr.P. Articles 532(9) and 533(1). The former provides that a motion to quash may be based on the general ground that the general venire or petit jury venire was improperly drawn, selected or constituted. The latter recites that a grand jury indictment may be specially challenged by a motion to quash on the ground that the manner of selection of the general venire, the grand jury venire, or the grand jury was illegal.

“A motion to quash an indictment by a grand jury may also be based on one or more of the following grounds:
(1) The manner of selection of the general venire, the grand jury venire, or the grand jury was illegal.”

Our jurisprudence is well established to the effect that technical defects in a proces verbal, or failure to file the proces verbal as required, is not per se cause to quash an indictment. State v. Hall, 44 La. Ann. 976, 11 So. 574 (La.1892), in which a proces verbal was deposited in the clerk’s office but not filed. In State v. Thomas, 50 La.Ann. 148, 23 So. 250 (La.1898), an indictment was sustained despite irregularities in the proces verbal.

More recently, in State v. Sheppard, 350 So.2d 615 (La.1977), we considered the provisions of C.Cr.P. Article 419 which states that a grand jury indictment shall not be set aside for any reason unless it is shown that some fraud has been committed or some great wrong has occurred which would work irreparable harm to the defendant. We also held, in Sheppard, above, that the burden of proof in such cases rests upon the defendant. See also State v. Monk, 315 So.2d 727 at page 737 (La.1975), to the effect that insignificant irregularities in the composition of a grand or petit jury does not warrant quashing an indictment in the absence of a showing of fraud or resultant irreparable injury to the accused.

In this instance, Appellant has made no claim or showing of fraud or irreparable injury. The assignment of error made herein is without merit.

The conviction and sentence are affirmed.


author:
CALOGERO, Justice.
     MÁRCUS, Justice

text:
    STATE of Louisiana v. Toxi JACKSON and Harold Sneed.
    No. 65684.
    Supreme Court of Louisiana.
    March 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Marvin Opotowsky, Asst. Dist. Atty., for plaintiff-relator.
    Wilfret R. McKee, New Orleans, for defendant-respondent, Harold Sneed.
    Frank DeSalvo, Gretna, for defendant-respondent, Toxi Jackson.
   CALOGERO, Justice.

The question presented in this case is whether the trial judge erred in suppressing defendant’s confession. That ruling came in response to a pre-trial motion by defendants Toxi Jackson and Harold Sneed to suppress a confession made by Toxi Jackson on the grounds that the confession was not free and voluntary.

Defendants Jackson and Sneed are charged with possession of dilaudid with intent to distribute in violation of R.S. 40:967. Neither case has gone to trial on the merits. We granted writs upon application by the state to review the pre-trial ruling.

On July 28, 1978, the New Orleans police stopped a brown Trans Am van driven by Harold Sneed after it crossed the Industrial Canal bridge at Florida Avenue. The police arrested Sneed and a passenger, Sneed’s girlfriend Toxi Jackson, and searched the vehicle. The police found a partially burned hand-rolled cigarette that they believed to be marijuana in the ashtray of the van. Later while the police were advising, defendants of their rights, Toxi Jackson produced a hand-rolled cigarette from her bra and gave it to the police.

Sneed and Jackson were then taken to the Narcotics Bureau Office of the New Orleans Police Department where a search of Jackson resulted in the discovery of twenty tablets, later identified as dilaudid. Toxi Jackson signed a “waiver” of her Miranda rights at the Narcotics Bureau and agreed to make a statement against defendant Sneed after being assured by the police of “protection” against possible retaliation by Sneed. The police officers told her that they felt certain that they could get her into a federal witness program which would re-locate her, provide her money to live on, and possibly provide her with a new identity. They also told her that anything she said in a statement or any cooperation on her part would be brought to the attention of the district attorney’s office and that the district attorney would make a determination concerning the charges with which she was booked.

Toxi Jackson’s statement consisted of questions written by one of the police officers and answers written by her. She admitted to holding the pills found on her person, but claimed that she was “stashing” them for Sneed at his request because the police usually didn’t search women. When asked why she was making the statement against Sneed she responded: “I’m not going to jail for nothing. It’s not my pills. He’s the one that’s dealing. Not me.” When asked if she were promised anything for making the statement, she replied, “That I would be protected. If I didn’t get out by Monday. They would. They would consult the D. A. concerning my charge.” Those statements are the focus of the principal question in the case, whether Jackson’s confession was involuntary because it was influenced by promises, including that of immunity or freedom from prosecution.

The United States Supreme Court has held that confessions obtained by “any direct or implied promises, however slight, [or] by the exertion of any improper influence” is involuntary and inadmissible as a matter of constitutional law. Bram v. United States; 168 U.S. 532, 542-543, 18 S.Ct. 183, 42 L.Ed. 568 (1897). The rationale of Bram is that even slight inducements held out by a person in authority such as a police officer or prosecuting attorney may render a confession involuntary because the person accused would believe that such an authoritative person is credible and in a position to give effect to the inducement. See 3 Wharton’s Criminal Law and Procedure, Charles E. Torcia (ed.), 1973, § 682, p. 469. A promise of immunity or freedom from prosecution is a particularly powerful inducement to confess, leading one writer to state that in Louisiana, “immunity from prosecution has always been sufficient to deem a confession made in reliance thereon involuntary.” 14 La.L.R. 642, 662 (1954). See also 3 Wharton’s Criminal Law and Procedure, supra, § 681 at 466.

In Louisiana the statutorily mandated test for voluntariness is not whether a confession was induced by improper external forces but whether the confession was free and voluntary and “not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” R.S. 15:451. The state has the burden of affirmatively proving that a confession was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises and must prove beyond a reasonable doubt that a confession was free and voluntary. R.S. 15:451, C.Cr.P. Art. 703(C), State v. Colemen, 369 So.2d 1286 (La.1979); State v. Volk, 369 So.2d 128 (La.1979); State v. Weinberg, 364 So.2d 964 (La.1978).

The admissibility of a confession is in the first instance a question for the trial judge. His conclusion on the credibility and weight of testimony relating to the volun-tariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Gaines, 354 So.2d 548 (La.1978); State v. Mullins, 353 So.2d 243 (La.1977); State v. Webb, 364 So.2d 984 (La.1978).

We conclude that the trial judge, whose conclusions are entitled to great weight, did not err in ruling that the confession was involuntary.

The trial judge’s ruling was apparently prompted by two considerations. First, at the very conclusion of the handwritten question and answer statement (or confession) defendant Jackson responded to the question concerning whether she had been promised anything for making the statement: “That I would be protected. If I didn’t get out by Monday. They would. They would consult the D. A. concerning my charge.”

The second consideration and the one which gives meaning and substance to the foregoing answer and which determines or explains what the witness meant was the testimony of questioning officers O’Neal and Bethay. Officer Bethay testified that defendant feared that she and her family would be harmed if she made any statements against her co-defendant,. Sneed. But the officers promised her that she would be protected and that her cooperation would be brought to the attention of the district attorney as quickly as possible. Both officers testified that no specific promise was made either to drop the charges or reduce the charges against her.

Officer O’Neal testified that Jackson was offered protection to be furnished through the Federal Witness Program. He also told her that she could be of great assistance in convicting Sneed; that the conviction of Sneed was the officers’ chief concern in the case; that under the Federal Witness Program she would be provided with protection or means of leaving town, and cash; and even more significantly he testified as follows: “We were going to consult the district attorney to see about any potential involved with her testifying against Harold Sneed.” O’Neal’s answer was responsive to a question asking whether the officers said that they would drop the charges against Jackson or talk to the district attorney about dropping the charges.

Considering the testimony at the motion to suppress and further considering the heavy burden upon the state to prove that the confession was not made under the influence of inducements or promises, we cannot say that the trial judge erred in suppressing the confession. It is not only the logical, but probably the preferred interpretation, for the judge to have concluded that when she wrote (in the confession) that she was promised protection, and if she wasn’t out of jail by Monday that the officers would consult the D. A. concerning her charge, that she was referring to Officer O’Neal’s minimally inferred promise to speak to the district attorney about using her as a witness against Sneed rather than charging her as a defendant. It is not illogical to so conclude when the officer admitted under oath that he had promised to consult the district attorney to see about any potential involved with her testifying against Sneed, particularly when coupled with the admission that they would attempt to get her into a federal witness program and were fairly certain they would succeed in getting her in that program. It would not be logical for Ms. Jackson to assume that she was going to be treated as a witness protected by the state against retaliation but still be prosecuted as a co-defendant.

There is, of course, a possibility of reading her answer, that the officers would consult the D. A. about her charge if she were not out of jail by Monday as indicating that the officers offered to help her simply with a reduction of bail. But none of the questioning officers so testified at the motion to suppress hearing. *

After reviewing the entire record of the transcript of the motion to suppress hearing we do not conclude either that the state bore its burden of proving that the confession was not made under the influence of promises or inducements or that the trial judge abused his discretion in ruling that the confession was involuntary and inadmissible.

DECREE

For the foregoing reasons the ruling of' the trial court in granting defendant’s motion to suppress is affirmed.

AFFIRMED.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents.

MÁRCUS, Justice

(dissenting).

I do not consider that Harold Sneed has standing to object to the voluntariness of Toxi Jackson’s confession. La.Const. art. 1, § 16 states: “No person shall be compelled to give evidence against himself.” U.S. Const, amend. 5 provides: “No person . shall be compelled in any criminal case to be a witness against himself.” Neither provision provides that no person shall be compelled to give evidence or to be a witness against others. Rather, the converse is true. A witness can be compelled to give evidence against others unless he properly exercises his privilege against self -incrimination. Moreover, La.Const. art. 1, § 16 does not provide, as does art. 1, § 5, dealing with searches and seizures, that any person adversely affected shall have standing to raise any illegalities. Consequently, the trial judge erred in sustaining defendant Sneed’s motion to suppress the confession.

As to defendant Jackson’s motion to suppress, contrary to the majority, I consider that the state carried its burden of proving that the confession was made freely and voluntarily. The evidence of promises and inducements herein was not sufficient to justify a finding that the confession was not made freely and voluntarily. Therefore, I consider that the trial judge abused his discretion in granting defendant Jackson’s motion to suppress.

Accordingly, I respectfully dissent.

       Chief Judge PAUL B. LANDRY, Jr. retired, participated in this decision as an Associate Justice Ad Hoc.

      . The trial judge ruled that the arrest of Jackson and Sneed and the search of the van was lawful. We do not consider here the validity of those rulings, the only issue presented by this writ being the judge’s ruling on Jackson’s confession.

      . If Harold Sneed were being tried in a separate trial, Toxi Jackson’s confession, being hearsay, would not be admissible against Harold Sneed, although, of course, the state could call Toxi Jackson to the witness stand. As defendants are to be tried together the admission into evidence of a co-defendant’s confession (even if admissible against the co-defendant) would violate defendant Sneed’s Bruton rights if co-defendant Jackson did not take the witness stand. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 476 (1968).

      .This standard was reaffirmed in Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976) where the court stated that “causation in [the ‘but for’] sense has never been the test of voluntariness.” Ross v. Hutto, 429 U.S. 30, 97 S.Ct. 203.

      . Officer O’Neal testified at the motion to suppress hearing as follows:
      Q You promised her protection?

        A Yes, sir.

      Q How did you offer to furnish that protection?

      A Through the Federal Witness Program.

      BY THE COURT:
      Through what, sir?
      BY THE WITNESS:
      Through the Federal Witness Program, if it was possible.
      Q Did you make that promise or did Officer Kirkpatrick?
      A I don’t recall exactly who made the statement as to the specific officer who made that statement, but she was advised that she would be protected. I was present when it was made.
      Q Did you outline how the Federal' Witness Program works?
      A I believe we ran it down a little bit to her, yes.
      Q And you told her you really (inaudible)
      A We advised her she could be very helpful in our case against Harold Sneed. Harold Sneed was the basis of our investigation.

        Q Now you didn’t say that you would drop the charges but you did say you’d talk to the D.A. about it.

        A We would consult the district attorney, yes.

      Q What were you going to consult the D.A. about?

      A We were going to consult the district attorney to see about any potential involved with her testifying against Harold Sneed.

      Q What did you tell her about the Federal Witness Program?
      A She would be provided with protection, if necessary. She would be provided with a means of leaving town.
      Q And giving her money?
      A That’s correct.
      Q How much? Did you tell her how much?
      A No, sir, I don’t have any idea how much.
      Q You all weren’t going to move her to another state and sit by and see her starve?
      A I don’t believe they would do that, no, sir.
      Q You told her you’d give her a new identity, new life
      A I don’t know if they would go that far, but
      Q But that’s what you indicated to Toxi Jackson.
      A They would help her, yes.
      Q And did you indicate that there would be any problem arranging for this?
      A Run that question by me again.
      Q Did you tell her there would be a problem doing this, that maybe you could do it, and maybe you couldn’t.
      A We told her that we were fairly certain it could be arranged.
      Q What else did you tell her?
      A In what regard?
      Q .With regard tb protecting her if she would give this confession or statement.
      A Well, we told her that once she made her bond and was back on the street if Harold Sneed would give her any trouble, just to call us and we would consult the district attorney with what happened to her again about possible charges of intimidation of a witness or anything like that. And if she had any trouble with Harold Sneed on the street just to get in touch with us.
      Q Did you ever make any arrangements to get this Federal Witness protection?
      A No, sir.

      . For a fairly old case in which this court found similarly that a policeman’s promise that a defendant “might be used as a state witness” was an impermissible inducement voiding the required voluntariness of a confession, see State v. Johnson, 30 La.Ann. 881 (La.1878).

      . Ms. Jackson indicated her outset expectation that she would be treated differently from Sneed when she stated: “I’m not going to jail for nothing. It’s not my pills . . ”

      . The only allusion to defendant’s bond made at the motion to suppress was the following statement by Officer O’Neal:
      “Well, we told her that once she made her bond and was back on the street if Harold Sneed would give her any trouble, just to call us and we would consult the district attomy with what happened to her again about possible charges of intimidation of a witness or anything like that.”


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Johnny BERTRAND.
    No. 65696.
    Supreme Court of Louisiana.
    March 3, 1980.

      James Miguez, Miguez, Leckband & Stainback, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Evelyn Oubre, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Johnny Bertrand was charged by the grand jury in the same indictment with six separate counts of distribution of controlled dangerous substances, to-wit: methaqua-lone, amobarbital, secobarbital, meth'am-phetamine, and phenmetrazine, in violation of La.R.S. 40:967(A)(1) and 40:968(A)(1). On the date of trial, the court granted a severance of three counts, and defendant was tried on the remaining three counts of distribution of amobarbital and secobarbi-tal, methamphetamine and phenmetrazine. After trial by jury, defendant was found guilty as charged on all three counts and was sentenced to serve seven years at hard labor on each count. 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.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion for a mistrial made during the voir dire examination of the prospective juror, Joseph Vernon Metoyer, Jr.

On voir dire examination, the trial judge questioned the prospective jurors as to whether they knew any reason why they could not be fair and impartial jurors. One of the jurors, Joseph Vernon Metoyer, Jr., responded and the following colloquy took place between the trial judge and him:

A Yes, sir?
Q All right. Is your reason for saying that the . . . the fact that you were at one time employed as an investigator for the district attorney’s office?
A Yes, sir.
Q And is it . . . your feeling such that you cannot get this out of your mind and be entirely free, or have a free mind, open mind, and accept the law as the Court would give it to you, and apply it to the evidence that you hear from the witness stand?
A No, sir; I think I would be .
Q You think you would have a problem?
A Yes, sir; I think I would.
Q All right. Mr. Metoyer, we’ll excuse you, sir. You can step down.

After Metoyer was excused and outside the presence of the prospective jurors, defendant moved for a mistrial arguing that Me-toyer’s responses affected his right to obtain a fair trial. The trial judge denied the motion and did not admonish the jury at defendant’s "request.

The court, the state, and defendant shall have the right to examine prospective jurors. The scope of examination shall be within the discretion of the court. La. Code Crim.P. art. 786. Voir dire examination of prospective jurors is designed to discover bases for challenges for cause and to secure information for an intelligent exercise for peremptory challenges. State v. Hutto, 349 So.2d 318 (La. 1977); State v. Ford, 349 So.2d 300 (La. 1977). The questions propounded by the trial judge in the instant case were designed to ferret out any potential adverse influence on Metoyer’s ability to render an impartial verdict. The responses were honest and frank and did not indicate that Metoyer had taken part in the investigation of this case. Although the prospective juror’s responses provided a justifiable basis for the exercise of a challenge for cause, they did not warrant the declaration of a mistrial. Mistrial is a drastic remedy to be sparingly granted and is only authorized in specified instances where unnecessary prejudice results to an accused. State v. Hutto, supra; State v. Governor, 331 So.2d 443 (La. 1976); State v. Sylvester, 298 So.2d 807 (La. 1974). No such prejudice occurred here. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant contends the trial judge erred in denying his motion for a recess based on the absence of a witness in his defense (Assignment of Error No. 2) and his motion for a new trial in which he reurged as error the ruling of the trial judge refusing to grant a recess (Assignment of Error No. 3).

Trial commenced on June 18, 1979. Subsequent to the opening statements of the state and defendant on June 19, 1979, an instanter subpoena was issued for Trooper Wayne Conques at defendant’s request. On the following day (June 20), when Trooper Conques was not present when called as a witness for the defense, defendant moved for a recess. The motion was denied. Subsequently, defendant’s motion for a new trial on the same ground was also denied.

Evidence adduced at the hearing on the motion for a new trial indicates that the clerk of court issued an instanter subpoena for Trooper Conques on June 19, 1979. After receiving information that Conques was in court in Lafayette (the instant trial was in Lake Charles) on that day, the clerk telephoned the local state police headquarters who in turn transmitted the message to Conques in Lafayette that he was needed in court in Lake Charles. Trooper Conques acknowledged that he received the message but, since he had not been subpoenaed or verbally notified that a subpoena had been issued for him, he did not appear. Conques stated that he never learned by whom and for what reason he was wanted in court in Lake Charles.

The grant or denial of a recess is largely within the discretion of the trial court. State v. Charles, 350 So.2d 595 (La. 1977); State v. Sharp, 321 So.2d 331 (La. 1975); State v. Richmond, 284 So.2d 317 (La. 1973). His decision will not be overturned on appellate review absent a clear abuse of discretion. State v. Robertson, 358 So.2d 931 (La. 1978); State v. Jenkins, 340 So.2d 157 (La. 1976).

Defendant’s motion for a recess stated only that Trooper Conques’ testimony would bring out that Jack Doffenmeyer was an agent for the state police and this testimony would be beneficial to defendant. Defendant argues that the testimony of Conques would have aided defendant in establishing a defense of entrapment. The record does not reveal that defendant called Doffenmeyer as a witness but Darrell Hoover, a defense witness, testified that he knew “Jack Dofflemeyer” (sic) who had introduced him to agents to whom he later sold drugs.

The record reflects that on June 12, 1978, defendant informed the court that he was represented by retained counsel, James Mi-quez. Said counsel represented defendant at the arraignment on July 17, 1978 (nearly one year prior to trial). Prior to commencement of trial on June 18, 1979, defense counsel (Miquez) announced that the defense was ready for trial. The subpoena for Trooper Conques was not requested until the following day (June 19). There is no showing that defense counsel took any further steps to discover why Trooper Conques had not responded to the subpoena. In addition, at the hearing on the motion for a new trial, defense counsel stated, “I don’t want to get into . . . the questions I was going to ask him at the trial,” and the hearing was thus limited, at defendant’s request, to questions concerning the issuance of the subpoena and why Conques had not responded to it.

Under the circumstances, we do not consider that defendant showed due diligence in his. efforts to procure the attendance of Trooper Conques at trial. Nor do we find that defendant stated with sufficient particularity the facts to which Conques was expected to testify, i.e., the materiality of his testimony and the necessity for his presence at trial. Moreover, we are unable to ascertain on the showing made how defendant was prejudiced by the absence of the witness. Hence, we do not find that the trial judge abused his discretion in denying defendant’s motion for a recess and his motion for a new trial based on the same ground.

Assignments of Error Nos. 2 and 3 are without merit.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.

       Chief Judge PAUL B. Ad Hoc. LANDRY, retired, participated in this decision as an Associate Justice

      . At trial and in brief to this court, defendant referred to his motion as one for a continuance. Inasmuch as the trial had already begun with the calling of the first juror, as provided in La.Code Crim.P. art. 761, a continuance could no longer be granted. La.Code Crim.P. art. 708; State v. Washington, 272 So.2d 355 (La. 1973). The motion then is more properly a motion for a recess, a temporary adjournment of a trial after it has commenced, which need not be in writing or comply with the formal requisites of a motion for a continuance. La. Code Crim.P. art. 708; State v. Mizell, 341 So.2d 385 (La. 1976); State v. Hines, 311 So.2d 871 (La. 1975). Accordingly, we treat the motion discussed herein as though it had been properly denominated by defendant.