author: CHARLES A. MARVIN, Justice Ad Hoc.

text:
    STATE of Louisiana v. Ruffes J. TUESNO.
    No. 81-KA-1455.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Louise Korns, Hortence M. Patterson, Jim Williams, John Craft, J. Kevin McNary, Asst. Dist. Attys., for plaintiff-appellee.
    Chris Christofferson, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   CHARLES A. MARVIN, Justice Ad Hoc.

In this appeal of his conviction for armed robbery, defendant argues two assignments of error which relate to the trial court’s refusal of detailed testimony by defendant and an assistant district attorney that defendant’s brother, with similar facial characteristics, .was being prosecuted for other armed robberies. We affirm.

THE FACTS

While the victim, Arthur Phillips, Jr., was walking on Washington Avenue in New Orleans before daylight about 2:00 a. m. on Saturday, January 3, 1981, he became apprehensive when he noticed that defendant was following him. The defendant followed Phillips for about two blocks and then walked past Phillips and into an alley near Freret Street. When Phillips reached the alley, the defendant put a “long-barreled” gun in Phillips’ face and ordered him into the alley where defendant said, “Give me all the money you got.”

Phillips surrendered his wallet and was ordered to undress and get on his knees. The robber asked if Phillips had more money than was in the wallet and then ordered Phillips to move from the alley and into an adjoining vacant building. The robber again ordered Phillips to kneel and struck Phillips with the pistol. The robber twice threatened that he “ought to kill” Phillips and inquired whether Phillips knew him. When Phillips answered negatively, the robber told him that his name was “Zorro”. After leaving the building, the robber returned to order Phillips not to come outside until Phillips counted to 100, and stated, “By the time you count to a hundred, I’m going to be gone.”

Phillips testified that he was in the alley and the building for about 30 minutes, that he was naked and cold and was bleeding from the head wound where the pistol struck him. Phillips was robbed of $120, his shoes and a brown leather jacket. Phillips retrieved his ‘trousers and shirt from the alley and telephoned a nearby police precinct station to report the robbery. Phillips said the area along Washington Street where he and the defendant walked, sometimes within a foot or two of each other, was well lighted and that he was 100 percent sure of his identification of the defendant as the person who robbed him. He described the robber as being a light-skinned or brown-skinned Negro male, over six feet tall, big and heavy set, although at one time he estimated the robber’s weight at “about 150 lbs.”.

After discussing the robbery with the police, Phillips made inquiries in the neighborhood of the robbery about the identification of persons fitting the description of the robber and wearing similar clothing. The robber was dressed in what Phillips described as a “blue jean outfit” and had a red bandana-type kerchief (apparently rolled or folded and tied) around his forehead.

On January 9, 1981, Phillips recognized defendant who was wearing a similar outfit and was walking in the vicinity of Washington Avenue and Danielle. Phillips alerted the police but defendant could not then be found. About 2:30 a. m. on January 10, 1981, Phillips saw the defendant then sitting in front of a liquor store near the intersection of Felicity and Clara streets, the area where Phillips had been told that defendant “hung out” and lived. Phillips testified that he thought defendant did not have on the same clothes as when he was. earlier seen. The defendant had a brown paper sack near his feet at the liquor store. Phillips walked by, saw a pistol and either a beer or a whiskey bottle in the sack, and said “Good evening” to the defendant, who was drinking out of a cup. Phillips walked to the precinct station and again reported defendant’s whereabouts to the police.

The police went to the liquor store in a marked patrol car, arriving before Phillips, who walked the short distance at police instruction. One of the policemen testified that he saw the defendant place the brown paper bag on the ground near defendant’s feet when the police car drove up. Phillips identified defendant to the policemen at the liquor store. The brown paper bag was seized by the police. This bag contained a long barrelled pistol, later identified by Phillips in the police station as being similar to the pistol that was used to rob him and to the pistol that he had earlier seen in the paper bag. The pistol and a red bandana-type kerchief that was taken from the pocket of defendant when he was arrested were introduced into evidence.

Defendant subpoenaed assistant DA Green as a witness. On the day of the trial, the State filed a motion “In Limine and . . . To Quash” this subpoena, contending that the trial court should determine whether Green’s alleged information about the brother of defendant and his involvement in other armed robberies was hearsay, irrelevant, or a part of the District Attorney’s work product.

The trial court held a hearing on the State’s motion and said that the subpoenaed assistant DA would be made the court’s witness to determine whether his testimony was relevant. This assistant testified that he was prosecuting one Jack Tuesno for two or more armed robberies but that he could not testify of his own knowledge what Jack Tuesno looked like. This assistant assumed that a photograph of a person in the prosecution file on Jack Tuesno was a picture of Jack Tuesno because it was allegedly signed by one or more of the victims that Jack Tuesno was charged with robbing. The court ruled this testimony irrelevant and excused the assistant prosecutor from testifying. In the course of this ruling, the court ordered the clerk of court to hold the photograph of Jack Tuesno in case it was needed at the trial of defendant, Ruffes J. Tuesno. The court additionally withheld ruling on the admissibility of the Jack Tues-no photograph “to see what develops” with respect to the possible subpoena of the prosecution records pertaining to Jack Tuesno. The court commented: “... I’m going to withhold a ruling ... to see what the defense uses as a vehicle to prove the identity of the brother [Jack Tuesno]. It might be that [defense counsel] will bring in Jack Tuesno and have him stand before the jury for whatever purpose. For identity. I don’t know.”

At the trial, the defendant testified that his brother, Jack Tuesno, lived in the vicinity of Clara and Felicity streets in New Orleans and that Jack Tuesno was then in the Orleans Parish Prison for armed robbery. When the defendant was asked where the armed robberies by Jack Tuesno occurred, the court sustained the State’s objection on the grounds of irrelevancy. Defense counsel objected to the ruling, arguing that this question should be answered because it “. . . goes to the identification of [Jack Tuesno].” At defendant’s request, Jack Tuesno was brought before the jury shortly thereafter and was identified by defendant as his brother. Defendant also testified that he and Jack Tuesno had “longer hair” on the date Phillips was robbed.

On cross-examination, Ruffes J. Tuesno identified older pictures of himself taken in 1978 and in 1980 and a photostat of an older picture of Jack Tuesno. At the close of the case, and at the State’s request, Jack Tues-no was returned to stand side by side with the defendant before the jury, where the victim identified defendant as “the one” that committed the robbery. The photostat of the photograph of Jack Tuesno and the 1980 photograph of defendant were introduced into evidence over defendant’s objection of irrelevancy.

Defendant also introduced alibi testimony from himself, his live-in girlfriend and her 14-year-old nephew to the effect that he was at home from about 12:30 a. m. until after daylight on January 3, 1981. Under cross-examination defendant stated that he was not accusing his brother Jack Tuesno of committing the armed robbery with which defendant was charged and for which defendant was being tried.

ASSIGNMENTS OF ERROR 1 AND 2

In these assignments, defendant first asserts that it was error for the trial court to hold the pre-trial hearing and to “arbitrarily” determine that the testimony of an assistant district attorney who was prosecuting defendant’s brother for other armed robberies was irrelevant. The trial court’s action, defendant argues, denied him his right to call witnesses in defense of the charge. U.S.Const. amend. VI. Defendant secondly asserts that it was error for the court “not to permit [defendant to testify] as to his knowledge of the armed robberies perpetrated by . . . the . . . brother . .. [and] a denial of due process.” Under the circumstances of this case, we cannot agree.

A trial judge’s discretion in determining issues of relevancy and competency and in maintaining an orderly presentation of evidence certainly must yield to the constitutional right of the defendant to call witnesses and produce evidence in defense to a criminal charge. See State v. Shannon, 388 So.2d 731, 735, fn. 7 (La.1980). See also State v. Stiltner, 61 Wash.2d 102, 377 P.2d 252 (1962), cert. denied, 380 U.S. 924, 85 S.Ct. 928, 13 L.Ed.2d 810, and Gajewski v. United States, 321 F.2d 261 (CA 8, 1963), cert. denied. In our adversary system, however, the legal counsel for either party is not generally considered as an ordinary witness because of the very special professional position of counsel in the system. See generally, Code of Professional Responsibility, LSBA Lawyer’s Deskbook. See authorities cited and discussed in Pirsig & Kirwin, Professional Responsibility, 3d Ed., pp. 378-379, West Publishing Company, St. Paul, Minnesota, 1976, and in annotation, “Prosecuting Attorney as Witness”, 54 A.L.R.3d 100, § 14, (1974), superseding 149 A.L.R. 1300 (1943).

Pirsig and Kirwin summarizes the conflicting principles in this language:

“Trial courts are generally held to have discretion on whether to allow a party to call opposing counsel as a witness, on the view that ‘attempting to call opposing counsel * * * to establish some fact that can be readily proved in a different manner should be discouraged.’
“It has been held that the defendant’s constitutional right to be fully heard requires allowing the defense to call the prosecutor as a witness, on the view that ‘litigants, and especially defendants in criminal cases, should not be hampered in their choice of those by whom they choose to prove their cases.’ But refusal to allow the prosecutor to be called has been upheld where it appeared other witnesses were available to establish the point sought to be made, and where the defense failed to show the relevance and materiality of the desired testimony.” Supra, at pp. 378-379. Citations omitted.

In Gajewski, supra, the court stated:

“To be sure, an accused’s right to call relevant witnesses and to present a complete defense may not be abrogated for the sake of trial convenience or for the purpose of protecting a United States Attorney from possible embarrassment while testifying, if he possessed information vital to the defense.” 321 F.2d at 268, 269. Emphasis supplied.

Stiltner, supra, observed:

“The defendant in a criminal trial has the right to prove his defense in the best manner available to him; the trial prosecutor is a competent witness; his testimony must be relevant and material to the theory of the defense; it must not be privileged, repetitious, or cumulative . .. All this lies in the broad discretionary right of the trial judge to control the trial of the case.
“We do not deem it an abuse of discretion for the trial court (in the absence of the jury) to require an explanation and an offer of proof from defense counsel. Both must be considered, however, in the light of the issues raised and the theory of the defense.” 377 P.2d at p. 254. Citations omitted. Emphasis supplied.

Accordingly, we hold that it was not error for the trial court to hold the pre-trial hearing to determine what, if any, testimony the defendant would be allowed to elicit from the assistant district attorney.

Defendant argues that his “purpose” in calling the assistant prosecutor was to verify that defendant does have a look-alike brother who was being prosecuted for three counts of armed robbery in another section of the court and that the location of these robberies occurred in the same area and on the same weekend. While the defendant did not state this exact purpose to the trial court, the trial court correctly noted that defendant had other means to prove the occurrence of the robberies by the brother and to prove the identity of the brother. The ruling proved eminently correct, when at the trial, the defendant stated that he was not accusing his brother of committing the armed robbery for which defendant was being tried.

In essence, the defendant is contending, not that the robbery of Phillips was committed by his brother, but that Phillips’ identification of defendant is patently fabricated and mistaken because the statements by Phillips to the police about the robber and about what Phillips “learned” from persons in the neighborhood more closely fitted defendant’s brother than the defendant himself. This overlooks the important in-court identification of defendant when he was side by side with his brother and the street identification before and when defendant was arrested. This identification was not made by the police from Phillips’ first description, but from Phillips’ identifying defendant at the liquor store location where he was when the police arrested him. Phillips was extensively cross-examined as to his identification of defendant and it was within the jury’s province to believe Phillips’ identification.

Under the circumstances of this case, we find no error in the trial court’s determination that the testimony defendant sought to elicit from the assistant prosecutor was irrelevant. It was also hearsay. The fact that defendant had a look-alike brother who was being prosecuted for other armed robberies in another section of the same court, could have been, and was, established by witnesses other than the assistant prosecutor.

In the related assignment of error, defendant asserts that the court erred in not permitting him to testify “as to his knowledge of the armed robberies perpetrated by ... the . .. brother.” Again we observe that this testimony was not offered for the purpose of showing that the brother committed the crime with which defendant was charged. Compare State v. Dyer, 154 La. 379, 97 So. 563 (1923). See Wigmore on Evidence, 3d Ed., §§ 139-142.

We deduce that defendant, who testified about his look-alike brother who was charged with other robberies, is complaining that he should have been allowed to testify about the details of these robberies. It is difficult for us to conceive, and defendant has not shown us, how these details “go to the identification” of the defendant by the victim, as defendant argued below.

Even if the details of the brother’s robberies could conceivably be admissible for the purpose of impeaching the victim’s identification testimony, the defendant made no attempt to show, as a predicate or foundation, that he had independent or direct knowledge of the details of the brother’s robberies. Compare circumstances where a defendant, charged with four counts attempted rape, may use similar crimes evidence to rebut or weigh against the State’s use of similar crimes evidence against that defendant. State v. Washington, 386 So.2d 1368 (La.1980). The relevancy of evidence must be determined by the purpose for which it is offered. LRS 15:442. Under the circumstances, and when this defendant does not suggest that his look-alike brother committed the robbery with which defendant is charged, the details of the robberies allegedly committed by the brother were correctly held irrelevant and inadmissible. LRS 15:441, 275.

ASSIGNMENT OF ERROR NO. 3

Appellant does not brief this assignment which asserted that the trial court erred in admitting a photograph or photostatic copy of a photograph of the defendant which was made over a year before the offense. Appellant’s objection at the trial as to relevancy of this item, goes to the weight of the victim’s identification of defendant. In any event, defendant merely states that this is an assignment of error but does not otherwise brief or argue this assignment on appeal. Even should we deem this assignment not abandoned, we find no error. See State v. Sanchez, 400 So.2d 632 (La.1981).

Defendant’s conviction is AFFIRMED.

DIXON, C. J., concurs.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones, of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . LSA-Const. Art. 1, § 16, is not cited by defendant, but provides the right of a defendant charged with a crime to compel the attendance of witnesses and to present a defense.

      . Counsel for a plaintiff in a civil action or for a party in a criminal proceeding is cautioned not to become a witness for his client. See Gutierrez v. Travelers Ins. Co., 358 So.2d 349 (La.App. 4th Cir. 1978); State v. Miller, 391 So.2d 1159 (La.1980).


source: Caselaw Access Project

author: DENNIS, Justice. MARCUS, Justice LEMMON, Justice, BLANCHE, Justice

license: Public Domain

text:
    STATE of Louisiana v. Lee MATTHEWS. STATE of Louisiana v. Cleo MATTHEWS.
    Nos. 81-K-1591, 81-K-1691.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      Frank J. Uddo, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, David C. Loeb, Asst. Dist. Attys., for plaintiff-respondent.
   DENNIS, Justice.

The critical question in this case is whether, under the circumstances, the police denied defendants the right to remain silent, the right against self-incrimination, and the assistance of counsel during in-custody interrogation in violation of Article 1, § 13 of the 1974 Louisiana Constitution, by rejecting their defense attorney’s request to speak to the interrogating officer and by failure to inform defendants their attorney was seeking to assist them.

On December 18, 1980 Lee Sherman Matthews received a call at work from his wife who informed him the police had called his house and wanted to speak to him about the drowning of his neighbor, Dorothy Penino. Matthews called his attorney, Frank Uddo, who advised him to say nothing to the authorities if he were to be arrested before they could confer. At about 4:00 p. m., Matthews was arrested at his place of business for the first degree murder of Dorothy Penino and taken to the police station. Cleo Matthews, his wife, was arrested at her residence for the same offense at about 4:30 p. m. and taken to the police station.

Shortly after the Matthews reached the police station and were placed in separate interrogation rooms, their attorney, Frank Uddo, placed a call to the police station. The lawyer described the ensuing events in the following terms:

“ * * * [A]bout 5 o’clock or maybe a little bit before 5 o’clock I received a call from Paul Marchadie being the step son of Lee Matthews. Paul Marchadie indicated to me at that time that Lee Matthews had been arrested and that his mother had been arrested and and that they had been arrested on the charge of first degree murder.
“Immediately thereafter I called the Jefferson Parish Sheriff’s Department and particularly at the Westbank Police Station at the Old Gretna Courthouse. I was not aware of the name of the person with whom I spoke. He indicated that he was a police officer and I told him at that time that I wanted to speak with Lee Matthews. He — I held on the phone for quite sometime. I — after he came back on, he told me that Detective Nuzzolillo was handling it. Well, he didn’t use Nuz-zolillo. He said Detective Marco was handling it and that he talked with him' and he said that I could not speak with Lee Matthews at the present time; that there was an interview being conducted and at that time I said, I don’t want anybody interviewing my client. I said my client has a constitutional right to have his attorney present during any interviews and I don’t want anybody conducting any interviews or taking any statements from my client without me present. He said, well, I’ll have him call you. I waited for sometime. I didn’t get a call. * * * Thereafter [at 8:00 or 8:30 p. m.] not having heard anything I came over to Gretna to the police station. I went to the front desk and I told the officer at the front desk who I was and that I wanted to speak with my client.
“I waited downstairs for approximately one half hour before I was — I was brought in. Thereafter, I did talk to my client and to Detective Nuzzolillo and to Detective Masson and Cleo Matthews and at that time it was indicated to me that statements had been given by everybody. * * * ff

Lee Matthews testified that he asked to talk to his attorney on three occasions before giving a statement in response to interrogation: when he was arrested, upon reaching the police station, and just before he signed a waiver of rights form. He stated that the police officers told him his wife was in custody and charged with first degree murder, that she had implicated him in the crime, that if he made a statement it could exonerate her, and that his wife and his daughter were having an affair with the same man. Cleo Matthews and her daughter, Diana James, testified that when Mrs. Matthews was arrested the officers refused to let Miss James call a lawyer at her mother’s request. Mrs. Matthews stated that a police officer promised that if she told the truth he would see that the magistrate let her out of jail to care for her two teenage sons and see that she was not discharged by her employer. She testified that before she gave her statement the officer told her that her husband had confessed and had implicated one of her sons by a previous marriage.

The police officers denied that either defendant requested an attorney or attempted to call one. They denied making the coercive or inducing statements attributed to them by the Matthews. One officer admitted questioning Lee Matthews about whether his wife and daughter were having an affair with a certain individual. He contended that the question was pertinent to his investigation because extra marital activities were prevalent in the Matthews’ neighborhood. He admitted telling Mrs. Matthews that her husband had made some admissions before she gave her statement, but he denied telling Mr. Matthews that his wife had confessed.

It is undisputed that the defendants’ attorney, Frank Uddo, telephoned the police station, identified himself to the cadet desk officer as the Matthews’ lawyer, and asked to talk to the officer conducting the interrogation. All of the officers denied that the lawyer requested or demanded that his clients not be questioned in his absence. The cadet officer who answered the phone stated that after conferring with the officer in charge of the case he told Mr. Uddo the interrogation could not be interrupted and that the attorney would have to come to the station to talk to the interrogating officer; to this, he said, Mr. Uddo replied, “fine,” and hung up.

Lee Sherman Matthews was indicted for second degree murder, La. R.S. 14:30.1. His wife, Cleo Matthews, was indicted for acting as an accessory after the fact of second degree murder, La. R.S. 14:25 and 14:30.1. Both defendants filed motions to suppress inculpatory statements given to police officers following their arrests. The motions in each case were denied after a hearing. We granted certiorari to consider whether the statements were obtained in violation of defendants’ right to remain silent, right against self-incrimination, and right to the assistance of counsel guaranteed by Article 1, § 13 of the 1974 Louisiana Constitution.

The trial judge, who denied the defendants’ motions to suppress without reasons, apparently resolved the many conflicts in the testimony in favor of the prosecution. Although we perhaps would have made different factual findings, we defer to the trial judge’s credibility assessments because he was there and saw the witnesses as they testified. Evidently, he also decided it was immaterial that the officers rejected the defense attorney’s request to talk to the interrogating officer and did not inform the Matthews that their -attorney was seeking to assist them. In this determination, however, he fell into an error of law.

In a case which arose before the adoption of our present constitution, this court held that when counsel has been retained to represent a prisoner, the government authorities cannot deny the lawyer reasonable access to his client, nor may they ignore his request that he be allowed to confer with his client prior to, if not during, the interrogation; and that confessions taken in violation of these principles are constitutionally inadmissible because the interrogation was made without an informed waiver of the defendant’s right to the assistance of counsel and to remain silent. State v. Jackson, 303 So.2d 734 (La.1974) citing Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed. 246 (1964). See also, American Law Institute Model Code of Pre-Arraignment Procedure, Section 140.7 (Tentative Draft No. 6, April 1, 1974).

If it was not evident from our holding in State v. Jackson, supra, it is now clear that the constitutional and statutory policy of our state favors a person having the assistance of counsel during in-custody interrogation and prohibits any interference with it by governmental authorities. Article 1, § 13 of the 1974 Louisiana Constitution requires that any person arrested or detained in connection with the investigation or commission of any offense must be advised fully of the reasons for his arrest or detention, his right to remain silent, his right against self-incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. This guarantee clearly affords a person subjected to in-custody interrogation the right to assistance of retained or appointed counsel, including the right to have counsel present during any questioning if the person so desires. By the adoption of Article 1, § 13, Louisiana enhanced and incorporated the safeguards of Miranda v. Arizona. In Re Dino, 359 So.2d 586 (La.1978); L. Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L. Rev. 1, 41 (1974). Statutorily, a person arrested has, from the moment of his arrest, a right to procure and confer with counsel and to use a telephone or send a message for the purpose of communicating with his friends or with counsel. La.C.Cr.P. art. 230. The accused in every instance has the right to defend himself and to have the assistance of counsel. His counsel shall have free access to him, in private, at reasonable hours. La.C.Cr.P. art. 511.

In State v. Jackson, supra, a New Orleans attorney, who had been employed by her family to, represent a woman in custody in Yidalia without her knowledge, called the sheriff’s office and requested that she not be interrogated further until he could confer with her within the next twenty-four hours. The officers asked the woman if she had a lawyer, if she knew a man by the name of the attorney who had called, and if anyone had contacted a lawyer for her. Following a series of negative responses, she was immediately questioned further and gave an incriminating statement. The officials did not inform her that a lawyer had called, had stated he had been retained to represent her, and had asked that she not be interrogated until her lawyer could confer with her during the next few hours. This court held that by these acts the enforcement officers prevented the woman from receiving the assistance of her attorney and from making an informed waiver of her rights.

The differences between this ease and Jackson are too minor and shadowy to justify a departure from the well-considered conclusion there reached with reference to the right of a person held in custody to the assistance of counsel. Although the Matthews’ attorney may not specifically have asked the cadet desk officer for a delay in the interrogation until he could confer with his clients, he clearly identified himself as a local attorney seeking to render assistance to the Matthews regarding the matter under investigation and requested to speak to the officer in charge of their interrogation. Had the attorney been allowed to speak to the officer in charge he would have learned of the charges against his clients and that they were currently under interrogation, and, as he had already admonished Lee Matthews not to speak with police until they could confer, he undoubtedly would have requested that the interrogation cease until he could speak with his client. Had the Matthews been informed, of the attorney’s call they would have confirmed that he represented them in the matter and, if made aware of his availability, possibly would have exercised their right to confer with him before giving a statement.

Under these circumstances, the refusal by the officer in charge to communicate with the attorney or to inform the Matthews that their attorney was available and seeking to assist them was an unwarranted interference with the defendants’ right to the assistance of their attorney. Because this information was withheld from the Matthews the subsequent interrogation was made without an informed waiver of the defendants’ right to the assistance of counsel and to remain silent. La.Const. art. 1, § 13; La.C.Cr.P. art. 230, cf. art. 511. State v. Jackson, supra. Cf. State v. Weedon, 342 So.2d 642 (La.1977); State v. West, 408 So.2d 1114 (La.1982).

As in State v. Jackson, we do not hold that an arrested person, not yet indicted or formally charged with the crime, cannot voluntarily and after proper warnings waive consultation with counsel and make voluntary statements which will be admissible against him. See State v. Cotton, 341 So.2d 355 (La.1977); State v. Haynes, 288 Or. 59, 602 P.2d 272, 277 (1979). We hold that when, unknown to the person in this situation, an identified attorney is actually available and seeking an opportunity to render assistance to him, and the police do not inform him of that fact, any statement or the fruits of any statement obtained after the police themselves know of the attorney’s efforts to assist the arrested person cannot be rendered admissible on the theory that the person knowingly and intelligently waived counsel. See State v. Jackson, supra; State v. Haynes, supra. A suspect indifferent to an abstract offer to call a nameless lawyer may regard differently his opportunity to talk to an identified attorney actually available and willing to assist him during interrogation. See State v. Haynes, supra. Further, the authorities may not ignore or refuse to communicate with an attorney seeking to assist his client. State v. Jackson, supra. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, his rights. Escobedo v. Illinois, at n. 13; Jackson, supra. Accordingly, it is the policy of this state to welcome and encourage an attorney to confer with his client in order that he may intelligently exercise his rights during custodial interrogation. La.Const. art. 1, § 13; La.C.Cr.P. arts. 230, 511.

Decree

For the reasons assigned, the trial court’s rulings are amended to grant the motions to suppress as to the statements elicited from the Matthews after the officer in charge refused to communicate with their attorney or to inform them of his attempt to assist them, and the case is remanded for further proceedings.

TRIAL COURT RULINGS AMENDED; REMANDED.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and will assign reasons.

LEMMON, J., concurs and assigns reasons.

MARCUS, Justice

(dissenting).

The majority holds that when, unknown to an arrested person, an identified attorney is actually available and seeking an opportunity to render assistance to him, and the police do not inform him of that fact, any statement or the fruits of any statement obtained after the police themselves know of the attorney’s efforts to assist the arrested person cannot be rendered admissible on the theory that the person knowingly and intelligently waived counsel. I consider the majority opinion an unreasonable extension of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). See also my dissenting opinion in State v. Jackson, 303 So.2d 734 (1974). Accordingly, I respectfully dissent.

LEMMON, Justice,

concurring.

When a lawyer, retained by the defendant to represent him in connection with the specific matter under investigation, notifies police that he is trying to contact his client, the police must so inform defendant before initiating or continuing interrogation without presence of counsel. Such information is necessary in order for the defendant to make an intelligent waiver of his right to counsel in a police-dominated atmosphere.

BLANCHE, Justice

(dissenting).

The trial judge, in denying the motion to suppress, made a credibility call in favor of the state. All of the officers denied that defendants’ counsel either requested or demanded that the defendants not be questioned in his absence. Accordingly, the record supports a finding that the confessions were free and voluntary.

The majority opinion also stands for the proposition that once an attorney calls the station house and announces his representation of an accused, unless this fact is communicated to the accused, any statement made by him thereafter is inadmissible on the theory that he did not knowingly and intelligently waive his right to counsel. Such a holding extends the right to counsel beyond the contemplation of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12. L.Ed.2d 977 (1964), and leads this writer to believe that the next step is to prevent all police questioning after arrest unless counsel is present.

I respectfully dissent.

      . At one point in his testimony the officer in charge of the interrogation stated that Mr. Uddo called and asked to talk to his client, Lee Matthews. This may have been an inadvertent statement because during the rest of the hearing he and the other policemen present at the station during interrogation claimed that Mr. Uddo called and asked only to talk to the officer conducting the interrogation.

      . Our holding is similar to the rules formulated by other jurisdictions. People v. Pinzon, 44 N.Y.2d 458, 406 N.Y.S.2d 268, 377 N.E.2d 721 (1978) (police must maintain procedures to insure attorney may communicate with person in custody and with official in charge of investigation without unreasonable delay); People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894 (1976) (once attorney enters proceeding, police may not question defendant in absence of counsel without affirmative waiver of right to counsel, made in presence of an attorney); In re Garth, 55 Cal.App.3d 986, 127 Cal.Rptr. 881 (1976) (interrogation by police without prior notification of appointed attorney is unconstitutional); Giddlings v. State, 290 N.W.2d 595 (Minn.1980) (where defendant is represented by counsel, both custodial and noncustodial interrogation of defendant outside presence of attorney is strongly disapproved); Lee v. State, 455 S.W.2d 316 (Tex.Cr.App.1970) (caution is urged on State in taking statements in absence of counsel if attorney has been appointed or retained); Commonwealth v. McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969) (police action which delayed counsel in reaching client violated defendant’s constitutional rights); State v. Stephens, 300 N.C. 321, 266 S.E.2d 588 (1980) (state failure to notify attorney, who was present and available, of his client’s interrogation resulted in inadmissible statement); United States v. Smith, 379 F.2d 628, cert. denied 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486 (C.A.Ill.1967) (Miranda applies with greater force to preclude admission of statements made in custody after known retainer or appointment of counsel and without counsel’s presence or approval) (citing 18 U.S. C.A. 6 § 3006A); United States v. Thomas, 474 F.2d 110, cert. denied 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (C.A.N.M.1973) (once attorney is retained or appointed, statements made in interview without notice to counsel and reasonable opportunity to be present, are inadmissible).


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Jonas M. JOHNSON, Jr.
    No. 81-K-1598.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Kendall P. Greene, Louise S. Korns, Asst. Dist. Attys., for plaintiff-relator.
    Ralph Capitelli of Capitelli & Bencomo, New Orleans, for defendant-respondent.
   BLANCHE, Justice.

Defendant Jonas Johnson was charged in a single bill of information with theft (R.S. 14:67) and receiving stolen things (R.S. 14:69), pursuant to the alternative charging procedure specifically authorized by C.Cr.P. art. 482. On March 30, 1981, a motion to suppress evidence found at Johnson’s residence was submitted to the trial court challenging the validity of the warrant authorizing the search of defendant’s home. On May 11,1981 the defense motion was granted. On application by the state, we granted writs to determine the correctness of this ruling by the trial court.

In the motion to suppress, the defense attacked the warrant in question on three grounds. Because the trial judge did not assign reasons in granting the motion to suppress, each of these asserted defects will be discussed fully. First, defendant contended that the affidavit in support of the warrant failed to state probable cause to believe that a crime had been committed and that evidence of criminal activity would be found at Johnson’s residence. The warrant affidavit recited the following facts:

(1) On December 19, 1980, James Lambert, an employee of Mon-Are Welding, Inc. was delivering merchandise to a repair shop on St. Louis Street when he was approached by an unknown black male. This stranger proposed that Lambert allow him to trade empty cylinders for the full containers of acetylene and oxygen gases on the Mon-Arc Welding truck. The unknown man also offered to pay Lambert a certain sum for each full cylinder well below the cost which Mon-Arc charged its regular customers for the containers, and stated that this same arrangement had been acceptable to another Mon-Arc deliveryman, identified only as “Slim”.

(2) When informed by Lambert that company policy prohibited the sale of the cylinders directly off the truck, the stranger became insistent.

(3) Lambert refused to sell the cylinders, but asked for time to think over the proposal. The unknown man then gave Lambert a business card reading “J. Johnson & Sons, General Contractors, 2902 St. Peter Street, 482-9974”, pointed to the name and said “That’s me.” At that time Lambert noticed a New Orleans Police Department Badge. Johnson admitted that he was a police officer and assured Lambert that he had nothing to fear.

(4) Johnson also pointed out a repair garage in the 2300 block of St. Louis Street and told Lambert that his friend also had some empty cylinders which he wanted to give Lambert under the same conditions.

(5) Returning to the Mon-Arc office, Lambert informed Ashton Fischer, the company president, of the conversation. Fischer called the Internal Affairs Division of the New Orleans Police Department and a meeting was arranged for December 23, 1980.

(6) At the meeting, Lambert and Fischer gave statements about the incident to Agents Johnston and Noble. The Personnel Division of the New Orleans Police Department informed these agents that Officer Jonas Johnson’s address was listed as 2902 St. Peter, and his telephone number as 482-9974. The New Orleans telephone directory also listed a Jonas Johnson, Sr. at that address and telephone number.

(7) Lambert positively identified Johnson’s picture from a photo lineup of several New Orleans Police Department Officers.

(8) Lambert was given a tape recorder and cassette and instructed to call Johnson. During the call, Lambert was to ask Johnson if he understood that the full containers supplied to him under the agreement would be stolen.

(9) Lambert returned this equipment on December 24,1980 and informed Agent Noble that the call had been made on December 23, 1980. The recording removed all doubt that Johnson was aware of the criminal nature of the transaction. The cylinders were to be delivered on December 29 to the repair garage in the 2300 block of St. Louis Street. The voice on the tape was identified as that of Officer Jonas Johnson.

(10) On December 29, 1980, Agent Noble met Lambert at Mon-Arc Welding and recorded the serial numbers of the cylinders to be delivered to the garage on St. Louis Street. The serial numbers were listed on the front of the warrant.

(11) Agent Willie Carter set up surveilance at a location near the repair garage. The delivery could not be made, however, as the repair shop appeared to be closed.

(12) Lambert then called Johnson, and the defendant instructed him to deliver the cylinders to his home at 2902 St. Peter Street. Agent Carter set up surveillance of that address and soon observed Lambert make the deliver of the cylinders to Johnson’s home.

(13) Lambert informed Agent Noble that the delivery had been made and that Johnson had paid him partially in cash and partially by personal check.

(14) Lambert remains ready to testify against Johnson in court.

(15) The agents have probable cause to believe that the stolen property is in the residence at 2902 St. Peter Street.

Article 1, § 5 of the Louisiana Constitution of 1974 requires that a search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of an impartial magistrate. C.Cr.P. art. 162. Probable cause exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Tranum, 384 So.2d 367 (La.1980); State v. Morgan, 376 So.2d 99 (La.1979).

According to the defense argument, the instant warrant affidavit established consent to the transfer of the cylinders and negated criminal intent on the part of the defendant, thus mandating a finding of no probable cause. In support of his contention, defendant cites 18 A.L.R. 174, which deals with the concept of active participation by the owner of property in a larceny case:

“Where the owner, in person or by his duly authorized agent, suggests to the accused the criminal design, and actively urges, co-operates with, and assists the accused in the taking of the goods, such conduct amounts to a consent of the taking, and the criminal quality of the act is wanting.
* * * * * sjj
The reason is obvious, viz.: The taking in such cases is not against the will of the owner, which is the very essence of the offense, and hence no offense, in the eye of the law, has been committed. The offender may be as morally guilty as if the owner had not consented, but a necessary ingredient of legal guilt is wanting.” See United States v. Whittier (1978), 5 Dill 35, Fed.Cas. No. 16,688.

This same annotation was quoted by this Court in State v. Natalie, 172 La. 709, 135 So. 34 (La.1931), 135 So. at page 36. In Natalie, the defendant was convicted of receiving stolen property and challenged his conviction on the ground that the owner of the property stolen had consented to its taking. The defendant, along with his son Mike, had sought the aid of Sam Shepherd in the commission of a burglary of a wholesale tobacco warehouse. Unknown to the defendant, Shepherd informed local police of the contemplated burglary. The defendant had not specified which of several warehouses would be burglarized, so the police called a meeting of all local wholesale dealers. At that meeting, the wholesalers were requested to mark their goods, leave them in the warehouses and lock the doors, without otherwise interfering with the burglars’ plans. The burglary was committed as planned by Shepherd and Mike Natalie and the goods were deposited at the home of the defendant where they were later seized.

In rejecting the argument of defendant that the owner of the goods had consented to the taking, this Court emphasized that the owner did nothing to induce or tempt the defendant to commit the burglary. “The criminal design and intent to take the goods originated, independently, in the minds of those who took them and Bacon [the owner] did no more than passively assent to the carrying out of their designs.” State v. Natalle, supra, 135 So. at p. 36.

In order to consent to the theft of his property, an owner must do more than passively assent to the taking. Where the criminal intent or design is neither suggested nor ratified by the owner, he may even facilitate the taking of the goods in order to detect the thief. The warrant affidavit in this case established that the intent to steal the cylinders, or to purchase cylinders stolen from Lambert’s employer, originated in the mind of the defendant. The defendant first approached Lambert and sought to buy the acetylene gas cylinders at a greatly reduced price. When Lambert informed the defendant that the cylinders could only be purchased through the office of his employer, Mon-Arc Welding, the defendant became insistent and pressed Lambert to concur in his criminal design. Further evidence of defendant’s criminal intent was obtained in a tape recorded conversation between Lambert and the defendant.

We need not find that the affidavit negated all question as to the defendant’s guilt in order to maintain the warrant. A showing of probable cause for issuance of a search warrant requires much less evidence than proof beyond a reasonable doubt. State v. Ogden, 391 So.2d 434 (La.1980). Magistrates and courts must test and interpret affidavits in support of the issuance of search warrants in a commonsense and realistic fashion. State v. Weinberg, 364 So.2d 964 (La.1978). Applying this standard, we are unable to say that the instant warrant affidavit failed to state probable cause that an offense had been committed and that evidence of criminal activity could be found at the defendant’s residence. The evidence seized pursuant to the search warrant should not have been suppressed on this ground.

Second, the defense asserted that the photo lineup described in paragraph 7 of the warrant affidavit was improperly conducted, yielding an inadmissible identification of the defendant. The defendant maintained that this illegal identification was the basis of the later search of his residence, mandating a finding that the evidence seized must be suppressed as the “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Suppression of evidence under the reasoning of Wong Sun requires a finding that discovery of the evidence is the direct result of some “primary illegality”. Where the evidence is discovered “by means sufficiently distinguishable to be purged of the primary taint”, that evidence may be fully admissible.

At the hearing on the motion to suppress, Officer Johnson testified as to the conduct of this photo lineup: James Lambert was shown photographs of all males named Johnson employed by the New Orleans Police Department. Officer Johnson freely conceded on cross-examination that an identification from a lineup so conducted would not be sufficient for courtroom purposes. He testified that the lineup was conducted for the assistance of the Internal Affairs officers in their administrative investigation.

Although procedurally defective, we cannot agree that this photographic identification was the primary basis of the later seizure of evidence from the defendant’s residence.

The defendant was the first to identify himself in this case. As he handed a business card with the name ‘J. Johnson & Sons’ to James Lambert, the defendant pointed to the name on the card and said, “That’s me.” That card also contained the address of the residence later searched, 2902 St. Peter Street. During his initial conversation with James Lambert, the defendant did not conceal the fact that he was a police officer. The New Orleans Police Department’s personnel files listed the address of Officer Jonas Johnson as 2902 St. Peter. Lambert’s later identification of Johnson’s photograph from the defective lineup was merely a verification of information already in the possession of the investigating officers.

The seizure of the evidence was the result of a complete investigation properly conducted by the affiant officers. As the questionable identification was not the primary basis of the discovery of this evidence, the evidence seized is not suppressible under the rationale of Wong Sun.

Finally, the defendant argued that the warrant was defective in that it failed to describe the place to be searched with sufficient particularity. The application for the warrant twice recites the address to be searched as 1902 St. Peter (the correct address is 2902 St. Peter). The warrant itself, however, was issued for 2902 St. Peter, and the warrant affidavit states the correct address in six places. The application, although reciting an incorrect address, accurately describes the residence to be searched as a two-story, wood frame double house. Furthermore, the surveillance described in the warrant affidavit was made of the residence at 2902 St. Peter, and the delivery of the cylinders was made to that address. Officers Johnston and Noble, the authors of the warrant affidavit which correctly stated the defendant’s address as 2902 St. Peter, were also the executors of the warrant.

Both the United States and Louisiana Constitutions provide that no warrant shall be issued unless based on probable cause, supported by oath or affirmation “and particularly describing the place to be searched...”. U.S.Const., Amend. IV; La. Const., Art. 1, § 5; C.Cr.P. art. 162. The object of the particularity requirement is to prevent a search of the wrong premises; to insure an individual’s safety in his home from unwarranted police intrusion. Hence, “a minor error in a portion of the description of the place to be searched does not invalidate the search.” State v. Korman, 379 So.2d 1061 (La.1981); State v. Smith, 397 So.2d 1326 (La.1981). “If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient.” State v. Cobbs, 350 So.2d 168 (La.1977).

The instant warrant describes the place to be searched with sufficient particularity. The motion to suppress should not have been granted on this ground.

The three defects assigned by the defendant in the motion to suppress, taken separately or together, are insufficient to merit suppression of the evidence seized. Accordingly, the ruling of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The tape itself was not made a part of the warrant affidavit.


author:
FRED W. JONES, Jr., Justice Ad Hoc.
     DENNIS, Justice,

text:
    STATE of Louisiana, v. Leroy E. JONES and Wilhemina Joseph.
    No. 81-KA-1607.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Tom Chester, David Paddi-son, Louise S. Korns, Asst. Dist. Attys., for plaintiff-appellee.
    John M. Lawrence, Orleans Indigent Defender Program, Frank G. DeSalvo, New Orleans, for defendant-appellant.
   FRED W. JONES, Jr., Justice Ad Hoc.

Leroy E. Jones and Wilhemina Joseph were jointly indicted on two counts of aggravated kidnapping (La.R.S. 14:44), two counts of armed robbery (La.R.S. 14:64), and one count of aggravated rape (La.R.S. 14:42). Joseph was also charged with one count of aggravated crime against nature (La.R.S. 14:89.1).

The state severed some of the counts and proceeded to jointly try the defendants before a jury on the two counts of armed robbery and the one count of aggravated rape. The defendants were found guilty as charged on each count of armed robbery. On the rape charge the jury returned a responsive verdict of guilty of forcible rape.

The trial judge sentenced each defendant to serve 50 years imprisonment at hard labor on each of the armed robbery counts and to 40 years imprisonment at hard labor on the forcible rape count, with the sentences to run concurrently.

The state filed multiple offender charges under La.R.S. 15:529.1 against both defendants. Jones’ motion to quash the multiple offender bill against him was granted. Upon being adjudged a third felony offender, Joseph’s original sentence was ordered vacated and she was sentenced to be imprisoned at hard labor for 50 years.

Both defendants appealed, with Jones urging 22 assignments of error (3 of which were abandoned) and Joseph urging 18 assignments of error.

According to the record, at about 1:30 A.M. on March 30, 1980, a young white female and her date returned to their automobile after buying doughnuts at Picou’s Bakery in New Orleans. The young lady took her seat in the car. Her male friend started around to the driver’s side of the vehicle when he was confronted by a black male holding a small silver pistol (later discovered to be a toy gun) and a black female brandishing a knife. Upon demand, the car keys were relinquished to the black male, who occupied the driver’s seat while his companion forced the white male into the back seat with her and who then drove the vehicle off.

During the course of riding around for some 15 minutes the abductors threatened their victims, took the white male’s wallet and chain with a cross, and the white female’s cash and jewelry. The male victim was then released and he promptly notified the police of the abduction.

The two abductors proceeded with their female victim to another location, where she was commanded to remove her clothing and get into the back seat of the car. She was then raped by the male abductor while the female helped hold her down. Thereafter the female victim was released. Later that night the police found her, weeping and with disheveled clothing.

As the result of a police investigation the victims viewed a photographic lineup during which they identified the defendants as their abductors. On April 21, 1980 the defendants were arrested pursuant to the issuance of arrest warrants. A few days later the victim observed the defendants at a physical lineup and again identified them.

Assignments of Error Nos. 1 & 2 — Jones

Assignments of Error Nos. 1, 2 & 15 — Joseph

These assignments involve defendants’ contentions that the trial judge erred in denying their motions for severance of offenses and severance of defendants.

Joinder of Offenses

Defendant Jones argues that he was prejudiced by joinder of the armed robbery charges with the rape charge because of the dissimilar nature of the crimes and because the overwhelming evidence supported the armed robbery charges as opposed to the rape charge.

In addition, defendant Joseph contended that she was prejudiced by joinder of the offenses because the jury could easily believe she was a principal to the rape charge after hearing the persuasive evidence relating to the armed robbery charges.

As pointed out in State v. Washington, 386 So.2d 1368 (La.1980), La.C.Cr.P. Art. 495.1 was amended in 1978 to adopt the federal rule on severance of offenses. There now must be a clear showing of prejudice before the trial judge’s ruling on this question will be disturbed.

In Drew v. United States, 331 F.2d 85 (D.C.Cir.1964), it was observed that any prejudice flowing from the introduction of “other crimes evidence” would not be enlarged by the mere fact of joinder where the “other crimes evidence” would have been admissible in separate trials. That is precisely the case here. The armed robberies of the two victims and the rape of the female victim a few minutes later constituted one continuous transaction, with each offense forming part of the res gestae. As noted in State v. Haarala, 398 So.2d 1093 (La.1981):

“The general prohibition against the use of other crimes evidence does not bar admission of criminal acts which are an inseparable part of the whole deed.”

Here, evidence of each “other crime” would have been admissible in separate trials of each offense since the state could not have accurately presented its case without reference to the other crimes. For this reason, we do not find that the trial judge’s denial of the motion to sever the armed robbery and aggravated rape counts amounted to an abuse of his discretion.

Joinder of Parties

Defendant Jones argues that he was prejudiced by the trial judge’s denial of the motion to sever the trials of the two defendants because their defenses were antagonistic. Defendant Joseph contended that she was prejudiced by denial of her motion to sever the trial because she was prevented from calling her co-defendant as a witness to exculpate her.

It is well settled that a mere allegation of antagonistic defenses, without evidence offered at a hearing to substantiate the claim, does not discharge the defendant’s burden of showing that he will be prejudiced by a joint trial. State v. Whitt, 404 So.2d 254 (La.1981); State v. Singleton, 352 So.2d 191 (La.1977). Further, we do not glean from the trial record any indication of antagonistic defenses. Defendant Jones elected not to testify. Defendant Joseph simply denied any knowledge of the offenses.

Severance need not be granted merely because a defendant expresses a desire to call his co-defendant as a witness. The conducting of separate trials would not compel that co-defendant to waive his constitutional right against self-incrimination. State v. Jenkins, 340 So.2d 157 (La.1976).

Assignment of Error No. 3 — Jones

Assignment of Error No. 3 — Joseph

Defendants claim the trial judge erred in failing to sustain their objections to the state’s use of peremptory challenges to exclude blacks from serving on the jury panel.

A defendant is not denied equal protection when the state uses peremptory challenges to exclude blacks from jury service unless the record affirmatively establishes a systematic exclusion of blacks by the prosecution over a period of time. Only after the defendant has made a prima facie showing of such exclusion does the state have the burden of showing the absence of such discrimination. State v. Brown, 371 So.2d 751 (La.1979).

Since the defendants in this case made no effort to demonstrate a historical pattern of exclusion of blacks from jury service by the prosecution, the trial judge correctly overruled the objection to the state’s use of its peremptory challenges.

These assignments lack merit.

Assignment of Error No. 4 — Jones

During his voir dire examination prospective juror Herdliska stated that he was engaged in civil litigation which he considered ludicrous and that he had little respect for the judicial system. The state challenged Herdliska' for cause and was joined in the challenge by defendant Jones. Refusal of the trial judge to sustain this challenge is the basis for this assignment. The state subsequently withdrew its challenge.

Herdliska did not serve on the jury, apparently having been peremptorily challenged by one of the defendants. Assuming that this peremptory challenge was exercised on behalf of the defendant Jones, the record does not show that he exhausted his peremptory challenges before completion of the jury panel. In a joint trial of this nature, the peremptory challenges of one defendant cannot said to be exhausted as long as any such challenges are left to either defendant. State v. Forbes, 348 So.2d 983 (La.1977). Therefore, Jones cannot complain of the ruling on his challenge for cause. La.C.Cr.P. Art. 800. Be that as it may, Herdliska indicated that his jaundiced view of the judicial system would not interfere with his being a fair and impartial juror in this criminal case. The trial judge did not err in overruling this challenge for cause.

This assignment is without merit.

Assignment of Error No. 5 — Jones

Assignment of Error No. 5 — Joseph

In her voir dire examination, upon learning that the penalty for conviction of aggravated rape carried a mandatory life imprisonment sentence without benefit of parole, probation or suspension of sentence, prospective juror Pricilla Carter stated: “I disagree with it.” The following colloquy then occurred between her and the trial judge:

“THE COURT:
Are you saying that you would be unable to return that verdict in this case knowing that your verdict would carry with it a life sentence?
A. Yes.
THE COURT:
Now, are you saying that under no circumstances could you return that verdict?
A. I think that I would consider the fact that if the person was going to receive that sentence, that that would be a factor.
THE COURT:
Let me say this in regard to that. It should be a factor. Any of these verdicts should be well reasoned and well thought out and based on the law and evidence in this case before they should be returned, and while it is a mandatory sentence, the function of a juror is primarily to ferret out the guilt or innocence of the defendant’s, but it is a fact that if the jury would return that verdict, it would be a life sentence.
Now my question, again is, if the law and the evidence would show that the defendants were guilty of that crime, would you return a verdict of guilty of aggravated rape knowing that it would carry with it a potential life sentence?
A. No, I could not.
THE COURT:
You could not. And that would be no matter what the evidence would show?
A. Right.”

The state’s challenge for cause of this prospective juror was sustained. Defendants’ complaint with reference to this ruling is the basis for these assignments.

Since the record indicates that the state only exercised 14 of its 24 peremptory challenges, the result of the trial judge’s ruling on this challenge for cause (even if erroneous) did not grant the state more peremptory challenges than entitled to by law. Therefore, defendants have no ground for complaint. La.C.Cr.P. Art. 800.

However, we note that this prospective juror’s clearly expressed determination not to find the defendants guilty of the charge of aggravated rape, regardless of facts presented at the trial, because of the mandatory penalty, obviously disqualified her for this jury service. La.C.Cr.P. Art. 797; State v. Brent, 347 So.2d 1112 (La.1977). The trial judge properly sustained the challenge for cause.

These assignments lack merit.

Assignments of Error Nos. 6 & 10 — Jones

Assignment of Error No. 8 — Joseph

Among his pretrial motions Jones filed a Motion to Suppress Confession which was ultimately withdrawn when the state stipulated it would not attempt to introduce Jones’ confession at trial. However, at the trial, when the state expressed an intention to offer in evidence certain items of jewelry taken from the victims by defendants and recovered as a result of information given by Jones in his confession, defendant Jones objected — contending that these stolen articles were the fruit of a confession which the state had agreed not to use. The trial judge then ordered a hearing, outside the presence of the jury, to give the state an opportunity to discharge its burden of showing that the confession was given freely and voluntarily after the defendant was properly advised of his Miranda rights. Defendant Jones moved for a recess of a week or two in order to prepare for the hearing. The trial judge granted him a recess of about one and one-half hours. The argument that this was insufficient time to prepare for the hearing is the ground for these assignments.

Although counsel for Jones argued that he had not prepared for a suppression hearing because of the state’s stipulation, the factual and legal basis for his assertion that the confession was inadmissible should have been known to him at the time he prepared the motion to suppress the confession — well in advance of the trial. Furthermore, the trial judge offered his assistance in procuring any documents or medical records desired by counsel for use at the hearing.

Defense counsel conducted no cross-examination at the suppression hearing and did not put defendant Jones on the stand to rebut the testimony of the police officers concerning the voluntary nature of the confession.

Although the confession was not offered by the state at the trial, the items allegedly taken by defendants from the victims were received in evidence.

Defendants have shown no prejudice resulting from the action of the trial judge in granting a recess of one and one half hours rather than a week or two.

These assignments are without merit.

Assignment of Error No. 7 — Jones

Assignment of Error No. 6 — Joseph

Defendants contend the trial judge committed error in permitting Dr. John Kokemar, qualified by the state as an expert in the field of internal medicine and the examination of rape victims, to testify as to the female victim’s emotional state— outside the area of his expertise.

Dr. Kokemar stated that the victim was “shaking and crying.” The witness merely described to the jury what he had observed — which could have been done by any lay witness.

There is no substance to these assignments.

Assignment of Error No. 11 — Jones

Assignment of Error No. 9 — Joseph

These assignments involve a contention by defendants that the warrants for their arrest were illegal because based upon inadequate and invalid affidavits. Consequently, they argue that the arrest warrants should have been quashed and all evidence gained by the police as a result of those arrests, including their identification and the items stolen from the victims, should have been suppressed (as “fruits of the poisonous tree”).

La.C.Cr.P. Art. 202 provides for the issuance of a warrant of arrest by a magistrate when (1) the person making the complaint executes an affidavit specifying, to the best of his knowledge and belief, the nature, date and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any; and (2) the magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.

Discussing probable cause to arrest in State v. Collins, 378 So.2d 928 (La.1980), this court commented:

“One of the most important elements in determining whether probable cause existed is satisfied when the police know a crime has actually been committed. When a crime has been committed and the police know it, they only have to determine whether there is reasonably trustworthy information to justify a man of ordinary caution in believing the person to be arrested has committed the crime. ...”

In this case the affidavits supporting the arrest warrants describe in detail the crimes committed on March 30, 1980 and further state that photographs of the defendants were identified by the victims as perpetrators of the offenses. The facts set forth in those affidavits established probable cause for the magistrate to believe that these defendants committed the crimes described therein. Therefore, the arrest warrants were legal and valid, and evidence recovered as a result of these arrests was admissible at the trial.

These assignments are without merit.

Assignment of Error No. 18—Jones

Assignment of Error No. 10—Joseph

During the presentation of the state’s case Detective Hoogerswerf was asked by the prosecution if, during the course of his investigation of the rape, he developed a suspect. Over defendants’ objections the officer replied: “Wilhemina Joseph and Leroy Jones. Two suspects.” In these assignments defendants argue that the detective’s answer was opinion testimony given in violation of La.R.S. 15:463.

Detective Hoogerswerf was stating a fact known to him and not an opinion. This testimony was offered to explain why defendants’ pictures appeared in the photographic lineups exhibited to the victims.

There is no merit to these assignments.

Assignment of Error No. 11—Joseph

The female victim reported to the police that among the items taken from her by defendants was a pair of gold earrings. At the trial Detective Hoogerswerf was asked if he showed to the female victim a pair of earrings (which had previously been admitted into evidence). Defendant’s objection to this testimony on the ground of relevance was overruled, and that ruling forms the basis for this exception.

When asked if the earrings received in evidence were those stolen from her by the defendants, the female victim replied: “No, but they look very much like that.” Any error committed by the trial judge in his ruling was harmless.

This assignment lacks merit.

Assignment of Error No. 16—Jones

During a trial recess one juror approached the judge with a question. Immediately thereafter, outside the presence of the jury, the trial judge informed the prosecutor and attorneys for the defendants that the juror asked him whether the crimes in question occurred in the vicinity of Dorge-nois and North Broad Streets. The judge explained that he had declined to answer the question.

The trial judge denied defendants’ motion to voir dire the juror. Defendant Jones contends that this action constituted reversible error.

Defendant does not argue that the inquisitive juror should have been replaced because he was unable to perform or was disqualified from performing his duties. La.C.Cr.P. Art. 789. Further, there is no allegation that the juror answered untruthfully any questions posed to him on his voir dire examination prior to selection as a jur- or. State v. Rounsavall, 337 So.2d 190 (La. 1976).

There is no merit to this assignment.

Assignments of Error Nos. 17 & 18—Jones

Assignment of Error No. 18—Joseph

Prior to trial defendant Joseph filed a Motion for Oyer requesting, among other things:

“3. Disclosure of the existence of any oral statements, admissions and/or confessions of any nature made by the defendant which the state intends to offer in evidence at trial including res gestae statements.”

In its answer to this specific request, the state replied:

“3. None known at this time.
“3. Not applicable.”

During the trial the male victim was asked with reference to defendant Joseph: “What did she say to you?” His answer: “She said that she had robbed before and that she’d killed before and she’d kill us.” The following colloquy occurred between the trial judge and attorneys for the defendants:

“MR. DE SALVO:
I’d like to renew my previously filed motion for a severance, Your Honor.
THE COURT:
It’s again denied.
MR. LAWRENCE:
Your Honor, I’d like to make a motion for a mistrial based on the comments of the witness.
THE COURT:
Denied.
MR. DE SALVO:
Note my objection.
MR. LAWRENCE:
Note my objection, Your Honor.”

Contrary to the state’s argument, the defendants were entitled to discover the existence, if not the contents, of the res gestae statement under La.C.Cr.P. Art. 716(B). However, by failing to state the specific grounds for their objections and giving the trial judge an opportunity to rule thereupon, the defendants have presented nothing for post-conviction review. La.C.Cr.P. Art. 841. State v. Baylis, 388 So.2d 713 (La.1980).

Had defendants articulated the basis for their asserted rights (inadequate response to discovery motion) the trial judge could have granted one of the remedies provided for by La.C.Cr.P. Art. 729.5 for failure to comply with the discovery rules. By failing to do so, they have effectively waived any right to be afforded relief on appeal. State v. Bonanno, 373 So.2d 1284 (La.1979).

These assignments lack merit.

Assignment of Error No. 22—Jones

Defendant Jones contends the trial judge erred in refusing to allow him to take the stand and testify only with reference to the rape charge.

When a witness has been sworn and testifies to any single fact on his examination in chief, he may be cross-examined upon the whole case. La.R.S. 15:280. When an accused elects to become a witness, he is subject to all of the rules that apply to other witnesses and may be cross-examined on the whole case. La.R.S. 15:462. State v. George, 346 So.2d 694 (La.1977).

There is no validity to this assignment.

Assignment of Error No. 17—Joseph

Defendant Joseph argues that the trial judge erred in denying her motion for a new trial based upon the contention that there was insufficient evidence to establish beyond a reasonable doubt that she was armed with a dangerous weapon. Cited as authority for this position is Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The victims testified that they were forced into their car and robbed by the defendants, one of whom was armed with a small silver pistol and the other with a four-inch knife. The pistol (discovered to be a toy) was found under defendant Jones’ mattress.

Viewing the evidence in a light most favorable to the prosecution, we find that there was sufficient evidence to convince a rational fact-finder beyond a reasonable doubt that defendants robbed their victims while armed with dangerous weapons.

This assignment lacks merit.

Assignment of Error No. 18—Joseph

Defendant Joseph contends that the trial judge erred in adjudging her a third felony offender because (1) the two federal convictions upon which the state relied were not felonies under Louisiana law and (2) the authenticity of the previous convictions was not properly established at the multiple offender hearing.

At the multiple offender hearing Dennis Donnell, a former assistant U.S. Attorney, testified that on June 8, 1977, defendant Joseph pleaded guilty in Federal District Court to possession of the contents of stolen mail (a Family Services check in the amount of $140) in violation of 18 U.S.C. § 1708 and was placed on supervised probation. Also at the hearing, James Wright, another former assistant U.S. Attorney, testified that on July 10, 1979, defendant Joseph pleaded guilty in Federal District Court to one count of possession of the contents of stolen mail (a Family Services cheek in the amount of $153.40), and was given a three year suspended sentence and placed on supervised probation for five years.

A felony under federal law is any crime punishable by death or imprisonment for more than one year. 18 U.S.C. Sec. 1.

Since in each instance the stolen check which Joseph had in her possession was in an amount in excess of $100, it seems clear that the offense would have been a felony under Louisiana law. La.R.S. 14:69; La. R.S. 15:529.1(A). See LaFave & Scott, Handbook on Criminal Law (1972), pg. 635.

As to the authenticity of the evidence presented at the hearing, each of the former government prosecutors identified defendant Joseph as the individual who had been convicted in federal court of the two crimes. Certified copies of documents proving the convictions were received in evidence. The trial judge properly adjudged defendant Joseph a third felony offender.

This assignment is without merit.

Decree

For the reasons set forth, the convictions and sentences of defendants are affirmed.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

The partial quotation from Drew v. United States, 331 F.2d 85 (D.C.Cir.1964), does not purport to be a complete or correct statement of our other crimes or severance rules. Further, proof of a historical pattern is not the only way a defendant may establish a prima facie case of racial discrimination under our Constitution.

       Judges O. E. Price of the Court of Appeal, Second Circuit, John C. Boutall, Court of Appeal, Fourth Circuit, and Fred W. Jones, Jr., Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis and Jack C. Watson.

      . Art. 495.1
      If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

      . Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.

      . 18 U.S.C. § 1708 provides in pertinent part:
      Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or any article or thing contained therein; or
      Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for our collection upon or adjacent to a collection box or other authorized depository of mail matter; or
      Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted—
      Shall be fined not more than $2,000 or imprisoned not more than five years, or both.


text:
    STATE of Louisiana v. William CLAY.
    No. 81-KA-1642.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., J. Michael McDonald, Kay Kirkpatrick, Joseph Lotwick, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Foumet, Frank J. Saia, David Randall Buckley, Jeff Hollingsworth, Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

William Clay was arrested and charged with possession of marijuana with intent to distribute, a violation of R.S. 40:967(C). After a twelve man jury found Clay guilty as charged, he was sentenced by the trial court to serve ten years at hard labor. Defendant appeals his conviction and sentence, raising four assignments of error. We find that none of these assignments have merit and affirm defendant’s conviction and sentence.

Narcotics investigators for the East Baton Rouge Parish District Attorney’s Office and several police officers executed a “no-knock” search warrant at defendant’s Baton Rouge apartment. Upon entering the residence, the law enforcement officers found Clay and another individual seated in the living room. A “brick” of what appeared to be hashish was observed lying on the coffee table. Further, nineteen individually wrapped chunks of hashish were recovered from a brown metal box located in defendant’s bedroom.

Assignment of Error Number 1

By this assignment of error defendant urges that the trial court erred when it allowed witnesses for the state to testify as to the amount of hashish consistent with personal use. Clay contends that this testimony, which the state relied upon to establish his intent to distribute marijuana, went beyond the competency of these witnesses because the state failed to lay the proper foundation as to the source of their information.

Eddie Stewart, one of the narcotics investigators who participated in the execution of the search warrant, testified at trial about the contraband seized at defendant’s apartment. This witness stated that he has been involved in narcotics investigations for over two years and has participated in over 100 cases involving either marijuana or hashish. Stewart received his basic training in drug identification and usage when he was a Baton Rouge City Policeman and has attended two Federal Drug Enforcement Administration schools where he was taught how to properly identify drugs and how to conduct a narcotics investigation. Further, Stewart testified that he presently lectures about drugs and possesses a drug display kit containing samples of marijuana, hashish and drug paraphernalia.

When the prosecution questioned Stewart about the normal usage of hashish by a regular user, Clay’s attorney objected claiming the state had failed to lay the proper foundation. After the trial judge sustained the objection, Stewart was asked, “How do the users that you’ve come into contact with use hashish?” The witness responded that “they use a small portion, probably less than a gram.” An objection by defense counsel to Stewart’s response was overruled by the trial judge.

Detective Stanley Bihm, a narcotics agent with the Baton Rouge City Police who was present during the search of Clay’s apartment, also gave testimony concerning his experience concerning the amount of hashish usually consumed by a single individual.

It was established, outside the presence of the jury, that Bihm has been involved in numerous drug related arrests during his IV2 years as a narcotics officer and has received special training from the Drug Enforcement Administration on two separate occasions. After the jury returned, Officer Bihm attempted to describe the quantities of hashish in the possession of those individuals he has arrested. Defense counsel objected to this inquiry, but was again overruled by the court.

The general rule is that lay witnesses can testify only as to facts within their personal knowledge. R.S. 15:463. Individuals possessing special training or experience may give their opinion on questions requiring special knowledge as long as they state the facts upon which their opinion is based. R.S. 15:464, 465.

A review of the record discloses that the trial judge did not permit the two law enforcement officers to testify on matters beyond their personal experience. When the prosecution inquired as to what quantity of hashish a normal user might consume, the trial court sustained an objection by defense counsel. However, the judge did permit testimony concerning consumption by hashish users with whom the witnesses had personal contact. Thus, it is apparent that the trial judge properly limited the responses of these witnesses to facts based on their personal experience and knowledge. R.S. 15:463; State v. Boyd, 359 So.2d 931 (La.1978).

Assuming arguendo that the testimony of these witnesses did constitute their opinion on the subject, such testimony was properly admitted by the trial court. In State v. Stewart, 357 So.2d 1111 (La.1978), a police officer was allowed to testify, after stating his training and experience, as to how many cigarettes could be made from' a pound of marijuana. This Court upheld the admissibility of the officer’s statement, concluding that:

“In the instant case, our review of the record convinces us that Sergeant Well-brink possessed sufficient special training and experience in the field of marijuana to express an opinion in that field. He also stated the facts upon which his opinion was based. Hence, the trial judge properly permitted him to express an opinion as to the number of cigarettes that could be produced from one pound of marijuana.”

Similarly, we are of the opinion that the extensive training and numerous drug investigations personally conducted by Stewart and Bihm were more than sufficient to allow them to testify as to the amount of hashish normally consumed by individuals with whom they had dealt in the past.

Assignment of Error Number 2

During his testimony, Officer Bihm referred to how hashish is packaged and how it is normally consumed. Clay argues that this testimony was based on hearsay and should have been excluded by the trial court. However, it is well established that a witness may draw natural inferences from facts personally observed by him. State v. Stewart, supra; State v. Clark, 340 So.2d 1302 (La.1976). Before Bihm testified concerning the packaging and consumption of hashish, the state established that this witness had been involved in nearly thirty hashish related arrests. Further, it is clear that the state’s inquiries as to packaging and consumption required responses that were limited to Bihm’s personal observations. Accordingly, this assignment of error lacks merit.

Assignment of Error Number 3

In the instant ease, the search of Clay’s apartment was conducted after the law enforcement officers had procured a search warrant. This warrant was supported by the affidavit of Investigator Stewart and consisted solely of hearsay information supplied by an informant.

In the present assignment of error, defendant urges that the affidavit supporting the search warrant failed to provide a factual basis to find the informant and his statement to be reliable. Thus, Clay contends that because the affidavit was inadequate, the warrant was defective and the contraband seized at defendant’s residence should have been suppressed.

It is well settled that an affidavit in support of a warrant may be based upon hearsay as long as it sets forth the underlying circumstances which provide a substantial factual basis by which the magistrate can find both the informant and the information provided by the informant to be reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Tomasetti, 381 So.2d 420 (La.1980).

Though the affidavit does not contain an averment of previous reliability, such a statement is not a prerequisite to a finding of reliability. State v. Mena, 399 So.2d 149 (La.1981); State v. Cook, 404 So.2d 1210 (La.1981). Affidavits must be read in a commonsense and realistic manner, State v. Cook, supra; State v. Richards, 357 So.2d 1128 (La.1978), and the magistrate’s judgment should be based on a reading of the entire affidavit. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Richards, supra.

In the instant case, Eddie Stewart stated in the affidavit that his informer was named Larry Kinney, that he personally knew Kinney, the parish of Kinney’s employment and the named informant’s residential address. The affidavit also stated that the defendant, while at his apartment, told Kinney that he possessed a large quantity of hashish and showed Kinney a “brick” of greenish brown material. Further, the named informant described the brick as being “wet and sticky” in appearance and stated that it was wrapped “in transparent paper with a stamp on it” which “consisted of a blue airplane with the word Lebanon.”

Based on all of the recited facts, we are of the opinion that the “direct personal observation” by the informant, State v. Paciera, 290 So.2d 681 (La.1974), coupled with the affidavit’s disclosure of the informant’s name, address and Stewart’s personal knowledge of this individual, sufficiently established that the named informant was credible and his information was reliable.

Assignment of Error Number 4

By this assignment of error, Clay contends that the trial court erred in imposing an excessive sentence. After his conviction, defendant was ordered to serve ten years at hard labor, the maximum sentence the judge could have imposed for a violation of R.S. 40:967(C).

Under C.Cr.P. art. 894.1, the trial judge must state for the record the considerations taken into account and the factual basis for his conclusions in imposing sentence in order to insure that each sentence imposed is individualized to the offender as well as to the offense. See State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Bourgeois, 406 So.2d 550 (La.1981).

At the sentencing hearing, the trial judge noted that Clay had been convicted of possession of marijuana with intent to distribute in 1979. For that offense, which involved over six pounds of marijuana, defendant was placed on supervised probation for a three year period. The judge also recognized that defendant was a man of intelligence and skill and had received an honorable discharge from the armed forces. Further, the court noted that Clay was peddling contraband for a profit. Because Clay was on probation for the same offense, the court concluded that a lesser sentence would deprecate the seriousness of the crime. Concluding that there were no mitigating circumstances present, the trial judge imposed the maximum penalty.

Our review of the reasons given in imposing sentence leads us to conclude that the trial judge adequately complied with C.Cr.P. art. 894.1 and did not abuse his discretion. Accordingly, the conviction and sentence of William Clay are affirmed.

AFFIRMED.

       Judges Pike Hall, Jr., Charles A. Marvin and Jasper E. Jones of the Second Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.


author: JOHN C. BOUTALL, Justice Ad Hoc.

text:
    STATE of Louisiana v. Danny Eugene OVERSTREET.
    No. 81-KA-1648.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Lavalle B. Salomon, Asst. Dist. Atty., for plaintiff-appellee.
    Edward R. Greenlee, Monroe, for defendant-appellant.
   JOHN C. BOUTALL, Justice Ad Hoc.

The only issue on this appeal is whether an excessive sentence was imposed upon defendant.

Danny Eugene Overstreet was charged by bill of information with possessing a controlled dangerous substance, marijuana, a Schedule II drug, with intent to distribute, contrary to the provisions of R.S. 40:967. After his motion to suppress the evidence was denied, the defendant submitted a plea of guilty to attempted possession of marijuana with intent to distribute. The trial court accepted this plea after determining that the plea was knowingly, intelligently and voluntarily made, explaining to defendant that he faced a sentence of up to five years at hard labor and a fine of up to $7,500.00. After presentencing procedures were completed, the judge considered the sentence guidelines set forth in Article 894.1 of the Louisiana Code of Criminal Procedure and sentenced the defendant to pay a fine of $1,000.00 or serve two hundred days in default of payment and to serve four years imprisonment at hard labor, suspending the prison sentence and placing the defendant on supervised probation for a period of five years subject to certain conditions. One of those conditions was that the defendant serve a term of imprisonment of one year in the parish jail facility, and after release report to the Monore Substance Abuse Center and adhere strictly to any treatment prescribed by that facility. The defendant’s attorney objected to the harshness of the sentence and this appeal followed.

As basis for error, defendant argues that the sentence is too severe because of the one year jail term and the restrictions during the supervised probation and also that the judge erred in the conclusions drawn from the presentence report as in State v. Forshee, 395 So.2d 742 (La.1981). We hold that the sentence is not excessive, that the conditions imposed are permitted by law and the judge committed no error in his conclusions and findings upon which he based the imposition of sentence.

The defendant is a twenty-five year old man who has had no prior arrests or convictions. He was arrested in possession of some five pounds of marijuana which he admitted he had been selling in one ounce packages, and on the day he was arrested had agreed to sell all he had left to a prospective purchaser. His reason for engaging in this business was that he was presently unemployed because of an injury he had suffered to his mouth some time before, and he needed money. The defendant’s employment prior to his arrest had been with several oil well drilling companies at several locations in the offshore and Louisiana area.

The trial judge correctly explained to the defendant the maximum sentence which he faced and the sentence that he later gave was substantially under the maximum. Indeed, presuming that the defendant obey the conditions of his probation, his imprisonment is only one year in the parish prison. The conditions that were imposed by the judge are provided for in Louisiana Code of Criminal Procedure Articles 893, 895(A) & (B). Under somewhat similar facts we found a similar sentence not excessive for violation of R.S. 40:966 in State v. Hysell, 364 So.2d 1300 (La.1978).

Our consideration of the judge’s conclusions and findings as a basis for imposing sentence leads us to conclude that the trial judge committed no error. In essence, the trial judge’s remarks showed that he considered the defendant to be a “carefree, laid-back attitude type person” and that, coupled with the apparent ease with which the defendant decided to go into the business of selling marijuana in order to raise money caused the judge to believe that he could not predict the defendant’s future behavior such that there was a probability of undue risk that probation or suspended sentence alone was not sufficient to impress upon the defendant the seriousness of his actions and deter him from committing future crime. The trial judge is given discretion both in the analysis of the evidence upon which he reaches his findings and the application of those findings to the provisions of Article 894.1. In this case, it appears that there is sufficient evidence to support a conclusion that this sentence is justified under Subsections A(l) & (3). For the foregoing reasons, the sentence of Danny Eugene Overstreet is affirmed.

AFFIRMED.

      . Judges John C. Boutall of the Court of Appeal, Fourth Circuit, and O. E. Price and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, participating in this decision as Associate Judges Ad Hoc, joined by Justices Caloge-ro, Marcus, Dennis and Watson.