author: DAVID R.M. WILLIAMS, Justice Pro Tem.

text:
    STATE of Louisiana v. Darren HOOKS.
    No. 82-KA-0278.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
    Dissenting Opinion Jan. 5, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David R. Paddison, Thomas Chester, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    John M. Lawrence, for defendant-appellant.
   DAVID R.M. WILLIAMS, Justice Pro Tem.

Defendant Darren Hooks was charged on September 18,1980, by a Grand Jury indictment with first degree murder while in the perpetration of aggravated rape, a violation of LSA-R.S. 14:30, committed on August 26, 1980. Defendant entered a plea of not guilty and in May, 1981, he was tried before a twelve member jury and found guilty as charged. The jury was unable to agree upon a sentencing recommendation, as required by statute, and defendant was sentenced, under LSA-C.Cr.P. Art. 905.6, to life imprisonment, without benefit of probation, parole, or suspension of sentence. Defendant now appeals urging eight assignments of error.

At the time of the murder for which defendant was indicted and convicted, he was sharing an apartment with Ruby Ma-gee, the mother of the victim, and Tamara Magee, the two year old child victim who had been sexually assaulted and killed.

In the afternoon of August 26, 1980, Ruby Magee was at work in a fast food restaurant in New Orleans, and the victim, Tamara, was at her grandmother’s house. The defendant came to see the victim’s mother at work. He wanted to know if the mother wanted him to pick up the victim that night. There was testimony that he became angry and upset as he talked with the victim’s mother, before he left, to pick up the victim from the grandmother’s house.

When defendant arrived at the grandmother’s house around five or six p.m., the victim was noticably afraid of the defendant and cried when he appeared. When the victim left the grandmother’s house, she was healthy and fully dressed with no signs of bruises, cuts or any other injuries on her body.

Tamara Magee was next seen at Charity Hospital at about 11:20 p.m. that same evening; she was dead on arrival at the Emergency Room. When defendant took the child to the hospital, she was nude, wrapped only in a sheet, with many different lacerations and contusions all over her body, both superficially and internally. The pathologist who performed the autopsy testified at trial, that there were numerous bruises on the child’s head, face, chest, hips, abdomen and thighs. On the side of the child’s face there was a bruise in the shape of a hand; and there were puncture wounds in the abdomen area that were the size and shape of finger nails. At trial, the pathologist, Dr. McGarry, testified that the puncture wounds appeared “... as if the skin had been very violently grasped in someone’s hand.”

The pathologist further testified that the actual cause of death was due to the victim’s liver being torn from some type of compressive force and also due to injuries to the head which caused brain swelling and internal hemorrhaging. In addition, the pathologist noted that the child’s vagina and hymen were torn and bruised. He concluded that the damage done to the child’s genitals was too extensive to have been done by a finger, and he further stated that the entire pattern of injuries to the child’s genitals was very characteristic of rape. The victim’s mouth and lips showed signs of being bruised, swollen and cut. Several forensic tests were performed to detect the presence of any seminal fluid in the victim. One test proved positive, finding seminal fluid in the child’s mouth.

At the hospital, while the family of the victim gathered, the defendant gave three different accounts of how the injuries occurred. First, he told the policeman investigating the death that he had been sitting in his apartment on the second floor, watching television, when the child tried to get back into the apartment after having climbed a steep flight of stairs. Defendant said he saw the child grab hold of the screen door, open it, lose her balance, and tumble backwards down the stairs. Second, to a relative of the victim, the defendant told him that he was on his way to pick up the victim’s mother carrying the victim down the stairs when she slipped out of his hands and fell down the steps. He later changed his story and reasserted the same, story that he had told the investigating police officer. The third account of the incident was a variation on the first account, but that he noted that the screen door was semi-open; he heard a noise; he went to the door and saw the child at the foot of the steps, ran down and picked her up.

The eight assignments of error from which defendant appeals are:

1. The trial court erred in allowing the District Attorney to make substantive amendments to the Grand Jury indictment.
2. The trial court erred in various rulings on defense discovery motions.
3. The trial court erred in admitting allegedly gruesome photographs.
4. The trial court erred in admitting hearsay testimony of State witnesses and restricting defense cross examination of those same witnesses.
5. The trial court erred in permitting an inflamatory opening statement by the State.
6. The trial court erred in allowing the witness to state his opinion, without first qualifying as an expert.
7. The trial court erred in denying a request to instruct the jury on the possible sentence for each responsive verdict in the case.
8. The trial court erred in allowing the State’s rebuttal to exceed the scope of defense closing argument and erred further in allowing the State’s inflammatory remarks.

Assignments of error numbers one, three, four, five, six and eight do not present any issues of reversible error and will be dealt with in an appendix to this opinion filed and made a part of the official record in this ease.

Defendant maintains that the trial court erred in holding that the State’s answers to his motion for discovery and inspection were good and sufficient with respect to requests made: (1) to provide the criminal records of State witnesses; (2) with respect to evidence seized and its whereabouts and details concerning its seizure; (3) to provide any exculpatory evidence within the prosecution’s possession or control; (4) to provide any written statements necessary to determine whether any inconsistencies in evidence exist which may tend to exculpate defendant; (5) for a list of any oral statements by whomsoever made, within the State’s possession. The State responded that defendant was not entitled to any of the requested information. We shall address each of these in order.

Defendant’s request for a copy of the criminal record of any and all witnesses to be called by the State is meritless for two reasons; first, the State’s witnesses were experienced officials of the Criminal Justice System (a coroner, a forensic laboratory technician, and the arresting and investigating police officers) whose criminal records would, by nature, be nonexistent and therefore automatically exempt; State v. Washington, 407 So.2d 1138, 1143 (La. 1982); The remainder of the State’s witnesses being mere civilians, (the victim’s mother, grandparents, aunts and uncles) all of whom were in no way connected with the perpetration of the homicide herein.

The instances when prior criminal records are most useful in cross examining a State’s witness is when the witness is or was a co-defendant or co-conspirator with the defendant on trial. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); adopted in Louisiana, State v. May, 339 So.2d 764 (La.1976); State v. Washington, supra; and State v. Harvey, 358 So.2d 1224 (La.1978). The right to prior criminal records is almost automatic in these cases. There is no question here, however, that defendant was alone in the commission of these crimes. There was therefore, no reason to require the State to furnish the criminal records of these other witnesses, if any exist, prior to or during trial. None of the civilian witnesses were co-defendants, nor co-conspirators.

Secondly, the defense has no statutory right to request the provision of such information from the State even for the impeachment of the witnesses’ credibility. It is irrelevant to the case at bar where all of the witnesses were only observers, not participants.

In State v. Washington, supra, the court ruled, at a pretrial hearing on defendant’s motion for discovery, that the Criminal Justice Officials’ records, if any, were to be exempt from the discovery request. Further, the trial court stated that it was premature to require the State to furnish the criminal record of the other witnesses at that time, but it might be proper later at trial if the issue resurfaced. At trial, in the instant case, defendant did not go into any prior record of any of the witnesses called. There was never a motion to discover such records during the trial or any attempt to impeach the credibility of any of the witnesses by the mere suggestion of purported existence of a criminal record, nor was there any mention made of any criminal record being in the possession of the State at the time of trial that might have been discoverable. This issue therefore is not properly before this court for review. In order for this assignment of error to serve as a basis for a reversal of defendant’s conviction, it would be necessary for defendant to have raised the issue at trial through either cross examination of a witness or by a timely oral motion. His failure to do so, now commands an affirmance. Defendant has not shown to have suffered any harm by the absence of any witnesses’ criminal record, if any. We cannot here see how the use of the criminal records of any witness, if they exist, could have created a reasonable doubt of defendant’s guilt or otherwise change the outcome of the trial. United States v. Agurs, supra.

In his motion for discovery, defendant had asked if any evidence had been seized in connection with this case. The State responded in the affirmative. Defendant countered by requesting more specific information about the evidence seized, including the time, date and place from which the evidence was obtained, the persons from whom the evidence was obtained and a list in detail of all the evidence obtained. Defendant argues that he is entitled to this information under LSA-C.Cr.P. Arts. 716-719.

Articles 716 and 717 only concern statements made by defendant and defendant’s prior criminal record, and therefore are not pertinent to this argument. Articles 718 and 719 refer to “documents and other tangible objects” and to “reports of examinations and tests,” respectively. These Articles only require that defendant be allowed to inspect, copy, or photograph those documents or reports that are in the control of the State. They do not require the State to give an itemized list of all evidence in its possession and how each was obtained. See, State v. Landry, 384 So.2d 786 (La.1980). It should also be noted that defendant requested to be allowed to inspect any physical evidence relative to this case. In response, the State asserted that it would be done at defendant’s convenience. It appears the State complied with the requirements of Articles 718 and 719 by making this evidence available to defendant. Thus, defendant’s argument with regard to paragraphs eight, nine and ten, of his discovery motion is without merit.

Defendant’s next point in this assignment of error is that the trial court erred in ruling the State’s response to discovery motion paragraphs twenty-two and twenty-three, was good and sufficient. A close reading of these paragraphs indicate that defendant was actually seeking to obtain oral and written statements made by anyone in connection with this case. Discovery of such material is not required. State v. Joseph, 379 So.2d 1076 (La.1980). Defense counsel further points out in his argument in brief that he never received proper (LSA-C.Cr.P.) Art. 768 notice of oral statements made by the defendant. Upon a close review of the record and transcript of trial in this case, we have discerned that defense counsel was apprised that oral statements had been made in the presence of the arresting officers in accordance with Article 768. All oral statements that defense now complains of were made while the defendant was at Charity Hospital in the presence of the arresting and investigating officers and it matters little that there may have been other people present who may have overheard such oral statements. Defense counsel was definitely put on notice, prior to trial, of the State’s intent to use any of this information. The record indicates that several people were present at the time defendant made various statements. The record does not indicate to whom any of such statements were specifically directed.

The first statement made by defendant of which defense counsel claims he was given no notice was a statement made to State witness, Tyronne Rochon. Rochon was asked what defendant said as he was being led out of the hospital by the police. The witness responded, “He kept talking about how his sister would be able to tell them she was present at the time.” (Tr. p. 180). The State is not required to give notice or to divulge the contents of an oral statement made by the defendant to a private citizen when the State plans to use that evidence at trial. State v. Joseph, supra. The defense had already received notice of statements made in the presence of the officer. The transcript of the trial indicates that the statement was made while in the presence of the policeman. This assignment is without merit.

Defendant further alleges that he should have been provided with the substance of any oral statements made by defendant pursuant to his prayer for oyer or in his motion for discovery and examination. The State in its answer to prayer for oyer and its subsequent amendment thereto, did inform defendant of both the existence and substance of this statement. In addition, the State also advised the defendant of the existence of an oral statement made to “Detective Cannatella and Detective Duke,” and also advised defendant of the substance of that statement, as it is required to do under LSA-C.Cr.P.Art. 716(C). The State had informed the defendant that, “the gist of the statement was that the death of the child was accidental in nature and was generally exculpatory.” All that is required for notice under the Article is the substance of the statement made. Substance is defined as “the essential element” or “essence” of a thing, and in this case, this requirement has been met.

A reversal based on violation of the discovery articles will not be granted absent a showing of prejudice. See, State v. Amaud, 412 So.2d 1013 (La.1982). If defendant is lulled into misapprehension of the strength of the State’s case as a result of the State’s discovery answers and is prejudiced thereby, a reversal would be warranted. State v. Phagans, 412 So.2d 580 (La.1982); State v. Davis, 399 So.2d 1168 (La.1981); State v. Statum, 390 So.2d 886 (La.1980). This court has previously held that where the defendant is lulled into a misapprehension of the strength of the State’s case and suffers prejudice when the statements are subsequently introduced at trial, basic unfairness which constitutes reversible error results. However, the State’s failure to comply with the discovery procedures will not automatically demand a reversal. Rather, we will examine the circumstances of the ease and the trial court’s reaction to see if the defendant was prejudiced and if the trial judge was correct. State v. Strickland, 398 So.2d 1062 (La.1981); State v. Statum, supra.

Defendant now argues that he was prejudiced by the State’s failure to advise him of the existence of the statements made to Tyronne Rochon, and of the contents of the statement made to Detectives Duke and Cannatella. In addition to the reasons above stated, we do not see where defense counsel has explained how defendant was prejudiced, nor does it appear that defendant lacked foreknowledge of the existence of these statements, nor has he shown how a lack of knowledge affected his defense strategy. Defendant made numerous timely objections to the introduction of various statements made by defendant to the testifying witnesses. In almost every case, each of these objections was overruled. Defendant then had opportunity to request a mistrial or admonition from the trial court for the State’s alleged failure to comply with the rules of discovery, but failed to do so. Further, the defendant had the opportunity of showing any prejudice at the time that the objection was overruled, but also failed to make a showing. The defendant could, in addition, also request statutory sanctions for the State’s failure to comply with pretrial discovery and inspection requests as defendant argues in his brief. The defendant failed to seek the remedy of exclusion of these statements to which he allegedly had no notice under LSA-C.Cr.P. Art. 729.5(A). Because sanctions provided in this Article are to be applied in the discretion of the trial court, defendant must show prejudice resulting from an adverse ruling before this court can reverse a conviction. State v. James, 396 So.2d 1281 (La.1981); State v. Norwood, 396 So.2d 1307 (La.1981).

We do not find defendant has been prejudiced in any material degree by the admission of these oral statements into evidence, in view of the other overwhelming evidence of defendant’s guilt.

ASSIGNMENT OF ERROR NUMBER 7

Defendant here argues the trial court erred in denying his motion for a special jury charge which would have informed the jury as to the applicable penalty provisions with respect to all the possible responsive verdicts to the crime charged that they could consider.

Defendant was charged with the crime of first degree murder. One of the responsive verdicts was “guilty of second degree murder.” Both of these crimes require the imposition of a mandatory sentence. When the penalty to be imposed is a mandatory one, our law requires the trial judge to inform the jury, on request of the defendant, of the penalty and to permit defense counsel to argue the penalty to the jury. State v. Washington, 367 So.2d 4 (La.1978); State v. Prater, 337 So.2d 1107 (La.1976).

Prior to oral arguments, defense counsel moved to have the trial judge charge the jury on the penalty for the charged crime and on all responsive verdicts. The trial judge erroneously denied defendant’s motion.

While it is true that the motion regarding the special charge was made orally, and this might have provided a valid reason for denying the motion (La.C.Cr.P. art. 807), this was not the reason stated by the trial judge and, therefore, cannot be upheld for that reason. State v. Henderson, 362 So.2d 1358 (La.1978). However, defense counsel had ample opportunity thereafter to explain the law regarding the penalty provisions to the jury during his closing argument and chose not to do so. Furthermore, in the context of this prosecution, the erroneous ruling was not substantially prejudicial.

The remainder of defendant’s assignments of error present no issues warranting reversal of his conviction. These have been dealt with in an appendix to this opinion, made part of the official record in this case.

For the reasons set forth above, this court finds no reversible error has been committed by the trial court and we therefore affirm defendant’s conviction of first degree murder while in the perpetration of an aggravated rape and sentence of life imprisonment without benefit of probation, parole or suspension of sentence.

AFFIRMED.

DENNIS, J., dissenting.

I respectfully dissent.

The trial court clearly erred in sustaining the state’s blanket refusal to answer discovery request and it cannot be said that there is no reasonable possibility that this error did not contribute to the conviction.

       Judges Charles R. Ward, Jr., William H. Byrnes, III and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this opinion as Associate Justices Pro Tempore with Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.


source: Caselaw Access Project

author:
WARD, Justice Pro Tem.
     LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Danny Charles WASHINGTON.
    No. 82-KA-0074.
    Supreme Court of Louisiana.
    Oct. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.
    William S. Carter, Jr., Dawkins, Coyle & Carter, Ruston, for defendant-appellant.
   WARD, Justice Pro Tem.

Danny Charles Washington was charged by a bill of information with aggravated arson, a violation of LSA-R.S. M^l. The defendant waived his right to a jury trial, and on August 18,1981, he was tried before the District Judge who found him guilty as charged. Immediately after trial, the State charged that Washington was a multiple offender as defined in LSA-R.S. 15:529.1, and a hearing on the issue was set for October 29, 1981. On that date, after a trial of the matter the Trial Judge found that Washington had been convicted of two felonies before his conviction for aggravated arson, and the judge found him to be a multiple offender and sentenced him to ten years in prison, ordering the sentence to be served consecutively to any sentence Washington was then serving. Washington has appealed and specified three assignments of error. Of the three, only the first assignment is an argument asking for reversal of his conviction. The remaining two assignments concern his sentence as a multiple offender. In the assignment asking for reversal of his conviction, Washington contends that the Trial Judge erred when he found Washington guilty because there was insufficient evidence for that finding.

Because the main issue is whether there is sufficient evidence to support a conviction, a brief synopsis of the evidence will help to understand defendant’s argument for reversal.

On January 3, 1981, the date of the fire, defendant was temporarily being held in Lincoln Parish jail at the request of officials of Union Parish because that jail was overcrowded. Defendant had been brought into the Lincoln jail on the night before the fire and placed in a cell made of steel and concrete, no larger than about 8 feet by 10 feet. The only access to the cell was its solid steel door which held a small opening called a “food flap,” a rectangular opening of four and one-half by twelve inches, used for giving food to prisoners without unlocking the cell door.

At approximately 2:25 p.m., on January 3,1981, a fire broke out in the north end of the Lincoln Parish jail. Thick black smoke emanating from cell number five filled the entire north end hallway where only Washington was confined. Deputy sheriffs opened the door to cell five and observed that books, papers, plastic and pieces of a mattress, all of which had been piled together against the north end wall of the cell, were on fire. One of the deputies testified that, after feeling his way through the smoke, he found Washington silently sitting on his bunk and that he pulled or carried Washington out of the cell. Even though the fire was immediately next to him, Washington was conscious, but strangely enough, he was not coughing or making any sound at all.

During the defendant’s trial, he sought to show that he did not set the fire, and he testified that shortly after his arrival at his jail cell, he had been approached by another prisoner, Ferguson, who had asked him an assortment of questions which the defendant had not wanted to answer. This exchange had become hostile, and Ferguson threatened Washington. Washington recalled yelling and screaming when he discovered his cell was on fire until the Deputy Sheriff opened his cell door.

The defendant produced other witnesses who testified that although none of them had actually seen anyone start the fire, they had seen Ferguson “thumping” matches toward Washington’s cell. There was conflict in their testimony, but the inference was that because of the sudden acrimony between Ferguson and Washington, Ferguson had carried out his threats and set Washington’s cell on fire by either pitching or dropping matches through the food flap in the door.

Although counsel for defendant did not file motions either for a judgment of acquittal or for a new trial, he argues in this appeal that the evidence was insufficient to sustain a conviction because it did not exclude every reasonable hypothesis of innocence. In his brief, counsel now relies upon Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) which sets constitutional standards for appellate court review of guilty verdicts. Even though the issue was not preserved for appellate review by means of motions either for judgment of acquittal or for new trial, we have considered the applicable standards and arguments that appointed counsel now urges.

This Court has recognized that Jackson v. Virginia requires a change of the standards of appellate review in Louisiana. State v. Gould, 395 So.2d 647 (La.1981), State v. Austin, 399 So.2d 158 (La.1981). Although in the past some evidence of guilt has been held to be sufficient to sustain a guilty verdict, today because of Jackson, more is required. Nevertheless, the scope of appellate review of a verdict of judge or jury is not to determine whether this court agrees with the verdict, which presumably is based on evidence which proves guilt beyond a reasonable doubt and, when circumstantial, also excludes every reasonable hypothesis of innocence. LSA-R.S. 15:438. Appellate review, of a trial court’s denial of either a motion for a new trial or a motion for judgment of acquittal in non-jury cases, is limited to a determination of whether there is sufficient evidence to support a verdict.

Again, although there is an absence of either motion, we have considered the evidence to determine whether it meets constitutional standards of both Jackson v. Virginia, supra, and because this is a circumstantial evidence case, State v. Austin, supra. Hence in cases of direct or direct and circumstantial evidence before this court will reverse a verdict of guilty, we must be convinced that even when the evidence is viewed in the light most favorable to the State, no rational trier of fact would conclude that defendant’s guilt had been proved beyond a reasonable doubt. When, however, the evidence consists only of circumstantial evidence, as in this case, current standards of due process require a greater degree of proof to support a conviction, and the scope of appellate review in circumstantial evidence cases has been established by this court in State v. Austin, supra:

Regarding circumstantial evidence, R.S. 15:438 sets forth the rule that, in order to convict, the evidence must exclude every reasonable hypothesis of innocence. Under Jackson, the evidence is viewed in the light most favorable to the prosecution and from the viewpoint of a rational trier of fact. Therefore, when we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.

In the instant case, while the factual issues may lead reasonable men to different conclusions, we hold that the evidence is sufficient to support a conviction, it meets the standards of Jackson and Austin.

In the same specification of error, counsel’s argument of insufficient evidence merges into a complaint that the Trial Judge erroneously shifted the burden of proof to the defendant. Defense counsel interprets a statement by the Trial Judge to mean that he found the defendant guilty because the defendant had not proved that the other prisoner, Ferguson, had set the fire, therefore, he argues, the Trial Court erred in shifting the burden of proof to the defendant to show a reasonable hypothesis of innocence.

We disagree. The Trial Judge, in a lengthy explanation for his finding of guilt, stated that he was not impressed by the credibility of defendant’s witnesses because of the demeanor of at least one witness and conflicts in the testimony of others. The statement by the Judge that he did not believe defendant’s witnesses and that defendant had not proved Ferguson set the fire, when considered in context, was merely an explanation that, although the defendant had rested his case on that hypothesis, the Judge was rejecting it as a reasonable explanation for the fire, and, therefore, the only reasonable hypothesis was that the defendant started the fire and committed the crime.

A review of the Trial Judge’s entire explanation for his verdict clearly shows that he placed upon the State the burden of proving the case by proving defendant’s guilt beyond a reasonable doubt and excluding every reasonable hypothesis of innocence. We affirm defendant’s conviction.

In the next two assignments of error, defense counsel contends that Washington’s sentence should be vacated. To support this contention, defendant argues that the Trial Court erred both in refusing his motion to quash count three of the multiple bill and in granting the State’s motion to revise the minutes of the Court proceedings of that conviction.

The conviction in count three had occurred in the District Court of Union Parish and was for simple criminal damage to property in excess of $500.00. Washington had represented himself during the proceedings after he had dismissed his court-appointed attorney because he believed the attorney was “doing nothing for him” in the case and because, or so he said, the attorney had told the defendant he was “not interested in the case.”

The original minutes did not reflect that Washington waived his right to court-appointed counsel, and the Trial Judge ordered them revised to show that Washington waived that right. The certified copies of both the original minutes and of the amended minutes are in the record, and both documents reflect that the Trial Judge advised the defendant of his right to court-appointed counsel. That record, however, does not indicate, as it must, that Washington’s waiver of that right was made intelligently and voluntarily so that his decision to represent himself was a clear and unequivocal choice, State v. Hegwood, 345 So.2d 1179 (La.1977). What is clearly absent from the record and from both the original and amended minutes, is any showing that the Trial Court had adequately informed the defendant of the dangers and disadvantages of representing himself. In pro se cases the record must affirmatively show that a defendant was apprised of the consequences of waiving counsel to support the conclusion that defendant’s waiver was knowing and informed. City of Monroe v. Wyrick, 393 So.2d 1273 (La.1981), State v. Bell, 381 So.2d 393 (La.1980).

We conclude that the minutes, even as revised, were insufficient to prove the prior conviction in count three as a basis for the enhancement of Washington’s sentence as a multiple offender.

The conviction is affirmed. The finding by the Trial Judge that Washington is a multiple offender, however, is reversed, and accordingly, the sentence is vacated. We remand to the Trial Court for both a new hearing on the question of whether Washington is a multiple offender and for resen-tencing after resolution of that question.

BLANCHE, J., dissents from reversal of the sentence for reasons assigned by LEM-MON, J.

LEMMON, J., dissents from reversal of the sentence and assigns reasons.

LEMMON, Justice,

dissenting from reversal of the sentence.

I disagree that the prior conviction cannot be used for enhancement purposes on the basis of the present record.

The record, consisting of the minute entry and the corroborating testimony of the prosecutor who handled the prior conviction, shows that the trial court advised defendant of his right to counsel and to court-appointed counsel, if desired; that the trial court, at defendant’s request, appointed an attorney to represent defendant; that the trial court, upon granting defendant’s request to discharge his initially-appointed counsel, again advised defendant of his right to court-appointed counsel, which he rejected; that the trial court then offered to order the initially-appointed attorney to be available for consultation at trial, which defendant also rejected; that the trial court on the day of trial again advised defendant of his right to court-appointed counsel, which defendant waived; and that the court then appointed another attorney to sit with defendant throughout trial and to advise him. The record further shows that defendant had made at least 50 appearances in criminal proceedings in that parish and was thoroughly familiar with court procedures.

While I agree that trial judges should determine that a defendant’s exercise of his right to represent himself is based on an intelligent decision, which includes an awareness of the “dangers of self-representation”, invalidity of the conviction is not necessarily required when the record does not contain a colloquy which reveals the basis for this determination, especially when the conviction is not attacked until the state seeks to use it for multiple offender purposes. The totality of circumstances should be considered in each case.

The record establishes that defendant knowingly and intelligently waived his right to court-appointed counsel. The present record also establishes, in my opinion, that the trial court adequately insured that defendant’s decision to represent himself was voluntarily and knowingly made and that the trial court adequately protected defendant’s right to a fair trial.

I would therefore affirm the sentence on the basis that defendant was proved to be a third offender.

       Judges William H. Byrnes and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Pro Tempore, with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . LSA-R.S. 14:51. Aggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable whereby it is forseeable that human life might be endangered.
      Whoever commits the crime of aggravated arson shall be imprisoned at hard labor for not less than six nor more than twenty years, and shall be fined not more than twenty-five thousand dollars. Two years of such imprisonment at hard labor shall be without benefit of parole, probation, or suspension of sentence.

      . Presumably, the remand will allow both sides to present additional evidence on the issue of whether the trial judge adequately informed defendant of the dangers of representing himself, as well as any other evidence bearing on the knowing nature of his decision to do so.

      . He also has no complaint that his right to represent himself was violated, as in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), because the trial court granted his request to represent himself.


text:
    STATE of Louisiana v. Joseph CAVALIER.
    No. 81 KA 2899.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David Cortes and Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Wayne E. Garrett, Charbonnet & Char-bonnet, for defendant-appellant.
   ISRAEL M. AUGUSTINE, Jr., Justice Ad Hoc.

The defendant Joseph Cavalier was indicted by an Orleans Parish Grand Jury with the crime of second degree murder, a violation of L.S.A.-R.S. 14:30.1. On January 22, 1981 he was tried before a twelve person jury which found him guilty as charged. Thereafter, the Court sentenced him to serve life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant now appeals on the basis of three assignments of error. We find no merits in these assignments and therefore affirm the conviction and sentence.

According to the State’s witness, Darlene Burger, on the evening of June 11, 1980, Robin Walker (the victim) was briefly talking to the defendant, Joseph Cavalier, in the alley by Cavalier’s home on Second and Derbigny Streets, asking him the whereabouts of Paulette Joseph. Finishing the conversation, Walker came out of the alley and happened upon Ms. Joseph. As he walked over to her, Cavalier returned home. The conversation between Paulette Joseph and Walker was apparently a friendly one which lasted only a few minutes.

Later that evening, Walker complained to Ms. Burger that he was feeling bad and wanted to leave Doc’s Bar, located in the 3000 block of Second Street. Ms. Burger testified that she went into the bar to get their friends and when she returned outside, Joseph Cavalier came out of the alley on Derbigny and crossed the street to approach Robin Walker, who was sitting on the curb outside the bar. Cavalier initiated a verbally abusive encounter in which he demanded to know whether Walker had seen Paulette. Walker got up, started across the street and said he had already spoken to Ms. Joseph. Cavalier then asked if Walker was “trying to get smart.” Walker replied, “no.” Before Walker could say or do anything else, Cavalier pulled his gun and fired, striking him once in the chest.

The defense witnesses, however, testified that Walker, unprompted, began to cross the street toward Cavalier. As Walker was approaching, they said, he reached in the back of his waistband. In the next instant, Cavalier drew his pistol and shot Walker. Defense witnesses indicated that after the shooting, a gun which allegedly belonged to Walker was removed from his body by one of his cousins. All of the State’s witnesses, however, testified that at no time did Robin Walker have a gun, and that in fact, he did not own one.

Because each of the assignments raised by this appeal concerns the admissibility of alleged threats by the victim against the defendant, we shall treat all of these assignments together.

Defense counsel argues that the trial court erred by:

(1) not permitting defense counsel to explore the conversation between Robin Walker and Paulette Joseph, approximately one hour before Walker was shot;
(2) not permitting defense counsel to question Tyronne Joseph concerning possible threats on Joseph Cavalier’s life made by Robin Walker;
(3) not permitting defense counsel to interrogate Paulette Joseph about being hit in the head with a gun by Robin Walker;
(4) not compelling the State to disclose exculpatory evidence;
(5) restricting the use of Paulette Joseph’s written statement to police officers concerning the shooting.

Defendant claims that the testimony regarding threats made by Robin Walker to Joseph Cavalier would have demonstrated the dangerous nature of the victim, thus supporting the theory of self-defense. Evidence of prior threats made by the victim is relevant in a case where the plea of self defense has been raised to show that the victim was the aggressor and that defendant’s apprehension of danger was reasonable. State v. Ford, 368 So.2d 1074 (La.1979).

However, under L.S.A.-R.S. 15:482, the defendant must present appreciable evidence of an overt act or hostile demonstration by the victim before evidence of dangerous character can be admitted. “Overt act” in this context means any act of the victim which manifests in the mind of a reasonable person a present intention on his part to kill or do great bodily harm. State v. King, 347 So.2d 1108 (La. 1977). Moreover, this overt act by the decedent must have been made against the defendant at the time of the incident. State v. Ford, supra; State v. Lee, 331 So.2d 455 (La.1976).

We find that even if we were to construe the testimony in a light, most favorable to the defendant, there has been no showing of an overt hostile act on the part of the victim toward the defendant. The testimony of defense witness Tyronne Joseph revealed that just before the shooting, the victim was sitting by himself on the sidewalk in front of Doc’s Bar, across the street from the defendant. Walker, without provocation, got up and started to walk across the street. As he approached Cavalier, Walker reached behind him and was shot before he could make any other moves. Joseph demonstrated to the jury Walker’s actions, indicating that his hands were down by his side and showing the movement his hand made toward his back. Joseph stated that Walker made no other motion before he was shot, and it seemed to him that Walker was going to pass them on the sidewalk, but he was not certain. Paulette Joseph, Joseph Cavalier’s girlfriend, gave the same account, adding only that she did not see Walker with a gun when he was shot.

All the defense witnesses testified that no hostile words were exchanged between the victim and the defendant immediately prior to the shooting. Each witness (including State’s witnesses) indicated that the conversation which occurred between the victim and the defendant approximately one hour before the shooting had the appearance of a brief, casual encounter without any aggression by either party. Thus, the defendant’s witnesses failed to show any type of aggression or hostile act by the victim, other than his acts of simply walking across the street and reaching behind his back. We find that the actions by the victim do not constitute appreciable evidence of an overt hostile act so as to create in the mind of the defendant a reasonable belief of the victim’s present intention to kill or do great bodily harm.

The defendant’s reliance on State v. King, supra, is misplaced. The principle established by that case is that a trial judge may not infringe on the jury’s function as a fact finder by weighing the credibility of the defendant’s claim of an overtly hostile act. In the present case, there was no usurpation of the jury’s function by the trial judge, for it has been shown that, accepting the defendant’s witnesses as eminently credible, there has been no showing of an overt hostile act on the part of Robin Walker. Therefore, the trial court did not err in refusing to admit testimony of prior threats by the victim against the defendant.

The defendant further argues that the trial court erred in not compelling the State to disclose exculpatory evidence. The defendant asserts that an altercation occurred nearly a week to ten days prior to the shooting when the door to Mr. Cavalier’s residence was kicked in and a bullet was left with the message: “Tell Mr. Cavalier this is for him.” The incident was reported to the New Orleans Police Department. Cavalier sought to obtain a copy of the complaint in items 3 and 4 of the bill of particulars. The defendant argues that the very fact of the complaint tends to confirm the before-mentioned altercation between Walker and the defendant, and is therefore exculpatory because it supports Cavalier’s theory of self defense.

It is well settled that the state may not suppress evidence that is favorable to the defendant and material to guilt or punishment when the evidence has been requested by the defendant. Brady v. Maryland 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Vaccaro, 411 So.2d 415 (La.1982). The record does not contain the answers to the motion which were supplied orally. Apparently, the State responded to questions three and four by telling the trial court that the information sought was not in its possession and it had no knowledge of the complaint. The trial judge, satisfied that the state did not have the requested information, held that if the state did not possess it, it could not be compelled to produce it.

Moreover, even if the State had obtained the alleged complaint and failed to notify the defendant, the nondisclosure of it does not constitute reversible error in this case. We have determined that no overt act occurred which would have been the foundation for admitting evidence of prior threats. The information which the defendant sought to obtain is exculpatory only because it is evidence of prior threats which would show that the victim was the aggressor. Therefore, the defendant’s exculpatory evidence would not have been admissible and the failure of the trial court to order the State to find the complaint and produce it did not constitute reversible error.

Finally, during the course of the trial the state sought to impeach Paulette Joseph by the use of her prior written statements to police officers concerning this incident. On redirect examination, defendant sought to introduce the statement in its entirety, including those parts in which Joseph had alleged that Walker made prior threats. The trial judge did not allow the defense to introduce the statements because a predicate of an overt hostile act by the victim had not been shown. As we have already stated, that finding was correct. Therefore, the trial court did not err in limiting the use of the written statement to admit those portions which corroborated Ms. Joseph’s oral testimony.

For the reasons assigned the conviction and sentence are affirmed.

      . § 482. Restriction on use of evidence of threats or dangerous character of party injured.
      In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.

      . 3) Please state if any investigation was made of said victim at request of defendant the week prior to said shooting; if so, state the police item number and indicate whether you would furnish a copy of said report herewith;
      4) Please state whether any weapon was recovered;

       Judge Israel M. Augustine, Jr. and Judge Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, and Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson and Lem-mon.


author:
CALOGERO, Justice.
     DIXON, Chief Justice WATSON, Justice,

text:
    STATE of Louisiana v. Allison J. MONTANA.
    No. 81-KA-2755.
    Supreme Court of Louisiana.
    Oct. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Cliff Strider and Louise S. Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Clyde D. Merritt, Dwight Doskey, Orleans Indigent Defender, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

Defendants Allison J. Montana and Darlene A. Filmore were indicted for possession of heroin with intent to distribute (R.S. 40:966). Filmore pleaded guilty to a reduced charge, and Montana was tried alone. After he was found guilty of attempted possession of heroin with intent to distribute, Montana was sentenced to serve twenty years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. From this conviction and sentence, defendant appeals, assigning six errors, three of which are discussed hereafter.

Defendant argues that trial error occurred when the court qualified one of the officers as an expert and allowed the officer to give expert testimony, including his opinion. The defendant also contends that the jury verdict was based on insufficient evidence, and that the trial court erred in denying the motion to suppress.

As we agree that trial error occurred during the testimony of one of the officers, we find the defendant’s first assignment meritorious, reverse the conviction and remand the case to the district court for retrial.

The facts are as follow:

On the evening of November 5,1980, two New Orleans plainclothes narcotics officers received a tip from a confidential informant that Montana and an unidentified black female were attempting to sell two balloons of heroin for $750.00 each at the corner of Orleans and Prieur Streets. The officers rode around the neighborhood in an unmarked police car in search of Montana, whom they knew, and his female companion. The officers spotted the pair walking towards them as they drove down the 700 block of North Prieur Street. As they pulled alongside the couple, Montana quickly shoved some currency (later determined to be $45.00) into the hand of the woman, Darlene Filmore. The police testified that the suspects’ demeanor changed to an apparent state of anxiety.

The officers got out of the car, placed the couple against the vehicle and frisked.them. The woman had $45.00 in her hand, and what felt to Officer Dabdoub to be two balloons in her right front pocket. Defendant and Filmore were arrested and the officers discovered that each of the two balloons contained fourteen tinfoil packets of heroin. Defendant had in his possession $470.00 in small bills, but no heroin.

OFFICER’S TESTIMONY

The state relied on police testimony about the arrest, about the defendant’s heroin addiction and about drug dealers’ methods of operation, to establish constructive possession with an intent to distribute. It was at the conclusion of such testimony that trial error occurred which requires that the case be remanded for a new trial.

Over defense objection, Officer Larry Taplin of the New Orleans Police Department Narcotics and Drug Abuse Section was accepted by the court as an expert in the field of illicit use and distribution of heroin. Defense counsel did not question Officer Taplin’s qualifications as an expert but objected generally that the field of illicit use and distribution of heroin was not subject to court recognized expertise. Subsequently, the defense urged that Officer Taplin’s testimony be limited to the packaging of heroin. After the officer described how heroin was packaged for street distribution, he explained further that balloons are used by dealers to carry a wholesale quantity of heroin (15, 20, 25 papers) because balloons are easily concealed and can be swallowed when discovery threatens. During the prosecutor’s examination of Officer Taplin, the defense objected intermittently to questions concerning how much heroin dealers usually carry, why individu-ais would possess large amounts of heroin, and what might be indicated by the possession of quantities of small bills. Officer Taplin testified without defense objection that a heroin seller often has an unknown in the trade, frequently a girl, hold the heroin while he, the dealer, meets buyers on the street.

A threshold question in eases such as these is whether expert testimony itself is appropriate. This Court has allowed police officers to qualify as experts in various related fields in the past.

In State v. Coleman, 406 So.2d 563 (La.1981), we upheld the qualification of a policeman as an expert in the field of packaging, trafficking and distributing PCP. Earlier we approved of a trial judge’s allowing a police officer, trained and experienced in drug identification and investigation particularly in connection with marijuana, to express an opinion concerning the number of cigarettes that could be made from one pound of marijuana. State v. Stewart, 357 So.2d 1111 (La.1978). Likewise in State v. Carter, 347 So.2d 236 (La.1977), we found that a police officer was properly certified by the court as an expert witness in the procedures and techniques employed in the sale and exchange of controlled dangerous substances. In finding that the officer’s testimony came within the dimensions of expert testimony outlined in La.R.S. 15:464, we said supra at 237:

[A]s long as the expert testifies about matters knowledge of which he has obtained through special training or experience, it is not necessary that the subject to be discussed be susceptible of scientific training or knowledge. See State v. Marks, 337 So.2d 1177 (La.1976); State v. Tornabene, 337 So.2d 214 (La.1976); State v. McCray, 327 So.2d 408 (La.1976). The knowledge of the procedures and techniques commonly used in the sale and exchange of controlled dangerous substances is not generally possessed by the public at large but requires special training or experience to acquire.

Most recently in State v. Wheeler, 416 So.2d 78 (La.1982), a case involving the propriety of police testimony about marijuana transactions, we explored the practical application of the broad statutory principles governing the admissibility of opinion evidence. In weighing whether evidence is fact or opinion and whether it is admissible as expert opinion evidence under La.R.S. 15:463 and La.R.S. 15:464, the majority in Wheeler, supra at 80, suggested that the trial judge consider three variables: (1) the degree of concreteness of description or the difference in nearness or remoteness of inference; (2) the purpose for which the testimony is to be admitted; and (3) the potential for its classification as expert testimony. As a corollary to the third variable, we determined supra that two elements were needed to warrant the use of expert testimony:

(a) the subject of the inference must be so distinctly related to some science, profession, business or occupation as to be beyond the understanding of the average layman; and (b) the witness must have sufficient skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier of fact in his search for truth.

In this case, Officer Taplin’s testimony concerning the modus operandi of illicit users and distributors of heroin comports with the requirements of La.R.S. 15:464 as explained in Wheeler. The procedures and techniques for the illegal use and distribution of heroin are generally unknown to the public at large and may be explained to the jury to aid them in their search for truth by one possessing special training or experience in such matters. Likewise the state established that Officer Taplin had sufficient skill, knowledge or experience in the field about which he testified. He had worked in the Narcotics and Drug Use Section of the New Orleans police Department for eight years and had attended a two week long drug enforcement school sponsored by the Federal Narcotics Division. Additionally he had arrested hundreds of people for heroin possession or distribution, had worked as an undercover narcotics agent for nineteen months and had been qualified as an expert in narcotics in every section of Orleans Criminal District Court. Therefore we find in the case under consideration that expert opinion is admissible under La.R.S. 15:463 and La.R.S. 15:464 as a general proposition and that the Court’s qualifying Taplin and permitting him to testify as an expert was not erroneous.

Having determined that expert testimony is appropriate, we now consider the other two Wheeler variables: the degree of concreteness of description and the purpose for which the testimony is to be admitted.

Officer Taplin’s.testimony concerning the practices of those who use and traffic in heroin consisted of a concrete description of facts which were peculiarly within his professional knowledge. The bulk of his testimony was a recitation of the characteristics of heroin dealers gleaned from his experience. Such a recitation is permissible. It was not improper to allow it.

The jury may couple the knowledge gained from the experience of the officer with the characteristics exhibited by the defendant as established by the state at trial and make an, inference as to the ultimate issue of the defendant’s guilt. On the other hand, that inference as to the ultimate issue of defendant’s guilt is for the jury and the jury alone. When an expert ventures his opinion on that issue, he improperly usurps the function of the jury. This Officer Taplin did at the end of his testimony when he gave his own opinion essentially concerning the guilt of the defendant, Allison Montana. He ventured his opinion given a factual situation similar to what prevailed in this case, that “more than likely the female is the courier for the ... male addict. She’s carrying, she’s in possession for the person that she’s with” and also that “they had it for sale.”

In effect, Taplin specifically gave his opinion upon the basic issues in the case— whether the narcotics in Filmore’s pocket were in the constructive possession of the defendant and whether there was an intent to distribute them. These were ultimate facts for the jury to decide. As stated in Wheeler, supra at 82:

As the subject matter of the opinion approaches the hub of the issue, the risk of prejudice and hence of reversible error consequently increases. This is particularly so when the witness expressing the opinion is one, such as a police officer, in whom jurors and the public repose great confidence and trust. Under these circumstances, it is clear that a substantial right of the defendant has been violated, and that there is a reasonable possibility that the errors contributed to his conviction. Article 921; State v. Gibson, 391 So.2d 421 (La.1980).

Just as in Wheeler’s case where the trial court erred by permitting the narcotics officer to testify that it was his opinion that the defendant had been involved in the distribution of marijuana, the trial judge here erred in letting Officer Taplin say in effect that this defendant possessed with intent to distribute.

To this extent, there is merit to the defendant’s assignment of error based on Officer Taplin’s testimony.

SUFFICIENCY OF THE EVIDENCE

The defendant also argues that the evidence taken as a whole was insufficient to convict him of the crime charged and that the jury erred under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Even though we determine to reverse the ruling of the lower court because of the trial error discussed above, it is incumbent upon us to consider the insufficient evidence assignment of error because, if meritorious, it would prompt a dismissal rather than a reversal and remand for new trial.

Upon a review of the record before us, we find that as relates to proof of constructive possession of heroin with intent to distribute or of the lesser charge of which the jury in fact found defendant guilty, attempted possession of heroin with intent to distribute, there was not such evidentiary insufficiency that a rational fact finder could not have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.

What we have by way of evidence in this ease is the following: (1) When the defendant saw the officers on the night of his arrest, he became extremely agitated and anxiously thrust the money he was holding into the hand of his companion Darlene Filmore. (2) An additional $470.00 in small bills was discovered on the defendant. (3) Two balloons of heroin were found in Ms. Filmore’s pocket. (4) Montana had recent track marks and scabs on his arm; Ms. Filmore had none. Were that the entirety of the evidence presented, we might be willing to conclude that under the Jackson standard as it relates to circumstantial evidence, there was not sufficient evidence. But, in this case, there was more.

First of all, there was the unobjected to testimony concerning the modus operandi of drug sales wherein another person, commonly a girl, is used to carry drugs so that the dealer may avoid apprehension. Additionally, there was expert testimony concerning Montana’s heroin addiction, the usual practice of heroin users’ not stockpiling the drug and the fact that two balloons of heroin is more than what is needed for personal use. Furthermore there was presented to the jury the admittedly inadmissible Taplin opinion testimony, discussed hereinabove, that given facts exactly like those presented in this case, his conclusion was that the male addict constructively possessed with an intent to distribute the heroin carried by the female non-addict.

There was such a quantity of evidence as to make out, at least minimally, a sufficient case under Jackson v. Virginia. The state is therefore entitled to retry this defendant.

MOTION TO SUPPRESS

Since this appeal has resulted in a reversal and remand to the district court for retrial, we deem it advisable to consider a defense assignment of error which is likely to arise upon appeal should defendant be convicted on retrial. That assignment is defendant’s claim that the trial court erred in denying his motion to suppress. Upon review, we find that the ruling by the trial judge was correct. There was probable cause to arrest, after which the evidence was properly seized.

At the hearing on the motion to suppress it was determined that the arresting officers had received specific detailed information from a confidential informant that “Booby” Allison Montana and a tall slender unknown female who carried two balloons of heroin in her right front jeans pocket were selling the balloons of heroin for $750.00 each at the corner of Prieur and Orleans Streets. This information was revealed in a meeting between the officers and the informant in the vicinity of Orleans and Prieur Streets only fifteen minutes before the arrest of Montana and the girl later identified as Darlene Filmore. The detailed corroborated information which was the result of the informant’s personal observation bears sufficient indicia of reliability. Furthermore the confidential informant was known to the arresting officers and had provided information for several years, information which had been reliable and which had led to numerous arrests and convictions of narcotic offenders in the City of New Orleans. The court’s ruling denying defendant’s motion to suppress was not erroneous.

Accordingly this assignment lacks merit.

Decree

For the foregoing reasons, the conviction is reversed, the sentence is set aside, and the case is remanded to the district court for retrial.

REVERSED AND REMANDED TO THE DISTRICT COURT.

DIXON, C.J., concurs in part and dissents in part.

WATSON, J., concurs and assigns reasons.

BYRNES, J., and DAVID R.M. WILLIAMS, J. ad hoc, dissent.

DIXON, Chief Justice

(concurring in part and dissenting in part).

I respectfully concur in the reversal, but believe that there has been insufficient evidence to support finding, in a rational way, that Montana “possessed” the heroin in his female companion’s pocket while walking down the street. He should, therefore, be discharged.

WATSON, Justice,

concurring.

Although I dissented in State v. Wheeler, 416 So.2d 78 (La., 1982), being of the opinion that the conclusion stated by the witness was harmless error, I now concur in the holding that it is reversible error to allow a police officer to answer the basic question which the jury is to determine.

Therefore, I respectfully concur.

       Judges Charles R. Ward, William H. Byrnes, III, and David R.M. Williams of the Court of Appeals, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Pascal F. Calogero, Jr., James L. Dennis, and Jack Crozier Watson.

      . Defendant’s other assignments of error include the following: (1) The trial court erred in allowing an officer to establish his qualifications as an expert by testifying before the jury that his testimony in the past had obtained convictions; (2) The trial court erred in denying a mistrial when officers informed the jury that a person on the street had identified Montana as possessing heroin; (3) The trial court erred in allowing the prosecutor to argue beyond the record evidence.

      . Officer Taplin stated that the usual dosage unit was a tinfoil package or bag or paper which generally costs $50.00.

      .The following exchange took place between the prosecutor and Officer Taplin, without defense objection.
      Q. [H]ave you ever experienced heroin dealers working in teams?
      A. That’s just about the only way that it’s done.... There’s one person to guard the dope, and a second person to protect it, somebody maybe not as noticeable to the police.... Maybe a young person, more commonly, a female that is not known, and she’ll hold the heroin while the guy meets the people on the street.... She could be just across the street or around the comer.... The reasons are obvious. If I’m known as a user of heroin and suspected as a dealer of heroin it’s more likely that I’m the one to be stopped rather than you, if you’re my girlfriend. I could just pay you or whatever, but you would work as the person that will hold it for me....
      Q. You said, it would be less likely for somebody else to have trouble if they’re stopped. Stopped by whom?
      A. Stopped by the police. Police often receive anonymous tips.... [Tjhey have a description of a guy wearing a white T-shirt and blue jeans ... people in the neighborhood ... will call about things that are going on, and they won’t identify themselves.... I’m sure that they are stopped by a different police officer on a daily basis.
      Q. What would be the advantage of having a female working with a man?
      A. The female would hold the drug while the male met with the contacts. Sometimes it works just the opposite. The male may not have a record, and the female has a record, then the male would hold it, and ... try to stay “out of the heat”, as the term goes on the street.... If you go to Orleans and Prieur that intersection is hot. ... Now, the person meeting people will stand out there ... police stop him; he don’t have anything on him. The second person may be around the corner about two blocks away visiting a friend right in the neighborhood.... It makes for easier, smooth operation, and you don’t have to worry about being stopped and having the drugs on your person at that time.

      . The officer’s qualifications in Coleman appear at 406 So.2d 563, 568:
      Officer Haab has been a policeman for fourteen years, the last eleven years being spent with the narcotics division. He has participated in the investigation and arrest of persons for possession and distribution of P.C.P. on approximately two hundred fifty occasions. Officer Haab attended the D.E.A. drug school and has qualified as an expert in every section of Criminal District Court in New Orleans, in Baton Rouge, in Jefferson Parish and in federal court. He also worked undercover for three years and carried out several hundred drug purchases from various suspects.

      . La.R.S. 15:464 provides:
      On questions involving a knowledge obtained only by means of special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.

      . Compare State v. McCray, 327 So.2d 408 (La.1976) wherein this Court upheld a trial judge’s ruling which allowed an experienced Vice Squad officer to testify as an expert concerning the investigation, identification, and modus op-erandi of panderers. For other sources of authority on the use of expert witnesses to educate the trier of fact as to the modus operandi of pertinent forms of criminality, including narcotics transactions, see generally: Annot., 100 A.L.R.2d 1433.

      . At the end of Officer Taplin’s direct examination, the following testimony occurred to which defense counsel objected, without success:
      Q. Officer, one final question. If I were to tell you two individuals were arrested, one male, one female, and the male holding $470.00 in small bills, and the female holding two balloons and each containing seven packages of heroin; the male having thirty-three active track marks, track marks and scabs, and the female having no active track marks, what would be your opinion?

      A. [M]ore than likely the female is the courier for the addict, for the male addict. She’s carrying, she's in possession for the person that she’s with. Naturally, because if she’s not a heroin addict, why would she have it? Q. And what would be the intended use of that drug? Would it be for personal use or for intent to distribute?
      * * * * * *
      A. Fourteen $50.00 bags is a bit much for a person to shoot at one time.
      Q. So what would be your opinion?

      A. That they had it for sale. (Emphasis provided.)

      . In Wheeler, 416 So.2d at 79, the prosecutor posed the following hypothetical to a police officer who was testifying as an expert in narcotics transactions:
      Q. [Ajssume that on an afternoon in March, 1981 two New Orleans police officers see an individual at the intersection of Law and Congress Streets. Please assume also at least three times this individual is approached by three black males and at this time the defendant reaches inside a grocery bag by his foot and gives the three black males something. The police approach this individual, he puts the bag in a garbage can nearby and leaves the scene. The police apprehend this individual and upon searching his person find $359.00 in cash and six live rounds of ammunition and please assume also the police inside the bag in the garbage can find ten coin envelopes of marijuana, one plastic bag of marijuana and one Magnum revolver. I am asking you to assume these ten coin envelopes here are the ten coin envelopes in the hypothetical question and also the envelope marked S-3 is the plastic bag in the hypothetical question. In your expert opinion what is the likelihood of this individual being involved in the distribution of marijuana? (Emphasis in original.)
      The officer’s impermissible response was:

        In my opinion the person would be involved in the distribution of marijuana, he might have a dime bag, but not several dime bags and he would not have $359.00. (Emphasis in original.)

      . In State v. Austin, 399 So.2d 158 at 160 (La. 1981), we considered the Jackson standard of review when the state’s case is founded upon circumstantial evidence and said in that regard:
      Regarding circumstantial evidence, R.S. 15:438 sets forth the rule that, in order to convict, the evidence must exclude every reasonable hypothesis of innocence. Under Jackson, the evidence is viewed in the light most favorable to the prosecution and from the viewpoint of a rational trier of fact. Therefore, when we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.


text:
    STATE of Louisiana v. Pedro OTERO.
    No. 82-K-2603.
    Supreme Court of Louisiana.
    Oct. 27, 1982.
   In re Harry F. Connick, District Attorney, and Dean R. Yellin, Assistant District Attorney, applying for a writ of certiorari, Criminal District Court. Parish of Orleans. No. 288-658.

Granted for the limited purpose of transferring this application to the court of appeal for immediate action.


text:
    Ned R. DIX v. Nathalie Sahuc, Wife of/and Walter F. WILLIAMS and Fireman’s Insurance of Newark, a Division of Continental Insurance Co.
    No. 82-C-2600.
    Supreme Court of Louisiana.
    Oct. 27, 1982.
   In re Nathalie Sahuc, Wife of/and Walter F. Williams and Fireman’s Insurance of Newark, a Division of Continental Insurance Co., applying for a writ of certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 0225, Civil District Court, Parish of Orleans. No. 81-15569.

Denied, on the showing made.


text:
    STATE of Louisiana v. Roland J. BROTHERS, Jr.
    No. 82-K-2163.
    Supreme Court of Louisiana.
    Oct. 28, 1982.
   In re Roland J. Brothers, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of Lafayette. No. 88530.

Bail reduced to $75,000.

WATSON and LEMMON, JJ., dissent from the order.


text:
    James E. MOUTON v. ARMCO, INC., et al.
    No. 82-C-2164.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In Re: James E. Mouton, applying for writ of certiorari and/or review, to the Court of Appeal, Third Circuit. Parish of Iberia. No. 8840, 417 So.2d 889.

Writ denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    Jerry L. ROBINETT v. SCHWERMAN TRUCKING CO., INC. and J. H. Jeansonne.
    No. 82-C-2560.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Jerry L. Robinett, applying for supervisory writs. Parish of Orleans. Civil District Court, No. 80-904; Court of Appeal, Fourth Circuit. No. C-0172.

Granted. The trial judge is recused. When an attorney has actually performed legal services as a judge’s law clerk with respect to a particular case and later becomes employed as an attorney for one of the parties in the cause, there is an appearance that the judge may have an interest in the cause because of having worked with his former clerk on the particular case, L.C. C.P. Art. 151 (5) and the judge should be recused, even though he in fact has no interest in the case.


text:
    STATE of Louisiana ex rel., Roster SHIVER, v. Ross MAGGIO Jr., Warden Louisiana State Penitentiary.
    No. 82-KH-2289.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Roster Shiver, applying for writ of mandamus. Parish of Caddo.

Denied. Relator’s writ application to the District Court did not comply with C.Cr.P. Article 926(D) and was returned. Relator must refile in the District Court and comply with court rules.


text:
    SHELL OIL COMPANY and Pennzoil Producing Company v. WILLIAMS, INC., et al.
    No. 82-C-0840.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Shell Oil Company and Pennzoil Producing Company, applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 411 So.2d 634.

Granted.


text:
    Edward C. LAMB v. Janet LAMB.
    No. 82-C-2107.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Janet Lamb, applying for writ of certiorari, or review. Parish of Lafayette. Third Circuit Court of Appeal. 416 So.2d 243.

Granted.


text:
    STATE of Louisiana ex rel., Ernest JOHNSON v. Charles C. FOTI, Jr., Sheriff of New Orleans, et al.
    No. 82-KH-0100.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Ernest Johnson, applying for writ of mandamus. Parish of Orleans. No. 257-226.

Granted for limited purpose of transferring to trial court for consideration.


text:
    STATE of Louisiana ex rel., Warren BATISTE v. Charles C. FOTI, Jr., Sheriff, Orleans Parish.
    No. 81-KH-0522.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Warren Batiste, applying for writ of habeas corpus. Parish of Orleans. No. 266-727, Sect. “I”.

Denied.


text:
    STATE of Louisiana, ex rel., Lloyd WILSON v. STATE of Louisiana.
    No. 81-KH-1931.
    Supreme Court of Louisiana.
    Oct 29, 1982.
   In re Lloyd Wilson, applying for remedial writs. Parish of East Baton Rouge. No. 10-73-6968.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Ellis A. GUILLOT v. Frank BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-2193.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Ellis A. Guillot, applying for writ of habeas corpus. Parish of Orleans. No. 80-3008.

Denied.


text:
    STATE of Louisiana ex rel. Raymond TUCKER v. Honorable Frank SHEA, Judge Criminal District Court.
    No. 81-KH-3317.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Raymond Tucker, applying for writ of mandamus, to the Criminal District Court. Parish of Orleans. No. 257-140.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Thomas CAGE v. STATE of Louisiana.
    No. 81-KH-3319.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Thomas Cage, applying for remedial writs. Parish of Rapides. Number Unknown.

Denied. Relator’s lawyer sent relator a copy of the transcript in April of 1981.


text:
    Lavon WOODARD, Individually v. Elvin MAYS, et al.
    No. 82-C-1933.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Lavon Woodard, applying for writ of certiorari, or review, First Circuit, Court of Appeal. Parish of Washington. 416 So.2d 1305.

Writ denied.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Linda Nevle, Wife of/and Michael A. NEVLE v. NATIONAL PRESTO INDUSTRIES and Aetna Casualty & Surety Company.
    No. 82-C-2076.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re National Presto Industries and Aet-na Casualty and Surety Company, on Appeal from the Fourth Circuit, Court of Appeal. St. Bernard Parish. 416 So.2d 144.

Denied.


text:
    Mary E. Salvant, Wife of/and Edwin SALVANT v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC.
    No. 82-C-2091.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Schwegmann Brothers Giant Supermarkets, Inc., applying for writ of certiora-ri, or review. Parish of St. Bernard, Fourth Circuit, Court of Appeal. 416 So.2d 136.

Denied.


text:
    Charles L. LANDRY, Sr. v. John SCHWEGMANN d/b/a and Schwegmann Brothers Giant Supermarkets, Inc., ABC Insurance Company and Eddie Williams.
    No. 82-C-2114.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Schwegmann Brothers Giant Supermarkets, applying for writ of certiorari, or review, Fourth Circuit, Court of Appeal. Parish of Orleans. 416 So.2d 341.

Denied.

DIXON, CALOGERO and MARCUS, JJ., would grant the writ.


text:
    STATE ex rel Mary Dell Tinsley FRANCESKI v. PLAQUEMINES PARISH SCHOOL BOARD.
    No. 82-C-2124.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Plaquemines Parish School Board, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaquemines. 416 So.2d 150.

Denied.


text:
    James ALLEMAN v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.
    No. 82-C-2129.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Louisiana Department of Highways, applying for writ of certiorari or review from the Third Circuit, Court of Appeal. Parish of Vermillion. 416 So.2d 272.

Denied.

CALOGERO, MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Wiley R. STEWART v. HANOVER INSURANCE COMPANY, et al; Calcasieu Parish School Board.
    No. 82-C-2149.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Wiley R. Stewart, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 416 So.2d 286.

Denied.

DENNIS, J., would grant the writ.


text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF SHREVEPORT v. Charles Albert BECHTOL and Bob Gerald Smith & Elizabeth Smith. Bob Gerald SMITH, et ux. v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF SHREVEPORT.
    No. 82-C-2150.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re First Federal Savings and Loan Association of Shreveport, applying for writ of certiorari or review. Second Circuit Court of Appeal. Parish of Caddo. 416 So.2d 633.

Denied.

BLANCHE, J., would grant the writ.


text:
    GENERAL AMERICAN OIL COMPANY OF TEXAS v. The SUPERIOR OIL COMPANY.
    No. 82-C-2151.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re The Superior Oil Company, applying for writs of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 416 So.2d 251.

Denied.

LEMMON, J., would grant the writ.


text:
    Joe L. McPHAIL v. LOUISIANA FARM BUREAU RICE, INC., et al.
    No. 82-C-2175.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Joe L. McPhail, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Acadia. 419 So.2d 977.

Writ denied.


text:
    John C. DUNCAN v. PARAGON RESOURCES, INC.,
    No. 82-C-2180.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re John C. Duncan, applying for rehearing of plaintiff-appellant, to the Court of Appeal, Third Circuit. Parish of Beauregard. 417 So.2d 850.

Denied.

BLANCHE, J., would grant the writ.


text:
    Sharon Anne KING v. AMERICAN RICE GROWERS EXCHANGE.
    No. 82-C-2181.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Sharon Anne King, applying for writ of certiorari, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 417 So.2d 904.

Denied.

DIXON, C.J., and WATSON, J., would grant the writ.


text:
    Curtis BATISTE, et ux. v. SECURITY INSURANCE GROUP, et al. Warren J. Lacombe.
    No. 82-C-2185.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Curtis Batiste, et ux, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 416 So.2d 279.

Denied.


text:
    Ronald Lee COBB v. Carroll MATHERNE, Kenneth Matherne and Estate of Lee Matherne.
    No. 82-C-2197.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Ronald Lee Cobb, applying for writs of certiorari and review, to the Court of Appeal, First Circuit. Parish of Terrebonne. No. 47151.

Denied.


text:
    STATE of Louisiana ex rel., Eugene ANDERSON v. STATE of Louisiana PARISH OF ORLEANS.
    No. 82-KH-2451.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Eugene Anderson, applying for writ of mandamus. Parish of Orleans. No. 285-082.

Writ denied. Moot.


text:
    STATE of Louisiana v. Vivian X KAHEY and Sherral X Kahey.
    No. 82-KH-2494.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Vivian X Kahey & Sherral X Kahey, applying for habeas corpus. Parish of Sabine. No. 28281.

Denied.


text:
    STATE of Louisiana ex rel. Joseph JONES, Jr. v. N. Burl CAIN, Warden, Dixon Correctional Inst.
    No. 82-KH-0428.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Joseph Jones, Jr., applying for writ of mandamus. Parish of Orleans. No. 239-572.

Granted. The matter is remanded to the district court for the trial judge to reconsider in the light of Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234; State ex rel. Becnel v. Blackburn, La., 410 So.2d 1015; and Thomas v. Blackburn, 5 Cir., 623 F.2d 383.


text:
    STATE of Louisiana, ex rel., Eddie Lee MAGEE v. Louis CEARIER.
    No. 81-KH-1266.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Eddie Lee Magee, applying for writ of habeas corpus. Parish of Washington.

Transfer to district court for action.


text:
    STATE of Louisiana ex rel. Warren CAIN, Jr. v. Presiding Judge Walter C. PETERS, Criminal District Court, 31st Judicial District, Jefferson Davis Parish, Jennings, State of Louisiana.
    No. 81-KH-2307.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Warren Cain, Jr., applying for writ of mandamus. Parish of Jefferson Davis. No. 1831-77.

Granted. Relator’s application is transferred to district court for proceedings in accordance with law.


text:
    STATE of Louisiana, ex rel. William F. RICHARD v. STATE of Louisiana.
    No. 82-KH-0504.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re William F. Richard, applying for remedial writs. Parish of Orleans. No. 251-321.

Granted. Trial court is ordered to rule on merits of relator’s application.


text:
    STATE of Louisiana ex rel. Michael AUGUSTINE v. CLERK OF COURT, SECTION “F”, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 82-KH-1433.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Michael Augustine, applying for writ of mandamus. Parish of Orleans. No. 283-210.

Granted. Relator’s application is transferred to the district court for further proceedings in accordance with law.


text:
    STATE of Louisiana, ex rel., James E. BROWN v. STATE of Louisiana.
    No. 82-KH-2532.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re James E. Brown, applying for remedial writs. Parish of Ouachita. No. 40294.

Granted. Transfer to district court to hold evidentiary hearing and rule on relator’s claim that he is entitled to an out of time appeal for reasons not earlier presented to the district court.


text:
    STATE of Louisiana v. Melvin THOMAS, Jr.
    No. 82-KH-2354.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Melvin Thomas, Jr., applying for remedial writs. Parish of Caddo.

Granted. Transferred to 2nd Circuit, Court of Appeal, to act.


text:
    STATE of Louisiana ex rel., Jerome CANTRELLE v. 24TH JUDICIAL DISTRICT COURT, et al. Parish of Jefferson.
    No. 82-KH-2504.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Jerome Cantrelle, applying for writs of mandamus, and prohibition. Parish of Jefferson.

Granted and transferred to the 5th Circuit, Court of Appeal for consideration.


text:
    STATE of Louisiana v. Austin WASHINGTON.
    No. 82-KH-2509.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Austin Washington, applying for remedial writ. Parish of Acadia.

Granted. Transferred to the Court of Appeal, 3rd Circuit, to act.


text:
    STATE of Louisiana v. Mark D. DAVIS.
    No. 82-AW-2134.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Mark D. Davis, applying for remedial writs. Parish of Natchitoches. No. 71240.

Granted. Treat as an appeal.


text:
    STATE of Louisiana v. Bryan D. WINDHAM.
    No. 82-AW-2135.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Bryan D. Windham, applying for remedial writ from the Tenth Judicial District Court. Parish of Natchitoches. No. 71,241.

Granted; to be treated as an appeal.


text:
    STATE of Louisiana ex rel., O’Neil GINN v. Ross MAGGIO.
    No. 82-KH-0104.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re O’Neil Ginn, applying for writ of mandamus, Nineteenth Judicial District Court. Parish of East Baton Rouge. No. 9-77-397-111.

Motion granted. Writ withdrawn at relator’s request.


text:
    STATE of Louisiana, ex rel. William Walker FINLEY v. CLERK OF COURT, 2ND JUDICIAL DISTRICT COURT, PARISH OF JACKSON.
    No. 82-KH-2389.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re William Walkner Finley, applying for writ of mandamus. Parish of Jackson. No. 20705.

Granted in part. Trial court is ordered to furnish relator a Boykin transcript. Otherwise, denied.


text:
    STATE of Louisiana ex rel. Lionel HALPHEN v. ORLEANS INDIGENT DEFENDER PROGRAM, Court Reporter.
    No. 81-KH-1809.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Lionel Halphen, applying for remedial writs. Parish of Orleans. No. 273-072.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Wilson DUGAR v. ORLEANS INDIGENT DEFENDANT PROGRAM.
    No. 81-KH-2070.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Wilson Dugar, applying for remedial writs. Parish of Orleans. No. 251-453.

Denied. OIDP does not have transcript.


text:
    STATE of Louisiana ex rel. David MINOR v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-3126.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re David Minor, applying for writ of mandamus. Parish of Bienville, Nos. 17483 and 17484.

Denied. Moot.


text:
    STATE of Louisiana ex rel. John Charles STEIN, Jr. v. Honorable C. J. BOLIN, Jr., Judge, First Judicial District Court.
    No. 81-KH-3146.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re John Charles Stein, Jr., applying for writ of mandamus, certiorari and/or prohibition. Parish of Caddo. Nos. 94-047, 94-048, 99-012HC.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Woodrow BEACH v. N. Burl CAIN, Warden, Dixon Correctional Institute.
    No. 81-KH-3217.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Woodrow Beach, applying for writ of certiorari. Parish of East Baton Rouge. No. 89293.

Denied.


text:
    STATE of Louisiana ex rel. Thomas H. MURPHY v. CLERK OF COURT, Criminal District Court Parish of Orleans, New Orleans, Louisiana.
    No. 82-KH-0553.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Thomas H. Murphy, applying for remedial writs. Parish of Orleans. No. 255-268.

Denied.


text:
    STATE of Louisiana v. Randolph Mark SUTTON.
    No. 82-K(A)-0863.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Randolph Mark Sutton, applying for remedial writs. Parish of Ouachita. No. 38020.

Writ denied.


text:
    STATE of Louisiana ex rel., Troy CASTER v. Honorable Sonny STEPHENS, Judge, 5th Judicial District Court.
    No. 82-KH-1603.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Troy Caster, applying for writ of mandamus. Parish of West Carroll.

Denied. No record in district court; relator must refile in district court.


text:
    STATE of Louisiana v. Billy MONROE.
    No. 82-KH-1684.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Billy Monroe, applying for remedial writs. Parish of Orleans. Nos. 278-830 and 278-890.

Denied. Moot.


text:
    Henry F. KIRKLEY v. DIS TRANSPORTS, INC., et al.
    No. 82-C-2072.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Henry F. Kirkley, applying for writs of certiorari and review, from the First Circuit, Court of Appeal. Parish of East Baton Rouge. No. 14885.

Denied. The result is correct.

DIXON, C. J., CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Clarence SHARP v. NEW ORLEANS PUBLIC SERVICE, INC. and William Toca. Frank BARNES v. William TOCA, Earnest Freeman, Sr. and New Orleans Public Service, Inc.
    No. 82-C-2106.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re New Orleans Public Service, Inc. and Earnest Freeman, Sr., applying for writ of certiorari from the Fourth Circuit, Court of Appeal. Parish of Orleans. No. 13006 c/w 13007.

Denied.


text:
    ACTION FOR DECLARATORY RELIEF BY: Frank BOWES, Andrew Hersey and the Lake Charles Municipal Fire and Police Civil Service Board v. LAKE CHARLES MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD.
    No. 82-C-2152.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   In re Frank Bowes, applying for writ of review. Parish of Calcasieu. Third Circuit, Court of Appeal. No. 8832.

Denied.


text:
    STATE of Louisiana v. Allen FLETCHER.
    No. 82-K-2646.
    Supreme Court of Louisiana.
    Nov. 4, 1982.
   In re Allen Fletcher, applying for writs of certiorari, (review), prohibition, and mandamus. Parish of St. James. Nos. 313-F, 314-F, 315-F and 316-F; Court of Appeal, Fifth Circuit. No. 82-K-113.

On the showing made, denied.


text:
    STATE of Louisiana ex rel., Clifton SEARS v. Frank BLACKBURN, Warden, et al.
    No. 80-KH-1887.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Clifton Sears, applying for writ of habeas corpus. Parish of Orleans. No. 261-298, Sect. “A”.

Writ granted. Evidentiary hearing ordered on legality of sentence and multiple offender adjudication with particular reference to relator’s convictions in trial court numbers 191-696 and 257-548.


text:
    STATE of Louisiana, ex rel. Patrick STEVENSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-2326.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Patrick Stevenson, applying for writ of mandamus. Parish of Orleans.

Granted. Trial court is ordered to act on relator’s application within 14 days.


text:
    STATE of Louisiana, ex rel., Oscar MYLES v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 81-KH-0254.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Oscar Myles, applying for writ of mandamus. Orleans Parish. No. 274-765.

Granted, for the purpose of transferring to the district court.


text:
    STATE of Louisiana ex rel., Oscar MYLES v. Honorable Rudolph BECKER, III, et al.
    No. 81-KH-0754.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Oscar Myles, applying for writs of mandamus, supervisory remedial. Parish of Orleans. No. 274-765.

Granted. Transfer to District Court.


text:
    Dr. James H. STEWART, M.D. v. Harold AINSWORTH, Jr. and Harold Ainsworth, Sr.
    No. 82-O-2631.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Dr. James H. Stewart, M.D., applying for motion and order for appointment of another judge. Civil District Court. Orleans Parish. No. 82-15885.

Denied.


text:
    STATE of Louisiana ex rel., Louis Charles NOPKINS v. Honorable Roy B. TUCK, Jr., Judge, Thirtieth Judicial District Court, Division “A”, Vernon Parish, Louisiana.
    No. 81-KH-1406.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Louis Charles Nopkins, applying for writ of mandamus. Parish of Vernon. No. 27209.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Robert RICHARD v. Frank BLACKBURN.
    No. 81-KH-1789.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Robert Richard, applying for writs of mandamus. Parish of St. Bernard. No. 37-908.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. George WILLIAMS v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA.
    No. 81-KH-1932.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re George Williams, applying for writs of review, supervisory and certiorari. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Daniel F. HYORTH v. Judge Frank SHEA, Sect. “G”, Criminal District Court.
    No. 81-KH-1972.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   Denied.


text:
    STATE of Louisiana ex rel. Alonzo WALTON v. COURT REPORTER, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-2068.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Alonzo Walton, applying for writ of mandamus. Parish of Orleans. No. 275-987.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Keith Anthony RAWLES v. Honorable Judge Rudolph BECKER, Criminal Judicial District Court, Parish of Orleans.
    No. 81-KH-2242.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Keith Anthony Rawles, applying for writ of mandamus. Parish of Orleans. Number Unknown.

Denied. Moot.


text:
    William Frederick OLIVER v. DISTRICT ATTORNEY’S OFFICE, ORLEANS PARISH, CRIMINAL DISTRICT COURT.
    No. 81-KH-2483.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re William Frederick Oliver, applying for writ of mandamus. Parish of Orleans. No. 276-255.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Raymond B. MOORE v. STATE of Louisiana.
    No. 81-KH-2482.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Raymond B. Moore, applying for remedial writs. Parish of Iberville. No. 876-82.

Denied. All charges in Iberville Parish have been disposed of.


text:
    STATE of Louisiana ex rel. Norman BATES v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3219.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Norman Bates, applying for writ of mandamus and habeas corpus. Parish of Orleans, Criminal District Court. No. 257-740.

Denied.


text:
    STATE of Louisiana, ex rel. Roy Alvin VANDERHOFF, Sr. v. Herbert SHERWOOD, Custodian.
    No. 82-KH-1392.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Roy Alvin Vanderhoff, Sr., applying for remedial writs. St. Bernard Parish. No. 49-888.

Denied.


text:
    STATE of Louisiana v. George WOODCOCK, Jr.
    No. 82-KH-1415.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re George Woodcock, Jr., applying for writ of habeas corpus and prohibition. Parish of Orleans, Criminal District Court. No. 275-617,

Denied. Appeal pending.


text:
    STATE of Louisiana v. Timothy SAIZON.
    No. 82-KH-1500.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Timothy Saizon, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 79-1222.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Richard M. BROWN v. CRIMINAL DISTRICT COURT JUDGE, SECT. “I”.
    No. 82-KH-1657.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Richard M. Brown, applying for writ of mandamus. Parish of Orleans, Criminal District Court.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Barry W. MOSLEY v. CLERK OF COURT, 7TH JUDICIAL DISTRICT COURT, PARISH OF CATAHOULA.
    No. 82-KH-1731.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Barry W. Mosley, applying for writ of mandamus. Parish of Catahoula, Seventh Judicial District Court. No. 79-1051.

Denied.


text:
    STATE of Louisiana ex rel. Donald BRIGGS v. 15TH JUDICIAL DISTRICT COURT, PARISH OF VERMILION, State of Louisiana.
    No. 82-KH-1761.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Donald Briggs, applying for writ of mandamus. Parish of Vermilion. No. 19325.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Kerry R. KING v. 24TH JUDICIAL DISTRICT COURT.
    No. 82-KH-1976.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Kerry R. King, applying for writ of mandamus. Parish of Jefferson, Twenty-fourth Judicial District Court. No. 76-200.

Denied.


text:
    STATE of Louisiana, ex rel., Elton PARKER v. Ross MAGGIO Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-2133.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Elton Parker, applying for writs of certiorari, prohibition, or review. Parish of West Baton Rouge. No. 43007.

Denied.


text:
    STATE of Louisiana ex rel. Aubrey THOMPSON v. Honorable C. William BRADLEY.
    No. 82-KH-2190.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Aubrey Thompson, applying for writ of mandamus. Parish of St. John the Baptist. Twenty-ninth Judicial District Court. No. 136-80.

Denied. Moot.


text:
    STATE of Louisiana v. Willie CAMPBELL.
    No. 82-K-2246.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Willie Campbell, applying for writs of certiorari. Parish of Orleans. No. 194-710.

Denied.


text:
    STATE of Louisiana ex rel. Michael A. CHAPMAN v. CLERK OF COURT, SECT. “C”, ORLEANS CRIMINAL DISTRICT COURT.
    No. 82-KH-2269.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Michael A. Chapman, applying for remedial writs. Parish of Orleans. No. 281-252 C.

Denied. Relator’s request has been filed and is pending in the district court.


text:
    Ronald J. BALDEN v. CITY OF BATON ROUGE, et al.
    No. 82-C-2280.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Ronald J. Balden, applying for supervisory remedial writs. Parish of East Baton Rouge. No. 246394, Division “F”.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel., Moses THORNTON v. CLERK, 19TH JUDICIAL DISTRICT COURT.
    No. 82-KH-2294.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Moses Thornton, applying for writ of mandamus. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Eddie T. WOODS v. Bernard J. BAGERT, Sr., Judge, Criminal District Court, Parish of Orleans.
    No. 82-KH-2301.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Eddie T. Woods, applying for writs of mandamus. Parish of Orleans. No. 240-069 “H”.

Denied.


text:
    STATE of Louisiana v. Sam BLOCK.
    No. 82-K-2304.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans, Criminal District Court. No. 276-459.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana, ex rel. James D. HAMPTON v. Honorable FONTENOT, Judge, Criminal District Court, Parish of Lafayette.
    No. 82-KH-2309.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re James D. Hampton, applying for writ of mandamus. Lafayette Parish. No. 78-7208.

Denied. Moot.


text:
    STATE of Louisiana v. Paul BILLIOT.
    No. 82-K-2319.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Paul Billiot, applying for supervisory and original writ of habeas corpus. Jefferson Parish. No. 113-815-6J.

Denied.

DIXON, C.J., CALOGERO and DENNIS, JJ., would grant the writ.