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

text:
    STATE of Louisiana v. Arthur PRICE.
    No. 80-KA-2616.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, William W. Hall, Asst. Dist. Attys., for plaintiff-appellee.
    Robert Garrity, New Orleans, Indigent Defender Bd., for defendant-appellant.
   DIXON, Chief Justice.

Defendant was convicted of armed robbery (R.S. 14:64) and was sentenced to thirty years imprisonment at hard labor without benefit of probation, parole or suspension.

The chief issue in this appeal is whether defendant successfully presented a defense of insanity. For the purposes of criminal liability, insanity is defined as a mental disease or defect that renders a person “incapable of distinguishing between right and wrong with reference to the conduct in question.” R.S. 14:14. A defendant is entitled to a verdict of not guilty by reason of insanity if it is proved, by a preponderance of the evidence, that he was insane at the time of the offense. C.Cr.P. 652. Defendant contends that he met his burden of proof, and that the jury’s unanimous verdict was contrary to the evidence.

I

In reviewing such claims of insufficiency of evidence in regard to a defense of insanity, this court has applied the test established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in accord with the rule announced in Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979). See State v. Liner, 397 So.2d 506 (La.1981); State v. Hathorn, 395 So.2d 783 (La.1981); State v. Claibon, 395 So.2d 770 (La.1981); State v. Roy, 395 So.2d 664 (La.1981). Under the Jackson standard, the test is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that the crime was proved beyond a reasonable doubt. When this standard is applied to the review of evidence adduced in support of the defense of insanity, which is the defendant’s burden to prove, the question becomes whether any rational fact finder, viewing the evidence in the light most favorable to the prosecution, could find, beyond a reasonable doubt, that the defendant failed to present a preponderance of proof in support of the defense. That is, a defendant might fail to adduce any proof in support of the defense, or the prosecution might effectively rebut any evidence presented.

Only two witnesses testified in defendant’s behalf: Mrs. Jones, defendant’s foster mother, and Dr. Arneson, a psychiatrist. Mrs. Jones, who had raised defendant since his infancy, reported that defendant’s behavior had become erratic in the months prior to the robbery: he withdrew from his friends and family and remained secluded in his room; he refused to engage in conversation; he lost his appetite; and he took long walks alone. She also testified that defendant had left one job, stating that his nerves were upset, and that he never stayed on other jobs longer than a few days. Dr. Arneson, accepted as an expert witness in the field of psychiatry, had examined defendant on four occasions. She declared that defendant was psychotic, and suffered from manic-depressive episodes. According to Dr. Arneson, this condition causes extreme changes of mood: the person who suffers from such an affliction alternates between periods of deep depression and withdrawal to periods of high excitement and manic behavior. After hearing Mrs. Jones’ testimony, Dr. Arneson concluded that defendant’s emotional state was probably in the latter extreme when the robbery occurred, and that he was operating under a grandiose delusion. Dr. Arneson affirmatively stated that, considering defendant’s probable mental condition at the time the crime was committed, he would not have known the difference between right and wrong “in the usual sense.”

On cross-examination, Dr. Arneson explained:

“I would say when a patient is in a manic episode they exhibit what we call grandiosity, they feel they can get away with or do anything. You know, some say they can fly or jump out the window, that sort of thing. And, I think that Mr. Price was high and he was excited and he felt that he could probably do this and he was having some financial difficulty or something, and he just went ahead, in a very psychotic manner, went ahead to rob this bank.”

As to determining the difference between right and wrong, Dr. Arneson stated that psychotic individuals usually are affected by a “delusion that they can do anything and it is not wrong because they are so powerful and so on. In this sense they don’t appreciate right from wrong in the ordinary every day way.”

The prosecution presented no expert testimony to contradict the defense of insanity. However, the prosecution did rely upon the factual circumstances of the case to rebut Dr. Arneson’s conclusions.

Defendant robbed the bank with a kitchen knife, jumping over a counter and taking cash from a teller’s drawer. In removing one stack of bills, defendant picked up and then replaced a device (known as “bait money”) which, although disguised as money, actually contains a package of dye designed to explode if removed from the bank. The teller testified that defendant told her to be quiet and not to move, and that he did not want to have to hurt anyone. After defendant took the money from the drawer, he again leaped over the counter and reportedly repeated his statement that he did not want to hurt anyone.

Defendant was apprehended a short while later at his home. He had stuffed a paper bag containing the money into a hole in the ceiling. Defendant told the police that the money was his savings.

Despite Dr. Arneson’s assertion that these facts did not change her opinion of defendant’s insanity at the time of the offense, the facts did provide the jury with a number of reasons for concluding that defendant was not insane, and that he was aware that what he was doing was “wrong.” It ought to be noted that, in the jurisprudence of this state, there is some confusion as to whether the terms “right” and “wrong,” as used in R.S. 14:14, refer to legal or moral values. See State v. Abercrombie, 375 So.2d 1170 (La.1979). There has also been substantial criticism of the century old rule defining legal insanity in terms of a defendant’s perception of right and wrong. It is thought that the rule is outmoded in terms of the present state of medical knowledge concerning insanity, and that the terminology of the rule is essentially meaningless. See, e. g., LaFave & Scott, Criminal Law, § 37 at 280-83 (1972); McNamara, “The Insanity Defense in Louisiana,” 12 Loy.L.Rev. 19 (1965-66); Morrow, “Louisiana Criminal Code,” 17 Tul.L.Rev. 1, 15-17 (1942); Comment, “Legal Insanity and the Law of Crimes,” 29 Tul.L.Rev. 576 (1955).

In the present case, defendant proved by a preponderance of evidence that he suffered from a mental disease or defect. His criminal conduct was perhaps prompted by his mental condition. However, viewing the evidence in the light most favorable to the prosecution, the record belies the assertion that defendant was not aware of the criminality of his actions, and that defendant’s mental status prevented him from being aware that his conduct was forbidden by society both legally and “morally.” At least two points are significant. First, defendant’s deliberate refusal to take the “bait money” allows the inference that he understood that the money could foil the crime. This inference supports the finding that defendant knew that his actions were outlawed, and was anxious to avoid detection or capture. Second, defendant stated that he did not want to hurt anyone, which signals at least a rudimentary value system on his part, representing a choice between “right” and “wrong.” Given these facts, a rational jury could have concluded that the defense of insanity was not proved by a preponderance of the evidence. Moreover, Dr. Arneson characterized defendant’s mental illness as causing delusions in defendant that he could “get away with or do anything.” Such a delusion does not necessarily negative an awareness that what is done is not socially or legally permissible, and cannot necessarily be interpreted as removing the feature of deliberate defiance that marks a criminal act.

II

Defendant’s final assignment of error is that his thirty year sentence of imprisonment is excessive. The sentence is within the statutory limits of R.S. 14:64 (which establishes a minimum of five and a maximum of ninety-nine years imprisonment) and conforms with the statute’s dictate that no “parole, probation or suspension of sentence” can be allowed.

Article 1, § 20 of the Louisiana Constitution of 1974 forbids excessive punishment. A trial judge must state for the record “the considerations taken into account and the factual basis therefor in imposing sentence.” C.Cr.P. 894.1(C). The purpose of this provision is to afford a reviewing court some insight into the reasoning process of the trial judge, so that the propriety of the sentence can be better evaluated. When the trial judge does not comply with the provision, the sentence may be vacated and the case remanded for resentencing. See, e. g., State v. Cox, 369 So.2d 118 (La.1979); State v. Jackson, 360 So.2d 842 (La.1978). If, however, there is no apparent abuse of discretion in imposing sentence, this court may decline to remand the case for resentencing, even where the trial judge does not fully comply with the requirements of C.Cr.P. 894.1. See, e. g., State v. Davenport, 399 So.2d 201 (La.1981); State v. Day, 391 So.2d 1147 (La.1980); State v. MacDonald, 390 So.2d 1276 (La.1980).

Accordingly, it must first be determined whether the trial judge satisfied the requirements of C.Cr.P. 894.1. In this regard, it should be noted that the trial judge was required to impose at least five years of imprisonment; there was no discretion to allow suspension or probation.

At the sentencing hearing, the trial judge mentioned three basic factors which he had considered: (1) that defendant’s conduct threatened both life and property, and was a serious offense; (2) that no showing was made of any provocation; and (3) that defendant posed “a definite threat to society.” In addition, the judge remarked to the defendant: “You had no explanation for your conduct except that you just were not in your right mind.” In expressing these considerations, the trial judge negatived the presence of several mitigating factors enumerated in C.Cr.P. 894.1(B). At the same time, no mention was made of the considerations included in C.Cr.P. 894.1(B)(4), (7), (8) or (9), which appear to be highly relevant. Thus, although defendant failed to establish the defense of insanity, it could not be denied that proof was given that he suffered from a deranged mental condition; in fact, the court appointed sanity commission had initially found that defendant was not even capable of standing trial. It was not until after defendant responded to medical treatment that the trial took place. While defendant did not prove that he was legally insane when he committed the crime, there was certainly proof that he committed the offense under the influence of an abnormal mental state. This does not absolve defendant of criminal responsibility for his actions, but it does tend to excuse or explain his behavior. C.Cr.P. 894.1(B)(4). In addition, the trial judge did not mention whether defendant had ever committed another crime, but Mrs. Jones testified that defendant had always been a law-abiding individual. C.Cr.P. 894.1(B)(7). Finally, Dr. Arne-son testified that there was every reason to believe that the prognosis for treating defendant’s mental condition was favorable, since defendant had already responded affirmatively to medication. C.Cr.P. 894.-1(B)(8), (9).

These factors should have been weighed before sentence was imposed. Even though defendant did not prove his legal insanity at the time of the offense, the uncontro-verted medical testimony indicated that defendant was psychotic, and that he probably would not have committed the crime but for his mental condition. As it appears that the mental condition can be treated and brought under control, it follows that a thirty year term of imprisonment is not indispensable for the protection of society.

We do not conclude, from the record before us, that the thirty year sentence was in fact excessive or grossly out of proportion to the severity of the crime. Compare State v. Williams, 397 So.2d 1287 (La.1981). But where, as here, the trial judge ostensibly ignored or discounted several important mitigating considerations without providing any reasons for doing so, and the sentence imposed is relatively harsh considering the circumstances of the offender’s mental state, it is preferable to require a reexamination of the sentence.

For the reasons assigned, the defendant’s conviction is affirmed, but the sentence is vacated, and the case is remanded for re-sentencing in a manner consistent with this opinion.

MARCUS and BLANCHE, JJ., concur in part and dissent in part and assign reasons.

WATSON, J., concurs in part and dissents in part, for reasons assigned by BLANCHE, J.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of the conviction; however, I dissent from the reversal of the sentence and remand for resentenc-ing.

BLANCHE, Justice

(concurring in part, dissenting in part).

I concur in affirming the defendant’s conviction but dissent from the majority’s remand of the case to the trial court for resentencing.

The jury found defendant could distinguish right from wrong and was, therefore, fully responsible for the crime which he committed. For a person fully responsible for committing the armed robbery of a bank, this writer believes that thirty years is a moderate sentence when it is considered that the defendant could have been sentenced to ninety-nine years without the benefit of parole, probation or suspension of sentence.

Further, this writer disagrees that the defendant proved a deranged mental condition but, assuming arguendo that one here was proved, it should be considered as an aggravating circumstance rather than one in mitigation. Proof of a mental condition as described by the psychiatrist is the type of mental propensity against which society should be protected.

      . Three other assignments of error were raised in this appeal. The first two involve defendant’s competence to stand trial and a motion for continuance requesting additional evaluation by the sanity commission. The record discloses that the physicians on the sanity commission examined defendant the first time in November, 1977 and pronounced him incapable of standing trial. He was committed to East Louisiana State Hospital for treatment. Defendant was again examined in October, 1978 and was found competent. The trial judge then ordered that defendant be given no further medication (chlorpromazine). Defendant was reexamined in November, 1978 and the sanity commission again reported that he was competent to stand trial. In January, 1979, at defendant’s motion, another examination was conducted by Dr. Arneson, a psychiatrist serving on the sanity commission, who found defendant’s mental status to be normal. Finally, on the day of trial, defense counsel requested a continuance to obtain further evaluation. The trial judge refused this motion, but allowed defendant to testify for the purpose of evaluating his mental status. The transcript of this proceeding fully supports the finding that defendant understood the charge and the nature and gravity of the offense; that he was aware of his various rights; that he could recall events pertinent to the crime; and that he was able to assist his counsel. Psychological reports had indicated that defendant’s intelligence was better than average. The trial judge exercised sound discretion in considering all the evidence before determining that defendant could proceed to trial. State v. Holmes, 393 So.2d 670 (La.1981); State v. Bennett, 345 So.2d 1129 (La.1977). These assignments of error are without merit.
      The third assignment of error concerns the admission into evidence of six photographs. The argument is made that a proper foundation was not established for the introduction of this evidence. This argument is meritless. The officer who took the pictures identified them at trial, and testified that they accurately depicted the scenes that he photographed. Other witnesses corroborated this testimony. Defense counsel’s objection to the admission of the photographs on the grounds that no testimony was given as to how they were developed was properly denied.


source: Caselaw Access Project

author:
MARCUS, Justice.
     DIXON, Chief Justice

license: Public Domain

text:
    STATE of Louisiana v. Lanzy ACLIESE.
    No. 80-KA-2719.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
    Edward James Lopez, Opelousas, for defendant-appellant.
   MARCUS, Justice.

Lanzy Acliese was indicted by the grand jury for the aggravated rape of the eleven-year-old daughter of the woman with whom he was living on May 8, 1979, in violation of La.R.S. 14:42. After trial by jury, defendant was found guilty of forcible rape, La.R.S. 14:42.1. A presentence investigation was ordered by the court. Subsequently, defendant was sentenced to serve twenty-five years at hard labor with two years of the sentence to be without benefit of probation, parole, or suspension of sentence. The court expressly directed that the sentence be served consecutively with the “sentence previously imposed and for which he [defendant] is now on parole.” On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in allowing the introduction of evidence of prior sexual assaults by defendant on the victim to show his lustful disposition toward her. He argues that this evidence was not intended for the purposes permitted under the statutory exceptions to the prohibition against evidence of other crimes. La.R.S. 15:445, 446.

Prior to trial and in conformity with the guidelines set forth by this court in State v. Prieur, 277 So.2d 126 (La.1973), the state served written notice on defendant that it intended to offer evidence of prior sexual offenses committed by him against the victim “to corroborate the offense charged, to show intimate relations between the parties, to show the lustful disposition of the defendant, to show the probability of him having committed the offense charged, and to rebut a possible defense of alibi or no penetration.” A Prieur hearing to determine the admissibility of the evidence of other crimes was held outside the presence of the jury prior to the calling of the first witness. The only witness was the victim, the eleven-year-old daughter of the woman with whom defendant was living. She testified that on at least six occasions during the weeks immediately prior to the offense charged, defendant had either raped or attempted to rape her at her home. The offenses generally followed the same pattern wherein defendant would wait until the victim’s mother and brother were either away from the house or asleep. Defendant would then call the victim to him, push or force her to the floor, remove her pants and underwear, and assault her. Defendant threatened to harm the girl if she told anyone of the attacks. The victim also testified as to the details of the rape on May 8, 1979, the offense for which defendant was charged. After the hearing, the trial judge ruled that the state would be permitted to present evidence of “prior acts of intercourse or attempted intercourse” with the victim by defendant. Defendant objected to the ruling of the trial judge.

At trial, the testimony of the victim was generally the same as that at the Prieur hearing. Following direct examination of the victim, the trial judge gave a special charge to the jury as to the limited purpose for which the evidence of other crimes was received and was to be considered. The trial judge stated in part: “Under your oath you are restricted in considering such evidence only for the purpose of deciding whether or not defendant had a particular sexual desire for [the victim] and to consider the presence or absence of any such desire as a factor in determining whether defendant committed the crime with which he is charged, that is, aggravated rape of [the victim] on or about the 8th day of May, 1979.” In addition, the final charge to the jury contained a charge of the limited purpose for which the evidence was received and the jury was advised that defendant could not be convicted of any charge other than the one named in the indictment or one responsive thereto. State v. Prieur, supra.

Evidence of other crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions. Aside from related offenses admissible as part of the res gestae and convictions admissible for impeachment purposes, Louisiana’s statutes provide for three exceptions—acts relevant to show intent, knowledge or system. La.R.S. 15:445, 446. Louisiana courts have recognized certain other exceptions, including the admissibility of prior sex crimes committed against the same prosecutrix. State v. Morgan, 296 So.2d 286 (La.1974); State v. Ferrand, 210 La. 394, 27 So.2d 174 (1946), on rehearing; State v. Mischiro, 165 La. 705, 115 So. 909 (1928); State v. Harris, 150 La. 383, 90 So. 686 (1922); State v. McCollough, 149 La. 1061, 90 So. 404 (1922); State v. Wichers, 149 La. 643, 89 So. 883 (1921); State v. DeHart, 109 La. 570, 33 So. 605 (1903).

As this court noted in its most recent consideration of this question in State v. Morgan, supra:

Generally, courts of other jurisdictions in sexual crimes permit evidence of prior sex offenses which involved the same person as the offense on trial. Wharton’s Criminal Evidence, 11th Edition, Vol. I, Section 356. Underhill’s Criminal Evidence, 6th Edition, Vol. 1, Section 212 at page 647 notes:
“Sex cases call for special treatment with respect to the admission of evidence of other offenses. They are subject to the same exceptions that non-sex criminal trials are subject to, and in addition they are often subject to a special rule relative to the defendant’s propensity to commit the crime on trial. “Some courts depart sharply from the general rule which bars the use of other offenses to prove the defendant’s propensity or disposition and permit the introduction in sex cases of evidence of other sex offenses in order to show the defendant’s propensity, inclination or disposition toward sex in general, that is, without regard to whether the defendant’s victim or partner was the same person. Other courts refuse evidence of other sex offenses which involve different victims or partners, but nearly all courts permit evidence of other sex offenses which involve the same person as the offense on trial, the theory being that the evidence shows the defendant’s lustful attitude toward that person. In any event, courts in sex cases are probably more liberal than they are in other cases in admitting evidence of other offenses.
“In the trial of sex offenses the evidence of other sex offenses is not limited to those occurring before the offense on trial, but remoteness, as always, is an important consideration.” (Footnotes omitted) (Emphasis ours)
Likewise, in a prosecution for the commission of statutory rape, or rape of a female under the age of consent, or an attempt to commit such rape, evidence of prior sex offenses committed by the defendant with the same prosecutrix is generally admissible. Such evidence has been admitted for various reasons, such as corroboration of the offense charged, to show intimate relations between the parties, the lustful disposition of the defendant and the probability of his having committed the offense charged, or to rebut the defense of alibi. 77 A.L.R.2d 852 (1961); Wharton’s Criminal Evidence, 13th Edition, Vol. I, Section 250 at page 577; 65 Am.Jur.2d, Rape, Section 72, page 803.

Thus, we conclude that in the instant case evidence of the prior rapes or attempted rapes by defendant of the eleven-year-old daughter of the woman with whom he was living was properly admitted in this prosecution for aggravated rape.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, 4 AND 5

Defendant contends the trial judge erred in failing to follow the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 and in imposing an excessive sentence.

Following defendant’s conviction for forcible rape, the trial judge ordered a presen-tence investigation. At the sentencing hearing, defendant testified that he had never had sexual intercourse with the victim but admitted that he was currently on parole for a conviction for carnal knowledge of a juvenile for an incident concerning his step-daughter during a former marriage. The state then introduced the record from that prior conviction which reflected that defendant had been charged with forcible rape and had pled guilty to a reduced charge of carnal knowledge of a juvenile. Defendant also testified that prior to trial he had agreed to take a lie detector test and had requested that he be questioned as to the incidents concerning both his stepdaughter and the victim in the instant case. Defendant admitted that he had subsequently been advised by his attorney that he had failed on the questions concerning the two crimes.

The trial judge then sentenced defendant to twenty-five years at hard labor with two years of the sentence to be without benefit of probation, parole, or suspension of sentence. The trial judge made specific reference to the sentencing guidelines of La.Code Crim.P. art. 894.1 and found that there was an undue risk that during the period of a suspended sentence or probation defendant would commit another crime, and that a lesser sentence would deprecate the seriousness of defendant’s crime. In imposing sentence, the court considered defendant’s criminal record of similar crimes, the repetitive nature of this crime, and the fact that the crime was committed on a child under the age of consent. The trial judge then expressly directed that the sentence be served consecutively with the sentence previously imposed for which defendant was then on parole.

La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Spencer, supra; State v. Sepulvado, supra.

In the instant case, we conclude that the trial judge adequately stated for the record the considerations taken into account and the factual basis therefor for imposing sentence as required by La.Code Crim.P. art. 894.1. Additionally, after reviewing the trial judge’s reasons for imposing the sentence, we are unable to say that the sentence is excessive. Clearly, the trial judge did not abuse his discretion.

Assignments of Error Nos. 2, 3, 4 and 5 are without merit.

DECREE

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

DIXON, C. J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

This case involves the application of principles laid down in State v. Moore, 278 So.2d 781 (La.1973). In that decision, we affirmed a basic rule: that when a person is on trial for his life or liberty, any evidence that he committed other crimes is inadmissible, unless such evidence is relevant to an issue of the case and its probative value exceeds its prejudicial effect.

The instant case is a sordid one. Defendant was indicated for aggravated rape (R.S. 14:42) of the eleven year old daughter of a woman with whom defendant was living. After a trial by jury, defendant was convicted of forcible rape (R.S. 14:42.1) and was sentenced to twenty-five years imprisonment.

Before trial commenced, defense counsel was notified that the state intended to elicit testimony from the victim concerning other acts of illicit sexual intercourse which the defendant had forced upon her. These offenses were said to have occurred in the year prior to the crime of which the defendant was accused. A hearing was held on the day before trial, with the victim as the sole witness. The trial judge ruled that the prosecution would be permitted to prove prior acts of intercourse or attempted intercourse with the victim by the defendant. Defense counsel objected to the introduction of any evidence relating to offenses other than the one with which defendant was charged.

Only two witnesses testified at trial — the parish coroner and the victim. The coroner testified that his examination of the victim, performed the day after the rape supposedly occurred, revealed that she might have been the object of forcible sexual penetration. The victim then took the stand, testifying that defendant had raped or attempted to rape her on five or six occasions in the year before the offense in question.

After the direct examination of the victim was completed, the trial judge gave the following charge to the jury:

“The defendant is charged with aggravated rape of Rosemary Alfred on or about May 8, 1979. That is the only crime with which he is charged and the only crime for which he can be found guilty except as to other lesser crimes about which I will charge you later. Evidence tending to prove other acts or attempted acts of sexual intercourse between defendant and Rosemary Alfred, the prosecuting witness, has been admitted in evidence. That evidence cannot be considered as directly proving defendant’s guilt of the crime charged or as bearing on his character, reputation or any criminal tendency. Under your oath you are restricted in considering such evidence only for the purpose of deciding whether or not defendant had a particular sexual desire for Rosemary Alfred and to consider the presence or absence of any such desire as a factor in determining whether defendant committed the crime with which he is charged, that is, aggravated rape of Rosemary Alfred on or about the 8th day of May, 1979. Accordingly, regardless of what your conclusion may be as to whether defendant committed any other crimes, you must be satisfied beyond a reasonable doubt from all the evidence in the case that defendant committed the crime charged or any lesser one for which a verdict is [responsive] as to which I will later charge you. Even should the state prove beyond a reasonable doubt that defendant committed other offenses on other dates but failed to prove beyond a reasonable doubt that he committed the offense for which he is now on trial, it would be your duty to find the defendant not guilty of the offense for which he is now on trial.”

The jury was thus instructed to consider the evidence of defendant’s previous offenses only insofar as that evidence tended to show that defendant had a “particular sexual desire” for the victim, and to consider the presence of such desire merely as a factor in determining whether defendant committed the crime with which he was charged.

This evidence of other crimes does not fall within any of the exceptions established in R.S. 15:445-46. Defendant’s intent was not at issue: once the victim testified that defendant committed the act, no further proof of intent was required. R.S. 15:444; State v. Moore, supra. Guilty knowledge is not an element of the crime of rape. And, even though the victim’s testimony indicated that the acts of rape followed a recurring pattern or system, evidence that the rapes were committed in a similar manner tended to prove no material issue.

The evidence did tend to prove the fact of defendant’s depraved character. To some extent, this must have been what the trial judge had in mind when he instructed the jury to consider the evidence of other crimes only insofar as it went to prove that defendant had a “particular sexual desire” for the victim: such evidence was probative of the likelihood that defendant did indeed rape the victim on the day in question. Under a long line of jurisprudence, in this state and others, it is permissible to introduce evidence of a defendant’s past acts of sexual misconduct with the same victim. In State v. Morgan, 296 So.2d 286, 288 (La.1974), this court stated:

“. . . Such evidence has been admitted for various reasons, such as corroboration of the offense charged, to show intimate relations between the parties, the lustful disposition of the defendant and the probability of his having committed the offense charged, or to rebut the defense of alibi. .. . ”

A majority of jurisdictions are said to subscribe to this view. See, 1 Underhill’s Criminal Evidence § 212 (6th ed. 1973); 1 Wharton’s Criminal Evidence § 250 (18th ed. 1972); Gregg, “Other Acts of Sexual Behavior and Perversion as Evidence in Prosecutions for Sexual Offenses,” 6 Ariz.L.Rev. 212 (1965). It has been said that the exception was created because of the abhorrence and contempt with which sex crimes are viewed. State v. Ferrand, 210 La. 394, 27 So.2d 174 (1946). If this is so, it seems peculiar to give sex crime defendants less protection from prejudicial evidence than is afforded to other criminals. Those charged with horrible crimes are entitled to the same protection in the guilt determining phase as those charged with less abhorrent offenses.

There is no doubt that the trial judge’s instructions to the jury were in accord with past jurisprudence. State v. Morgan, supra; State v. Ferrand, supra. It must be recognized, though, that this jurisprudential view represents an exception to the general rule that evidence of other crimes should not be used to a defendant’s prejudice at trial. Such a jurisprudential rule should not be unquestioningly accepted and inflexibly applied. It has been acknowledged that the exception as to evidence of other sexual offenses is limited to those cases where the crimes were perpetrated upon the same victim. State v. Morgan, supra. This application of the exception was said to avoid the holding of State v. Moore, supra, which involved the admissibility of evidence showing that the defendant had raped another victim. The validity of such exception is not readily perceived: the Moore decision applied the terms of the positive law, and the law makes no such distinctions.

R.S. 15:435 states that “[t]he evidence must be relevant to the material issue.” This principle was explained in State v. Moore, supra, at 785:

“. . . Correctly interpreted, R.S. 15:435 means that, in a criminal case, no evidence shall be admitted that is not relevant to (tending to prove or disprove) the matters in issue.”

Given this standard, the issue presented here is whether the evidence of defendant’s other crimes, admitted under the aegis of the trial judge’s special instructions, tended to prove a material issue.

At the time the evidence was admitted, no defense had yet been presented other than the cross-examination of the coroner. When the victim’s testimony was given, the jury was instructed to accept it only as evidence tending to portray defendant’s character as that of a rapist with a particular interest in his young victim. It has already been noted that the defendant’s knowledge or intent were not at issue in this case. Since the rapes allegedly followed a recurring pattern, it might be thought that the system or design of the crimes did indeed shed light on defendant’s perverse interest in his victim. What is questionable, though, is whether this aspect of defendant’s character was a material issue in the case.

It is clearly impermissible to adduce evidence of a defendant’s bad character except to rebut evidence introduced by a defendant to show good character. R.S. 15:481; State v. Prieur, 277 So.2d 126 (La.1973). In the present case, defendant’s character was never put at issue — the sole issue in the case was whether defendant committed sexual intercourse upon the victim on the day in question.

The evidence of past acts of forcible intercourse tended to support the charge leveled against the defendant: it showed that defendant had a pronounced sexual interest in the particular victim and, given this characteristic, made it likely that he was capable of the specific act in question. This, however, is the precise danger involved in using evidence that reflects upon the bad character of a defendant: it makes it easier to convict an accused of a crime he did not commit on the finding that he committed other crimes of which he has not been accused. Such evidence is not excluded on the grounds that it is not probative; it is said to be prejudicial because it is too probative. Under its damning influence, a jury may be persuaded that the defendant, a person of criminal character, committed the crime in question, since it is consistent with his nature; or, in the same vein, that the defendant should be punished for other crimes for which he is not on trial.

In the present case, the victim’s testimony was given before any substantial defense had been presented. Defendant rested upon the presumption of innocence; the sole defense was made by way of inquiring into the motive and reliability of the victim. Under these circumstances, the only probative force that can be ascribed to the evidence of defendant’s past acts of rape is that it revealed defendant as a person with a singularly depraved disposition, making it all the more likely that he committed the crime for which he was accused. This amounted to nothing more than permitting defendant’s conviction because of his bad character, a practice that is proscribed.

That is not to say that the evidence would be inadmissible under all circumstances. But where, as here, evidence of prior sexual crimes committed upon the same victim is introduced before a defense is ever made, it cannot properly be said that such evidence is relevant to a material issue. When an accused faces trial, his propensity for committing specific crimes is not automatically at issue; and, even in circumstances where evidence of other crimes might be relevant to a material issue, it must still be determined whether the prejudicial effect of such evidence outweighs its probative value.

Although the trial judge relied upon past pronouncements of this court in admitting the evidence, no attempt was made to determine whether the evidence was admissible under the general principles common to all criminal cases. And, because the evidence admitted in the present case tended to prove nothing but defendant’s bad character — a matter not at issue — it should not have been admitted.

The conviction and sentence should be reversed, and the case remanded for a new trial.

       Judges Morris A. Lottinger, Jr., Wallace A. Edwards and Elven E. Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . La.R.S. 15:445 provides:
      In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.
      La.R.S. 15:446 provides:
      When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.

      . La.R.S. 14:42.1 (forcible rape) contains the following penalty provision:
      Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.

      . In State v. DeHart, 109 La. 570, 33 So. 605 (1903), this court first expressed the view that evidence of prior sexual activity between defendant and the victim is generally admissible in the prosecution of sex offenders. DeHart thus held (in a case of incest) that such evidence “. . . tend[ed] to establish [the] commencement and continuance of the intercourse down to the time laid in the indictment. . . . ” 109 La. at 578, 33 So. at 608. Thereafter, in State v. Wichers, 149 La. 643, 89 So. 883 (1921), this court refined that view somewhat and held the evidence “admissible to show the relations between the parties, and thereby the likelihood that the offense charged had been committed. In other words, it is corroborative evidence. ...” 149 La. at 645, 89 So. at 884. In varying guises, the Wichers rationale has appeared in the following cases directly on point: State v. McCollough, 149 La. 1061, 90 So. 404 (1922) (carnal knowledge); State v. Ouzts, 162 La. 340, 110 So. 497 (1926) (carnal knowledge); State v. Fuller, 164 La. 718, 114 So.2d 606 (1927) (carnal knowledge); State v. Mischiro, 165 La. 705, 115 So. 909 (1928) (rape); State v. Ferrand, supra (attempted aggravated rape); State v. Smart, 247 La. 174, 170 So.2d 365 (1965) (carnal knowledge); State v. Morgan, supra (attempted aggravated rape). State v. Morgan, supra, represents this court’s last word on the question. For the dangers of this sort of rule, however, see State v. Crook, 253 La. 961, 221 So.2d 473 (1969), decided before State v. Prieur, supra, and State v. Moore, supra. This court found that evidence of defendant’s rape of another woman several days prior to the charged offense was "... admissible for corroboration and to show the intent and licentious disposition of defendant....” 221 So.2d at 477. State v. Crook cites to State v. McCullough, supra, an opinion that had carefully limited the rule to acts between the defendant and the victim. Crook appears obviously wrong; State v. Crook, as well as State v. DeHart and State v. Wichers, the cases which followed it, including State v. Morgan, should be overruled.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. William P. BOWICK.
    No. 80-KA-2793.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Clarence McManus, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Robert T. Garrity, Jr., and Joseph L. Montgomery, Metairie, of Indigent Defender Board, for defendant-appellant.
   LEMMON, Justice.

In this appeal defendant questions the validity of his guilty plea and the excessiveness of the sentence.

Defendant was originally charged with armed robbery. After a preliminary examination and plea discussions, in which defendant was represented by counsel whose competency has not been challenged, he entered a guilty plea to the reduced charge of attempted armed robbery. The trial judge, following a presentence investigation, sentenced defendant to serve seven years, recommending that defendant be placed in a drug rehabilitation program.

Defendant first contends that his guilty plea and sentence must be set aside because the trial court failed to advise him fully of his privilege against self incrimination before accepting his plea.

At the time of his plea defendant was 21 years old, had completed tenth grade, and had obtained a graduate equivalency diploma in military service. In a written waiver form signed at the entry of the guilty plea defendant acknowledged that his attorney had previously advised him of his privilege against self incrimination. He also acknowledged that his lawyer had explained he was giving up that right by pleading guilty and was admitting his crime.

Further, the trial court carefully reviewed those matters with defendant in a colloquy on the record. The judge made sure that defendant understood that by pleading guilty he was giving up his right to have a jury decide his guilt, his right to confront his accusers, his privilege against self incrimination, and his right to present evidence on his own behalf. Defendant unreservedly responded in an affirmative manner, clearly revealing an awareness of the rights being relinquished by his plea. The trial court also made sure defendant understood that by pleading without reservation he was giving up his right to contest such matters as the seizure of evidence by the police. The judge also carefully explained the possible sentence to which defendant was exposed and carefully determined that no promises had been made regarding the sentence to be imposed.

Defendant challenges the sufficiency of the trial court’s explanation of the privilege against self incrimination solely because the judge did not mention defendant’s right to remain silent during the trial.

Safeguards have been developed, both jurisprudentially and legislatively, in order to assure knowledgeable and voluntary guilty pleas and to provide a record which will establish the validity of the plea without the necessity of a subsequent evidentiary hearing. See State ex rel Jackson v. Henderson, above; Fed.R.Cr.P. 11. The decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), simply required a record of sufficient completeness for the state to carry its burden of proving the validity of the plea in a post-conviction attack. The Boykin decision, however, did not set forth a rule of procedure or a magic word formula, but simply rejected any presumption of the validity of a guilty plea. McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974).

We nevertheless responded by requiring the state to show that defendant was advised and understood before entering his plea that, by pleading guilty, he was giving up his right to trial by jury, his right to confront his accusers, and his privilege against self incrimination. State ex rel Jackson v. Henderson, above. One purpose of the Jackson three-right articulation rule was to provide an adequate record of the plea, thereby avoiding the necessity of a later evidentiary determination. Another related purpose was to add a measure of finality to guilty pleas by setting forth prophylactic procedures designed to eliminate postplea attacks. The rule was not designed, however, to serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea, as did the trial judge in this case.

The colloquy of defendant’s plea reveals his awareness of the rights he was waiving. The trial court’s failure to advise defendant expressly that his privilege against self incrimination applied to the trial as well as to the plea (a rather obvious matter of which defendant was possibly aware as a result of his trial counsel’s advice) was not fatal to his plea.

A more substantial problem is raised by the contention that the record does not establish defendant knew or was advised of the elements of the offense to which he pleaded guilty. Fatal to this contention, however, is defendant’s failure to establish that his lack of awareness of the elements resulted in his unawareness of the essential nature of the offense to which he was pleading.

In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) defendant pleaded guilty to a reduced homicide charge, all the while professing his lack of intent to harm the murder victim. The second degree murder charge to which Morgan entered his plea required proof of intent to kill. In challenging the plea, defendant established to the satisfaction of the district court that he had not been advised at any time by either the trial court or by his counsel (and hence was unaware) that intent to cause death was an element of the offense of second degree murder to which he was pleading guilty.

Here, although the trial court did not enumerate the elements required to prove guilt, defendant had previously been arraigned on a bill of information charging a $1,500 robbery of two named persons with a pistol. Further, a preliminary examination had been held, at which evidence of the robbery had apparently been presented. Then at the plea defendant and his attorney both represented to the trial court that defense counsel had explained and that defendant understood the nature of the crime to which he was pleading. Under these circumstances, the trial court did not err in accepting the guilty plea.

Defendant’s contentions regarding the sentence are that the trial court failed to comply with C.Cr.P. Art. 894.1’s sentencing guidelines and imposed an excessive sentence. We have not remanded for compliance with C.Cr.P. Art. 894.1 when the sentence imposed was not “apparently severe”. See State v. Jones, 381 So.2d 416 (La.1980), in which we affirmed a 15-year sentence for armed robbery. Defendant’s seven-year sentence for attempted armed robbery also falls into the lower range and is not “apparently severe”. This same reasoning disposes of defendant’s contention that the sentence is excessive.

Accordingly, the conviction and sentence are affirmed.

WATSON, J., concurs in the result.

DENNIS, J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DENNIS, J.

       Judges Frederick S. Ellis, Morris A. Lottinger, Jr. and Elven E. Ponder of the First Circuit Court of Appeal participated in this decision, joined by Justices Calogero, Dennis, Watson and Lemmon.

      . The bill of information duplicitously charged defendant in one count with the pistol robbery of two victims. Thus, defendant could possibly have been charged with two counts of armed robbery.

      . Defendant objected to the sentence, although an objection was not necessary to preserve that issue for review. State v. Cox, 369 So.2d 118 (La.1979). No objection was raised during the proceedings leading to acceptance of the guilty plea. Nor did defendant move to withdraw the plea as unconstitutionally entered. See State ex rel Clark v. Marullo, 352 So.2d 223 (La.1977). Although C.Cr.P. Art. 559 requires that a motion to withdraw a guilty plea be filed before sentence, we will nevertheless consider defendant’s objection to the validity of his plea as properly raised, in order to avoid an application for postconviction relief raising the same grounds. See C.Cr.P. Art. 924 et seq.; State ex rel Clark v. Marullo, above. Compare State v. Williams, 327 So.2d 379 (La.1979); State v. Knighten, 320 So.2d 184 (La.1975).

      . The written form may be helpful in assuring compliance with this court’s three-right articulation rule announced in State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). The written form should be used in addition to the trial court’s on-the-record examination of defendant before the plea is accepted.

      . Such advice is not required by our past decisions, but helps to assure an awareness of the consequences of the guilty plea. Under State v. Crosby, 338 So.2d 584 (La.1976) defendant must explicitly reserve his right to appeal adverse pretrial rulings.

      . This is a case in which defendant was represented by one lawyer at his guilty plea and by another lawyer on appeal. All of the contentions raised regarding defendant’s actual awareness and understanding of the rights being “waived” by his plea are in the form of allegations by appellate counsel and are unsupported by the record. We are not aware of any sworn testimony by the former defense counsel or by defendant himself concerning their conversations about the rights being waived by the guilty plea. Rather, appellate defense counsel would have this court add to its prophylactic Jackson rule. We decline to extend to expand the list of matters about which defendant must be “warned” by the trial court. It is sufficient in this case merely to point to compliance with Jackson and to the fact that the totality of circumstances surrounding the plea clearly reveal its voluntary and knowing nature.

      . Again, defense counsel urges us to extend our Jackson rule to adopt a per se rule declaring invalid guilty pleas which are entered voluntarily upon advice of counsel (and upon both defendant’s and counsel’s representation that defendant was aware of the elements of the offense) because the judge himself failed to canvass the elements on the record with defendant. For an excellent discussion of the federal procedure (which requires such a procedure, as well as a factual basis) see United States v. Dayton, 604 F.2d 931 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). See also the recommended guilty plea procedure in the Louisiana Judges’ Benchbook, Criminal Proceedings, Guilty Pleas, Louisiana Judicial College, 1980.

      . The presentence investigation report included defendant’s statement that he committed the robbery with a toy pistol. That assertion, however, does not appear anywhere in the record, and defendant did not assert in brief or argument that the “dangerous weapon” element of the offense was missing. See State v. Byrd, 385 So.2d 248 (La.1980); State v. Gould, 395 So.2d 647 (La.1981).


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

text:
    STATE of Louisiana v. Robert D. HICKS.
    No. 80-KA-2822.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., W. C. Douglas Friederi-chsen, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Robert Garrity, New Orleans and Joseph Montgomery, Metairie, of Indigent Defender Board, Robert E. Lee, for defendant-appellant.
   ELLIS, Justice Ad Hoc.

Defendant Robert D. Hicks was charged by indictment with the crime of aggravated rape. The indictment was subsequently amended by the district attorney to include a second count, that of aggravated crime against nature. The case went to trial before a jury on both counts. After the State had rested its case and the defense had presented one witness, the defendant entered into a plea bargain with the State by virtue of which he withdrew his plea of not guilty to Count No. 2, aggravated crime against nature, and the State dismissed Count No. 1, aggravated rape.

It is clear from the record that the defendant, who was at all times represented by competent counsel, was examined by the trial judge in accordance with the standards and guidelines required by State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971) and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); that he fully understood his rights; that he knowingly and intelligently waived those rights; and that his plea of guilty was freely and voluntarily made, with full knowledge of its consequences. He was specifically advised that as a part of the plea bargain he would be sentenced to serve 15 years in the State Penitentiary, which were to run concurrently with a life sentence imposed by another division of the district court.

After sentence was imposed, defendant was granted an out of time appeal by this court, in which two assignments of error are urged. First, defendant complains of the failure of the trial judge to give reasons for imposing the maximum sentence, as required by Article 894.1 of the Code of Criminal Procedure. Second, it is argued that the sentence imposed was excessive in violation of the Louisiana and United States Constitutions.

In the case of State v. Curry, 400 So.2d 614 (La.1981), we said:

“The sentence for the possession of meth-amphetamines (81-KA-0275) was the result of plea bargaining culminating in a plea of guilty with the sentence to be given understood and agreed to. Under these circumstances we believe there was no necessity of listing enumerated reasons and that the defendant cannot complain of excessive length.”

The same circumstances pertain in this case, and we find the specifications of error to be without merit.

The conviction and sentence are therefore affirmed.

DENNIS, J., concurs. On the record in this case the sentence is not arbitrary or excessive.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Since there should be few absolutes in the laws governing human beings, I hesitate to impose an absolute prohibition on attacks on sentences negotiated as part of a plea bargain. I prefer to regard the fact of a negotiated plea as an extremely significant (and perhaps overwhelming) factor to be considered in weighing the totality of circumstances when the sentence is attacked. Thus, if the record supports the sentence, for example, by showing (as the record in this case does) that the accused significantly reduced his total sentencing liability by agreeing to a negotiated sentence, then the attack should be rejected. See State v. Day, 391 So.2d 1147 (La.1980). Since a totally silent record and an apparently severe sentence might present problems, the preferable procedure is to have the record reflect the entire plea bargain agreement.

As to the necessity for compliance with C.Cr.P. Art. 894.1 when a sentence has been negotiated as part of a plea bargain, the trial judge may find the statute useful in performing his function of determining whether to approve a plea bargain agreement containing a negotiated sentence. See State v. Beatty, 391 So.2d 828 (La.1980). At the very least the trial judge, in sentencing under these circumstances, should state for the record that he is imposing a sentence which was agreed upon as part of a plea bargain and should state the entirety of the agreement for the record, as noted above. This simple procedure should forestall almost any attack on the sentence.

       Judges Ellis, Lottinger, and Ponder of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Dennis, Watson, and Lemmon.


author: EDWARDS, Justice Ad Hoc.

text:
    STATE of Louisiana v. Charles Alfred CONNOR.
    No. 80-KA-2828.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet, Asst. Public Defender, for defendant-appellant.
   EDWARDS, Justice Ad Hoc.

Charles Alfred Connor was convicted by a jury of second degree murder in violation of LSA-R.S. 14:30.1. Defendant appeals on the basis of four assignments of error. Three assignments of error were neither briefed nor argued before this court and are considered abandoned. State v. Sonnier, 379 So.2d 1336 (La.1979); State v. Wientjies, 341 So.2d 390 (La.1976); and State v. Phillips, 337 So.2d 1157 (La.1976).

ASSIGNMENT OF ERROR NO. 4

During trial, Connor was asked on direct examination if he had ever pled guilty to any crimes. Defendant admitted pleading guilty to manslaughter in 1960 and serving a twelve year sentence for that offense. He further admitted a 1952 guilty plea to aggravated battery and having served a three year sentence for that offense.

On cross-examination of Connor, the assistant district attorney elicited the following testimony at Tr. 171-172:

“BY MR. ROY:
Q You claimed or you testified that you pled guilty to aggravated battery in 1952?
A Yes
Q You got three years; sentenced to three years?
A Yea.
Q You were discharged in ’54, November, ’54, two years later, is that right?
A Right.
Q Now, this plea to aggravated battery that you were guilty that you admitted making, that was a plea bargain deal, was it not?
A No sir.
Q On that occasion were you not in this very — it came out of Baton Rouge, did it not?
A I—
Q I say this incident arose out of Baton Rouge?
A It happened here in Baton Rouge.
Q That’s right. And were you not at that time charged—
MR. CALMES: Your Honor, I’m going to object.
MR. ROY: Let me finish my question.
THE COURT: Let him finish his question.
BY MR. ROY:
Q My question is this; you better believe let me talk. My question is this; were you not charged and booked with two counts of aggravated battery and you made a deal and pled to one?
A I didn’t make no deal.
Q True or not; beg you pardon?
A I didn’t make any deal with anyone.
MR. CALMES: Your Honor, I’m—
A One charge was dropped.
MR. ROY: Well, I’ll be happy to respond, Your Honor.
THE COURT: You want the jury out?
MR. ROY: Either way; it’s immaterial to me.
THE COURT: I think we should talk about convictions and nothing more. I’m not interested in arrests and neither is that jury.
MR. ROY: Your Honor, may I be heard, with or without the jury?
THE COURT: All right. Ladies and gentlemen, no discussion.
REPORTER’S NOTE: The jury was retired from the courtroom.”

Following the jury’s retirement, the prosecutor explained to the court that he wanted to counter defendant’s ploy of showing that he, defendant, was “a good, honest Samaritan, that when he commits a crime he comes in and he says he’s guilty.” The prosecutor stated that he was prepared to show that in 1952 the defendant had pleaded guilty to fewer crimes than he had been charged with. He also stated that he was prepared to show that defendant was originally charged with murder prior to his 1960 manslaughter guilty plea.

The trial court, concerned that reversible error might be committed, ruled that the state would henceforth be restricted to questions about prior convictions. Counsel for the defense then moved for a mistrial on the basis of the prosecutor’s questions before the jury. The trial court denied the motion for mistrial.

LSA-R.S. 15:495 provides:

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

State v. Jackson, 307 So.2d 604 (La.1975), held that it was not error to cross-examine a witness to obtain details of an offense for which the witness was convicted, in order to establish the true nature of the offense. Cross-examination about prior convictions, in order to establish the nature of the offense, is allowed when the defendant is a witness. State v. Chenier, 343 So.2d 177 (La.1977); State v. Williams, 339 So.2d 728 (La.1976); State v. Jackson, 339 So.2d 730 (La.1976).

State v. Oliver, 387 So.2d 1154 (La.1980), noted severe criticism of Jackson, and held that:

“Jackson must be narrowly, rather than broadly, construed and care must be taken to avoid prejudice to the rights of the accused by expansive references to details of a former conviction.”

In Oliver, reversible error was found in the prosecution’s use of an alleged but uncharged offense to attack the defendant’s credibility.

Jackson, supra, should be limited to questioning relative to prior convictions. It does not create a standard for questioning a witness about prior arrests or charges. Only limited questioning as to the facts of prior conviction is permissible. Minor details of far ranging and irrelevant matters such as conditions of probation, alleged but uncharged offenses and charges dropped in response to a guilty plea may not be used to cast doubt on a defendant’s credibility. The prosecutor’s questions of this nature were improper.

However, this improper questioning does not require reversal in this case. The record reveals that the evidence of defendant’s guilt was overwhelming. The murder took place in a pool hall in the presence of numerous witnesses who knew both victim and killer. The jury viewed the evidence, heard the testimony, observed the demean- or of all the witnesses and evidently did not believe defendant’s story that the victim had threatened him on prior occasions.

In the face of the evidence in the record, the improper questioning conducted by the prosecution could not have had any effect on the jury’s decision. The improper questioning had no significant bearing on the outcome of the case and, therefore, does not constitute grounds for reversal. State v. Davis, 289 So.2d 123 (La.1974).

This assignment of error lacks merit.

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

AFFIRMED.

       Judges Lottinger, Edwards and Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Archie FRANCIS.
    No. 80-KA-2912.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Michael Harson, Byron Legendre, Asst. Dist. Attys., for plaintiff-appellee.
    Fredric G. Hayes, William Burris, Lafayette, for defendant-appellant.
   DIXON, Chief Justice.

Defendant was arrested on May 15, 1979 and charged with the fatal shooting of two men on April 8, 1979 at the Tip Top Club in Broussard, Louisiana. He was convicted of two counts of first degree murder (R.S. 14:30) and sentenced to life imprisonment on each count. He appeals, relying on three assignments of error. We find that the assignments lack merit and affirm the convictions and sentences.

Defendant first claims that the court wrongfully allowed the prosecutor to exclude prospective jurors on the basis of race, denying him his right to a trial by a jury representative of his community. Defendant presents no evidence to substantiate this allegation. This court has repeatedly held that a defendant is not denied equal protection when the state uses peremptory challenges to exclude blacks unless there is systematic exclusion over a period of time. The defendant bears the burden of making a prima facie showing of such exclusion; once he does so, the state must show that there was no discrimination. State v. Washington, 375 So.2d 1162 (La.1979); State v. Bias, 354 So.2d 1330 (La.1978). This position accords with Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in which the United States Supreme Court held that a showing by the defense that preemptory challenges were used to exclude members of a minority in a particular case was not sufficient to establish a violation of the Fourteenth Amendment’s Equal Protection Clause. To present a constitutional question, the defendant must show systematic exclusion of the minority by the state over a period of time through the use of peremptory challenges. The record must show “with [some] acceptable degree of clarity . . . when, how often, and under what circumstances the prosecutor alone has been responsible for striking [the minority].” 380 U.S. at 224, 85 S.Ct. at 838, 13 L.Ed.2d at 775.

In State v. Washington, supra, and State v. Brown, 371 So.2d 751 (La.1979), we found objective evidence of systematic exclusion of blacks through the use of peremptory challenges by the prosecutor over an extended period of time. However, the record in this case does not reveal any other instances of exclusion by this prosecutor. The state points out that this is the first trial conducted by this prosecutor. Defendant has not established that there was discrimination in this particular case, as it is not clear from the record that there were no black persons sworn.

Defendant also claims that he was denied a trial by a representative jury because the court excused for cause jurors who stated that they were opposed to the death penalty. Since the jury did not recommend and the court did not impose the death penalty, the defendant cannot validly claim that the jury selection procedure operated to his prejudice. State v. George, 371 So.2d 762 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). A review of the voir dire examination shows that every juror who indicated that he had religious or conscientious scruples against the death penalty was asked if he would automatically vote against the imposition of capital punishment without regard to any evidence that might be presented at trial. Those jurors who responded positively to this question were excused by the court. This procedure conforms to the guidelines set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and C.Cr.P. 798. In Witherspoon, the United States Supreme Court held that a defendant sentenced to death would be deprived of his life without due process of law “if the jury that imposed or recommended [the death sentence] was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 391 U.S. at 522, 88 S.Ct. at 1777, 20 L.Ed.2d at 785. However, the court found no constitutional bar to excluding jurors who stated in advance of trial that they could not even consider returning a verdict of death.

Finally, defendant claims that the court erred in allowing a juror to serve who stated that he was hard of hearing, had difficulty with the English language, and had heard about the shooting from his son. C.Cr.P. 797 allows either the defendant or the state to challenge a juror for cause on the ground that he lacks a qualification required by law, or that he is not impartial. C.Cr.P. 401 states that jurors must be able to read, write and speak English and be free of mental or physical incapacity. The challenged juror in this case stated that he was hard of hearing and that his hearing problem might prevent him from hearing all the testimony. He added that he could hardly speak in English and might not be able to understand everything said at trial. The trial judge, who saw and heard the juror answer questions on voir dire, did not think the juror’s hearing or language problems were so severe as to render him incapable of serving on the jury. Furthermore, defendant did not object to his selection on this basis at the voir dire. Defendant based his challenge for cause solely on the ground that the juror had been given personal knowledge of the case by a witness. However, upon examination, the juror said only that his son was at the club where there was a shooting in which two people were killed, and stated, “That’s all I know about it.” He specifically stated that he had not formed any opinion as to who was responsible for the shooting and that he could listen open-mindedly to the evidence presented at trial.

We find nothing in the record to indicate that this juror could not be impartial. We also accept the trial judge’s determination that the juror’s communications problems were not so severe as to render him incapable of serving as a juror. The trial judge has wide discretion in ruling on challenges for cause, and his determinations will not be set aside on appeal, absent a clear showing of error. State v. Jones, 315 So.2d 650 (La.1975); State v. Willis, 262 La. 636, 264 So.2d 590 (1972). The record in this case reveals no deficiency in the voir dire proceeding.

There is no merit in these assignments.

The conviction and sentence are affirmed.

       Judges J. Burton Foret, Jimmy M. Stoker and P. J. Laborde, Jr., of the Third Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


author:
LEMMON, Justice.
     DENNIS, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Kathleen M. LEHNEN and Linda J. Flowers.
    No. 81-KA-0034.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Sheila Myers, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Ralph S. Whalen, Jr. of Oestreicher & Whalen, New Orleans, for defendant-appellant.
   LEMMON, Justice.

This case raises the question of the standard to be applied by a court reviewing a search warrant when the affiant, in good faith and without an intent to deceive, omits material facts from the affidavit supporting the warrant.

In attacking the affidavit in this case, which on its face clearly supports the magistrate’s finding of probable cause, defendants do not assert that any of the statements are false, in the sense of being affirmative misrepresentations. Rather, defendants attack the affidavit on the basis that the affiants omitted certain known facts which would have detracted from the showing of probable cause. Such omissions, defendants contend, require the deletion of the relevant and truthful facts, the impact of which is lessened by the omitted facts.

The affidavit essentially recited information reported to the affiants, who were police officers, by defendants’ neighbor, Mrs. Joyce Hagmann, and by her son, George Hagmann. The latter reported that he had recently seen Michael Palmer bring two M-16 automatic rifles (which are illegal weapons) into an apartment located upstairs from his mother’s apartment and that he was familiar with M-16 automatic rifles because of his military experience.

Mrs. Hagmann told the officers that four days earlier someone in the upstairs apartment, occupied by Palmer and defendants, had pointed a rifle at a 12-year old visitor to her apartment, but that the police did not make an arrest because the visitor could not identify the person who had pointed the gun at her. She also reported that Palmer on previous occasions had discharged firearms in the backyard of the apartment building.

Upon investigation the affiants discovered that Michael Palmer had a police record of recent arrests for aggravated assault and illegal discharging of firearm and that defendant Lehnen, of the same address, had a record of arrests and a period of probation for drug violations. The circumstances thus indicated a reasonable basis for crediting the reports by the identified citizen informants. The affidavit on its face therefore clearly established probable cause to search Palmer’s apartment for the M-16’s, the possession of which is generally prohibited by R.S. 40:1751 et seq.

When the police executed the search warrant, they found a large quantity of hashish (a controlled dangerous substance), but no illegal firearms. Defendants and Palmer were then arrested and charged with possession of hashish with intent to distribute.

At the hearing on their motion to suppress defendants offered the testimony of Officer Cannatella, one of the affiants, and of George Hagmann. Both witnesses admitted that Hagmann realized the similarity between the automatic M-16 and the AR-15, a military weapon not covered by the prohibitions involving automatic weapons. See R.S. 40:1751 et seq. Both also admitted that Hagmann told Officer Can-natella he was standing about 25 to 30 feet from Palmer, at which distance it was virtually impossible to be sure that the weapons were M-16’s and not AR-15’s. None of this information was included in the affidavit. Nevertheless, Hagmann insisted during the suppression hearing that he thought the two rifles were M-16’s, not AR-15’s, and he reiterated under oath that he told the officers that the weapons were M-16’s.

The trial court denied the motion to suppress the hashish. Defendants thereafter entered guilty pleas, reserving their right to appeal the adverse ruling. See State v. Crosby, 338 So.2d 584 (La.1976).

The trial court heard the testimony of Officer Cannatella and concluded that he was not acting with an intent to deceive the issuing magistrate when he failed to include in the affidavit the facts regarding the similarity of the weapons and the difficulty of determining the distinction at the distance involved. We are therefore not confronted with a situation in which facts were omitted from an affidavit for the purpose of misleading the issuing magistrate. However, while our examination of the record satisfied us that the trial court’s finding of good faith is amply supported, the omitted facts were nevertheless relevant and should have been included. We are therefore required to determine what approach should be-taken by an appellate court in reviewing the denial of a motion to suppress, when the affiant in a search warrant omits, without bad faith on his part, relevant facts which might have affected the issuing magistrate’s decision on probable cause.

We cannot conclude that the omitted facts would not have affected the magistrate’s decision regarding probable cause. However, we do not agree with defendant’s argument that all of the affidavit’s truthful factual assertions, about which the omitted facts were relevant, must be deleted in determining probable cause. Rather, we prefer to follow the approach that the court reviewing the warrant (either this court on appeal or a trial court on a motion to suppress) must consider the affidavit as though the omitted facts were included and then evaluate the presence of probable cause in light of the added facts.

In cases in which the affiant has made a negligent, but unintentional, misrepresentation, this court has taken the approach which requires the reviewing court to delete the misinformation and retest the sufficiency of the remaining facts to establish probable cause. See State v. Rey, 351 So.2d 489 (La.1977). The approach here is essentially the same: the reviewing court simply adds the omitted facts to those originally included in the affidavit and retests the sufficiency of the showing of probable cause. Both approaches involve correcting and retesting.

The approach taken in the present case represents a reasonable and just accommodation between a defendant’s interest in limiting invasions of his privacy to those based upon a magistrate’s determination of probable cause and society’s interest in using reliable evidence to convict those who violate criminal laws. The exclusion of reliable evidence is too high a price to pay unless exclusion is essential to deter deliberate violations of constitutional rights. Further, this approach is in accordance with the growing recognition that the exclusionary rule has limited efficacy as a deterrent in situations in which officers have acted in good faith. See United States v. Williams, 622 F.2d 830 (5th Cir. 1980), Gee and Vance, concurring; United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1974).

Applying this standard, we conclude that the trial court properly denied the motion to suppress. As the trial court stated, the prior report of the aggravated assault and defendant’s prior arrest for assault certainly played a significant role in supporting the magistrate’s determination of probable cause. The sighting of the suspected automatic weapons was not the sole basis for believing that probable cause existed to conduct a search of the apartment. Further, as Hagmann testified, he was convinced that the weapons were in fact M-16’s and so advised the officers. The fact that Hagmann could easily have misidentified AR-15’s for M-16’s does not defeat the significance of Hagmann’s assertions, especially when coupled with the fact that affi-ant had been informed of defendant’s prior reckless and illegal behavior with firearms.

A trial court’s determination of probable cause is entitled to significant deference by this court. State v. Ogden, above; United States v. Middleton, 599 F.2d 1349 (5th Cir. 1979). This is true even when, as here, the officers in good faith omitted relevant facts from the affidavit presented to the issuing magistrate. The affidavit supporting issuance of a search warrant must be construed nontechnically and in a common sense fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The probable cause standard recognizes that a degree of uncertainty may exist, since probable cause is not proof beyond a reasonable doubt. State v. Guidry, 388 So.2d 797 (La.1980). The facts need not eliminate all possible innocent explanations in order to support a finding of probable cause. See State v. Abadie, above; State v. Phillips, 347 So.2d 206 (La.1977).

The purpose of the warrant requirement and of the necessity of showing probable cause to a neutral magistrate is to prevent invasions of innocent privacy. That purpose was served here. The facts presented to the magistrate warranted his inference of probable cause. Even when the omitted facts were disclosed, the trial court nevertheless found that probable cause existed and that a reasonable magistrate would have reached that conclusion.

Thus, applying the standard we have adopted in this case, we affirm the trial court’s determination that a reasonable magistrate would have issued the warrant despite the inclusion of the omitted facts. The motion to suppress was properly denied.

Accordingly, the convictions and sentences are affirmed.

DENNIS and CALOGERO, JJ., concur with reasons.

DENNIS, Justice,

concurring.

I do not join in the majority opinion’s oblique endorsement of the “good faith” exception to the exclusionary rule which has been proposed in dicta by a dozen of the twenty-four United States Fifth Circuit Court of Appeals judges. I share the misgivings of Judge Rubin, who was joined by Godbold, Kravitch, Johnson, Politz, Hatch-ett, Anderson, Randall, Tate and Clark, Circuit Judges, as he observed:

“[F]ive members of the [United States Supreme] court up to now have not suggested [the exclusionary rule’s] qualification, and they constitute a majority. No other circuit court has altered the rule. Consideration of these factors should make us hesitate to rush in with our own newly devised judicial solutions. Those who join in the opinion authored by Judges Gee and Vance can cite no direct precedent for their conclusions save dissents and law review articles, many of which are polemic. They advocate modification of the exclusionary rule solely because, as applied, they think it ineffective to deter police misconduct and because they consider deterrence its exclusive purpose.
“Deterrence is an important reason for the rule. However, even the decision in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), did not consider it the only basis of the rule. Justice Day’s opinion relies on the duty of the courts to support the Constitution and to refuse to sanction practices destructive of rights secured by it. * * *
<* * * *
“ * * * The announcement of a radical change in the scope of the exclusionary rule creates a host of interpretative problems. Its application presumably will require retrial of almost every motion to suppress in every criminal case now pending before us on appeal and in many cases now pending in district courts. * * * ” United States v. Williams, 622 F.2d 830, at 849-50. (Rubin, J., concurring), [footnote omitted]

This case does not present a novel issue. In State v. Rey, 351 So.2d 489 (La.1977), this court unanimously held that if misrepresentations in a search warrant affidavit are found to be unintentional, it must then be decided whether a showing of probable cause is made by the warrant without reference to incorrect facts. This rule clearly implies that a misleading omission must be rectified by supplying the missing information.

Accordingly, I respectfully concur, preferring to reach the same result by our own principles rather than follow those who are reaching out for a vehicle to change a long line of precedent because I believe “that their doing so will have harmful results apart from the merit or lack of merit of their views.” United States v. Williams, supra, 622 F.2d at 848 (Rubin, J., concurring).

CALOGERO, Justice,

concurring.

I respectfully concur. The discussion in the majority opinion regarding the exclusionary rule is unnecessary dicta.

       Judges Frederick S. Ellis, Morris A. Lottinger, Jr. and Elven E. Ponder of the First Circuit Court of Appeal participated in this decision as Associate Justices ad hoc, joined by Justices Calogero, Dennis, Watson and Lemmon.

      . The alleged sighting occurred on April 30, 1979. The report was made to officers on May 1, 1979. The defendants make no claim that the information was stale. See State v. Ogden, 391 So.2d 434 (La.1980).

      . Such information is, of course, relevant in determining probable cause. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

      . Reports by citizen informants, who are willing to be identified and who purport to have firsthand knowledge, carry a high indicia of credibility and reliability in the determination of probable cause. See State v. Abadie, 390 So.2d 517 (La.1980); United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975).

      . No objection is raised regarding the scope of the search under the warrant.

      . Palmer also eventually entered a guilty plea, but is not a party to this appeal.

      . In denying the motion, the trial judge said:
      “I believe the officer had a right to rely upon the good faith affidavit of the informant who was named. I don’t think there was any question that all parties were acting in good faith in filing the affidavit. There was no intention to mislead or to fabricate the affidavit.”

      . In cases involving inclusion of false information with deceitful intent we have quashed the warrant. See State v. Paster, 373 So.2d 170 (La.1979); State v. Ogden, above.

      . This was the approach taken in People v. Kurland, 28 Cal.3d 376, 168 Cal.Rptr. 667, 618 P.2d 213 (Cal.1981).

      . When the misrepresentation is intentional, however, a more drastic sanction has been imposed, as noted in State v. Ogden, above at 438, as follows:
      “As this court said in Rey, an intentional misrepresentation to the magistrate by a police officer constitutes a ‘fraud upon the courts and represent(s) impermissible overreaching by the government.’ 351 So.2d at 492. This court in Rey held that the proper sanction in such a case is to quash the warrant and not merely to excise the intentionally misrepresented facts and examine the remainder of the affidavit to determine whether probable cause is still shown. Compare Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
      “Under the Supreme Court’s approach in Franks, even deliberate falsehoods by a police affiant or statements by a police affiant evincing a reckless disregard for truth need only be excised from the affidavit. The remaining facts are then examined to determine whether they warrant a finding of probable cause absent the misrepresentations. The Rey decision provided a more realistic approach to reprehensible police conduct, which the exclusionary rule is designed to prevent.”

      . As the trial court noted, Hagmann’s observation of a “banana clip” reasonably led him to believe these were illegal automatic weapons.

      . The trial court obviously considered the omitted facts and still concluded that probable cause had been satisfactorily shown. His statement of reasons for his ruling reveal that he in effect evaluated the affidavit facts in addition to the omitted facts and still found probable cause.

      . Defendants argue that a United States District Court reached a different conclusion in a federal criminal case involving execution of this same warrant. That contrary result has no bearing on the outcome of this case. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Furthermore, in the federal case Palmer, who was not a party to this appeal, was the defendant. Apparently, the federal prosecutor did not appeal that adverse ruling and dismissed the indictment against Palmer.