author: GARRISON, Justice Ad Hoc.

text:
    STATE of Louisiana v. Richard DAVIS, a/k/a Richard Candy.
    No. 81-KA-0593.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., E. Rudolph McIntyre, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Donnie L. Ellerman, Johnny R. Boothe, Winnsboro, for defendant-appellant.
   GARRISON, Justice Ad Hoc.

I

The defendant, Richard Davis, was charged in two separate grand jury indictments with committing the second degree murder of Lela Mae Scott and Sir Walter Scott, husband and wife, in violation of R.S. 14:30.1. The victims were the step-grandmother and the grandfather, respectively, of the defendant.

On November 3, 1980, the defendant pleaded guilty to both charges of second degree murder and was sentenced to life imprisonment at hard labor with the Louisiana Department of Corrections. The basic facts of the case are as follows: On November 9, 1979, the two victims were found lying in a pool of blood on the floor of their home located' near Wisner, Franklin Parish, Louisiana. The victims had been killed by gunshot wounds and it was apparent that they had been dead for several days. The investigation at the scene of the crime revealed that a number of items was missing from the residence of the victims, among which were a color television set, a shotgun, and a green 1977 Dodge automobile bearing Louisiana license number 178F282, registered in the name of Lela Mae Scott.

It was learned that the defendant had been residing with the murder victims for about three months. He had been observed in the Wisner area on Thursday night, December 6, 1979, driving the missing Scott automobile and subsequently was seen leaving the Wisner area on Friday morning, December 7, driving the same car.

Neither Sir Walter Scott nor his wife had been seen nor heard from since Thursday afternoon, December 6. Relatives and friends of the victims informed Sheriff Eugene Parker and other officers at the scene of the crime that they had never seen Richard Davis driving the missing vehicle and that the murder victims never allowed anyone to drive the missing car, including the defendant. As a matter of fact, it was learned that Mr. Scott even refused to let Davis drive the car to work and that he drove the defendant to work every day.

Based on the information then available, the Franklin Parish Sheriff’s Office made an NCIC entry on Sunday, December 9, 1979, for Richard Davis, including his description, concerning the theft of the missing Scott automobile. Sheriff Parker informed his deputies to be on the lookout for a young black male, named Richard Davis, also known as Richard Candy, in reference to the theft of the missing automobile, shotgun and color television set. A description of the defendant and the missing items also was given to the deputies at the time. Davis also was indicated as wanted for questioning regarding the murder of his grandfather and stepgrandmother. The following day, Deputy Joe Powell and Deputy Amos Virgil were gassing their police car at a service station near the sheriff’s office in Winnsboro. While the deputies were standing at the service station, the missing green 1977 Dodge automobile, bearing the license number which had been given out, pulled into the gas station. The car was being driven by a young black male fitting the description of the defendant.

After confirming the appearance of the vehicle and the appearance of the driver with the information which had been provided by the Franklin Parish Sheriff’s Office, Deputy Joe Powell approached the Dodge automobile. It is to be noted that Powell was wearing his official Sheriff’s Department uniform with his gun in a holster at his waist. He stood next to the open window on the driver’s side and announced to the defendant, who was at the wheel, that he was a police officer and that the defendant was under arrest. Nevertheless, as Deputy Powell was attempting to open the driver’s door to remove the suspect from the vehicle, the defendant started the car and sped out of the service station onto the highway. Deputy Powell’s arm was caught in the driver’s door window and as the car moved forward, he was dragged along the side of the vehicle. Somehow Deputy Powell was able to fire his pistol inside and he succeeded in freeing his hand, which caused him to fall to the pavement behind the speeding car.

Several hundred feet down the road from the gas station the defendant stopped the automobile, jumped out of it and ran off the highway into the woods. Following a search of the neighboring area, he was located underneath a house in Winnsboro, where he was arrested for the theft of the automobile, attempted aggravated battery and resisting arrest. In this connection, it is to be noted that the defendant had been shot in the stomach, presumably by the gun fired by Deputy Powell. Because he required immediate medical attention, the defendant was rushed to the Franklin Parish Hospital.

It was subsequently confirmed that the Dodge automobile the defendant had been driving was indeed the car which had belonged to Sir Walter Scott and his wife. Additional investigation of the case in Vicksburg, Mississippi, revealed that the defendant had sold the shotgun and color television missing from the Scott residence to one Larry Freeman of Vicksburg, Mississippi.

On December 14, 1979, as the result of the evidence collected as of that date, the defendant was arrested with a written warrant of arrest charging him with the second degree murder of Sir Walter Scott and Lela Mae Scott. As indicated above, he subsequently pleaded guilty to both charges.

II

Although the defendant pleaded guilty as indicated, two Assignments of Error are before the court on this case. The first contends that the arrest of the defendant for auto theft was made without probable cause and that consequently the evidence flowing therefrom should have been suppressed.

A probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Collins, 378 So.2d 928 (La., 1979); State v. Wilkens, 364 So.2d 934 (La., 1978); State v. Johnson, 363 So.2d 684 (La., 1978); State v. Marks, 337 So.2d 1177 (La., 1976). Although mere suspicion cannot justify an arrest, the officer does not need sufficient proof to convict. State v, Thomas, 349 So.2d 270 (La., 1977); State v. Randolph, 337 So.2d 498 (La., 1976).

One of the most important elements in determining whether possible cause exists is satisfied when the police know a crime actually has been committed. When a crime has been committed and the police know it, they only have to determine whether there is reasonably trustworthy information to justify a man of ordinary caution in believing the person about to be arrested has committed the crime. Collins, supra at 930.

These standards certainly seem to have warranted probable cause for arrest for theft of the automobile. In point of fact, they probably also have warranted an officer’s determination of probable cause to arrest for the murders.

Even assuming, for the sake of argument, that probable cause, as such, did not exist, there were certain facts which clearly warranted the stopping of the green Dodge automobile. A serious crime had occurred when two people were murdered. The defendant had resided with the victims and was last seen driving their car, the green Dodge. C.Cr.P. art. 215.1 permits an officer to temporarily detain a person whom he reasonably suspects has committed an offense. Only reasonable suspicion is required to temporarily detain a suspect for questioning. State v. Kenner, 384 So.2d 413 (La., 1980).

The facts in the present case, which were known to Deputies Virgil and Powell, were clearly sufficient to justify a stop of the vehicle which matched the teletyped description and license number of the car belonging to the murder victims. Furthermore, the driver of the car matched the description of the victims’ grandson. Before any detention could be effected, the defendant sped away from the officers. Furtive actions and flight at the approach of law officers may be proper factors in the decision to make an arrest if coupled with specific knowledge on the part of the officers relating the suspect to the evidence of crime. Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968); State v. Herbert, 351 So.2d 434 (La., 1977). The defendant’s sudden flight from the officers may well have given them probable cause to arrest him when considered with all of the other facts which they had to know.

This assignment of error is without merit.

Ill

The defendant contends that his confession, given to the authorities on December 17, 1979, was taken in violation of his right to counsel.

The sheriff testified that he spoke with the defendant on two different occasions on December 17, 1979. That morning between 9:30 and 10:00 a.m. the defendant sent word to the sheriff that he would like to make a statement in reference to the death of his grandparents. As the defendant was being taken downstairs, the sheriff called Mr. El-lerman, the defense counsel. Ellerman promptly arrived at the sheriff’s office and, after speaking privately with the defendant, advised the sheriff that Davis did not wish to make a statement at that time. The defendant was then taken back upstairs.

Later that day, however, shortly after 1:30 p.m., Deputy George Washington advised the sheriff that Davis wanted to make a statement. The defendant was again brought downstairs to the sheriff’s office. At this time the sheriff tried to locate the defense counsel at his office but was told that he was out of town and would not be back that afternoon. The defendant was present during this call and was told the Information but replied, “Well, I was just gonna let him know that I’m fixing to give an interview but he’s not accounted for, so it’s all right with me.” Shortly afterwards the defendant repeated, with regard to his defense counsel, “Well, since he can’t be contacted, I’m still going to make a statement.”

The only reasonable interpretation of the defendant’s resulting statement leaves no doubt that the utmost care was taken by Sheriff Parker and Trooper French in explaining to the defendant his rights and telling him that he did not have to make a statement without his attorney. In point of fact, Sheriff Parker specifically reminded Davis that his attorney had advised him not to make a statement. Nevertheless, the defendant chose to continue with the interview.

Whenever a statement is taken without the presence of an attorney, a heavy burden rests upon the State to demonstrate that the accused knowingly and intelligently waived his privilege against self-incrimination and his right to have counsel present. State v. Vernon, 385 So.2d 200 (La., 1980). Moreover, before a confession or inculpatory statement may be introduced into evidence, the State must prove affirmatively and beyond a reasonable doubt that the statement was free and voluntary and not made under the influence of fear, duress, menaces, threats, inducements or promises. La.Const. 1974, Art. 1, § 13; La.R.S. 15:451; La.C.Cr.P. art. 703(C); State v. Vernon, supra at 204; State v. LeJeune, 352 So.2d 619 (La.,1977); State v. McGraw, 366 So.2d 1278 (La., 1979).

These standards appear to have been more adequately met by the recorded confession of the defendant. He was told repeatedly that he did not have to speak without his attorney present. Furthermore, he was reminded that his attorney did not want him to make a statement. He was also informed on several occasions that he had the right to remain silent. The defendant advised Trooper French that he had completed the twelfth grade and that he completely understood that he was waiving his rights in giving the statement.

On several occasions the defendant was asked whether he was making the statement of his own free will with no pressure, promises or threats from anyone. He replied that the statement was of his own free will without pressure and with no promises nor threats made to him. In State v. Vernon, supra at 204, this court held that the State had met its burden when it proved that the defendant was adequately advised of his rights and consented to questioning, and when it proved that defendant acknowledged that he had not been promised anything in return for a statement.

At the hearing on the motion to suppress, the defendant testified that when he was taken back to his cell on December 17,1979, after he had refused to make a statement, Deputy George Washington and another man came into the cell with him. Although the defendant did not know the other man’s name he stated that the man told him that he owned a service station in Wisner and that he knew the defendant. The defendant’s testimony at this time was to the effect that the other two were telling him how easy it would be if he would just help them with regard to his making a confession. According to the defendant he listened for a while and then agreed to make such a confession and — according to the defendant — it was at that time that Deputy Washington went downstairs to inform the sheriff of the defendant’s decision. The defendant’s testimony added, further, that it was at that point that the other man informed him that he was doing the right thing and that now he could get psychiatric help because the sheriff could “pull the strings.”

Naturally, such testimony as the defendant’s would raise the most serious questions about the integrity of any confession. However, following the testimony of the defendant, Deputy Washington took the stand and denied all of the defendant’s allegations. He stated that he did not promise the defendant anything in order to get him to make a statement nor did he take anyone to the defendant’s jail cell to talk to the defendant. The defendant never produced the other man allegedly involved, but defense counsel mentioned the name Pete Douglas to Deputy Washington. However, no facts were ever introduced that Pete Douglas had actually been the other man.

Although it has been recognized that an accused may later change his mind and waive the same rights which he earlier asserted [State v. Manning, 380 So.2d 46 (La., 1980), and State v. Dominick, 354 So.2d 1316 (La., 1978) ], once a defendant has invoked his constitutional right to remain silent or his right to counsel, the validity of any subsequent waiver depends upon the “scrupulous honoring” of that right by the police. Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Thucos, 390 So.2d 1281 (La., 1980); State v. Manning, supra. The State’s burden here is a heavy one. State v. Mouton, 366 So.2d 1336 (La., 1978); State v. Peevy, 321 So.2d 324 (La., 1975).

It is true that there are some minor inconsistencies, with regard to the testimony of Sheriff Parker and Deputy Washington, as to precise time factors relating to the defendant’s volunteering to make the confession. However, it is apparent that the trial judge who denied the motion believed the testimony of the officers regarding the free and voluntary nature of the confession. Admissibility of a confession is, in the first instance, a question for the trial judge. His conclusions on credibility and weight of testimony relating to voluntariness will not be overturned unless they are not supported by evidence. State v. Lewis, 353 So.2d 703 (La., 1977).

In this case, it is apparent that the weight of the evidence leaves no doubt that the conduct of the authorities, relative to the obtaining of the confession, was entirely proper, that there was no form of pressure, promises, threats nor “seduction” used against the defendant to obtain the statement and that the resultant confession was entirely free and voluntary in accordance with constitutional requirements.

Accordingly, this assignment of error with regard to the confession also appears to be without merit.

For the reasons assigned, the defendant’s guilty pleas, and the resultant sentence, are affirmed.

AFFIRMED.

DIXON, C. J., and CALOGERO, J., concur.

       Judges James C. Gulotta and Jim Garrison of the Court of Appeal, Fourth Circuit, and Bernard J. Bagert of the Criminal District Court, Parish of Orleans, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr. and Fred A. Blanche, Jr.


source: Caselaw Access Project

author: WATSON, Justice. MARCUS, Justice

license: Public Domain

text:
    Robert D. PONDS v. Hon. David C. TREEN, Governor of the State of Louisiana, et al.
    No. 81-C-2380.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Kenneth C. DeJean, Asst. Atty. Gen., Cynthia D. Young, Staff Atty., for defendant-applicant.
    Kathy J. Johnson and Jimmie C. Peters, Jena, for plaintiff-respondent.
   WATSON, Justice.

Plaintiff, Robert D. Ponds, filed this suit to enjoin an election for his recall as a member of the LaSalle Parish School Board. LSA-R.S. 18:1300.17. The election was fixed for April 4, 1981. The trial granted a preliminary injunction on February 19,1981. Defendants appealed on February 20,1981, but did not move for expedited consideration of the appeal. Also, they did not apply for supervisory writs in the court of appeal or this court. LSA-C.C.P. art. 2201. Compare Roy v. Board of Supervisors of Elections, 198 La. 489, 3 So.2d 747 (1941). Since the election date had passed before the appeal was considered, it was dismissed as moot by the court of appeal. Ponds v. Treen, 401 So.2d 450 (La.App. 1 Cir. 1981). A writ was granted to review the judgment. 404 So.2d 280 (La.,1981). Defendants contend that the court of appeal erred in not ruling on the merits of the recall petition.

Shortly after Ponds’ re-election to the LaSalle Parish School Board on November 4, 1980, a recall petition was presented to the LaSalle Parish Registrar of Voters on November 25. The first signature of the petition was obtained on November 13. Ponds commenced his new term of office on January 5, 1981, when he took the oath. The trial court enjoined the recall election on the ground that the petition was moot on the expiration of the prior term of office on December 31, 1980, and could not affect the subsequent term.

Louisiana has held that malfeasance in a prior term of office furnishes grounds for removal during a subsequent term. State v. Bourgeois, 45 La.Ann. 1350, 14 So. 28 (1893). However, the right to recall a public official under LSA-R.S. 18:1300.1, et seq., does not turn on malfeasance, regardless of the term of office. The electorate has an absolute right to recall public officers for any reason or no reason. That is, however, immaterial at this time. The only issue is the trial court’s action in enjoining the election fixed for April 4, 1981. That question is moot.

An advisory opinion on the merits of the recall petition at this point would be an injustice to Ponds. LSA-R.S. 18:1300.14 states that a second recall election cannot be held for an eighteen month period. The obvious intent of this provision is that public officers will not be harassed by repeated efforts at recall. An opinion on the merits of this recall petition might result in an election being held long past the time when the will of the voters was expressed last November. The volatile nature of the electorate is shown by the fact that the recall petition came immediately after Ponds’ successful re-election. There is no way of knowing whether a recall election at this time would be in accord with the wishes of the electorate or not. The best method of making this determination would be a new recall effort.

The harsh remedy provided by the recall election statutes must be strictly construed. Bradford v. Board of Supervisors of Elections, 128 So.2d 468 (La.App. 3 Cir. 1961). LSA-R.S. 18:1300.7 mandates that the election be called within five days after the petition is presented to the governor. An eight month delay in calling an election invalidates a recall petition. Bradford, supra. The petition to recall Ponds has also been invalidated by the passage of time. Now, over a year later, the petition cannot be resurrected.

“[A] recall petition is deemed abandoned by laches when the recall petitioners do not actively pursue their remedy so as to require substantial compliance with the mandatory statutory requirements that recall elections be held expeditiously within a limited period after the recall petition is first presented for processing to government authorities.” Cloud v. Dyess, 172 So.2d 528 at 530 (La.App. 3 Cir. 1965). Defendants have failed to timely assert their rights and cannot now complain. Bradford, supra.

For the foregoing reasons, the judgment of the Court of Appeal is affirmed.

AFFIRMED.

DIXON, C. J., concurs.

MARCUS, J., concurs and assigns reasons.

DENNIS, J., concurs with reasons.

LEMMON, J., dissents and will assign reasons.

MARCUS, Justice

(concurring).

I do not consider that a recall petition remains valid once the term of a public officer has expired. Therefore, when plaintiff was sworn in on January 1, 1981, all previously submitted recall petitions became invalid. Of course, malfeasance in a prior term of office may furnish grounds for removal during a subsequent term; however, such removal would require a petition to be signed and submitted in the subsequent term. Accordingly, I respectfully concur.

      . LSA-C.C.P. art. 2201 provides:
      “Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.”

      . Defendants’ brief was filed on March 27, 1981. Plaintiffs brief was timely filed on April 16, 1981, after the election date.


author: GULOTTA, Justice Ad Hoc .

text:
    STATE of Louisiana v. Jerry L. JOHNSON.
    No. 81-KA-0871.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman L. Lawson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    J. Stacey Freeman, Shreveport, for defendant-appellant.
   GULOTTA, Justice Ad Hoc .

Defendant pleaded guilty to one count of distribution of marijuana, reserving his right to appeal from the denial of his motion to suppress evidence on the ground that his warrantless arrest in his home was presumptively unreasonable under the standards of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) and State v. Brown, 387 So.2d 567 (La.1980). Finding that “exigent circumstances” justified the arrest of defendant in his residence, we conclude that the ensuing seizure of the evidence was lawful. We affirm.

State Trooper Barbara L. Brossette, on undercover assignment, accompanied a police informer, Allen Ebarb, to defendant’s trailer in DeSoto Parish to purchase marijuana. Brossette on the morning of the “buy” had been planted with a radio transmitter. En route to the trailer park, Ebarb, concerned that Brossette was “bugged”, “shook her down”. Although he did not find the transmitter, he accidentally inactivated it. Brossette became frightened when Ebarb told her, “Look, if Jerry [the defendant] gets wise I am going to burn you. You are going to go before I let Jerry know I snitched on him.”

After arriving at the trailer, Ebarb and Brossette were admitted in by defendant who sold Brossette four bags of marijuana for $1,700.00. She refused to buy some Quaaludes. While in the trailer, Brossette saw Ebarb steal some pills. Frightened that defendant had seen Ebarb take the pills, Brossette decided to call for help. She went to the bathroom, discovered that the transmitter had been turned off, activated it and called for help to fellow officers outside with the words, “Come on in.” Brossette thereafter went to the front door and opened it to plain clothes agents who entered and placed defendant under arrest. Marijuana and pills, in plain view, were seized as evidence from defendant’s kitchen table.

In Payton v. New York, supra, the United States Supreme Court held that searches and seizures inside a home without a warrant are per se unreasonable unless the police can show that an exception applies because of “exigent circumstances.” In State v. Brown, supra, this court adopted the Payton standard.

“[2,3] Even if probable cause to arrest existed, the arrest was illegal. ‘We .. hold that the Fourth Amendment to the United States Constitution . . . prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.’ Payton v. New York, supra, [445 U.S.] page 576, 100 S.Ct. p. 1375. Such a warrantless arrest in a home is also prohibited by Article 1, § 5 of the Louisiana Constitution of 1974.2 See State v. Ranker, 343 So.2d 189 (La.1977)” [footnote omitted]

Accordingly, defendant claims that Bros-sette’s request for help was premature and gave police no probable cause to enter the trailer without his consent. According to defendant, there were no exigent circumstances justifying uninvited entry into his dwelling. He argues, therefore, that his warrantless arrest was illegal and that any evidence gathered incident to that arrest is tainted and inadmissible. Defendant emphasizes that the police had several days in which to prepare for this “buy” and, thus, had ample time to get an arrest warrant.

Cognizant of the Payton standard, we, nonetheless, conclude that “exigent circumstances” existed in this case to permit the warrantless entry and arrest of defendant. It is clear that Officer Brossette, having been searched and threatened by the informant, feared for her safety during the undercover operation. That fear was reinforced when the informant “lifted” some pills from the kitchen table and caused Brossette reasonably to suspect trouble if defendant had seen the theft. Remembering Ebarb’s previous threat on her life in case of trouble, Brossette chose to call for help instead of executing an arrest by herself.

Although Brossette’s call for aid was the brief statement, “Come on in”, it provided ample probable cause for the police outside to suspect that there was trouble. This belief was particularly reasonable since the waiting officers had not heard the drug transaction through the transmitter as planned. Apprehension by the waiting officers outside the trailer was highlighted by the failure of the inactivated transmitter to transmit information to them of the happenings inside the trailer as arranged. The safety of the undercover officer provided exigent circumstances for the police outside to enter defendant’s dwelling without consent or warrant to execute the arrest.

As this Court stated in State v. White, 399 So.2d 172 (La.1981), the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Such exigent circumstances make this arrest an exception to the Payton principle.

Considering the exigent circumstances, we conclude the warrantless arrest of defendant was legal and the evidence gathered incident to that arrest is admissible.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

       Judges James C. Gulotta and Jim Garrison of the Fourth Circuit Court of Appeal, and Judge Bernard J. Bagert of the Criminal District Court for the Parish of Orleans, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr, and Fred A. Blanche.


author: GARRISON, Justice Ad Hoc .

text:
    STATE of Louisiana v. Bertel VEALS.
    No. 81-KA-0874.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Glen Peterson, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Bonnie P. Jackson, Georgia Wileman, & M. Michele Fournet of Indigent Defender Bd., Baton Rouge, for defendant-appellant.
   GARRISON, Justice Ad Hoc .

On July 6, 1979, appellant Bertel Veals was charged by Bill of Information with violating R.S. 14:285, with regard to making improper telephone communications. On April 15, 1980, a six-member jury found appellant guilty as charged. The trial court sentenced him to two years’ imprisonment in Parish Prison, the maximum term of incarceration allowable under the statute.

On October 15, 1980, appellant appealed the sentence to this court. After reviewing the assignment concerning the excessiveness of the two year sentence and the trial judge’s failure to comply with La.C.Cr.P. art. 894.1, this court affirmed the appellant’s conviction but vacated the sentence imposed because the trial judge’s reasons for incarceration did not comply with the provisions of La.C.Cr.P. art. 894.1.

On February 27, 1981, the trial court again sentenced the appellant to two years’ confinement in the Parish Prison. It is from the trial court’s sentence handed down on February 27, 1981, that this appeal is taken.

In previously vacating the original two year sentence imposed by the trial judge, this court stated in its per curiam that:

“We have reviewed the defendant’s argument relating to alleged trial errors and found them to lack merit. However, the remaining assignment, concerning exces-siveness of the two year sentence and the trial judge’s failure to comply with La.C. Cr.P. art. 894.1, warrants a remand for resentencing.
“In imposing sentence herein, the trial court made no attempt to comply with the provisions of La.C.Cr.P. art. 894.1 (1977). The article sets forth three factors which justify a sentence imposing imprisonment and eleven other factors which tend to indicate suspension of sentence or probation as appropriate. The statute provides that the latter, ‘while not controlling the discretion of the court, shall be accorded weight’ by the trial court in its sentencing decision. The enactment concludes that the trial court ‘shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.’ (emphasis supplied)
“We have repeatedly stated that, even without formal objection at the time, where the trial judge imposes a sentence without adequate compliance with the mandatory requirement of La.C.Cr.P. art. 894.1 that he state the considerations and the factual basis for his sentence, this Court may vacate a sentence and remand for re-sentencing, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Jackson, 360 So.2d 842 (La. 1978); State v. Scarborough, 359 So.2d 982 (La., 1978); State v. Sepulvado, 359 So.2d 137 (La., 1978). See also, State v. Gibson, 362 So.2d 769 (La., 1978). See also, State v. Gist, 369 So.2d 1339 (La., 1979).
“In the present case, the trial court reasons do not reflect that it adequately followed the sentencing guidelines that should be considered before imposing a sentence of incarceration as provided by La.C.Cr.P. art. 894.1. Absent such compliance, we lack appropriate criteria by which to measure whether this sentence is excessive under our state constitution. La.Const. 1974, Art. 1, Section 20. See, State v. Sepulvado, supra.
“Accordingly, we affirm defendant’s conviction but vacate the sentence imposed and remand the case for re-sentencing in accordance with law.”

State v. Veals, 392 So.2d 646 (La., 1980).

After the remand, and during the course of the new sentencing, the reasons given by the trial judge in once again imposing the two year maximum sentence were: (1) There was a risk that if he suspended the sentence the defendant would revert to the same kind of activities that got him into trouble; (2) the defendant had been arrested for other charges apparently relating to this case since the date of the offenses for which he was convicted; (3) a lesser sentence would not be appropriate for the seriousness of the crimes; (4) defendant was previously convicted of simple battery on Barbara Scott (the victim of the improper telephone communications) and put on probation; and (5) he was released unsatisfactorily from that probation.

More specifically, upon resentencing the defendant the district judge stated:

“The reason for this sentence is that I am definitely of the opinion that there is a great risk that if I were to suspend the sentence that you would revert to the same kind of activity that got you into this trouble. You have been arrested for other charges apparently relating to this case since the date of the offenses for which you were convicted. In addition to that, I believe that a lesser sentence certainly would not be appropriate for the seriousness of the crime .... I notice you were also convicted of simple battery on Barbara Scott and that you were put on probation for that ... and you were discharged unsatisfactorily from that probation .... Well, the court has no reason to believe that you would live up to the terms and condition of your probation if I were to put you on probation at this time.”

These reasons, given in support of the repeated two year sentence, comply with the requirements of La.C.Cr.P. art. 894.1:

“A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
“(1) there is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
“(2) the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
“(3) a lesser sentence will deprecate the seriousness of the defendant’s crime.”

On this occasion, following the remand to this court, the district judge has referred to the previous arrests of the defendant which related to this case, thereby indicating that appellant’s motivation for his criminal actions was stronger than his regard for the law and the rights of others. Such behavior does, indeed, indicate a reasonably high probability that the appellant would continue such criminal activity and reasonably demonstrates a need for correctional treatment. Furthermore, the district judge also emphasized his belief that a lesser sentence would indicate to others that the appellant’s offense was less than serious. The repeated threats made by the defendant, who had threatened the lives of several people, including a child, would not only be inclined to upset the recipients but could cause much personal distress to others. Also, the judge specifically took into consideration the unlikelihood of appellant’s responding favorably to probationary treatment in view of his record.

In the final analysis, the legislative guidelines of La.C.Cr.P. art. 894.1 are precisely that, and nothing more. The actual sentencing is the duty of the district judge for which, among other functions, he was elected by the people of his district. In this case, his sentence does not exceed the maximum set by the legislature for the crime committed. The judge, in his subsequent sentence in this case, has followed the guideline requirements of La.C.Cr.P. art. 894.1 and the specific mandates of this court.

There is, consequently, no merit in this appeal.

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

AFFIRMED.

       Judges James C. Gulotta and Jim Garrison of the Court of Appeal, Fourth Circuit, and Bernard J. Bagert of the Criminal District Court, Parish of Orleans, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr. and Fred A. Blanche, Jr.


author:
KLIEBERT, Justice Ad Hoc .
      DIXON, Chief Justice

text:
    STATE of Louisiana v. Esther PENNS.
    No. 81-KA-0923.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Lindsay Larson, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Clyde D. Merritt, and Dwight Doskey, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   KLIEBERT, Justice Ad Hoc .

On May 24,1979, detectives were investigating the shooting of a ten year old child who was then hospitalized at Charity Hospital for gunshot wounds. They found the child’s mother, Esther Penns, the defendant here, in the waiting room at Charity Hospital. She was orally advised of her rights and asked to accompany the detectives to the Juvenile Division for questioning. She was taken to the Juvenile Bureau and prior to questioning was read her Miranda rights from the Rights of Arrestee form used by New Orleans Police and signed a statement which acknowledged her having been read her rights.

While giving an inculpatory statement regarding the attempted murder of her daughter, the defendant admitted to the drowning of her four year old son, Hiram, who had been missing since May 13, 1979 and was placed under arrest. The statement was taped and subsequently transcribed by one of the officers and submitted to the defendant who signed it.

The following day, May 25, 1981, she was brought before the Magistrate who appointed counsel. On the same day, i.e., the day after the statement was given, the detectives found a badly decomposed body of a child in a green plastic bag which had been shoved under some yucca bushes behind the St. Bernard Housing Project where Ms. Penns lived. The same night, two detectives interviewed her in the prison. The defendant was advised of her Miranda rights which included her right to remain silent and a right to have an attorney present during questioning. She proceeded to give a brief oral statement which admitted that the body found in the garbage bag was that of her son.

Prior to the trial, defense counsel filed a motion to suppress the confessions and the evidence. After a hearing the trial judge found and ruled that the statement made on May 24, 1979 was made under full knowledge of her rights and without coercion and, hence, was admissable. Additionally, the trial judge found that the oral statement made in parish prison on May 25, 1979 was a pre-indictment statement and, hence, admissable. The motions to suppress were denied. The defendant was indicted on June 7, 1979 and on December 13, 1979 was tried and convicted for first degree murder of her son, Hiram Davis, by a unanimous twelve person jury. She was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On appeal, five assignments of error are made and argued.

The first assignment of error concerns the trial judge’s refusal to suppress the taped and written statement taken from the defendant on May 24, 1979 as well as the oral inculpatory statement made on May 25, 1979. The defendant’s counsel argues that the defendant’s constitutional rights were violated because she did not knowingly and intelligently waive her rights to remain silent and to have her attorney present at the time of questioning. As far as the written statement is concerned the arguments centered around the following questions asked by the police officer and the answers given by the defendant.

“Q. You’ve signed form of N.O.P.D. Rights of Arrestee Form # 130415, indicating that you have understood your rights and wish to waive them, is that correct?
A. What that means, wish to waive them?
Q. In other words, you are going to talk to us and make a statement about your knowledge about what happened.
A. Yes.”

Counsel argues that since she did not know what the word “waive” meant, and she was not adequately instructed as to its meaning, she could not willingly and intelligently waive her rights.

The principles that govern a custodial interrogation once the required warnings have been given were set forth by the Supreme Court in Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980), by restating the principles from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966):

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694.

Taken out of context rather than as part of the whole, the portion of the statement made by the defendant and above quoted might lead one to conclude the defendant did not willingly and intelligently waive her constitutional rights to remain silent. From the entirety of the evidence submitted at the hearing of the motion to suppress the statement, the trial judge concluded and we conclude that the defendant did willingly and intelligently waive her right to remain silent and her right to counsel. According to the police officer’s testimony, the defendant was orally informed of her Miranda rights and was then read the rights from the Right of Arrestee form and then agreed to and did sign the Rights of Arrestee form as well as the statement in question here. Although the tape made at the time the statement was given is not in evidence, there is ample testimony by the police officers taking the statement for the trial judge and for us to believe the statement was transcribed as given. Reading the statement as a whole leads us to believe the defendant knowingly waived her Miranda rights because she wanted to confess to what she had done. When Officer Henderson was asked on cross-examination why he thought Ms. Penns understood her Miranda rights, he replied: “Because I said it in simple terms and I went over it with her and she said she understood and she seemed to be a reasonable, intelligent type person, so I figured she understood.”

Following the admission of her confession into evidence, the defendant took the witness stand before the jury and testified that she had gone only to the fourth grade in school, her mother had said she was retarded and she did not understand what it meant to waive her rights. Her counsel now contends her low intelligence prevented her from giving a knowing and intelligent waiver. Moderate mental retardation and low intelligence or illiteracy do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Anderson, 379 So.2d 735, 736 (La.1980). Here, according to the evaluation report of Dr. Ory, the defendant’s intelligence was judged to be “in the normal range.” Further, reading the responses given by the defendant to the questions propounded during the trial leads us to agree with the expert’s conclusion that the defendant was of normal intelligence. The lack of formal schooling is not synonymous with lack of intelligence. At the time the statement was given, the defendant knew and understood her rights but wanted “to let it all hang out.” Her present claimed retardation does not support a contention of low intelligence; but rather, shows the actions of an intelligent mind seeking to avoid the consequences after letting it “all hang out.”

The trial court’s conclusion on the credibility and weight of the testimony relative to defendant knowingly and willingly waiving her Miranda rights are not to be overturned unless unsupported by the evidence. State v. Castillo, 389 So.2d 1307 (La.1980); State v. Jones, 386 So.2d 1363 (La.1980). The trial judge’s conclusion here is supported by the evidence; hence, the trial judge correctly denied the motion to suppress the written statement.

As to the oral statement given the day following the giving of the written statement, the defendant argues that since counsel had been appointed by the Magistrate and she had not initiated the conversation, the State should not have questioned her out of the presence of her counsel.

The police officer taking the statement testified he was unaware the defendant had been appointed counsel by the Magistrate. Although he was aware that within 24 hours of being charged the law required that the accused be taken before a Magistrate and a counsel appointed for the accused if she had not retained counsel, he did not ask whether she had counsel nor did she volunteer the information that counsel had been appointed. The police officer did testify, however, that he had told her of her Miranda rights. Thus, at the time of this interrogation, according to the testimony of the police officers, the defendant had been told of or read her Miranda rights and had been explained what they were at least three times by the police officer. Since the defendant is of normal intelligence, after having been informed of her Miranda rights on at least three occasions, the defendant knew she could remain silent or have her counsel present during the interrogation. She chose not to do so. There is no indication in the record that the State desired to or was in fact subverting the defendant’s constitutional rights. Rather, since the defendant had knowingly and voluntarily given a written statement of her acts the day before, it is natural and logical for her to knowingly and willingly want to acknowledge that the garbage bag and body exhibited to her by the police officer were those she had reference to in the statement, particularly where, as here, the defendant testified that she wanted the police officers to know what had happened and to discover the body of her son. Under the circumstances of this case, therefore, we believe the trial judge’s denial of the motion to suppress the oral statement was correct.

In assignments of error 2 and 5, the defendant argues the trial court erred in denying his motion to quash the Witherspoon voir dire and thereafter granting challenges for cause on the basis of Wither-spoon. The first part of the argument is grounded in the contention that the Wither-spoon voir dire produces a more guilt prone jury than one drawn from the general ve-nire. This argument was rejected in the Witherspoon case and by this court in State v. Miller, 391 So.2d 1159 (La.1980) and State v. Berry, 391 So.2d 406 (La.1980).

In the second part of this argument the defendant argues that to allow the State to challenge for cause when the juror demonstrates an unequivocal attitude against the death penalty, without allowing the defense the opportunity to traverse the juror for rehabilitation gives the State an additional peremptory challenge not afforded to the defense.

The arguments of the defendant are refuted by the record. The Witherspoon voir dire was thoroughly explained to the jurors by the prosecutor and the judge and both the State and the defense were allowed to question the prospective jurors. Thus, the requirements of State v. Claiborne, 397 So.2d 486 (La.1981) were met. Since the jurisprudence supports the Witherspoon voir dire and defense counsel had the opportunity to rehabilitate the jurors, these assignments of error lack merit.

Assignments of error 3 and 4 attack the trial judge’s ruling requiring defense counsel to ask some questions to the jury as a whole rather than to individual jurors. Defendant contends that forcing her to ask group questions and the refusal to permit her to ask individual jurors repetitive questions violates her rights under Article I, Section 17 of the Louisiana Constitution to a full voir dire examination of jurors.

The defendant misrepresents what appears in the transcript. The judge did take over the voir dire when the defense counsel refused to follow his orders. When new prospective jurors were called up the judge wanted counsel to ask them general, repetitive questions as a panel, and then, upon responses from certain jurors, counsel could then individualize the voir dire. Further on, the judge repeats himself that counsel could ask general questions of the panel and check each juror for his response.

The record of his voir dire reflects that the trial judge did indeed allow the defense counsel to individually question prospective jurors. The judge demanded that counsel use his method of asking a general question to the panel first and then asking the individualized questions. Unless a clear abuse of discretion by the judge is found and/or a real prejudice to the defendant is shown, the trial judge’s rulings during voir dire will not be disturbed on appeal. One of the defendant’s objections to the group voir dire examination as opposed to an individual voir dire examination is that prospective jurors will be influenced by the comments and prejudices of other veniremen. This court has previously held that the trial judge’s refusal to insulate prospective jurors from the voir dire examination of other prospective jurors does not in the absence of special circumstances deny a defendant a fair trial. State v. Hegwood, 345 So.2d 1179 (La.1977). The defendant argues special circumstances are present here, namely, a capital punishment case coupled with the killing of a small child. He argues an individual voir dire would have been more appropriate because defense counsel could then uncover biases held by prospective jurors through narrowly focused questions and obtain answers which are the individual juror’s response rather than the response of some other juror who was questioned before him. Defense counsel failed to argue this in his contemporaneous objection at the beginning of the voir dire, therefore, this ground is not available to him on this appeal. State v. Johnson, 389 So.2d 372 (La.1980). In any event, defense counsel failed to show any specific prejudice arising out of the trial judge’s failure to conduct an individual voir dire. When the jury returned a verdict of life, rather than death, the special circumstances claimed by the defendant were eliminated.

Since the record reflects that the trial judge gave defense counsel opportunity to individually question prospective jurors with no resulting prejudices imposed by group directed questions, there is no basis for disturbing the trial judge’s rulings during the voir dire for they were well within the discretion permitted to the trial judge.

For the reasons stated the conviction of the defendant is affirmed.

DIXON, C. J., dissents with reasons.

DENNIS, J., concurs.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

After a lawyer was appointed to represent defendant on May 25, the police should not have initiated further questioning of defendant. The repetition of defendant’s “Miranda” rights is not sufficient to show her waiver of the right to have counsel present at a further interrogation.

       Judges Thomas J. Kliebert and Robert J. Klees of the Court of Appeal, Fourth Circuit, and Judge Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associated Justices ad hoc joined by Chief Justice Dixon and Justices Calogero, Dennis and Watson.

        Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).


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

text:
    STATE of Louisiana v. John B. BENNETT.
    No. 81-K-0942.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Vicki Green, Asst. Dist. Atty., for plaintiff-relator.
    Jimmy Hobbs of Blackwell, Chambliss, Hobbs & Henry, West Monroe, for defendant-respondent.
   KLIEBERT, Justice Ad Hoc.

The defendant, John B. Bennett, was charged on January 2,1981 under R.S. 14:98 with driving while intoxicated, second offense. The multiple bill was based on guilty pleas to DWI, first offense, entered in the same parish in February, 1977.

In addition to pleading not guilty to the DWI, second offense, defendant filed a motion to suppress the prior conviction on the grounds he was not advised of his rights to have an attorney appointed to represent him and he was not properly Boykinized at the time the guilty plea was entered. The motion to suppress was denied. The defendant was then tried and convicted on the DWI, second offense, and sentenced to pay a fine of $500.00 and cost, plus 125 days in jail. Default in payment of the fine would add an additional fifty days to the jail term.

Writs of Certiorari and Review were applied for to this court. Attached to the application was the transcript of the record made at the time the 1977 guilty plea was entered, as follows:

By Mr. Hansen: John B. Bennett. Mr. Bennett is charged with DWI.
By the Court: Mr. Bennett, you desire to change your plea from not guilty to guilty at this time?
By Mr. Bennett: Yes, sir.
By the Court: Do you understand fully what you’re charged with?
By Mr. Bennett: Yes, sir.
By the Court: You understand that you have a right to a trial in this matter, the right to be represented by an attorney?
By Mr. Bennett: Yes, sir.
By the Court: You understand that any subsequent conviction after this one will result in mandatory jail time, that a second or third or fourth or whatever will result in some mandatory jail time?
By Mr. Bennett: Yes, sir.
By the Court: And knowing all these things you still want to enter a plea of guilty?
By Mr. Bennett: Yes, sir.
By the Court: Let the defendant be fined $300.00 and costs, default sixty days.

The court granted the writs 402 So.2d 698 (La.), and reversed the conviction and sentence citing Bishop v. Blackburn, 384 So.2d 406 (La.1980). The state then filed an application for rehearing with certified copies of the following minute entries relative to the 1977 conviction attached:

M36200 — State of Louisiana vs. John B. Bennett Defendant present and informed of the charge and stated he understood and in a discussion with the Court, defendant advised of his right to trial and advised of his right to counsel — either retained or Court appointed at no costs, if investigated and found indigent — and defendant stated he will retain Mr. Berry from Rayville, waiving presence of Mr. Berry for purpose of arraignment, and pled not guilty and trial set on February 16, 1977, and defendant ordered to notify his attorney.

M36200 — State of Louisiana v. John B. Bennett Defendant present, having previously appeared before the Court and having been explained his Constitutional rights, including the right to trial and right to an attorney at all stages of of the proceedings, waived said rights and requested that his formerly entered not guilty plea be withdrawn and pled guilty and was by the Court sentenced to pay a fine of $300.00 & costs, default 60 days.

The state’s application for a rehearing was granted.

Citing State v. Moore, 295 So.2d 161 (La.1974), the state argues that the requirements of Article 514 of the Louisiana Criminal Code have been met because the defendant was advised at the arraignment of his right to have the court appoint counsel for him and hence it was not necessary for the court to again inform him of his right to appointed counsel when the guilty plea was entered. The defendant, however, contends the motion to suppress the 1977 conviction should be upheld because there is no basis in the record from which to conclude the defendant knowingly and intelligently waived his right to counsel and the requirements of Boykin, infra were not met at the time the 1977 guilty plea was entered.

The issue involved here is not whether the requirements of Article 514 were met at the time the guilty plea was entered, but rather whether the 1977 conviction can serve to enhance the punishment in the subsequent conviction.

In City of Monroe v. Fincher, 305 So.2d 108 (La.1974), based on the United States Supreme Court ruling in Argensinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), this court held an un-counseled guilty plea to a prior DWI offense, absent a knowing or intelligent waiver of counsel could not be used to enhance punishment upon conviction of a subsequent DWI offense, even though the accused was not imprisoned as a consequence of the pri- or uncounseled conviction. Also, in State v. LaFleur, 391 So.2d 445 (La.1980), this court found that since the defendant was unassisted by counsel, the judge’s failure to discuss the meaning of the plea and to inform the defendant of his right against self-incrimination were particularly serious error and for that reason reversed the conviction. The defendant in State v. Wiggins, 399 So.2d 206 (La.1981), was charged with DWI, third offense. On the second offense he had appeared in court on several occasions. On his first appearance, he had indicated he could afford an attorney. However, he did not in fact secure counsel and was not advised on his two subsequent court appearances that in the event of indigency, he was entitled to court-appointed counsel. This court stated it could not conclude simply from the defendant’s express desire to plead guilty that the defendant had knowingly and intelligently waived his right to counsel.

The above cases were all decided on the basis of the United States Supreme Court’s ruling in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Since Boykin, for a guilty plea to be used for the enhancement of the punishment under a subsequent conviction, the defendant must be informed of his right to confront his accusers and to remain silent as well as his privilege against self incrimination and then knowingly and willingly waive same at the time the plea is entered.

The record here does not affirmatively show a knowing and intelligent waiver of the right to counsel. Furthermore, the Boykin requirements concerning the guilty plea are not evidence in the record. For that reason, this court’s original reversal of the defendant’s conviction is maintained.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

The three right articulation rule of Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), is applicable to misdemeanor guilty pleas, requiring that the trial judge inform the defendant that by pleading guilty he waives his privilege against compulsory self-incrimination, his right to trial by jury where applicable, and his right to confront his accusers. State v. Jones, 404 So.2d 1192 (La.1981). The record of the colloquy at the time of the defendant’s guilty plea does not reflect compliance with these requirements, therefore, defendant’s conviction is invalid and may not be used in enhancement proceedings.

       Judges Thomas J. Kliebert and Robert J. Klees of the Court of Appeal, Fourth Circuit, and Judge Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc joined by Chief Justice John A. Dixon and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack C. Watson.


author: WATSON, Justice. DENNIS, Justice

text:
    STATE of Louisiana v. Willie BRUINS. (Two Cases)
    Nos. 81-KA-1065, 81-K-1100.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., for plaintiff-appellee.
    Henry H. Lemoine, Jr., of Lemoine & Saucier, Pineville, for defendant-appellant.
   WATSON, Justice.

Two issues are presented in these consolidated matters:

(1) Did defendant, Willie Bruins, intend to commit armed robbery; and

(2) Should his sentence as an habitual offender be without parole, probation or suspension of sentence, the conditions which would have been imposed on a sentence for the underlying offense of armed robbery?

Willie Bruins’ motion for a directed verdict was denied and a jury found him guilty of armed robbery, LSA-R.S. 14:64. Because of a 1977 forgery conviction, he was billed as an habitual offender. Bruins was sentenced to 33 years at hard labor, the minimum legal sentence under the Habitual Offender Law, LSA-R.S. 15:529.1, subd. A(l). The trial court rejected the state’s contention that the sentence should be without parole, probation or suspension of sentence, because there is no language imposing those conditions in the sentencing statute. The state’s writ application was granted to consider the issue. Since defendant had appealed his conviction, consolidation was ordered.

THE APPEAL

Directed verdicts cannot be entered in jury trials and Bruins’ motion was properly denied. LSA-C.Cr.P. art. 778. Defendant contends the state failed to prove that he had the specific intent to commit armed robbery. The question is whether a rational trier of fact could have found the requisite intent proven beyond a reasonable doubt. State v. Edwards, 400 So.2d 1370, 1372 (La., 1981); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Armed robbery is a theft committed by taking property from another person by force or intimidation while armed with a dangerous weapon. LSA-R.S. 14:64. There is no express requirement of specific intent. However, an essential element of the crime of theft is the specific intent to permanently deprive the victim of the stolen property. LSA-R.S. 14:67. Since armed robbery is a species of theft, the state must show that the defendant had the intent necessary for the offense of theft.

Shirley Arthur, an employee at Mary J’s Mini Mart, closed the store at 10:00 P.M. and walked toward her car. A gold and white Cadillac without lights came into the illuminated parking area. She climbed into her vehicle and locked the door. Bruins approached her car with a silver gun in his hand. He demanded that she open the door and give him money. She explained that she did not have the store’s receipts and offered to give him her billfold. Bruins reached across her body and snatched her purse from the middle of the seat. He reentered the Cadillac on the passenger side. Shirley Arthur described Bruins as a short bearded man with a tattoo. The Cadillac was stopped shortly after the crime. The purse and Arthur’s checkbook were on the floorboard. Other contents of the purse and a silver-plated revolver were found nearby on the shoulder of the road. Bruins, a female companion, and the male driver of the car were arrested. The woman testified against Bruins. Arthur also identified Bruins as the culprit. Bruins testified that he got in the car just before it was stopped. A rational fact-finder could nonetheless easily conclude that Bruins took Arthur’s property with the intention of keeping it permanently. State v. Sonnier, 317 So.2d 190 (La.,1975).

THE SENTENCE

LSA-R.S. 14:64 B provides that one convicted of armed robbery shall be sentenced without benefit of parole, probation or suspension of sentence. The habitual offender law does not specifically require these conditions. LSA-R.S. 15:529.1, subd. A(l), supra.

It is not a crime to be an habitual offender. The statute increases the sentence for a recidivist. The penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.

One convicted of a second felony is ineligible for probation or suspension of sentence. LSA-C.Cr.P. art. 893(A). An armed robber can be sentenced without benefit of parole under the habitual offender statute. State v. Overton, 337 So.2d 1201 (La.,1976). State v. Wilson, 363 So.2d 445 (La.,1978) involved an armed robber sentenced as an habitual offender. The opinion states that the “.. . sentence is without benefit of parole, probation, or suspension of sentence.” 363 So.2d at 447.

Bruins’ sentence as an habitual offender based on an underlying conviction of armed robbery should be without parole, probation, or suspension of sentence.

DECREE

For the foregoing reasons, the conviction is affirmed but the sentence is vacated and the matter is remanded for re-sentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

DENNIS, J., dissents in part, concurs in part with reasons.

DENNIS, Justice

dissenting in part and concurring in part.

I concur in the decision insofar as it affirms the defendant’s conviction but respectfully dissent from vacating the defendant’s sentence.

There is substantial doubt that the legislature’s aim was to provide for sentencing as a habitual offender “in the same manner as” the basic offense. At the time La.R.S. 15:529.1 became effective in 1956, Acts 1956 No. 312, only violations of the uniform narcotic drug act under La.R.S. 40:981 denied parole eligibility on a sentence less than life imprisonment. See Acts 1952 No. 429; Acts 1954 No. 682. The armed robbery statute, La.R.S. 14:64, was not amended to provide for a sentence denying parole eligibility until Act No. 475 of 1962. Accordingly, it does not seem possible that the legislature in 1956 could have intended, by enactment of the habitual offender law, anything except an increase in the number of years of a sentence in certain cases. The majority’s interpretation of the statute, in the light of this legislative history, is clearly at odds with our well established rule that, in deciding whether the legislature intended for a defendant’s act to be punishable by a more or less severe penalty, in the absence of an express legislative intent, any doubt should be resolved in favor of lenity, and not so as to multiply the penalty imposed upon the defendant. State v. Young, 357 So.2d 503 (La.1978); State v. Cox, 344 So.2d 1024 (La.1977) and cases cited therein.

      . LSA-R.S. 15:529.1, subd. A(l) provides:
      “(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction; ...”


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

text:
    STATE of Louisiana v. Terry E. FORD.
    No. 81-KA-1115.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    See State v. Reed, 388 So.2d 776 (La.1980), (Lemmon, J., concurring).

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Leon Cannizzaro, Kendall Green, John Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Clyde Merritt and Dwight Doskey, New Orleans, of Orleans Indigent Defender Program, for defendant-appellant.
   SCHOTT, Justice Ad Hoc.

Defendant was convicted of violating R.S. 14:95.1, to wit: attempted unlawful possession of a firearm by one who was previously convicted of manslaughter. He was sentenced to two years imprisonment.

On the night of the alleged offense two state troopers, Dean and Behlar, while patrolling the streets of New Orleans, observed an automobile weaving and crisscrossing between lanes. They activated their dome light and stopped the automobile, whereupon defendant exited from the driver’s seat. While Behlar spoke to defendant at the rear of the car, Dean shone a flashlight into the car and saw the butt of a gun protruding from between the driver’s seat and the console. After reaching in the open window of the car and retrieving the weapon, which was an automatic pistol, he noticed that the serial numbers had been obliterated. The officers then ran a check and discovered that defendant was a convicted felon.

Defendant moved to suppress the introduction of the automatic pistol on the ground that his constitutional right against unlawful search was violated. The denial of his motion is the basis for the first of four assignments of error he makes in this court.

In considering this first assignment of error, we refer to State v. Parker, 355 So.2d 900 (La.1978), where the constitutional right against a warrantless search and seizure was discussed in the light of the “plain view” and “exigent circumstances” doctrines. The plain view doctrine applies in the following circumstances:

1. There must be prior justification for an intrusion into a protected area;

2. The evidence is discovered inadvertently:

3. It is immediately apparent without close inspection that the items are evidence or contraband.

The facts of this case present no problem with respect to the first and second criteria. It was quite reasonable for the officers to stop this defendant and it was surely a normal police function for one of the officers to shine his flashlight on the inside of defendant’s car to see what might be readily apparent there, while the other officer observed defendant at close range and questioned him in connection with suspected driving under the influence of alcohol or drugs. The butt of the gun was thus discovered inadvertently during this justified intrusion into the “protected area” of defendant’s automobile.

The third criterion to support the application of the plain view doctrine was not present, but the officer was justified in reaching in to retrieve the weapon under the exigent circumstances rule discussed in State v. Parker, supra, where it was held:

“. .. If the evidence is itself within a protected area, the officer may not enter that area to effect the seizure without first obtaining a warrant, absent exigent circumstances or another exception to the warrant requirement.”

In the Parker case the evidence was discovered in the defendant’s unoccupied van which was parked in his driveway for the night. The court found no exigent circumstances to justify a warrantless seizure of the evidence in the van because a warrant could easily have been obtained without the risk of the van being moved and the evidence lost.

The instant case is quite different. Once the officer knew defendant had the gun in his car their suspicions, created initially by defendant’s erratic driving, were naturally strengthened; they naturally became apprehensive; and they did not have the choice of obtaining a warrant. In effect, they were required to examine the weapon then and there or simply allow defendant to re-enter his car, re-arm himself, and drive away. Exigent circumstances existed to justify the officer’s conduct and the motion to suppress was properly denied.

Defendant’s second assignment of error involves the prosecutor’s reading of a statement of facts from his previous conviction, including the statement that the synopsis had been read and approved by the former trial judge. Defendant himself opened the door to broad cross examination on the details of his previous conviction when, after stipulating that he had been convicted of manslaughter, he testified on direct examination as to circumstances which suggested considerable mitigation for the offense. His version of the circumstances was contradictory to the summary of the facts contained in the record of the previous conviction, signed by the assistant district attorney and the judge who presided over the previous trial. Defendant’s objection is that he was prejudiced because of the prosecutor’s question to him as to whether the judge had made these statements following his previous trial. Defendant argues that this was unfair because the injection of the judge’s summary into the minds of the jury placed him at an unfair disadvantage in trying to get the jury to accept his own statement of those facts. In view of the fact that defendant’s previous conviction of manslaughter was not an issue at the trial when defendant had stipulated to this effect, we fail to see how he was prejudiced by the prosecutor’s statement.

Defendant’s third assignment of error is that the prosecutor in his closing statement referred to the 11 to l vote on the verdict at his previous conviction. We fail to see any merit to this assignment for the same reason discussed above in connection with the second assignment of error.

Finally, defendant assigns error in the jury’s returning a verdict of attempted unlawful possession of a firearm, argues that attempt cannot be a responsive verdict under the facts of the case. R.S. 14:27(C) makes an attempt a lesser included offense of the charged crime. Defendant’s argument appears to be with the legislature’s definition of an attempt, but we are not persuaded that his rights were somehow violated when the jury convicted him only on attempt when they could have convicted him of the crime itself. Perhaps they reasoned that his offense was committed when he was outside the car and not in physical possession of the firearm at that time. Regardless, we find no merit to this assignment.

Accordingly, the conviction and sentence are affirmed.

DENNIS, J., dissents with reasons.

LEMMON, J., concurs. See State v. Reed, 388 So.2d 776 (La.1980), (Lemmon, J., concurring).

DENNIS, Justice,

dissenting.

Since a firearm, without more, is not evidence or contraband, the officers were not entitled to seize it before obtaining knowledge that made it a crime for defendant to possess it.

      . Judges Schott, Chehardy and Barry of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Justices Calogero, Dennis, Watson and Lemmon.


author: PER CURIAM.

text:
    STATE of Louisiana v. Lomas ROUBION.
    No. 81-KA-1147.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Robert Myers, Lance Africk, David R. Paddison, Asst. Dist. Attys., for plaintiff-appellee.
    Numa V. Bertel, Jr., and John M. Lawrence, Jr., of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM.

Defendant Lomas Roubion, also known as Ahmand Muhammed, and Elleaner V. Eveque, also known as Elleaner Thompson, were indicted by an Orleans Parish Grand Jury for first degree murder, a violation of La.R.S. 14:30. A motion to sever was granted to Elleaner Eveque by the trial court. On February 11-13, 1980, defendant was tried before a twelve-person jury which found him guilty as charged and sentenced him to life imprisonment. Defendant now appeals on the basis of thirty assignments of error, seventeen of which are argued.

Defendant was arrested, pursuant to a warrant, in Los Angeles, California, on December 20, 1978, was handcuffed, read his rights and transported to the local precinct. During the ride to the police station, defendant made an inculpatory statement regarding the events in New Orleans for which he was being arrested. In that statement, defendant recounted that he and the woman he was living with invited her ex-boy friend, Herman Norphard, to their apartment. When he arrived defendant stepped out and shot him eight times with a .25 caliber automatic pistol. Since the victim appeared to be still alive, defendant stabbed him three times in the chest with a fishing knife. Then he partially cut off the victim’s legs, stuffed the body in a trunk, put the trunk in a vehicle, and transported it to a road where he burned it.

The New Orleans Police were first notified of a homicide when they were called, on December 13, 1978 about 9:15 p.m., to the scene of a trash fire on Paris Road in Orleans Parish where the fire department “discovered the body of a male subject, bound beneath a black trunk.” The license number of a vehicle, which was seen in the area of the trash fire, was traced to Hilliard Carpenter. Carpenter, when contacted, admitted to lending the vehicle to defendant and “Lena” Eveque (the severed co-defendant) on December 12, 1978. The car was impounded by the police to check for blood. At trial, Carpenter testified that the car was returned about midnight of that same day.

On December 17,1978, Molly Woods notified the police that the trunk she had seen on the T.V. news broadcast of the incident looked like the trunk that she had loaned Roubion and Eveque earlier in December, 1981. She further reported that defendant had also asked to borrow a hacksaw and a hatchet. Furthermore, on December 16, 1978, defendant and Lena returned to Ms. Woods’ dwelling in an effort to explain the disappearance of the trunk. At that time, defendant made an inculpatory statement that he had killed Herman Norphard. Defendant related that he and Lena were nude when Herman walked through the door. They suspected that he would start something. When he didn’t, defendant shot him. Ms. Wood asked defendant, “Why did you do something like that?” Defendant responded that Norphard had to die; he should be dead. Later on, the defendant again returned to Ms. Woods’ place looking for an unnamed person. At that time he told Ms. Woods he was leaving on a 3:30 a.m. bus for Gardenia, California. The next morning Ms. Woods went to the police with this information.

On the basis of Ms. Woods’ information, the police obtained a search warrant for Roubion’s apartment. When they searched the apartment, on December 19, 1978 about 10:30 p.m., they found evidence of the reported foul play: a calendar with December 13 blacked out, a set of hacksaw blades, a double-brush carpet cleaner with blood, a small plastic bottle with an attached blood stained brush, a hacksaw handle in a plastic garbage pail, a pellet from the living room carpet and stained carpet and pads. After this search, an arrest warrant was issued for both Roubion and Elleaner Eveque.

When defendant was returned from Los Angeles he was taken to the third floor Detective Bureau of Central Lockup. Officer Richard LeBlanc testified that defendant was advised of his Miranda rights and booked. LeBlanc stated that no interrogation took place, but as he was filling out the rights of arrestee form, he asked defendant if he had anything to say. Defendant said, “No.” After the form was completed, defendant added that anything he said to the officer would put him in the electric chair.

In addition to the above events, there were two letters written by the defendant which were used as evidence at trial: one to Harry Connick and the other to Elleaner Eveque. The letter to Elleaner (Lena) stated that she was lucky to have a boyfriend who would kill for her. And the one to Connick asserted that the co-defendant was innocent because defendant had scared her into committing the offense with him.

Defendant presents thirty assignments of error, seventeen of which are argued. We find that none of defendant’s assignments present reversible error, nor do any involve legal issues not governed by clearly applicable principles of law. Therefore, the assignments are treated in an appendix attached hereto which remains part of the public record of this Court but which is not for publication with this per curiam opinion.

Decree

Accordingly, the conviction and sentence of the defendant Lomas Roubion are affirmed.

AFFIRMED.

       Judges Patrick M. Schott, Lawrence A. Chehar-dy and Denis A. Barry of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack Crozier Watson and Harry T. Lem-mon.


author: GULOTTA, Justice ad hoc.

text:
    STATE of Louisiana v. Calvin Ray KIMBLE.
    No. 81-KA-1153.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, William R. Weatherford, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet and David Randall Buckley, Baton Rouge, of Office of the Public Defender, for defendant-appellant.
   GULOTTA, Justice ad hoc.

Defendant, charged with second-degree murder, was convicted by a twelve man jury of manslaughter, a violation of LSA-R.S. 14:31, and was sentenced to serve a term not to exceed 21 years. He now appeals his conviction and sentence on the basis of ten assignments of error, seven of which we now consider.

Evidence concerning the stabbing death of the victim, Eddie Gremillion, on October 15, 1979 was conflicting. According to a prosecution witness, John Haney, he and defendant were discussing a purchase of marijuana in Baton Rouge on October 15, 1979, when Gremillion approached them and offered to help them buy a bag. Haney testified that after an exchange of words between defendant and Gremillion, the victim handed defendant his pocket knife and started running. Defendant chased him with the knife and, from a distance of about 50 yards, Haney saw defendant catch up with Gremillion and both men fall to the ground. He stated that Gremillion then jumped a fence and climbed up a “slump” before falling backward into a canal.

Defendant, who testified on his own behalf at trial, stated that Gremillion had given Haney the knife to hold until Gremil-lion returned with a bag of marijuana. As the victim started to walk away, defendant told Haney that he did not trust Gremillion with their money and that they should give him his knife back and get a refund. According to defendant, Haney thereupon gave defendant the knife and he called out to Gremillion to wait. When Gremillion started to run away, defendant chased and caught him and threw his knife on the ground. After Gremillion threw the money down, defendant testified that he started “trotting back” toward Haney, but saw Gremillion pull the knife out and run toward him. According to defendant, Gremil-lion jumped on him and they commenced to fight. Defendant stated that he took the knife from Gremillion and stabbed him with it only to protect himself.

INSPECTION OF POLICE REPORT (ASSIGNMENTS OF ERROR NOS. 1 & 3)

By these assignments of error, defendant contends the trial court erred in refusing to require production of the entire police report to defense counsel for use during cross examination of state witnesses who had relied on the report both at the trial and at a hearing on a motion to suppress. He contends the trial court’s rulings on his request for inspection denied defendant his constitutional right of confrontation.

At trial, Detective Greg Phares of the East Baton Rouge Police Department, while testifying, referred to and used a police report to refresh his memory concerning the distances and areas where blood was found on or near the victim’s body. This witness read off the distances from the report. When the State tendered him as a witness, defense counsel moved that the entire police report be produced for purposes of cross-examination, but the trial judge, over defendant’s objection, ordered the State to produce only that portion of the report covering distance, which was relevant to Phares’ testimony under direct examination.

Police reports are confidential and generally the State may not be compelled to produce them for inspection. State v. Franks, 363 So.2d 518 (La.1978); State v. Banks, 341 So.2d 394 (La.1976). It is well settled however, that when an officer’s testimony at trial is from his report rather than his memory, the trial judge should require production of the report for defense inspection. State v. Valentine, 375 So.2d 1378 (La.1979); State v. Franks, supra; State v. Perkins, 310 So.2d 591 (La.1975); State v. Tharp, 284 So.2d 536 (La.1973). In State v. Franks, supra, this court held that the same rule should follow where a witness has referred to his reports or notes with him on the stand, even though presumably only to refresh his memory while testifying. See Rule 612, Federal Rules of Evidence; 3 Wigmore Evidence § 762; McCormick, Evidence (2d Ed. 1972) § 9; 21A Am.Jur.2d Criminal Law, §§ 725, 961.

We conclude, therefore, the trial court erred in holding the state may satisfy its responsibility of disclosure by revealing only those portions of the police report relevant to the direct examination, instead of the entire report.

Nevertheless, we conclude that the trial court’s error in failing to order disclosure of the entire report was harmless and does not constitute grounds for reversal. At trial, the defendant admitted to the stabbing of the victim, but urged that he did so in self-defense. The State’s eye-witness to the stabbing refuted the defendant’s testimony. It therefore appears that the ultimate issue for the jury was whether to accept the defendant’s or the State’s version of the stabbing. Because Officer Phares’ testimony was limited to establishing distances and the location of the body and the blood, not relevant to the self-defense issue, the trial court’s error was harmless when considered in the context of the entire case. Although defendant argues that the distance issue was crucial to the State’s eyewitness’ ability to see the stabbing, defendant was permitted to see that portion of the report dealing with the crime scene. Under the circumstances, we conclude that there exists no “reasonable possibility” that the trial court’s failure to afford the defendant the opportunity to inspect the entire report contributed to his conviction. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Defendant also argues that the trial court erred in refusing to allow him to inspect and use for cross-examination the entire police report reviewed by two officers before testifying at a hearing on a motion to suppress evidence. At that hearing, Officer Phares stated that he had recalled the defendant’s address and time of his arrest because he had gone over his report prior to taking the stand. Defense counsel’s request for the production of the entire report for use at cross-examination was denied, the prosecutor responding that he would only furnish that part of the report concerning the witness’ answer to questions on direct examination.

Also, at a hearing on the motion to suppress, a second police officer, Sergeant Alford, testified regarding the date and hour of arrest and stated that he had earlier (before testifying on the stand) refreshed his memory concerning the exact time of arrest by referring to a report. Again, the trial court denied defendant’s request for the entire report. Defendant now argues that the credibility of the police officers’ testimony was crucial to the defense and the denial of use of the entire report for cross-examination constituted reversible error.

Although a defendant is entitled to examine the report or memorandum of a witness who refreshes his memory while testifying, a denial of a motion to produce is not error when a witness testifies from his memory, even though refreshed by reading over his report outside the courtroom prior to trial. State v. Lane, 302 So.2d 880 (La.1974). Since both officers testified that they had gone over the report at some time before taking the witness stand at the hearing on the motion to suppress, we find no error in the trial court’s denial of defendant’s motion to produce the entire report.

BREACH OF SEQUESTRATION ORDER (ASSIGNMENT OF ERROR NO. 4)

Defendant further argues that the trial court erred in allowing a witness to testify in violation of a sequestration order. Following the testimony of three witnesses, Haney, the State’s key witness, was called to testify. After the prosecutor informed the Court that the witness was waiting downstairs, apparently in the District Attorney’s office, defense counsel requested an opportunity to determine whether Haney had violated the sequestration order.

On questioning by defense counsel, Haney testified that while waiting in the District Attorney’s office he had talked about the case with the District Attorney’s investigator, Leonard Spears. The trial judge overruled defendant’s objection to Haney’s testimony. It is defendant’s contention that the court’s error in allowing Haney to testify in violation of the sequestration order was prejudicial and constituted an abuse of the trial judge’s discretion because all of the state’s evidence, except Haney’s testimony, was circumstantial.

LSA-C.Cr.P. Art. 764 permits the sequestration of witnesses and a prohibition against their discussing the case “with anyone other than the District Attorney or defense counsel.” An order of sequestration is intended to assure that a witness will testify concerning his own knowledge of the case without being influenced by the testimony of prior witnesses and to strengthen the role of cross-examination in developing facts. State v. Stewart, 387 So.2d 1103 (La.1980); State v. Lewis, 367 So.2d 1155 (La.1979). This provision vests discretion in the trial judge to disqualify a witness when a rule of sequestration has been violated. State v. Mullins, 353 So.2d 243 (La.1977). A trial judge’s ruling on this issue will not be disturbed on appeal absent a clear showing of an abuse of his discretion. State v. Stewart, supra; State v. Lewis, supra, State v. Mullins, supra.

Although defense counsel cross-examined Haney to determine whether the sequestration order had been violated, no showing was made that the investigator had informed Haney of events and testimony occurring in the courtroom. The investigator was not a witness in the case. Since the purpose of sequestration under LSA-C. Cr.P. Art. 764 is to insure that a witness will testify from his own knowledge of the case without being influenced by the testimony of other witnesses, it does not appear that the purpose of the sequestration order was violated in our case. Accordingly, the trial judge did not abuse his discretion in permitting Haney to testify.

This assignment lacks merit.

MISTRIAL BASED ON HEARSAY TESTIMONY (ASSIGNMENT OF ERROR NO. 5)

In this assignment of error, defendant contends the trial court erred in denying his motion for a mistrial based on prejudicial hearsay testimony by a state witness.

During the direct examination of Haney, the prosecutor asked:

“Q. Did ya’ll talk about this?”

Defense counsel immediately objected to any statements made by the defendant to Haney on the ground that defendant had not received notice of any statements despite his previous discovery motion. The State withdrew the question, but later the following testimony took place:

“Q. Did you see him stab him?
A. No sir. I seen him with the knife, but then he came back and told me he think, you know, he cut the dude in the back.”

Thereupon, defense counsel objected and moved for mistrial on the ground that no foundation had been laid for the introduction of the inculpatory statement and that the defense had not received notice of the statement under LSA-C.Cr.P. Art. 768.

Assuming that the above statement was hearsay, it was admissible as part of the res gestae. In Louisiana, the res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime, if the continuous chain of events is evident under the circumstances. LSA-R.S. 15:447, 448; State v. Drew, 360 So.2d 500 (La.1978); State v. Batiste, 318 So.2d 27 (La.1975).

Haney testified that defendant had walked back to him less than three minutes after the stabbing and had told him that he thought he had cut the victim in the back. Haney was a participant in the planned drug purchase and stood only a short distance away from the area where the fight took place. Thus, defendant’s utterance to Haney immediately after the crime clearly falls within the res gestae exception to the prohibition against hearsay testimony. Accordingly, we find no error in the trial court’s denial of defendant’s motion for mistrial based on prejudicial hearsay testimony by a state witness.

We likewise find no merit to defendant’s contention based on LSA-C.Cr.P. Art. 768, requiring prior notice of defendant’s inculpatory statement. This court has consistently held that notice under this article is not required when the statement sought to be admitted into evidence forms a part of the res gestae. State v. Hennigan, 404 So.2d 222 (La.1981); State v. Lawson, 393 So.2d 1260 (La.1980); State v. Shelton, 377 So.2d 96 (La.1979); State v. Labostrie, 358 So.2d 1243 (La.1978).

This assignment is without merit.

IRRELEVANT TESTIMONY (ASSIGNMENT OF ERROR NO. 6)

Defendant complains by this assignment that the trial court erred in overruling a defense objection to the prosecution’s elicitation of irrelevant testimony. This question arose in connection with the introduction into evidence of taped statements made by the defendant.

Defense counsel cross-examined Officer Phares concerning the procedure used in interrogating defendant, in an attempt to show that defendant’s entire conversation had not been taped and that the detectives had made threatening statements to him prior to recording his inculpatory statement. When the prosecutor questioned Phares on redirect concerning the normal procedure used in taking a statement from a suspect, defense counsel objected on the ground that the question had no probative value in the case. The trial court overruled the objection, and defense counsel now argues that since Phares had already testified at length as to the procedure used in inter-rogating the defendant any testimony regarding standard procedures used in taking a statement from a suspect was irrelevant.

LSA-R.S. 15:441 defines “relevant evidence” as:

“... that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

A trial judge’s ruling concerning relevancy should not be disturbed absent a showing of a clear abuse of his discretion. State v. Garrison, 400 So.2d 874 (La.1981); State v. Alford, 384 So.2d 761 (La.1980); State v. Echols, 376 So.2d 1244 (La.1979).

The prosecutor’s question on redirect examination was an attempt to inform the jury that the officer had used the standard procedure in taking defendant’s statement and had not withheld or omitted improper interrogation from the tape. Under the circumstances, the prosecutor’s question was relevant to the issue brought out by defense counsel on cross-examination. We find no abuse of the trial court’s discretion in this instance.

This assignment lacks merit.

DETAILS OF DEFENDANT’S PRIOR CONVICTIONS (ASSIGNMENT OF ERROR NO. 8)

Defendant, in his testimony, admitted pleading guilty to simple robbery and forgery when asked on direct examination if he had ever been convicted of a crime. On cross-examination, the prosecutor questioned him concerning the details of his prior convictions. Defense counsel’s objection to this line of questioning was overruled and the defendant then testified concerning the details of the simple robbery. In this assignment, defendant contends the trial court erred in permitting such questioning since, by admitting his convictions, defendant was already impeached and further inquiry was improper and prejudicial.

In impeaching the credibility of a defense witness, the State may not only establish prior convictions of the witness, but may also cross-examine him about the details of those convictions in order to show the true nature of the offenses. State v. Jackson, 307 So.2d 604 (La.1975). This rule also applies to defendants who testify in their own behalf. State v. Connor, 403 So.2d 678 (La.1981); State v. Brown, 371 So.2d 746 (La.1979); State v. Sykes, 364 So.2d 1293 (La.1978). The trial judge has great discretion in determining the depth and length of the inquiry into the past convictions and his ruling will not be disturbed absent a showing of abuse. State v. Brown, supra.

In the instant case, the nature and scope of the prosecution’s questioning concerning the details of defendant’s prior convictions were well within allowable limits and we cannot say the trial judge abused his discretion in overruling the defendant’s objection.

This assignment is without merit.

EXCESSIVE SENTENCE (ASSIGNMENT OF ERROR NO. 10)

By this assignment of error, defendant complains the trial court gave undue weight to findings contained in a pre-sentence investigation report, failed to consider mitigating factors, and imposed an excessive sentence.

The pre-sentence investigation report indicated that defendant Kimble had demonstrated, by his actions, a flagrant disregard for human life and had been shown leniency by the jury in being convicted of manslaughter. The report recommended that defendant receive the maximum allowable sentence.

Defendant argues that the statements in the pre-sentence investigation report show that the probation officer was attempting to second-guess the jury. The trial judge referred to the pre-sentence report and indicated further that defendant was a second-felony offender, not eligible for probation, and that the instant conviction was defendant’s third felony conviction, even though he was technically classified as a second-felony offender.

It is undisputed that defendant had been convicted of simple robbery and of attempt to obtain Preludin by fraud. Based on defendant’s past criminal record, and the nature of the crime in this case, we conclude that defense counsel’s argument that the sentence is excessive lacks merit.

Finding no reversible error, we affirm the defendant’s conviction and sentence.

AFFIRMED.

DIXON, C. J., and CALOGERO, J., concur.

       Judges James C. Gulotta and Jim Garrison of the Fourth Circuit Court of Appeal, and Judge Bernard J. Bagert of the Criminal District Court for the Parish of Orleans, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr. and Fred A. Blanche.

      . Assignments of error nos. 2, 7, and 9 have not been argued in briefs and are therefore deemed abandoned. State v. Blanton, 325 So.2d 586 (La.1976).

      . LSA-C.Cr.P. Art. 768 reads as follows:
      “Art. 768. Same; use of confession or incul-patory statement; notice to defendant pri- or to opening statement
      If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”