text:
    STATE of Louisiana v. Stanley PASSMAN.
    No. 67530.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-relator.
    Robert Kleinpeter, Baton Rouge, for defendant-respondent.
   MARCUS, Justice.

Stanley Passman was indicted by the grand jury for malfeasance in office in violation of La.R.S. 14:134. The indictment charged that Passman, as Director of the Louisiana Real Estate Commission, intentionally issued licenses without valid testing or without regard to actual test scores of applicants and knowingly falsified, altered, modified and/or completed the examinations of applicants in order to insure the issuance or non-issuance of licenses without regard to actual test scores and contrary to the requirements of law.

Defendant filed two motions to quash the indictment, the first urging that La.R.S. 14:134 was unconstitutionally vague and overbroad; and the second contending that the indictment failed to charge an offense “proscribed by statute, ordinance, or any valid rule or regulation” applicable to him in his official capacity. The trial judge sustained the motion to quash because “the indictment failed to charge an offense which is punishable under a valid statute.” On application of the state, we granted certiorari to review the correctness of that ruling. Since we conclude that the trial judge properly sustained the motion to quash on the ground that the indictment failed to charge an offense under a valid statute, we do not reach the issue of the constitutionality of La.R.S. 14:134.

La.R.S. 14:134 provides that malfeasance in office is committed when any public officer or public employee shall:

(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him or to perform any such duty in an unlawful manner.

The key phrase in the statute is “any duty lawfully required of him.” In order to determine the duties lawfully required of defendant as Director of the Louisiana Real Estate Commission, we are referred to La. R.S. 37:1431, et seq., which provide for the creation of the Commission, set forth its organizational framework, and furnish regulations to govern various areas of the real estate profession including license issuance, renewal, suspension or revocation, examinations of potential brokers, and broker’s fees. The Reporter’s Comment to La.R.S. 14:134 implies that the rules and regulations promulgated by the administrative agency under which a public officer or employee operates should be included in the determination of whether the public officer or employee has refused or failed to perform “any duty lawfully required of him.”

Defendant contends that the indictment, based on La.R.S. 14:134, fails to charge him with an offense punishable by law because there are no provisions in La.R.S. 37:1431, et seq., that impose a duty on him as Director of the Louisiana Real Estate Commission. He argues that, even though the Commission has promulgated administrative rules pursuant to and in compliance with La.R.S. 37:1431, et seq., these provisions should not be incorporated into the malfeasance statute for the purpose of determining whether defendant has refused or failed to perform a duty lawfully required of him for two reasons. First, defendant relies on La.R.S. 14:7, which provides that there shall be no other crimes than those defined in the criminal code or other statutes or in the constitution. He therefore argues that the Reporter’s Comment following La.R.S. 14:134 advising us to include administrative rules when defining those duties lawfully required of public officers or employees should not be regarded in the determination of whether defendant has properly been charged with malfeasance in office. Secondly, he argues that the incorporation of the administrative regulations of the Louisiana Real Estate Commission into the malfeasance statute would constitute an unlawful delegation of the legislature’s exclusive authority to determine what conduct is unlawful. However, even if this court would allow the rules of the Louisiana Real Estate Commission to be considered when defining criminal conduct of malfeasance in office, defendant asserts that these administrative provisions, as well as the provisions of La.R.S. 37:1431, et seq., failed to provide him with notice of that conduct lawfully required of him as Director.

The state argues that the legislative intent of La.R.S. 14:134 as reflected in the Reporter’s Comment thereto is to include administrative rules when determining those duties lawfully required of a public officer or employee and, in the instant case, the Commission’s rules as well as the statutory provisions of La.R.S. 37:1431, et seq., impose a duty on defendant to administer fair and accurate testing procedures.

It is unnecessary for us to reach the issues of unlawful creation of a crime or improper delegation of legislative authority because, even if we refer to the administrative regulations promulgated by the Commission and La.R.S. 37:1431, et seq., we find no provisions delineating affirmative duties required of defendant to administer fair and accurate testing procedures. In absence of any express requirement of him in his official capacity, he cannot be charged with refusing or failing to perform a “duty lawfully required of him.” Hence, even accepting all facts alleged in the indictment as true, Passman cannot lawfully be charged with the criminal offense.of malfeasance in office. The trial judge properly sustained defendant’s motion to quash on the ground that the indictment failed to charge an offense punishable under a valid statute.

DECREE

For the reasons assigned, the ruling of the trial judge sustaining defendant’s motion to quash the indictment is affirmed.

LEMMON, J., dissents and will assign reasons.

      . 385 So.2d 257 (La.1980).

      . The Reporter’s Comment to La.R.S. 14:134 is as follows:
      The former Louisiana statute limited malfeasance in office to cases where the duty in question was “required of him, personally by law.” A similar phrase, “enjoyed by law,” in the New York statute has been limited to those duties imposed by statute. In People v. McCann, 151 Misc. 792, 273 N.Y.S. 839 (1934), aff'd 242 App.Div. 515, 275 N.Y.S. 887 (1934), it was held that a duty prescribed by the rules of the department of correction of the city of New York is not “a duty enjoyed by law”; and that the wilful omission by the warden of the New York County Penitentiary to perform such duty was not within the neglect of duty statute.
      By phrasing the present section, “lawfully required of him,” the offense should include the neglect or wrongful performance of any properly required duty, using the word “lawful” in the broad sense to include such administrative rules as were involved in the McCann case. This is believed to be a necessary change in view of the large number of important duties placed upon officers and employees of the state by departmental rules not having the force and effect of law.
      The Louisiana Real Estate Commission has promulgated administrative regulations with the purpose of delineating particular duties of the Commission and of real estate brokers. Rules, Dept, of Commerce, La. Real Estate Comm. (Oct. 20, 1977), amended Dec. 20, 1978. Both the 1977 and 1978 versions of these regulations would allegedly apply to the charges of misconduct set forth in the indictment. We also note that La.R.S. 37:1431, et seq., were amended in 1978 so that both the 1977 and 1978 versions of these statutes apply to the charges in the indictment.

      . In support of this argument, defendant relies upon State v. Dousay, 378 So.2d 414, 415, n.2 (La.1979), where the court stated: “It should be noted . .. that where ... a statute provides criminal sanctions for violations of regulations established by an administrative agency, this may constitute an unconstitutional delegation of the legislature’s exclusive authority to determine what conduct is unlawful. The definition of criminal conduct is solely a legislative function, and the delegation of legislative power is strictly limited in Louisiana by the state Constitution.”

      . In its brief to this court, the state urges that sections of the Louisiana Real Estate Manual promulgated by the Commission pursuant to the authority delegated to it by the legislature (see La.R.S. 37:1435) should be incorporated into the malfeasance statute for purposes of delineating the duties of defendant in the instant case. The state cites those sections from the manual as well as some of the Commission’s administrative regulations (see note 2 supra) to support its argument that the indictment charges an offense punishable by law. Since, however, the real estate manual was never offered into evidence by the state during the motion to quash, and since it is not contained in the record, we cannot take judicial notice of those provisions. La.R.S. 15:422. The state did indicate that the sections of the manual that it relied upon were very similar to corresponding provisions in La.R.S. 37:1431, et seq.; therefore, we refer to the relevant statutory provisions as amended by La. Act 514 of 1978 rather than those in the manual:
      (1)Under Examinations (La.R.S. 37:1440): Professional competency as referred to in this Chapter shall be established by an examination prepared by or under the supervision of the Commission. The examination shall be of a scope sufficient in the judgement of the Commission to determine that a person is professionally competent to act as a real estate .broker or salesman. The Commission shall make all necessary rules and regulations governing the time, place and method of conducting such examinations and the grading of them. The examination shall consist of such technical and professional subjects relating to the real estate business as the Commission may prescribe, or believe applicable in order to determine the professional competency of the applicant and to protect the interest of the public. (Emphasis added.)
      and LAC 11:15:3 (Rules, Dept, of Commerce, La. Real Estate Comm. (Oct. 20, 1977)):
      § 3.1 Examinations shall be held, after due notice thereof, at such time and place to be designated by the Louisiana Real Estate Commission. The following terms and conditions shall apply with respect to the taking of examinations.
      § 3.1.6 Applicants who are disqualified, for any reason, on an examination shall forfeit all fees.
      § 3.1.7 Applicants who are disqualified on an examination and/or applicants who fail to appear to take the examination are permitted to reapply provided that they remit new license and examination fees and obtain an admittance authorization.
      § 3.1.8 Applicants who fail to pass their initial examination shall forfeit all examination fees. However, they are permitted to take subsequent examinations, provided that they remit a new examination fee and obtain an admittance authorization.
      § 3.1.9 Applicants who fail to pass any examination shall forfeit all fees.
      (2) Under Power of Commission (La.R.S. 37:1435):
      A. The Commission shall have the full power and authority to regulate the issuance of licenses and to revoke or suspend licenses issued under the provisions of this Chapter and to censure licenses.

      C. The Commission may adopt all necessary rules and bylaws for the enforcement of this Chapter; require any satisfactory proof it may desire in reference to the honesty, truthfulness, reputation and knowledge of an applicant for a real estate broker or salesman’s license, or of any of the officers or members of any such applicant prior to the issuance of any license; and make, prescribe and enforce rules and regulations relative to applications for licenses necessary to administer and enforce the provisions of this Chapter.
      (3) Under Issuance, Suspension and Revocation of Licenses:
      La.R.S. 37:1437
      B. Licenses shall be granted only to persons who bear a good reputation for honesty, truthworthiness, integrity, and competence to transact the business of broker or salesman in such a manner as to safeguard the interest of the public, and only after satisfactory proof of such qualifications has been presented to the Commission.
      La.R.S. 37:1439
      B. Upon compliance with the provisions of this Chapter and with the rules and regulations of the Commission, the Commission shall issue the license applied for. If any applicant makes a prima facie showing entitling him to a license from the Commission, the secretary of the Commission may issue the license during any recess of the Commission, subject to the subsequent action of the Commission.
      La.R.S. 37:1455
      A. The commission may suspend or revoke any license issued under the provisions of this Chapter if, in the opinion of the commission, a licensee is guilty of performing or attempting to perform any of the following acts:

      (21) Violating any rule or regulation promulgated by the commission in the interest of the public and consistent with the provisions of this Chapter.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Patricia A. ROYAL.
    No. 67533.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Harry T. Hardin, III, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Philip E. O’Neill, Gretna, for defendant-appellant.
   PER CURIAM.

Defendant Patricia A. Royal was charged by bill of information with armed robbery in violation of R.S. 14:64. Following trial by jury, defendant was found guilty and sentenced to serve ten years at hard labor without benefit of parole, probation or suspension of sentence. On appeal to this Court, defendant argues nine assignment of error.

Defendant entered a supermarket on Veterans Boulevard in Metairie, Louisiana, about 4:00 a. m. on June 3, 1979. She purchased a package of Salem cigarettes, giving the cashier a twenty dollar bill. While the cashier was making change, defendant pulled a gun and demanded money. The cashier gave defendant loose change, a roll of coins, and bills of small denominations, including the twenty she had received from defendant. The cashier noticed that defendant entered a silver Charger with a “jacked-up” back end upon leaving the store.

A short time later, defendant was arrested in a car matching the description given by the cashier. At that time, defendant had a gun stuck into the front of her pants. The arresting officers retrieved loose money and cigarettes from the passenger side of the car. Rolled coins were found in defendant’s purse. The cashier was brought from the supermarket to the place of the arrest and she identified defendant as the woman who had robbed her.

We find that none of defendant’s assignments of error present reversible error, nor do any involve legal issues not governed by clearly applicable principles of law. We have, therefore, discussed and disposed of them in an appendix attached to this opinion which remains a public record of this Court but which is not to be published in the Southern Reporter.

Decree

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Patrick DEVILLE.
    No. 67635.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-appellee.
    Edward Larvadain, Jr., Larvadain & Scott, Alexandria, Paul C. Tate, Tate, Tate & Tate, Mamou, for defendant-appellant.
   WATSON, Justice.

Defendant, Patrick Deville, was convicted as a principal by a unanimous six person jury of two counts of attempted simple burglary, LSA-R.S. 14:62, and one count of attempted theft of $490, LSA-R.S. 14:67. He was sentenced to two concurrent terms of six years at hard labor for the burglary attempts and one consecutive year at hard labor for the attempted theft. Defendant has appealed, assigning eight errors in the trial court. The convictions must be reversed on the basis of assignment of error number six: the trial court erred in allowing evidence of defendant’s inadmissible prior burglary conviction and denying a mistrial. LSA-C.Cr.P. art. 770. The other assignments of error will not be considered.

On the night of July 16, 1979, Jimmy and Ricky Vidrine broke into two bars in Ville Platte. They stole approximately $480 and two cartons of cigarettes valued at $10. They were arrested the following day and gave written statements implicating De-ville. Deville allegedly told the Vidrines how to gain entry into the two bars and each gave him $75 after the burglaries.

On cross-examination, the District Attorney asked defense witness Barry McDaniel: “Do you know whether or not he [Patrick Deville] has been convicted of a burglary?” (Tr. 267). Despite objection by defense counsel, the trial court allowed the question and denied a mistrial. The following colloquy took place:

“Q. Now will you answer my question sir. Do you remember it?
“A. No.
“Q. Do you know that Patrick Deville was convicted of burglary in Rap-ides Parish?
“A. Yeah.
“Q. You know that?
“A. Unhuh.
“Q. And you know he is on probation?
“A. Yeah.
“Q. You know he was given, what 3 years?
“A. I don’t know.
“Q. So you know he was convicted of a burglary, and you know he was given a suspended sentence and you know he is on probation right?
“A. Yeah.” (Tr., pp. 268-269).

Defendant Deville had not taken the stand and had not been questioned about prior convictions at the time these questions were posed. His character was not at issue. LSA-R.S. 15:481. The prior conviction was not admissible for impeachment of his credibility. LSA-R.S. 15:495. Evidence of the prior crime was not used to show guilty knowledge and intent. LSA-R.S. 15:445, 15:446; State v. Prieur, 277 So.2d 126 (La., 1973). Its only purpose was to depict De-ville as a burglar. State v. Ledet, 345 So.2d 474 (La., 1977).

The evidence of Deville’s prior burglary conviction was inadmissible and highly prejudicial. State v. Morris, 362 So.2d 1379 (La., 1978); State v. Vernon, 385 So.2d 200 (La., 1980). Even though Deville subsequently took the stand, this did not cure the error. State v. Green, 315 So.2d 763 (La., 1975). The trial court erred in allowing the evidence and denying a mistrial. LSA-C. Cr.P. art. 770; State v. Fowlkes, 352 So.2d 208 (La., 1977); State v. Harrison, 367 So.2d 1 (La., 1979).

For the foregoing reasons, the convictions are reversed; the sentences are vacated; and the matter is remanded for a new trial.

REVERSED AND REMANDED.

      . The sentence at hard labor for attempted theft is illegal. The maximum sentence under LSA-R.S. 14:27 D(2) would be one year’s imprisonment without hard labor.

      . LSA-R.S. 15:481 provides:
      “Proof of bad character by state
      “The state is permitted to introduce testimony of the bad character of the accused only in rebuttal of the evidence introduced by him to show good character.”

      . LSA-R.S. 15:495 provides:
      “Impeachment by evidence of conviction; condition precedent to proof by others; prohibition against cross-examination as to indictment or arrest
      “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.”

      . LSA-R.S. 15:445 provides:
      “Inference of intent; evidence of acts similar to that charged
      “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.”

      . LSA-R.S. 15:446 provides:
      “Evidence where knowledge or intent is material and where offense is one of a system “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.”


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Alvin Lee DAY.
    No. 67359.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    M. Michele Pournet, Asst. Public Defender, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
   LEMMON, Justice.

In this appeal from a conviction of aggravated burglary and attempted simple rape the principal issue involves defendant’s right to testify on the voluntariness of his confession without being subjected to cross-examination on the entire case. Also at issue are the sufficiency of the evidence and the excessiveness of the sentence.

I.

The elderly female victim in this case was awakened in the early morning hours by a loud noise and saw a figure standing in her bedroom doorway. The intruder struck her on the head and continued to beat her until she lapsed into intermittent periods of unconsciousness. At one point she regained consciousness and found that her pajama bottoms had been removed. The intruder demanded to know where her money and valuables were, telling her he would kill her unless she revealed their location. Her assailant at some point during the attack also made a statement to the effect that he was going to impregnate her.

When the victim regained consciousness, she was rushed to the hospital, complaining of severe pelvic pain and stating she had been raped. Both her eyeballs were ruptured by the severity of the blows to her face, and she is now permanently blind.

The officer who initially responded to the call for help testified that the victim was covered with bruises and blood. He found her bed saturated with blood.

Approximately three weeks after the offense an acquaintance of the defendant gave police information implicating him in the crime. Officers procured a warrant to search defendant’s house and discovered several items of jewelry which had been stolen from the victim’s residence. Defendant was arrested and subsequently admitted the burglary of the victim’s residence. However, he denied the severe beating, telling officers that the victim assaulted him after he entered her house and that he struck her with his fist because he feared that she was armed. Defendant also denied raping the victim, but admitted he had placed his finger in her vagina.

Charged with aggravated burglary and attempted aggravated rape, defendant was convicted of aggravated burglary and attempted simple rape. The trial judge imposed consecutive sentences of 30 years imprisonment at hard labor (aggravated burglary), and I2V2 years imprisonment at hard labor (attempted simple rape).

II.

Defendant’s principal assignment of error concerns his request to testify before the jury, regarding the free and voluntary nature of his confession, without being cross-examined concerning other aspects of the case. His request was denied, and he did not testify before the jury.

Defendant essentially contends that the so-called “narrow rule” of cross-examination is constitutionally mandated when the accused takes the stand on his own behalf to testify concerning the conditions surrounding his confession, arguing that the subject matter of cross-examination cannot exceed the scope of direct examination (except as to matters affecting credibility). See Federal Rules of Evidence 611(b). He further claims that the Louisiana statutory rules of cross-examination on “the whole case” deny him the right to a fair trial, inasmuch as due process requires that he be given an opportunity to testify before the jury as to his confession without waiving his privilege against self-incrimination and exposing himself to the truth-testing crucible of cross-examination on the whole case.

Louisiana’s statutory provisions require the defendant to waive his privilege against self-incrimination as to the “whole case” and not merely as to the subject matter of his direct testimony. R.S. 15:280; C.Cr.P. art. 703. The issue presented is whether this statutory scheme infringes upon defendant’s privilege against self-inerimination and his right to a fair trial.

The issue of limited cross-examination has gone through various stages of development in Louisiana. Prior to 1928, an accused who testified waived his right against self-incrimination only as to the matters about which he testified on direct examination and as to matters properly affecting his credibility. See State v. Bellard, 132 La. 491, 61 So. 537 (1913). This approach was changed by the Code of Criminal Procedure in 1928, which provided that any witness, including the accused, who voluntarily took the stand could be cross-examined upon the whole case. See R.S. 15:280 and R.S. 15:462.

Until State v. Lovett, 345 So.2d 1139 (La. 1977), Louisiana courts construed these statutes to preclude an accused from taking the stand in the presence of the jury for the limited purpose of testifying as to the vol-untariness of his confession without subjecting himself to cross-examination on the whole case. State v. Sears, 298 So.2d 814 (La.1974); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971); State v. Goins, 232 La. 238, 94 So.2d 244 (1957). In State v. Lovett, above, this court reconstrued the relevant statutes to reach a contrary result:

“Upon consideration, we have determined that, for the same reasons that an accused is so permitted to testify in the judge-hearing, he should be permitted at the jury trial for the jury’s determination as to the weight of a confession, to take the stand for the limited purpose of testifying as to the voluntariness and validity of the confession sought to be introduced. If he does so, he is not subject to cross-examination on the case as a whole, but only as to the validity of the confession. He may also, of course, be cross-examined as to his credibility, including by impeaching him on the basis of prior convictions.
“If an accused cannot do so without waiving his constitutional self-incrimination rights as to guilt or innocence, he must abandon his statutory right to have the jury consider any lesser weight it should give to the confession due to the circumstances under which it was con-fected. If an accused cannot do so, his evidence as to the weight of the confession (which the jury is entitled to hear) cannot be given unless the accused subjects himself to cross-examination on merit-issues irrelevant to the validity of the confession and which infringe upon his constitutional right not to incriminate himself.
“As a matter of (at the least) statutory interpretation, a statutory right to have the jury hear evidence going to the weight of a confession should not reasonably be conditioned upon requiring an accused to sacrifice his constitutional rights in order to exercise the right so given.
“Preferably, the defense evidence as to involuntariness (or at least the accused’s testimony there as to) should be permitted to be introduced contemporaneously with the state’s predicate providing vol-untariness of the confession. The issue thus segregated is more readily presented to the jury for its determination of the contents of the confession and the weight to be given to it.” 345 So.2d at 1142-1143

Though affording the defendant in Lo-vett this selective waiver of the Fifth Amendment, this court nevertheless declined to hold that constitutional rights were abridged by the procedure previously employed, stating:

“We are unwilling to hold that the accused’s constitutional rights have been infringed by the practice previously followed. Although some commentators have noted constitutional questions may arise by requiring an accused to waive his constitutional rights against self-incrimination when he takes the stand to testify as to a limited issue, see, e. g., Pugh, 32 La.L.Rev. 345-46 (1972), no authority we have discovered has so held.” 345 So.2d at 1143.

During the session immediately following Lovett, the Legislature amended C.Cr.P. 703(B) to provide as follows:

“A ruling prior to trial on the merits, upon a motion to suppress a confession or inculpatory statement, is binding at the trial on the merits. However a failure to file prior to the trial on the merits a motion to suppress a confession or incul-patory statement does not prevent the defendant from objecting to the admissibility thereof at the trial on the merits, and a ruling made adversely to the defendant prior to the trial on the merits upon a motion to suppress a confession or inculpatory statement does not prevent the defendant from introducing evidence during the trial concerning the circumstances surrounding the making of a confession or inculpatory statement for the purpose of enabling the jury to determine the weight to be given to it. However, if a defendant becomes a witness at the trial on the merits, he shall be subject to cross examination on the whole case.” (Emphasis supplied.)

Thus, the Legislature clearly denied defendant the right he seeks to invoke in this case. Unless the legislative act is unconstitutional, we must defer to the clear and recent expression of the Legislature, which has apparently intended to overrule the Lo-vett decision.

We do not find unconstitutional the statute which exposes defendant, testifying before the jury on the question of his guilt or innocence, to cross-examination on all matters relevant to the case being tried. As the Lovett decision noted, we have been shown no authority mandating a contrary result. And we have not been persuaded that a “narrow rule” of cross-examination for the accused is dictated by fundamental fairness, even when he only claims this ‘special dispensation in connection with testifying as to the voluntariness of a confession (and hence its weight in assessing guilt or innocence). Logically, if such a restrictive rule is constitutionally mandated, it should apply to cross-examination on any matters not within the scope of the defendant’s testimony on direct examination.

We can find nothing in the Louisiana Constitution which requires us to reject the long-standing legislative and jurisprudential policy. Nor can we find in the Fifth Amendment or the Due Process Clause of the Fourteenth Amendment a justification for declaring unconstitutional the recent expression of legislative will.

III.

Defendant also contends that the evidence is insufficient to support his conviction for attempted simple rape. We disagree. The verdict was both legislatively and factually responsive to the offense charged. See C.Cr.P. art. 814 and State v. Miller, 237 La. 266, 111 So.2d 108 (1959). Compare State v. Peterson, 290 So.2d 307 (La.1974), with State v. Booker, 385 So.2d 1186 (La.1980).

The evidence presented here was sufficient for a reasonable juror to conclude beyond a reasonable doubt that defendant had a specific intent to rape the victim and did an act tending directly toward the accomplishment of his object. See State v. Byrd, 385 So.2d 248 (La.1980). Under the attempt statute, R.S. 14:27, it is immaterial whether the defendant actually committed the offense he is charged with attempting to commit.

The prosecution proved that defendant beat the victim senseless; that defendant told the victim that he was going to impregnate her; that she found her pajama bottoms missing when she regained consciousness; and that she experienced severe pain in the pelvic region. Additionally, there was evidence of defendant’s admission that he placed his finger in the victim’s vagina.

We find that the evidence supports the conviction for the crime of attempted simple rape. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

IV.

Defendant contends that the consecutive sentences totaling 42V2 years imprisonment at hard labor constitute an excessive sentence under La.Const. art. 1, § 20 (1974). See State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Cox, 369 So.2d 118 (La.1979). He also contends that the trial court failed to articulate sufficiently his reasons for imposing the apparently severe sentences. See C.Cr.P. art. 894.1 and State v. Jones, 381 So.2d 416 (La.1980).

While the facts in the record clearly support the consecutive sentences imposed, it is also clear that the trial court merely recited the language of C.Cr.P. art. 894.1 in imposing sentence. However, there seems little justification for a remand for resentencing when the record so plainly supports the sentence imposed. In the interest of judicial economy, we decline to remand to require the trial court to restate for the record matters which are already apparent from the record.

The guidelines statute was designed to guide and assist trial courts in the exercise of their sentencing discretion, as well as to assist this court in reviewing the exercise of that discretion. When this court is unable to discern the basis upon which a sentence is imposed, and hence cannot determine its appropriateness in view of the circumstances of the offense and the character of the offender, we remand for compliance. See State v. Jones, above; State v. Little, 377 So.2d 332 (La.1979). Nevertheless, in the Jones ease we did not remand for compliance with the guidelines statute, since the sentence was not apparently severe. Since the record clearly supported the sentence that was in the lower range of discretion, no need for remand was perceived. Similarly in this case the record plainly supports the 42V2 year sentence, although this was composed of consecutive sentences with the maximum for each offense.

Despite the offender’s youth (19 years old) and lack of significant criminal history, this sort of senseless, brutal crime against a relatively helpless 72-year old female in the sanctuary of her own home during the night presents a horrifying spectacle and merits a penalty as severe as the one imposed in this case. The ferocity of the defendant’s assault supports the conclusion that he pitilessly sought to inflict blindness on his victim so that she would not identify him, even if she survived the attack. Then he cruelly assaulted her sexually while she was in the maimed condition and left her unconscious.

Defendant’s actions reflect a depraved indifference to human life and to the suffering of fellow human beings. His only concern was for the satisfaction of his own greed and appetite for lust and violence. Such behavior merits the severest condemnation, and his youth and lack of prior convictions do not compensate for, make more understandable or in any way mitigate in favor of a lesser sentence. We therefore affirm the consecutive, maximum sentences on the record presented.

The other assignments of error do not present reversible error and require only the application of well settled principles of law, and are therefore treated in the attached unpublished appendix.

The conviction and sentence are affirmed.

AFFIRMED.

      . He did testify concerning the free and voluntary nature of his confession at the hearing on the motion to suppress. He alleged that his confession was the product of coercion and promises. The judge denied his motion and, for reasons set forth in an unpublished appendix, we affirm that ruling as well.

      . The Legislature apparently determined that a defendant’s right to challenge the admissibility of statements taken from him is adequately protected by allowing him to testify out of the presence of the jury on the facts surrounding the giving of his confession without being subject to cross-examination on the whole case. His right to testify in such manner in connection with the admissibility of the confession is well established in our law. See C.Cr.P. art. 703; State v. Thomas, 208 La. 548, 23 So.2d 212 (1943). Compare Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

      . Calloway v. Wainwright, 409 F.2d 59 (5th Cir. 1969), relied upon by the defendant, is inappo-site and clearly distinguishable from the situation presented here because defendant in Callo-way had a right under Florida law to testify before the jury on the question of the voluntariness of the confession alone.

      . Compare Tucker v. United States, 5 F.2d 818 (8th Cir. 1925) with Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943). Wigmore criticized the restrictive rule of cross-examination, even as to the defendant in a criminal case. See 6 Wigmore, Evidence § 1890, note 2; 8 Wigmore, Evidence, § 2276.

      . This issue was properly presented by a motion for a new trial. See State v. Hudson, 373 So.2d 1294 (La. 1979).

      . According to the surgeon, no police examination was conducted because immediate eye surgery was necessary to 'attempt to save the victim’s sight.

      . Defendant did not challenge the sufficiency of evidence to support his aggravated burglary conviction.

      .This case is nothing like State v. Cox, above, in which a barroom brawl resulted in the armed robbery and attempted murder of the victim. In Cox, the victim, although severely injured, was a male; there was no gross discrepancy in the age of the victim and the assailant; there was no nighttime invasion of a home; there was no prolonged, pitiless beating as was inflicted here; and there was an indication of the possibility of provocation by the victim.


author: MARCUS, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Ronald E. LANTER.
    No. 67681.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, J. K. McNary, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Glenn L. Morgan, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Ronald E. Lanter was charged by bill of information with the willful possession of Dextropropoxyphene in violation of La.R.S. 40:969(C). After a bench trial, defendant was found guilty as charged and sentenced to serve one year at hard labor and to pay a fine of $250 or in default thereof to serve three months in prison. The judge suspended the imprisonment portion of the sentence and placed defendant on probation for a period of five years. The judge imposed as a condition of probation that he pay $250 to the court in restitution to defray the cost of operation of the court. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence. Finding merit in one of the assigned errors, we need not consider the others.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion to suppress physical evidence. He argues that the evidence was seized as a result of an unconstitutional search of his person.

At the preliminary examination, Officer John Day, one of the arresting officers, was called by the state to testify. At the suppression hearing, the state called Officer Walter Zschiedrich, the other arresting officer, as its sole witness. Both officers testified that at about 4:50 a. m. on August 1, 1979, while patrolling Bourbon Street in New Orleans, they were approached by an unidentified female who pointed out another fema'le who was seated next to defendant in a coffee shop at 541 Bourbon Street. The informer told the officers that the female with defendant went by the name of Sandy and was wanted in Florida. As the female and defendant left the coffee shop, the officers stated that they approached the couple and asked for identification. When defendant’s companion stated that she had none, Officer Zschiedrich requested her, and she agreed, to step inside 541 Bourbon so that a check could be made to determine if she was in fact wanted in Florida. Officer Zschiedrich testified that he told defendant that he was free to leave but defendant insisted on remaining with his companion. Officer Day testified, however, that he asked both parties to accompany the officers until a check was made on defendant’s companion. Both officers testified that as they were entering 541 Bourbon, defendant reached into his rear pants pocket. They then grabbed his hand and extracted a medicine or pill bottle with no name or prescription on it containing approximately 26 pills. The officers detained defendant while the pills were taken to Charity Hospital to verify their content. Upon learning that they contained a controlled substance, the officers placed defendant under arrest. Inei-dently, it was discovered that defendant’s companion was not wanted.

Defendant stated at the suppression hearing that after being stopped by the officers and asked for identification, one of the officers pulled the bottle of pills out of his back pants pocket. Defendant further stated that from the time the officers approached until he was subsequently arrested, he was never told by either officer that he was free to leave.

At trial, the state and defendant stipulated that the testimony of Officer Day at the preliminary examination and of Officer Zschiedrich and defendant at the suppression hearing be made a part of the trial record. After presentation of other witnesses by the state, defendant was found guilty as charged and perfected this appeal.

The fourth amendment to the federal constitution protects people against “unreasonable searches and seizures.” Measured by this standard, La.Code Crim.P. art. 215.1, as well as federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Snoddy, 389 So.2d 377, (La.1980); State v. Jernigan, 377 So.2d 1222, (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980); State v. Chopin, 372 So.2d 1222 (La.1979). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Snoddy, supra; State v. Jernigan, supra; State v. Chopin; State v. Taylor, 363 So.2d 699 (La.1978); State v. Drew, 360 So.2d 500 (La.1978). Once a lawful detention is made, a police officer is justified in frisking the suspect for weapons under circumstances where he reasonably suspects that he is in danger of life or limb. La.Code Crim.P. art. 215.1(B); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, supra; State v. Snoddy, supra; State v. Jernigan, supra; State v. Hunter, 375 So.2d 99 (La.1979).

The purpose of the fourth amendment, however, is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Police officers do not need probable cause to arrest or reasonable cause to detain each time they attempt to converse with a citizen. State v. Duplessis, 391 So.2d 1116, (La.1980); State v. Neyrey, 383 So.2d 1222 (La.1979); State v. Shy, 373 So.2d 145 (La.1979). As long as the person to whom questions' are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would require some particularized and objective justification under the fourth amendment. United States v. Mendenhall, supra.

In the instant case, the officers initially approached defendant because they had received a tip from an unidentified female that his female companion was wanted in another state. Hence, when they first encountered defendant, the officers had no reasonable cause to believe that he was engaged in criminal activity. Officer Zschiedrich testified that when they decided to detain defendant’s companion to run a check on her, he told defendant that he was free to leave. Defendant, however, expressed a desire to remain with his companion. Under these circumstances, we conclude that no detention of defendant in fact occurred. If no investigatory detention occurred and no reasonable cause existed upon which to base such a detention, the subsequent search of defendant’s person was unreasonable under the fourth amendment; it was an unjustified interference with defendant’s right to be free from governmental interference.

Even if, relying on the testimony of Officer Day and defendant, we assume that the officers never told defendant he was free to leave and a detention of defendant in fact occurred, we nonetheless conclude that the detention was unlawful since the officers only had reasonable cause to believe that defendant’s companion and not defendant was engaged in criminal activity. Hence, the subsequent search of defendant’s person violated his rights under the fourth amendment and evidence seized as a result thereof is inadmissible.

In sum, under either version of the facts, the trial judge erred in denying defendant’s motion to suppress physical evidence. We must reverse.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded to the district court for further proceedings in accordance with law and the views expressed herein.

DENNIS, J., concurs.

LEMMON, J., concurs in result.

LEMMON, Justice,

concurring.

I concur only because the pills in the unlabeled bottled were not immediately recognizable as contraband. In my opinion the investigatory stop was legal, and the police acted reasonably in grabbing defendant’s hand when he reached into his pocket and in searching thereafter for weapons and apparent contraband.


text:
    STATE of Louisiana v. Willie E. PHILLIPS.
    No. 67696.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, W. C. Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-appellee.
    Ronald P. Herman, Metairie, for defendant-appellant.
   WATSON, Justice.

Defendant, Willie E. Phillips, and three confederates were charged with the simple burglary of an inhabited dwelling. LSA-R.S. art. 14:62.2. As the result of a plea bargain agreement, Phillips pleaded guilty to attempted simple burglary of an inhabited dwelling, LSA-R.S. arts. 14:27, 14:62, which has a maximum penalty of six years. After a hearing, defendant was sentenced to three years at hard labor. He has appealed, assigning four errors in the trial court relative to his sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in relying on unsubstantiated allegations in the pre-sentence investigation report of prior burglary activity on his part. The report states that “extensive investigation” revealed many burglaries in the Jefferson Parish area by defendant and his accomplices.

After the court read from the pre-sen-tence report, at the hearing, defense counsel argued that:

“It was my understanding, Your Honor, ... that . .. this is Mr. Phillips’ only involvement in any burglary. As to whether these other co-defendants have been involved in a series. — .” (Hearing Tr., p. 4)
In a per curiam, the trial court stated: “The presentence investigation contains no information which has been substantially rebutted by defense counsel and found by this Court to be false or misleading.” (Tr. 34)

Defendant’s record shows only two burglary charges on March 23, 1979, this count and a second count, which was refused by the District Attorney’s office shortly after it was brought and long before the plea bargain agreement.

The pre-sentence report is dated January 15,1980, and the sentencing hearing was on January 18, 1980. Although defense counsel apparently saw the pre-sentence report at or before the hearing, he alleges in brief that defendant did not have an adequate opportunity to explain the statement about prior burglaries.

It would have been impossible for defendant to contest the allegation that he had been involved in a series of burglaries without further explanation of the source of the statement. The information in the pre-sen-tence report obviously influenced the court as shown by the following:

“... this Court cannot condone the type of burglaries that’s been going on in this Parish, and I think Mr. Phillips is an example — .” (Hearing Tr., p. 5)

Compare State v. Underwood, 353 So.2d 1013 (La., 1977), and State v. Trahan, 367 So.2d 752 (La., 1978).

Defendant should have an opportunity to rebut the highly prejudicial allegation in the pre-sentence report that he had been involved in a succession of burglaries. State v. Segers, 357 So.2d 1 (La., 1978); State v. Owens, 377 So.2d 316 (La., 1979).

ASSIGNMENT OP ERROR NUMBER TWO

Defendant contends, correctly, that the trial court did not fully articulate its reasons for the sentence, as required by LSA-C.Cr.P. art. 894.1.

Assignments of error one and two are meritorious. Assignment of error number three, which contends that the sentence is excessive on its face, is without merit. Assignment of error number four, which contends that the pre-sentence report could not include information gathered from interviews with defendant, is also without merit. LSA-C.Cr.P. art. 875.

In view of the lack of precision in the pre-sentence report’s reference to “extensive investigation” and the failure of the trial court to fully articulate the reasons for the sentence, the matter is remanded for a new sentencing hearing and resentencing.

For the reasons assigned, defendant’s sentence is vacated and the matter is remanded to the Twenty-Fourth Judicial District Court for a new hearing and resen-tencing.

SENTENCE VACATED: REMANDED FOR RESENTENCING.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Robert LEWIS.
    No. 67799.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
    Otha Nelsen, Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

Defendant was convicted of armed robbery in violation of La.R.S. 14:64 and was sentenced to serve 25 years at hard labor with credit for time served without benefit of probation, parole or suspension of sentence. On appeal, defendant makes fifteen assignments of error. We consider only that assignment which complains of the judge’s refusal to excuse one of the jurors for cause. Finding that the trial judge abused the discretion reposed in him in ruling on challenges for cause, we reverse the conviction and remand the case to the district court for a new trial.

The defendant used all of his peremptory challenges at the time the challenge for cause as to prospective juror Kay F. Howell was denied by the trial judge. Mrs. Howell was a law graduate and had worked in the district attorney’s office as a law clerk from January through May of 1979. When the case was called for trial on September 12, 1979, Mrs. Howell was awaiting the result of the bar examination which she had recently taken. The evidence further shows that, although Mrs. Howell was not working for the district attorney at that time, she had made application to him for a job. Upon questioning, Mrs. Howell was warned against becoming a legal advisor to the jury, and stated that she would render a fair and impartial verdict.

The issue is whether, under the circumstances, the defendant is denied his constitutional right to a fair trial by an impartial jury. Both the federal and state constitutions provide that a defendant in a criminal prosecution has a right to a trial by an impartial jury. U.S.Const. Amend. 6; La. Const, art. 1, § 16.

In Phillips v. Smith, 485 F.Supp. 1365 (1980), a juror had filed an application for a job in the prosecutor’s office after being selected to serve on the jury in a criminal case in which the defendant was being tried for a capital crime. That Court, in reversing the issue in favor of a new trial for the defendant, stated the “average man” test for implied jury bias. The test, in essence, states that the defendant is denied due process of law where circumstances affecting the juror exist which would offer a possible temptation to the average man to forget the burden of proof required to convict the defendant or which might lead him not to hold the balance nice, clear and true between the state and the accused.

Quoting from United States v. Wood, 299 U.S. 123, 146, 57 S.Ct. 177, 185, 81 L.Ed. 78 (1936), the Court, commenting with respect to jury bias, stated:

“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”

Our resolution of the issue is found in La.C.Cr.P. art. 797(3), which provides that the state or defendant may challenge a juror for cause on the ground that the relationship between the juror and the district attorney is such that it is reasonable to conclude that it would influence the jur- or in arriving at a verdict. However, a defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him, unless his peremptory challenges have been exhausted before completion of the panel. The defendant, having exhausted all of his peremptory challenges before completion of the panel, was entitled to complain on this appeal of the ruling of the trial judge refusing to maintain his challenge for cause. State v. Qualls, 353 So.2d 978 (La.1978); State v. Ballard, 337 So.2d 481 (La.1976). The trial judge is vested with broad discretion in ruling on a challenge for cause, which ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Drew, 360 So.2d 500 (La.1978). However, service on a criminal jury by one associated with law enforcement duties must be closely scrutinized and may justify a challenge for cause, although such association does not automatically disqualify a prospective juror. State v. Robinson, 353 So.2d 1001 (La.1977); State v. Madison, 345 So.2d 485 (La.1977).

A prospective juror’s statement that he will be fair and impartial is not binding on the trial court. If the revealed details of the relationship are such that bias or prejudice may be reasonably implied, a juror may be properly refused for cause. State v. Monroe, 366 So.2d 1345 (La.1978).

Although Mrs. Howell was not working for the district attorney at the time of the trial, she had ceased her employment with him during the month of May of that same year and, at the time of trial, was awaiting the result of the bar examination. Furthermore, it may be reasonably concluded that she had intentions of working for the district attorney in the future, as she had made application to him for a job. Under these circumstances, we conclude that the juror’s relationship with the district attorney was such that it would influence the juror in arriving at a verdict, and the defendant’s conviction, therefore, must be reversed.

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded to the district court for a new trial.

REVERSED AND REMANDED.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Robert E. MILLER.
    No. 67808.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Orleans Indigent, Defender Program, Clyde Merritt, Dwight Doskey, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Fred Harper, David Paddison, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
   DIXON, Chief Justice.

On the evening of June 19, 1979 Pat Cole was murdered at her apartment in the Magnolia Project. Robert Miller was convicted of second degree murder and sentenced to life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence for forty years. He has appealed, relying upon five of his seventeen assignments of error. Finding that none of these assignments constitute reversible error, we affirm his conviction and sentence.

James McDonald, who was living with Cole and present during the murder, testified that Miller and a companion had come to the apartment brandishing a gun and demanding drugs and money. When they arrived, they instructed Donna Dunn and Leon Andrews to leave. Dunn and Andrews, friends of Cole, had come to the apartment to swap some drugs with Cole. According to McDonald, Miller was then told by his companion to kill Cole and McDonald “because they are going to send us to the penitentiary. They’re going to rat on us.” McDonald says that Cole was killed while he was feigning unconsciousness. McDonald thereafter ran upstairs and pretended to jump from a third story window. The assailants then left, apparently believing that McDonald had committed suicide.

Assignment of Error No. 4

The trial judge in this case, pursuant to C.Cr.P. 798(2), allowed the state to challenge for cause prospective jurors who stated that they could never impose the death penalty. By this assignment of error, defendant contends that such a procedure produces a death-qualified jury which is more guilt prone than one drawn from the general populace. This argument has been rejected by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and by this court in State v. Berry, 391 So.2d 406 (La.1980).

This assignment of error lacks merit.

Assignment of Error No. 1

By this assignment of error, the defendant contends that the trial judge abused his discretion by limiting the scope of the voir dire examination. Defense counsel had asked two prospective jurors to explain their general attitude toward the death penalty. The trial judge ruled that, without a proper predicate, such an open-ended question was inadmissible.

The scope of the voir dire examination is within the sound discretion of the trial judge. C.Cr.P. 786. The trial judge did not abuse his discretion in the instant case. He gave defense counsel the opportunity to lay a predicate in order to make the question admissible. Defense counsel told the trial judge “never mind” and merely noted his objection. We find that the trial judge afforded sufficiently wide latitude to defense counsel in his examination of prospective jurors on voir dire.

This assignment of error lacks merit.

Assignment of Error No. 9

In this assignment of error, defendant contends that the trial judge did not sequester the jurors as required by C.Cr.P. 791. At the close of the first day of trial, the judge announced that, since he believed the media was not covering the trial, the jurors would be allowed to read the newspaper and watch television. Further, he stated that the telephones would not be removed from the jurors’ rooms. However, he admonished the jurors not to use the phones without permission. Defendant argues that, under these facts, a presumption of prejudice arises and reversible error should be presumed. We disagree.

Reliance is placed on State v. Luquette, 275 So.2d 396, 400 (La.1973), in which this court stated:

“Many years ago a rule was established by this Court designed to offer the greatest security to the accused, and at the same time to trench in no wise upon any right necessary to insure the due and proper execution of the law. State v. Hornsby, 8 Rob. 554 (La.1844). The rule is now embodied in Article 791 of the Code of Criminal Procedure. Briefly stated, the Court announced in State v. Hornsby that in capital cases the jury should not be permitted to separate after they have been sworn, either with or without the consent of the prisoner. This precaution is necessary, it was said, to protect the accused from any undue influence which may be exercised upon the members of the jury, even without their knowledge. Improper impressions may - and will be made upon their minds by artful and designing men, of which they may be perfectly unconscious; neither can they shut their eyes to the expression of popular opinion. In capital cases, upon a separation, misconduct and abuse will always be presumed.”

In the Luquette case, the jurors were allowed to spend the night at their respective homes. It was the prolonged separation of the jurors which gave rise to the presumption of prejudice. This court has found the presumption to be unwarranted where the jurors are physically separated by only a few feet and there is no evidence of misconduct or outside communication. State v. Quincy, 363 So.2d 647 (La.1978).

Most recently, this court invoked the presumption of prejudice where “there occurred a continuing and substantial failure to adhere to the sequestration mandated in a capital case.” State v. Parker, 372 So.2d 1037, 1039 (La.1979). In the Parker case, the jurors were allowed unsupervised recesses, unsupervised telephone calls and unsupervised lunch breaks. Additionally, the jurors were permitted to use their own private transportation to travel back and forth from the hotel to the courtroom. None of these irregularities occurred in the instant case, and Parker is therefore distinguishable.

Defendant does not assert that he has been prejudiced. Rather, he requests that this court presume prejudice. We find that, under the facts of this case, the presumption of prejudice is unwarranted.

Because no prejudice has been shown, any error here was harmless. C.Cr.P. 921.

Assignment of Error No. 10

In this assignment of error, the defendant contends that the judge commented on the evidence in violation of C.Cr.P. 772. The prosecutor, in the presence of the jury, asked the judge to rule on the free and voluntary nature of a purported confession. Immediately thereafter, the judge, accompanied by the attorneys, went into the judge’s chambers. While there, defense counsel unsuccessfully moved for a mistrial. After returning to the courtroom, the judge instructed the jurors that they alone were to determine whether the statement was free and voluntary. Then, the judge said: “The Court will rule that the statement is admissible.”

Defense counsel argues that, in light of the prosecutor’s prior request, the jury could infer that the judge believed the statement to have some weight. This argument lacks merit. The judge did not tell the jury that he believed the statement to be free and voluntary. A fortiori, he gave no indication that he thought the confession to be truthful. Rather, the judge admonished the jurors that they alone should determine whether the statement was free and voluntary. And, the judge properly added that, should the jurors find the statement to be free and voluntary, they were to determine further what weight to give the statement.

This assignment of error lacks merit.

Assignment of Error No. 12

McDonald, Dunn and Andrews, the three people who were at the apartment on the night of the murder, were all called to testify for the state. While on the stand, Andrews denied that Miller was one of the two men who came to the apartment that night. Further, he denied that he had ever identified Miller as one of the men. He also said that he had refused to testify for the state but was threatened by the prosecutor with a contempt of court citation. His rationale for not wanting to testify was because he participated in the life on the streets and that . . this is a tricky business getting on the stand ... I have a wife and two kids and I just didn’t want to take the chance.”

Fred Harper, one of the two assistant district attorneys handling the case, then took the stand as an impeachment witness and testified that Andrews had, on two prior occasions, identified Miller as one of the two men. In this assignment of error, defendant contends that the trial judge erred when he allowed Harper to resume his position as prosecutor after testifying in the case.

Before Harper took the stand, the judge and the attorneys met in chambers for argument on the propriety of the state’s impeachment of its own witness. The judge overruled defendant’s objection to the impeachment because he found that the requisite elements of both surprise and hostility were demonstrated. R.S. 15:487. Defense counsel then objected to allowing Harper to remain as prosecutor. No argument was heard and no formal ruling was given by the judge on the motion. Rather, Harper simply resumed his position as prosecutor.

Our inquiry in this assignment is twofold: first, assuming the impeachment was proper, and assuming it was proper to allow Harper to testify, should the judge have required Harper to relinquish his position as prosecutor; and, second, if it was error to allow Harper to remain as prosecutor, was this reversible error.

Counsel for both sides have contended that this issue is res nova in this state, and have therefore directed this court’s attention to the jurisprudence of other states. We find, however, that this court considered the issue in State v. Hopper, 251 La. 77, 203 So.2d 222 (1967), vacated on other grounds, 392 U.S. 658, 88 S.Ct. 2281, 20 L.Ed.2d 1347 (1968). The prosecutor in that case testified as to alleged statements given by the defendants and as to certain events which took place on the morning of the murder. The defendant argued that “it was improper and prejudicial to the rights of the accused for the District Attorney to be both the prosecutor and a material witness in the case.” 251 La. at 152-153, 203 So.2d at 249. The court, in rejecting this argument, stated:

“We find that the trial judge had to exercise his discretion in this matter, and under its peculiar facts and circumstances he was constrained to permit the District Attorney to testify. We do not find that he abused his discretion. No authority which absolutely prohibits a district attorney from testifying in a prosecution which he is conducting has been pointed out to us. Counsel for the defendants have not shown that defendants suffered any prejudice from the testimony of the District Attorney. We find no reversible error.” 251 La. at 153-154, 203 So.2d at 250.

As the court in Hopper pointed out, and as is generally recognized, the prosecuting attorney is a competent witness. See, for example, Brown v. Commonwealth, 512 S.W.2d 509 (Ky.1974). At issue is not the admissibility of his testimony, but the propriety of allowing him to assume the dual role of witness and advocate.

The danger inherent in allowing the prosecuting attorney to assume the role of witness is that the jury might give inordinate weight to his testimony. Robinson v. United States, 32 F.2d 505, 510 (8th Cir. 1928); People v. Superior Court, County of San Bernardino, 86 Cal.App.3d 180, 207, 150 Cal.Rptr. 156, 173 (Ct.App.1978). Therefore, although the prosecutor is a competent witness, numerous jurisdictions permit the prosecutor to assume the dual role of witness and advocate only under “extraordinary circumstances.” See Annot., Prosecuting Attorney as a Witness in Criminal Case, 54 A.L.R.2d 100 (1974). One such “extraordinary circumstance” exists where the necessity for the testimony could not be anticipated and the attorney involved is the only one familiar enough with the case to adequately conduct its prosecution. See, for example, Tomlin v. State, 81 Nev. 620, 407 P.2d 1020 (1965).

In the instant case, the state argues that it was surprised by Andrews’ repudiation of his former identification of Miller. The state was aware that Andrews had said that he would not testify, but was unaware that Andrews had decided to testify that defendant Miller was not the assailant. The state further argues that, although Harper was being assisted by David Paddi-son, Paddison was not equipped to carry on the prosecution alone. The record does not support this assertion. The record reveals that Paddison had enough familiarity with the case to conduct the voir dire, direct examination of four state witnesses, and cross-examination of one defense witness. Paddison also delivered the state’s first closing argument. Whether Paddison could have conducted the prosecution alone after Harper took the stand is a close question on the record. Harper took the stand as an impeachment witness, and testified for the purpose of showing that Andrews had made two prior inconsistent statements. Compare State v. Hayes, 473 S.W.2d 688 (Mo.1971) (reversal warranted where prosecuting attorney also acts as state’s principal witness). The purpose of Harper’s testimony was to neutralize the effect of Andrews’ assertion at trial that he had never identified Miller as one of the men who came to the apartment.

Andrews’ identification of Miller would have been cumulative of the testimony of McDonald and Dunn. McDonald, who had known Miller for seven years, positively identified him as one of the assailants. Additionally, Dunn, who had occasionally seen Miller around the project, was positive in her identification of him.

Of course district attorneys should avoid the dual role of prosecutor and witness. The general rule, governing all lawyers, prohibits testimony by attorneys who are engaged in the trial of the case, (Code of Professional Responsibility, DR 5-101(B), 102) except in isolated circumstances. Even stronger reasons weigh against testimony by a prosecutor. See Robinson v. United States, supra, at 510, where the court said:

“. .. No hard and fast rule can be laid down as to when it is permissible for a prosecuting attorney to become a witness against a defendant and remain as prosecutor. Circumstances might arise in the trial of a case making it necessary that the prosecuting attorney or his assistant become a witness, but these cases are few and exceptional. The function of a prosecuting attorney and a witness should be disassociated. A jury naturally gives to the evidence of the prosecuting attorney far greater weight than to that of the ordinary witness. Circumstances might exist where the prosecutor could not withdraw from the case. He might be the only attorney familiar with the case, and the only one engaged in the prosecution. The tendency of a situation where a prosecutor in a criminal case becomes a witness for the government is to prevent somewhat that fair trial to which a defendant is entitled.”

Here, however, even if we should find the ruling of the trial judge to have been erroneous, the error was harmless. Foremost, Andrews himself indicated in his testimony that he said what he did because to do otherwise was dangerous. Next, the prosecution did nothing more than reveal facts which tended to impeach Andrews’ testimony. The entire argument of the state is not before us — only that part to which objections were made. And the defense objected throughout the trial, frequently and diligently, at whatever seemed to be unduly disadvantageous to the defense. No objections to the argument of the state on the impeachment of Andrews appears in the record. We find Harper’s failure to withdraw from the trial after testifying did not prejudice the defendant.

There is no merit in this assignment.

For these reasons, the conviction and sentence are affirmed.

      . After the trial judge announced his reasons for allowing the state to impeach its own witness, the assistant defense counsel said, “Just to clarify one matter — .” At this point Clyde Merritt, principal defense counsel, interrupted and said, “Don’t cure it.” The judge admonished Merritt: “Mr. Merritt, I hate that attitude and I’ll state that for the record. Laying traps for the Court or anyone else concerned doesn’t cure it. Counsel told his co-counsel here, ‘Don’t cure it.’ ” Merritt responded: “The question I had for the Court is will Mr. Harper be allowed in as prosecutor after he gives testimony. I objected to it." The next notation in the record is: “Everyone moves back to open court in the presence of the jury.” According to the record, the judge never responded to Merritt’s objection.

      . Defense counsel asserts in brief that McDonald “clearly had a grudge against the defendant for having slept with his common-law wife.” There is no evidence in the record to support the assertion that the defendant had “slept” with Cole. The defendant testified that he stayed at the victim’s apartment on three or four occasions, but that he was accompanied by another girl he knew.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. David L. BATES.
    No. 80-KA-1409.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Kenneth A. Rains, Asst. Dist. Atty., for plaintiff-appellee.
    Travis Holley, Bastrop, for defendant-appellant.
   CALOGERO, Justice.

Defendant David L. Bates was charged with operating a motor vehicle notwithstanding an applicable court judgment prohibiting such operation, a violation of R.S. 32:1480. After denial of defendant’s request for a criminal jury trial, defendant was tried before the judge, found guilty as charged and sentenced to serve one year in the Morehouse Parish Jail. The only issue raised on this appeal is whether the trial court erred in denying defendant’s motion for a criminal jury trial.

The following facts were presented at defendant’s trial and are not disputed. On July 20, 1978, defendant was declared a habitual offender under the provisions of the Louisiana Motor Vehicle Habitual Offender Act (R.S. 32:1471 et seq.), and forbidden to operate a motor vehicle on the highways of this state for a period of five years pursuant to R.S. 32:1479. On June 16,1979, defendant was observed driving an automobile, notwithstanding the July 20, 1978 judgment, and ticketed for driving while intoxicated. R.S. 14:98. On October 17, 1979, defendant was also charged with driving after a habitual offender judgment prohibiting him from driving, in violation of R.S. 32:1480. On the day of trial, defendant requested a trial by jury. The trial court denied the motion, finding that the proceedings against defendant were civil in nature and that defendant was not entitled to a jury trial unless the request was made in accordance with the Louisiana Code of Civil Procedure. Upon a further finding that no such request had been made in the case, defendant’s request for a jury trial was denied.

Defendant contends that the trial court erred in treating his prosecution under R.S. 32:1480 as a civil proceeding, thereby depriving him of a criminal jury trial.

The question presented for our review is whether the rules governing criminal proceedings, among them the right to a trial by jury, are applicable to prosecutions under R.S. 32:1480, a statute which carries a mandatory one year prison sentence for operating a motor vehicle after a habitual offender adjudication prohibiting such operation.

Louisiana’s Motor Vehicle Habitual Offender Law, R.S. 32:1471 et seq., provides for an order by a court, after determination that a driver is a habitual offender, directing him not to operate a motor vehicle on Louisiana highways, and requiring him to surrender his license to operate a motor vehicle for a minimum period of five years. R.S. 32:1479. The act describes an habitual offender as one who has accumulated prescribed numbers of particular, separate and distinct driving offenses committed during a five year period. R.S. 32:1472. The Act then provides that the Department of Public Safety shall certify conviction records of such persons, that the district attorney of the parish where the person resides shall file a petition in district court, and that a hearing shall be held “without a jury.” R.S. 32:1474-1476. Should the court adjudge him an habitual offender, he may appeal the judgment in the same manner as he would appeal a civil judgment. R.S. 32:1478. As long as a court judgment prohibiting operation of a motor vehicle remains in effect, he may not drive a motor vehicle on the public highways and, if he does, he must, upon conviction for same, be imprisoned for not less than one year nor more than five years. R.S. 32:1480.

In State v. Page, 332 So.2d 427 (La.1976) this Court addressed the question of whether the license revocation proceeding authorized by R.S. 32:1474-1478 was a criminal or civil matter. The Court concluded that it was in fact civil in nature, reasoning as follows:

“Although due process is required before a driver’s license may be revoked, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Smith v. Department of Public Safety, 254 So.2d 515 (La.App. 4th Cir. 1971), it does not necessarily follow that the revocation of a license constitutes criminal punishment. On the contrary, the revocation of one’s license to operate a motor vehicle under the habitual offender law does not constitute punishment. Rather, it is a civil measure considered necessary by the Legislature to adequately provide for public safety. It is a finding by a court that the person in question is no longer fit to enjoy the privilege of driving a motor vehicle. The result of the finding is to deny the person the fight to drive on the public highways of the state; he suffers no loss of liberty, no incarceration nor fine.”

In the present case, we are faced with a different section of the Habitual Offender Law, namely R.S. 32:1480. That statute provides in pertinent part:

“A. It shall be unlawful for any person to operate any motor vehicle in this state while the judgment of the court prohibiting the operation remains in effect. Any person found to be an habitual offender under the provisions of this article who is thereafter convicted of operating a motor vehicle in this state while the judgment of the court prohibiting such operation is in effect, shall be punished by imprisonment for not less than one year nor more than five years.”

Unlike the provisions considered in State v. Page, supra, the provisions here subject the offender to a mandatory prison term. It is persuasively argued that this prison sentence makes this statute distinguishable from that considered in Page and, thus, criminal in nature rather than civil. In support of this contention, defendant relies on language contained in Page. While the Page court concluded that the license revocation proceeding was civil in nature, it also pointed out that “[tjhere are, of course, features of the Act not now before us which are penal, or criminal. For instance, 32:1480 may result in imprisonment for driving while classified as a habitual offender.” And quoting with approval from the Second Circuit case of State v. Love, 312 So.2d 675 (La.App.2nd Cir. 1975), writs refused, 317 So.2d 627 (La.1975) the Court further provided:

“ ‘The Motor Vehicle Habitual Offender Law authorizes both civil and criminal proceedings against a person related to his operation of a motor vehicle. The initial suit to have a person declared an habitual offender and to revoke his license is a civil matter. It does not involve loss of liberty or threat of incarceration, but its object is the protection of the public in removing from the highways a dangerous driver. R.S. 32:1474-78. On the other hand, two additional proceedings authorized by R.S. 32:1480 and 1481, which may result in enhancement of statutory penalties and imprisonment for driving while classified as an habitual offender, are clearly criminal actions. A previous civil declaration of habitual offender status is essential to the success of any subsequent criminal proceedings, but such prosecutions are necessarily separate and distinct from the civil revocation proceeding.’ ” (emphasis provided.)

We find defendant’s argument, that R.S. 32:1480 is distinguishable from R.S. 32:1474-1478 and thus requires the application of criminal procedures rather than civil, irrebuttable. In fact the phraseology of R.S. 32:1480 further supports defendant’s argument that criminal proceedings are contemplated where an habitual offender is charged with violating the court order prohibiting his operation of a motor vehicle. Part B of that statute provides:

“B. For the purpose of enforcing this section, in any case in which the accused is charged with driving a motor vehicle while his license, permit or privilege to drive is suspended or revoked or is charged with driving without a license, the court before hearing such charges shall require the district attorney to determine whether such person has been adjudged an habitual offender and by reason of such judgment is barred from operating a motor vehicle on the highways of this state. If the district attorney determines that the accused has been so held, he shall cause the appropriate criminal charges to be lodged against the accused.” (emphasis provided)

To hold otherwise in this case would run contrary to the expressions of Article 1, Section 17 of the 1974 Louisiana Constitution which provides in pertinent part:

“A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons ...”

The clear import of this provision is to insure the individual, facing the possibility of imprisonment for more than six months, a trial before his peers.

In the present case, defendant was charged under a statute carrying a mandatory one year prison sentence, with the possibility of a five year term. This penalty provision is explicitly a punishment, and not, as in the case of license revocation, simply “a civil measure considered necessary by the Legislature to adequately provide for public safety.” The proceedings authorized by R.S. 32:1480 are criminal in nature. Defendant faces the threat of incarceration for more than six months and is, therefore, entitled to a jury trial.

The state argues that the hearing for the violation of a habitual offender judgment is in the nature of a contempt proceeding under a civil judgment and that, therefore, defendant should not be allowed a jury trial. We disagree.

The purpose of contempt proceedings is to preserve the authority and dignity of the court. C.Civ.P. art. 221. They are used, at least in one instance, to enforce compliance with court orders. C.Civ.P. art. 224(2). However, contempt proceedings should not be resorted to where there are other specific remedies provided by law. Lambert v. Adams, 347 So.2d 883 (La.App.3rd Cir. 1977). In the present case, the Legislature has specifically provided, in R.S. 32:1480, the method of punishing non-compliance with an habitual offender judgment. This statute does not simply authorized contempt proceedings for such a violation. As stated above, R.S. 32:1480 provides a specific penalty or punishment for specifically designated conduct and proceedings thereunder are criminal.

We hold, therefore, that proceedings under R.S. 32:1480, for driving after an habitual offender adjudication prohibiting such operation of a motor vehicle on the public highways, which carries a mandatory minimum one year prison sentence, are criminal proceedings. Defendant is entitled to a jury trial because the offense is punishable by confinement for more than six months. The ruling of the district court denying defendant a jury trial was therefore incorrect.

Decree

For the foregoing reasons, the conviction and sentence of defendant are reversed and the case is remanded to the district court.

REVERSED AND REMANDED.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Gary BROUSSARD.
    No. 80-KA-1423.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Judith Lom-bardino, Madeline Slaughter, Asst. Dist. At-tys., for plaintiff-appellee.
    William J. O’Hara, III, Supervising Atty., New Orleans, Michael S. Cahn, Linda B. Adams, Student Practitioners, Loyola Law School Clinic, for defendant-appellant.
   MARCUS, Justice.

Gary Broussard was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury, defendant was found guilty. Subsequently, the district attorney filed an information accusing defendant of a previous felony conviction pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After being advised of his rights, defendant confessed to the truth of the allegations and the trial judge sentenced him to seven years at hard labor. On appeal, defendant relies on nine assignments of error for reversal of his conviction and sentence. Finding reversible error in one of the assigned errors, we need not consider the others.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in allowing hearsay evidence of Jerry Allen, Officer Dave Wortmann and Sgt. Curt Le-chler to the effect that two eyewitnesses had identified defendant as one of the burglars.

During the direct examination of state witness Jerry Allen, who had previously pled guilty to the same burglary for which defendant was being prosecuted, the following colloquy took place:

Q. Okay. Are you sure that Gary Broussard is the man that they arrested that night?
A. Two eye witnesses point us out.
BY MR. O’HARA [defense counsel]:
Object to the hearsay.
BY THE COURT:
Q. Was the defendant there when that happened?
A. Yeah.
BY THE COURT:
Overruled.

In later testimony, upon being asked by the prosecutrix to identify defendant as one of the subjects arrested on the night of the burglary, Officer Dave Wortmann responded:

Ma’am, I can’t say for sure if it’s that man there, the defendant, he’s the one in question that night, because of the fact that I really didn’t get a good look at him. They were I.D.’d by two witnesses on the scene.

Following defendant’s hearsay objection, the trial judge again ascertained that defendant was there at the time and overruled the objection.

Subsequently, when the prosecutrix asked Sgt. Curt Lechler to relate the events that took place during the early morning hours of the date in question, the following response and colloquy occurred:

A. About 4:15, 4:20 A.M., I was in the 2800 block of St. Claude, was flagged down by two people in a white automobile stopped in the traffic lanes, and one of the subjects in the passenger side pointed out some subjects and said they just broke into the furniture store. They were in the 2800 block heading toward the 2700 block. I drove to the — over to the intersection. They had entered the 2700 block. Another subject from the other direction with a cowboy hat was right there with them. I stopped all three, put them on the wall. The person in the white car came over said the fellow in the cowboy hat was not with the, took a look at the other two and they told me—
BY MR. O’HARA:
—I’m going to object to the hearsay. BY THE COURT:
Q. Was the defendant there at the time, Officer?
A. Yes, sir.
BY THE COURT:
Objection overruled.
BY MR. O’HARA:
Note an objection.
BY MS. LOMBARDINO:
Q. Could you go on, Officer? What did the individual tell you?
A. He told me that they had broken into the window in the furniture store, carried off an air-conditioner down towards to approximately the middle of the block and returned, and upon my coming in the block, they had been heading towards the furniture store again, but they turned around and started walking in the opposite direction, away from the furniture store.

On cross-examination, when asked by defendant: “Now, when you stopped the suspects you put three people up against the wall?,” Sgt. Lechler replied:

The two suspects that were eventually arrested plus another subject were passing each other on the sidewalk when I got to them, and I put all three of them on the wall. Cornelius Lewis then came up. He’d parked the car he had been in, came up, said the fellow with the cowboy hat was the one that was walking towards the furniture store and not — and was passing the other two. Cornelius Lewis said the fellow with the cowboy hat is not with them. And, he took a look at the other two and said they were the ones that broke the window and carried the air-conditioner off.

Defendant again objected to the testimony. The trial judge ordered the witness to proceed with his testimony which resulted in the following response by Sgt. Lechler:

The subject Cornelius Lewis told me that they were the ones that broke the window and carried the air-conditioner off down toward—

Defendant again objected. The judge inquired: “Was the defendant present at the time all this conversation went on?” The witness replied: “Yes, sir, right there on the sidewalk.” The judge then overruled the objection.

Hearsay evidence is inadmissible except under one of the statutory or well-recognized exceptions. La.R.S. 15:434; State v. Sheppard, 350 So.2d 615 (La.1977). Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court as-serter. State v. Martin, 356 So.2d 1370 (La.1978); McCormick, Evidence (Cleary ed. 1972) § 246. The testimony at issue in the instant case is clearly hearsay, as all three of the witnesses testified as to out-of-court identifications of the alleged burglars made by eyewitnesses at the scene of the crime. The eyewitnesses’ statements were not made under oath nor were they subject to cross-examination. Moreover, the evidence was presented to prove the truth of the matter asserted, that is, that defendant was one of the perpetrators of the burglary.

The trial judge in overruling defendant’s objections to the hearsay testimony apparently considered that the evidence was admissible under the admission by conduct exception to the hearsay rule, as there was no evidence that defendant sought to deny the accusatory statements allegedly made in his presence. See generally McCormick, Evidence (Cleary ed. 1972) §§ 269-270. However, it is well established that incriminating statements made by others in the presence of defendant to which defendant remained silent are not admissible when defendant is in legal custody at the time they are made. State v. Hayden, 243 La. 793, 147 So.2d 392 (1962); State v. Roberts, 149 La. 657, 89 So. 888 (1921); State v. Diskin, 34 La.Ann. 919 (1882). See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); McCormick, Evidence (Cleary ed. Supp.1978), § 162. In the instant case, it is clear that at the time the incriminating statements were made in the presence of defendant, defendant had been apprehended by being placed “on the wall” and was thus in legal custody. Hence, the statements did not constitute an exception to the hearsay rule and were inadmissible in evidence.

La.Code Crim.P. art. 921 provides that a judgment shall not be reversed by an appellate court because of an error which does not affect substantial rights of the accused. In the instant case, we consider the error of the trial judge in permitting repeated hearsay identification testimony of defendant as the perpetrator of the burglary clearly affected substantial rights of defendant. Identification of defendant was a material issue of the case. The uncross-examined hearsay identification testimony, which deprived defendant of his cross-examination rights, was used to corroborate substantially the sole eyewitness (Allen) who identified defendant as one of the burglars. Allen was a codefendant. At the time of trial, he had pled guilty and was awaiting sentence. While stating that he had not been promised anything to testify in this case, on cross-examination it was brought out that Allen had told defense counsel on two previous occasions that someone else, Delaney, was with him when the burglary was committed. Delaney was dead at the time of trial. Allen admitted that he was told that his sentence would depend on his testimony in this trial and that his sentencing had been previously continued until after this trial. On redirect, Allen stated that he was now telling the truth. Under these circumstances, the credibility of Allen’s testimony was clearly at issue; hence, the repeated use of hearsay testimony to corroborate the identification of defendant as one of the burglars by this witness was prejudicial to the right of defendant to a fair trial. Hence, we must reverse.

DECREE

For the reasons assigned, the conviction and sentence are reversed and the case is remanded to the district court for a new trial.

      . At this point, defendant objected to the answer as being unresponsive. As this testimony constituted a repetition of previous hearsay testimony which had been allowed in evidence over defendant’s objection, we consider that the trial judge was well aware of defendant’s objection to the hearsay nature of the testimony.

      . Defendant states in brief to this court that Allen was subsequently sentenced to a three-year suspended sentence.