author: COVINGTON, Justice ad hoc.

text:
    STATE of Louisiana v. Ray ROBINSON.
    No. 81-KA-0152.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Stephen M. Little, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Raleigh Ohlmeyer, Plaquemine, for defendant-appellant.
   COVINGTON, Justice ad hoc.

Ray Robinson was charged by bill of information with two counts of armed robbery in violation of La.R.S. 14:64. After trial by jury, the defendant was found guilty on both counts and sentenced to five years at hard labor without benefit of probation, parole, or suspension of sentence, the sentences to run consecutively. On appeal, the defendant relies on twenty-four assignments of errors for reversal of his conviction and sentence.

FACTS

The defendant was charged with armed robbery of Walgreen’s Drug Store, located on Jefferson Highway in Jefferson Parish, on two occasions. On May 29,1979, a black male walked into the Walgreen store and robbed the cashier, Gina Dubroc, of $77.00 of the store’s money. He escaped without apprehension. On June 15, 1979, a black male came into the same drug store and, in the presence of Ms. Dubroc, robbed the pharmacist, Carl Gordon, of $120.00 of the store’s money. As the robber was fleeing the scene of the June crime on a bicycle, the store’s security guard, Van Clark, who had just arrived for work, gave chase to the robber, who entered an apartment house about five blocks from the drug store. The police then arrived at the apartment house' in response to a call. After obtaining the consent of the tenant of the apartment, Charlotte Hollins, the police searched the premises and found the suspect, who was in the process of changing clothes. After searching the apartment, the police took the defendant to Walgreen’s, where he was identified by Ms. Dubroc and Mr. Gordon as the perpetrator of the crime.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in denying his motion to suppress the in-field identification of the defendant. The basis for his contention is that this sort of identification denies an accused due process, because it is impermis-sibly suggestive, leading to a substantial likelihood of misidentification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In reviewing the constitutional issue of the identification procedure, the United States Supreme Court in Manson v. Brathwaite, supra at 432 U.S. 107, 97 S.Ct. at 2247, made a double inquiry:

(1) Did the police use an impermissibly suggestive procedure in obtaining the out-of-court (in-field) identification?

(2) If so, did that suggestive procedure, under all of the circumstances, give rise to a substantial likelihood of irreparable mis-identification?

At the suppression hearing, the testimony revealed that the victims, Dubroc and Gordon, were shown the defendant in handcuffs immediately after his arrest following the June 15, 1979, robbery, and that they made a positive identification of the suspect. The defense urges that the identifications at the scene were impermissibly suggestive because the defendant was handcuffed and in the custody of uniformed police officers when identification was sought by the arresting officers from the victims. The defense argues that these factors, considered with the statement of the officers that they believed the person in their custody to be the robber, established that the in-field or on-the-scene identifications should have been suppressed. Under similar circumstances, in State v. Dauzat, 364 So.2d 1000, 1002 (La.1978), this court considered the identification procedure constitutionally acceptable, and stated:

“Where, as in the instant case, a one-on-one in-field identification is closely associated in time with the commission of the crime and where the suspect is returned to the location of the crime for immediate identification, such identifications have been found permissible. State v. Kelly, 362 So.2d 1071 (La.1978). One reason for declining to disapprove such procedures is that they promote fairness by assuring reliability and the prompt release of innocent suspects. State v. Dunbar, 356 So.2d 956 (La.1978). Applying the totality of the circumstances rule set forth in Neil v. Biggers, supra [409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401] (more recently asserted by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 [1977]) we conclude that the record establishes the reliability of the in-field identifications.”

We conclude that the record establishes the reliability of the in-field identifications. A review of the record reveals that Gina Dubroc, Carl Gordon and Van Clark had ample opportunity to view the suspect (both Dubroc and Gordon had been victims of robbery by the suspect and had witnessed to other robberies committed by the same person; Clark pursued the fleeing robber for several blocks and testified that he got a good look at the suspect’s face from a distance of one-half block and that the suspect conformed to the description furnished him by the assistant manager of the drug store); the witnesses were certain of the identification and positively and accurately identified Robinson; and, although the victims saw the subject only for a short period of time on each occasion, those occasions were such as to make a memorable impression on them. In addition, there was only a lapse of time of a few minutes between the last robbery and the apprehension and identification of the perpetrator of the crime. See State v. Stewart, 387 So.2d 1103 (La.1980). The Manson criteria are satisfied. This is not a case of an identification resulting from impermissible suggestions leading to a likelihood of misidentification. This is not a case of mistaken identity. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment of error the defendant argues that the trial court erred in failing to grant the defense motion to sever for trial the two counts of armed robbery contained in the bill of information.

In the present case the defendant was tried for two similar armed robberies of the same business establishment, Walgreen’s drug store. The nature of the offenses was relatively uncomplicated and there were only two armed robberies with which the defendant was charged; consequently, there was little or no danger that the jury could not distinguish the evidence and intelligently apply the law to each offense. In addition, there was a close connexity in time (one month apart) and the same location between the crimes.

This court said in State v. Washington, 386 So.2d 1368, 1371 (La.1980), that in ruling on a motion for severance:

“... [T]he trial court must weigh the possibility of prejudice versus the important considerations of judicial economy and administration. In determining whether prejudice may result from the joinder, the court should consider whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. See Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964); United States v. Weber, 437 F.2d 327 (3rd Cir. 1970).”

There is no prejudicial effect from joinder of the two offenses when the evidence of each offense is relatively simple and distinct, even though such evidence might not have been admissible in separate trials of the offenses; because, with a proper charge, the jury can easily keep the evidence of each offense separate in its deliberations. See Drew v. United States, 331 F.2d 85, 91 (D.C. Cir. 1964). Moreover, since the charges were for a violation of the same statute (La.R.S. 14:64), there should have been no confusion in the application of the law to the offenses. Under LSA-C. Cr.P art. 495.1, as amended by Act No. 466 of 1978, a severance need not be granted if other safeguards will effectively prevent the prejudicial effect of joinder. See State v. Washington, supra.

Applying these principles to the present case, we find that the trial court did not abuse its discretion in denying the motion for severance.

In the present case the trial judge gave the following instruction concerning the two-count charge against the defendant:

“The defendant at bar is charged under a two count indictment. Each count charges the defendant with a separate and distinct offense under the laws of Louisiana. In deliberating, you, the jury should consider the defendant’s guilt or innocence as to each individual count independently and separately of all other counts of the indictment. Thus, it would be possible to render a verdict of guilt as to one count while returning a verdict of innocence as to the other count. It would also be possible to return a verdict of guilt as to both or a verdict of innocence as to both counts if you so find.”

This instruction makes it clear that the jury was to consider each count separately. There was little danger that the evidence of the two offenses was cumulated to the prejudice of the defendant. See State v. Thomas, 395 So.2d 802 (La.1981); State v. Labostrie, 358 So.2d 1243 (La.1978). We conclude that the jury could easily compartmentalize the evidence and apply the law intelligently as to each of the two offenses, and that the defendant was not unfairly convicted on the basis of prejudice or confusion. Hence, we find no error in the denial of the severance of charges against the defendant.

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 4, 7 and 8

By these assignments of error the defendant contends that the trial judge erred in curtailing the defense’s examination during voir dire. Specifically, the defense attempted to question prospective jurors concerning the effect of the power of suggestion on the accuracy of the witnesses’ identification of the accused.

The questions which the judge refused to allow are as follows:

“Do you believe that it’s possible for the power of suggestion to be used to create an identification? You think the police could or would do it?
***** *
“You can understand that a person who has been through a traumatic experience like [that] might have trouble identifying a person?
******
“And, you also accept the possibility that when the police do certain things, they might be using the power of suggestion. For example—
******
“During the course of this trial, if I can make you understand, make you believe that the police might have done something improper, might have done something suggestive, would you consider that? Let me give you an example of that: — ”

The trial court sustained the State’s objection to the questions, finding that the subject matter was not relevant for purposes of voir dire examination since it neither tested the prospective jurors’ competency or impartiality; but rather, was more suited to argument. See LSA-C.Cr.P. art. 786.

The purpose of the voir dire examination is to select jurors who can render an impartial verdict. State v. Williams, 310 So.2d 528 (La.1975). Voir dire examination of prospective jurors is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Bertrand, 381 So.2d 489 (La.1980).

In State v. Clark, 325 So.2d 802, 807 (La.1976), this court stated:

“Voir dire examination is designed to test the competency and impartiality of prospective jurors and may not serve to pry into their opinions concerning evidence to be offered at trial.”

It is well established that the scope of the voir dire examination is within the sound discretion of the trial judge and his rulings thereon will not be disturbed in the absence of a clear abuse of discretion. State v. Murray, 375 So.2d 80 (La.1979).

As set forth in State v. Vinet, 352 So.2d 684, 687 (La.1977):

“Undoubtedly the defense is entitled to wide latitude in examining prospective jurors. This right is, however, to be exercised within the discretion of the trial judge who determines the scope of the examination under the prevailing facts and circumstances. La.Code Crim.Pro. art. 786. And when the question arises whether voir dire examination has been unduly restricted, the disallowance of a proper question is not automatically reversible. In evaluating the fairness of the ruling the entire examination must be considered. State v. Monroe, 329 So.2d 193 (La.1976); State v. Jones, 315 So.2d 650 (1975). (Emphasis supplied)”

A review of the voir dire examination reveals that prior to the State’s objection to the disallowed questions, the defense had extensively examined other prospective jurors concerning their understanding of the power of suggestion. At one point the trial judge stated that “you can ask the jury any question you want about their faith in eyewitness identifications.” There was no abuse of discretion by the trial judge when he curtailed the defense’s voir dire examination. The argument of substantial error with regard to the voir dire does not support any claim of denial of due process.

ASSIGNMENT OF ERROR NO. 13

By this assignment of error the defendant contends that the trial court erred in permitting the introduction in evidence by the State of $94.00 cash, which was found in a chifforobe in the apartment where the defendant was apprehended. The defense asserts that this money was not shown to have been a part of the money allegedly taken in the robbery.

The State made no attempt to connect the evidence with the defendant, or to exploit the admission of the evidence in the argument of the prosecutor. Under similar circumstances, this court found that where there was no attempt to connect the evidence with the defendant, or to exploit the evidence by the State, the erroneous admission of the evidence was harmless error. State v. Manieri, 378 So.2d 931 (La.1979).

As in Manieri, reversible error did not occur under the facts of the present case. The jury heard testimony that certain sums of money were taken in the robberies, but there was no attempt made by the prosecutor to connect the money found in the chif-forobe in the apartment where the defendant was apprehended with the June robbery of Walgreen’s. No attempt was made by the State to exploit the admission of the $94.00 in argument by the prosecutor. We find there was little possibility that the money was associated with the robbery. In the absence of any such prejudice to the defendant, the admission of the money found in the apartment at the time of defendant’s arrest was not reversible error. LSA-C.Cr.P. art. 921.

There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 24

The defendant raised this assignment of error through a motion for new trial, contending that the State did not prove beyond a reasonable doubt that the defendant was armed with a dangerous weapon while committing the robberies.

The applicable law was definitively stated by this court in State v. Gould, 395 So.2d 647, 656 (La.1980), on rehearing:

“. . . If unarmed, defendant did not perpetrate an armed robbery. If armed with an instrumentality not inherently dangerous, he would not have qualified as having been armed with a dangerous weapon for he did not use the object in a manner likely to produce death or great bodily harm. Only if armed with an inherently dangerous weapon, whether displayed or not, would this defendant have been shown to be guilty of armed robbery. The question therefore in this case, did defendant have a pistol in his pocket (i.e. an inherently dangerous weapon) as opposed to a toy pistol or some other non-inherently dangerous instrumentality.”

The Gould case accepted the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which is whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded that all elements of the offense of armed robbery have been proved beyond a reasonable doubt.

In the instant case, looking at the evidence favorably from the State’s viewpoint, there was direct evidence that Robinson was armed with a pistol, an inherently dangerous weapon, while committing the robbery on May 29, 1979. The victim, whose testimony was believed by the jury, testified that the defendant ordered her to give him the money in the cash register, showed her his gun, and took the money from her.

Ms. Dubroc testified as follows:

“Q. And, if you would, when he started — or when he asked you for the money, Ms. Dubroc, about how close was he to you, as close as I am to you now?
A. Yes, right up to the counter.
Q. Could he have reached out and touched you?
A. Uh huh. (Affirmative reply)
Q. From you, like as far as I am from you now?
A. Face to face, yeah.
Q. Face to face. Now, you mentioned a gun. Where did you first see the gun, Ms. Dubroc?
A. In his pants.
Q. Stuck in his pants?
A. Stuck in his pants, just like that. (Witness illustrating)
Q. Did he show you the gun, or how did you notice the gun?
A. He had opened his jacket and I saw the gun, and he took it out of his pants and held it up.
Q. He actually removed the gun?
A. Yeah, and held it.
Q. Did he point it at you, or did he just hold it?
A. No, he didn’t point it at me, he just held it.
Q. Are you sure that it was a gun?
A. Yes.
Q. Did you give him the money before you saw the gun or after?
A. After.
Q. Did he take the money from you?
A. Yes.”

With regard to the second count of armed robbery, Ms. Dubroc (who had been the victim of the May robbery) was a witness to the June robbery. She testified that it was the same man who had robbed her in May; that she heard the robber ask for money from the pharmacist and unzip a bag, although she did not testify to actually seeing the gun in June. Carl Gordon, the pharmacist, testified that he was robbed on June 15, 1979. He said the young man (later identified as Robinson) put a black pouch on the counter near the cash register, unzipped the pouch, and asked for all the money in the cash register. Mr. Gordon stated that he “didn’t give him (Robinson) the money until what appeared to be a gun was out of the pouch.” The witness further testified as follows:

“Q. Mr. Gordon, as you look at the man seated here, Ray Robinson, today, can you tell this jury whether this is the man that robbed you that day?
A. Yes, I can.
Q. And, what will you tell a jury?
A. I would say that positively that he is on the guy that robbed me.
Q. Did you think he had a gun?
A. Yes, I thought he did have a gun.
Q. Did you want to give him the money?
A. (No response)
Q. Did you want to give him the money? I know it sounds silly, but, did you want to give him the money?
A. Well, it appeared he had a gun, so, I felt that in that particular situation that was the best thing to do, you know.
Q. Were you scared?
A. Not really, you know, I was calm.
Q. Well, why did you give him the money?
A. Well, because of the gun. You see, before I give him the money, I sort of challenge him to, you know, show some proof that he had a gun.
Q. And, that’s when he unzipped it, huh?
A. That’s when he unzipped the case.
Q. That man right there? (Pointing out the defendant)
A. Right, uh huh. (Affirmative reply)
Q. You’re positive?
A. I’m positive.”

Under all of the circumstances of this case we conclude that a rational trier of fact, presented with the evidence that was introduced on count two in the instant case, when viewed in the light most favorable to the prosecution, could have concluded that Robinson did in fact have a pistol in the black pouch (as opposed to a toy pistol or some other noninherently dangerous instrumentality) which was used to rob the pharmacist at Walgreen’s on June 15, 1979, and that all elements of the offense of armed robbery have been proved beyond a reasonable doubt. As pointed out in Gould, it is not necessary that the robber actually display his weapon to the victim, if the robber is in fact armed with an inherently dangerous weapon, in order for the defendant to be shown to be guilty of armed robbery.

This assignment does not show reversible error.

DECREE

For the reasons assigned, the conviction and sentence of Ray Robinson, the defendant, are affirmed.

AFFIRMED.

LEMMON, J., dissents and will assign reasons.

       Judges Covington, Cole and Watkins of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon, and Associate Justices Marcus, Blanche and Lemmon.

      . Although the appellant (defendant) assigned 24 errors, he only briefed Nos. 1, 3, 4, 7, 8, 13 and 24 (with the argument on Nos. 4, 7 and 8 combined). Pursuant to Rule VII, Section 6, assignments of error not briefed may be considered abandoned. See State v. Yates, 350 So.2d 1169, 1173 (La.1977).

      . The victims, Dubroc and Gordon, also made positive in-court identifications, as did other witnesses.

      . “The court, the state, and the defendant shall have the right to examine prospective jurors. The scope of the examination shall be within the discretion of the court. A prospective juror before being examined, shall be sworn to answer truthfully questions asked him relative to his qualifications to serve as a juror in the case.”


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. Charles BERNARD.
    No. 81-KA-0167.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeanette T. Knoll, Asst. Dist. Atty., for plaintiff-appellee.
    J. Michael Small, Alexandria, for defendant-appellant.
   WATSON, Justice.

Charles R. Bernard and Jeffrey Paul Walker were charged in the same bill of information with aggravated criminal damage to property. LSA-R.S. 14:55. The trials were severed. Defendant Bernard was convicted and given a suspended sentence of eighteen months in the Avoyelles Parish jail and three years probation. Bernard was fined $1,800 and ordered to pay $200 restitution to Daniel Mayeaux, the owner of the damaged property.

On appeal defendant contends that the trial court erred in refusing to grant a new trial because the evidence was insufficient to convince a rational trier of fact of his guilt.

FACTS

Jeffrey Paul Walker and Joye Gail May-eaux were legally separated. The wife and two children occupied a bedroom in the front of her parents’ house. Walker had shared this room with his wife on occasion during their marriage.

Ms. Walker and four girlfriends went to Blackbeard’s in Marksville, Louisiana, to celebrate her engagement to one Normand. She saw her estranged husband with his close friend, Charles Bernard, before leaving the lounge at approximately 12:45 A.M. She danced with Bernard and observed that he was driving his brown Chevrolet truck that night. A shotgun blast shattered the glass window of her bedroom about two hours later. Her father ran outside but saw no one.

The Marksville police department investigated. Shotgun shell wadding was found on the lawn and lead pellets inside the house. Charles Bernard was contacted by the police and admitted that he owned a gun, which was in his brown truck. Chief of Police Julius Guillot asked if he could look at the gun and Bernard handed it to him. The gun was a J. C. Higgins model 583.16 twelve gauge shotgun. Guillot noted that the gun smelled strongly of gun powder and appeared to have been recently fired. Bernard voluntarily stated that he had been with Jeffrey Walker until about 2:30 A.M. the morning of the crime. A continuing search for spent shells on the Mayeaux’s street resulted in the discovery of a green Remmington Peters twelve gauge # 1 buckshot spent shell 1,512 feet from the home.

The spent shell, the gun, the pellets and the wadding were all examined and tested by Patrick Lane of the Louisiana State Police Crime Lab, who made the following findings:

1. The # 1 buckshot spent shell was shot from the twelve gauge shotgun owned by Charles Bernard.
2. The wadding found on the Mayeaux lawn is the same type as that which would have been in the spent shell.
3. The buckshot pellets removed from the Mayeaux residence are within the weight range of # 1 buckshot and consistent with a reference book description of # 1 buckshot. In his expert opinion, the pellets are # 1 buckshot.

Bernard contends that the circumstantial evidence was insufficient to prove him a principal, LSA-R.S. 14:24, in the crime of aggravated criminal damage to property, LSA-R.S. 14:55. Bernard asserts that the state failed to show that he directly committed the act, aided and abetted in its commission, or directly or indirectly counseled or procured another to commit the crime.

In order to convict a defendant on the basis of circumstantial evidence, the evidence must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Williams, 310 So.2d 513 (La., 1975). The question, viewing the evidence in the light most favorable to the prosecution, is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence is that:

1. Bernard was driving his brown truck the morning of the crime and was with Jeffrey Walker.
2. That same day, Bernard’s shotgun was in his truck and smelled as though it had been recently fired.
3. The Remmington Peters twelve gauge # 1 buckshot spent shell found at the scene was fired from the twelve gauge shotgun owned by defendant and found in his truck.
4. The wadding found on the Mayeaux lawn was of the same type as the spent shell fired from Bernard’s gun.
5. The buckshot pellets removed from the Mayeaux residence were # 1 buckshot.

While there is no evidence of animosity between Joye Mayeaux, now Normand, and Charles Bernard, the physical evidence implicates him. His gun was used to commit the crime. He and his good friend Jeffrey Walker were together in Bernard’s truck the morning of the crime.

It is completely improbable that Walker committed the crime with Bernard’s gun without Bernard’s knowledge and consent. Bernard thus aided and abetted the crime by furnishing the weapon and vehicle. The jury reasonably inferred from the testimony that Charles Bernard was guilty beyond a reasonable doubt as a principal in the crime of aggravated criminal damage to property.

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

AFFIRMED.

DIXON, C.J., and DENNIS, J., dissent with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent, suggesting that the evidence does not exclude the reasonable (to me, at least) hypothesis that Walker used Bernard’s gun without Bernard’s knowledge or consent.

DENNIS, Justice,

dissenting.

I respectfully dissent because in my opinion the evidence does not exclude every reasonable hypothesis of innocence.

      . Jeffrey Paul Walker was found guilty as charged and sentenced to a suspended sentence of eighteen months in the Avoyelles Parish Jail. Walker was placed on probation for three years on condition that he pay a fine of $1,500 and $500 restitution to the victim whose property was damaged. Walker’s conviction was affirmed. State v. Walker, 394 So.2d 1181 (La., 1981). Rehearing denied.

      . LSA-R.S. 14:24 provides:
      “All persons concerned in the commission of a crime, whether present or absent and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

      . LSA-R.S. 14:55 provides:
      “Aggravated criminal damage to property is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.
      “Whoever commits the crime of aggravated criminal damage to property shall be fined not more than ten thousand dollars, imprisoned with or without hard labor for not less than one nor more than fifteen years, or both.”


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Jeffrey MORSTEIN.
    No. 81-KA-0202.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Judith Lombardino, Madeleine Slaughter, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    Charles C. Garretson, Bernard A. Horton, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Jeffrey R. Morstein was charged in the same information with separate counts of possession with intent to distribute lysergic acid diethylamide and possession with intent to distribute psilocybin in violation of La. R.S. 40:966. In another information, he was charged with possession of marijuana in violation of La. R.S. 40:967. Defendant filed a motion to suppress in each proceeding. After a hearing, the trial judge denied the motions. Thereafter, defendant withdrew his former pleas of not guilty and entered pleas of guilty as charged expressly reserving his right to appeal the court’s denial of his motions to suppress. Sentences were imposed by the court on defendant. On appeal, defendant relies on one assignment of error for reversal of his convictions and sentences.

Defendant contends the trial judge erred in denying his motion to suppress physical evidence on the ground that it was seized pursuant to an invalid search warrant. He argues that the affidavit supporting the issuance of the search warrant contained false and inaccurate statements without which the affidavit did not recite facts sufficient to establish probable cause. He further argues the affidavit contained an intentional misrepresentation, thereby requiring that the warrant itself be quashed.

The warrant was issued to search the premises located at 8015 Brevard, Apt. D, New Orleans, Louisiana, for the purpose of seizing certain listed illegal drugs. It was issued upon facts recited in the affidavit by Officers Richard Marino and M. David. The officers asserted in the affidavit that due to information received from two confidential informants and surveillance conducted by them, it was their belief that defendant was selling illegal drugs from his residence. The affidavit was signed and the search warrant was issued and executed on August 1, 1979.

The affidavit generally recited the following facts to establish probable cause for issuance of the search warrant:

(1) On July 24, 1979, Officers M. David and Richard Marino spoke with a reliable confidential informant whose information in the past has led to the arrest and conviction of narcotics violators. The informant advised the officers that a white male known as Jeff was selling cocaine and amphetamines in large quantities from his residence at 8015 Brevard, Apt. D. He stated that Jeff owns the Jeff Construction Company and drives a new red Dodge pickup truck. He further advised that the cocaine is sold in block form and that it is kept in potted plants in the apartment. The informant also stated that on July 23, 1979, he observed the sale of drugs inside the residence.
(2) Upon receiving this information, the officers proceeded to 8015 Brevard St. and observed a red Dodge pickup truck parked in the drive. While checking the location, the officers observed a white male with reddish hair and a beard entering the parked truck.
(3) The officers again contacted the informant who stated that the description was that of Jeff. He further advised the officers that Apt. D was upstairs and that the potted plants were visible from a window facing Brevard St.
(4) On July 25,1979, between the hours of 8:00 and 9:30 p. m., the officers conducted a surveillance of 8015 Brevard St. From their vantage point, the officers could not observe the front door of the residence but could observe the walkway leading to the door. At 8:45 p. m., the officers observed a white female with blond hair walk up the walkway and disappear in the direction of the front door of Apt. D. About ten minutes later, she reappeared and quickly walked away, looking around as if for someone. At 9:10 p. m., a white male walked up the walkway and disappeared in the direction of the front door of Apt. D. About five minutes later, he reappeared carrying a small package and exited the area very quickly.
(5) On July 30, 1979, the officers again spoke to the informant who stated that on July 29, 1979, he had again observed drugs at 8015 Brevard, Apt. D. He further advised that Jeff was holding the drugs for Kurt Schencker, the manager of the complex. He also stated that he had observed drugs at the residence of Kurt Schencker at 7921 Means St.
(6) On July 30, 1979,^ another informant related to the officers “almost the same account of the narcotic traffic at the location at 8015 Brevard Apt. # D and also at 7921 Means St.” The informant advised the officers of his participation in drug activity at both locations. The informant also “made a written statement and is willing to come forward when ever needed to testify about [his] knowledge and participation in the narcotic activity with Jeff at 8015 Breverd (sic) Apt. # D and also with Kurt at 7921 Means St.”
(7) On July 30, 1979, between 9:30 and 11:00 p. m., the officers conducted a surveillance of 7921 Means St. At 9:55 p. m., they observed a Pontiac Formula pull up in front of the residence. A white female exited the vehicle and entered the residence. She was the same female they observed at 8015 Brevard St. About ten minutes later, she exited the residence, reentered her car and left the area. At about 10:20 p. m., a small red car pulled up to the residence. A white male exited the car and entered the residence. About five minutes later, he exited the residence, reentered the car and left the area. About 10:40 p. m., a brown Olds pulled up to the residence and a white male exited the car. He entered the residence, stayed about ten minutes and then left the area in his car.

Based on the information received from the confidential informants and their observations, the affiants stated that it was their belief that “large scale narcotic traffic” was being conducted at 8015 Brevard, Apt. D, and requested that a search warrant be issued.

At the hearing on the motion to suppress, defendant testified on his own behalf. While admitting his residence at the location named in the warrant, ownership of a red Dodge pickup truck similar to the one described in the affidavit, ownership with his father of Jeffrey Construction Company and having been to the residence of the manager of his apartment complex, defendant denied being present at his apartment on July 23, 25, 29, 1979 (dates when the informant observed the drugs in his residence and a police surveillance was conducted). The defendant also offered the testimony of three witnesses who corroborated his testimony relative to his absence from his apartment on the dates in question.

Officer Richard Marino was also called as a witness for the defense. He testified that two informants had provided him with information. He stated that he believed his informants and that he had secured the search warrant based on the information related to him by them. At this point, defense counsel questioned the witness relative to the statement in the affidavit that a second informant had stated that he was willing to come forward whenever needed to testify. After informing the witness that the state had previously refused to produce the informant, defense counsel asked the officer if he had “any objection to this informant coming to court.” The state’s objection was sustained by the trial judge as were other objections to defense questions as to why the informant was not produced.

Constitutional provisions insure a person from unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U. S. Const, amend. IV; La. Const, art. 1, § 5. Conformably, our Code of Criminal Procedure in art. 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Mena, 399 So.2d 149 (La. 1981); State v. Wichers, 392 So.2d 419 (La. 1980); State v. Baker, 389 So.2d 1289 (La. 1980); State v. Richards, 357 So.2d 1128 (La. 1978). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Mena, supra; State v. Wichers, supra; State v. Baker, supra; State v. Richards, supra.

Defendant contends the trial judge erred in denying the motions to suppress the evidence. However, defendant does not contend that the affidavit supporting issuance of the search warrant failed to recite facts establishing probable cause. Rather, he seeks to impeach the veracity of the affidavit supporting the issuance of the search warrant.

It is well established that the credibility of the affiant’s informant or the correctness of the information furnished by the informant may not be attacked on a motion to suppress. State v. Babbitt, 363 So.2d 690 (La. 1978); State v. Tassin, 343 So.2d 681 (La. 1977) (on rehearing); State v. Giordano, 284 So.2d 880 (La. 1973); State v. Melson, 284 So.2d 873 (La. 1973). However, the credibility of the affiant himself may be traversed on a proper showing of “a genuine issue on the affiant’s veracity supported by convincing allegations of fact which, if proven, would establish the falsity of the affidavit.” State v. Cox, 330 So.2d 284, 292 (La. 1976) (on rehearing); State v. Giordano, supra. We stated in Melson:

. . . There are . . . factors which justify treating the veracity of the affiant and the veracity of his informer differently. There is sometimes a need to protect the identity of informers. But see Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Criminal activity in today’s society seems to demand speed and efficiency in police work, consistent with constitutional standards; the constitutional prohibition against the issuance of search warrants is relaxed when there is probable cause for a magistrate to act, a finding reached with much less reliable evidence than real and actual cause.

See also McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

In State v. Rey, 351 So.2d 489 (La. 1977), we first observed that minor inaccuracies in the affidavit may not affect the validity of the search warrant. We further stated that, when faced with an affidavit containing inaccurate statements, the court will excise the inaccurate statements and then examine the residue to determine if it supports a finding of probable cause. If, however, the misrepresentations were intentionally made, a warrant based on such an affidavit must be quashed.

In the instant case, defendant first contends that the affidavit contains false statements regarding the presence of the confidential informant in his apartment on July 23, 1979 and July 29, 1979 without which the affidavit would not recite facts sufficient to establish probable cause. These alleged false statements were not that of the affiant’s and thus do not go to the integrity of the affidavit. Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); State v. Babbitt, supra. Defendant has the right only to traverse allegations of the affiant upon a proper showing; he may not controvert those of the confidential informant. McCray v. Illinois, supra; State v. Babbitt, supra; State v. Melson, supra.

Defendant also contends that the affidavit contains inaccurate statements of fact by the affiants relative to their observations of his apartment on July 25, 1979 (date of the alleged police surveillance). It is not contended that these inaccuracies were intentionally made. There was no showing at the suppression hearing that any of these representations were inaccurate. Moreover, any inaccuracies in their observations were of no moment as ample probable cause existed for the issuance of the warrant based upon information supplied by the informants.

Finally, defendant contends the affidavit contains an intentional misrepresentation by the affiants as to the willingness of the second informant “to come forward when ever needed to testify.” Defendant made no showing at the suppression hearing that this allegation was false, much less intentionally made.

In sum, defendant’s contentions are without merit. Defendant has failed to impeach the veracity of the affidavit supporting the issuance of the search warrant. Hence, the trial judge correctly denied defendant’s motions to suppress.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.

DIXON, C. J., concurs.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Lemmon.

      . State v. Crosby, 338 So.2d 584 (La. 1976).

      . In connection with his convictions for possession with intent to distribute lysergic acid diethylamide and psilocybin, defendant was sentenced on each conviction to serve three years at hard labor and to pay a fine of $1,000 or in default thereof to serve 30 days in the parish prison. He was further ordered to pay court cost of $84 or in default thereof to serve 30 additional days in the parish prison. The court suspended execution of the imprisonment portion of the sentences and placed defendant on supervised probation for a period of five years. As one of the conditions of probation, defendant was ordered to pay $2,000 to the court in restitution to defray the cost of operation of that court. The court expressly directed that the sentences were to run concurrently with each other. In connection with his conviction for possession of marijuana, defendant was sentenced to serve three months in parish prison; however, the court suspended execution of the sentence imposed and placed defendant on unsupervised probation for a period of six months. The court expressly directed that the sentence was to run concurrently with the sentences imposed on defendant in the other case.

      . In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held that where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the fourth amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search warrant excluded to the same extent as if probable cause was lacking on the face of the affidavit. Thus, it is apparent that the Louisiana law in this area fully accommodates the constitutional safeguard set forth in Franks. It was also noted in Franks that “[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.”


author:
WATSON, Justice.
     LEMMON, Justice, GUIDRY, Justice ad hoc,

text:
    STATE of Louisiana v. Johnny TELSEE, Jr.
    No. 81-KA-0238.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Patrick Quinlan, Howat A. Peters, Jr., Asst. Attys. Gen., for plaintiff-appellee.
    N. Graves Thoms, Shreveport, for defendant-appellant.
   WATSON, Justice.

Defendant, Johnny Telsee, Jr., pled guilty to forcible rape. LSA-R.S. 14:42.1. He received a sentence of forty years hard labor, “at least half” without probation, parole or suspension of sentence. The sentence was vacated and the case remanded for a presentence hearing and resentenc-ing. State v. Telsee, 388 So.2d 747 (La.,1980). The trial court resentenced defendant to forty years. Defendant assigns as error the failure of the trial court to particularize the reasons for the sentence and excessiveness of the term.

The twenty-six year old victim was driving home from work when the seventeen year old defendant drove up behind her flicking his lights from dim to bright. She pulled onto the shoulder of the road. Tel-see approached her vehicle, stating that he was a “private cop”. As she opened her door to examine his identification, he jumped in the car. Her resistance was overcome by force and the threat of death. She received numerous bruises and scratches on her neck and face and a cut on her leg. She was driven to a remote area of Caddo Parish, raped, and released. Defendant said he would kill her if she told anyone about the rape. Telsee took all of the victim’s money and a gold watch. According to his later testimony, he had smoked a marijuana cigarette laced with PCP, or “Angel Dust”, shortly before the rape. He had been using PCP for approximately six weeks.

Telsee was originally charged with aggravated rape.- He pled not guilty. After a sanity commission’s report, the trial court ruled that defendant lacked the mental capacity to assist in his defense and ordered him committed for examination and treatment. After a report by a second sanity commission composed of the same doctors, defendant was found capable of standing trial. Telsee then withdrew his former plea of not guilty and pled guilty to forcible rape.

LSA-C.Cr.P. art. 894.1 requires the trial judge to articulate the reasons for imposing sentence. The considerations taken into account and the factual basis for the sentence must be stated. LSA-C.Cr.P. art. 894.1 subsection C; State v. Meredith, 400 So.2d 580 (La.,1981); State v. Brown, 395 So.2d 1301 (La.,1981). While the trial court need not articulate every aggravating and mitigating circumstance, the guidelines of LSA-C.Cr.P. art. 894.1 must be adequately considered and the sentence related to the particular defendant. State v. Jacobs, 383 So.2d 342 (La.,1980); State v. Vaughan, 377 So.2d 87 (La.,1979).

The criteria of art. 894.1 may justify a harsh sentence or a lesser sentence.

“[Tjhese criteria provide guidance as to whether the sentence should be closer to the maximum rather than to the minimum statutory range of sentence, if the sentencing judge does determine that imprisonment rather than suspension of sentence or probation is the appropriate disposition.” State v. Sepulvado, 367 So.2d 762 at 767, 768 (La.,1979).

In oral reasons for sentencing, the trial court stated: “No matter what sentence you receive, it will not be equal to the loss [the victim] has already sustained. There is no way to repair it.” (Tr. 176) Other than this implied reference to that portion of the statute [subsection A(3)] which instructs the judge to impose a sentence of imprisonment if a lesser sentence will deprecate the seriousness of the crime, no other mention is made of the factors of art. 894.1, subsection A.

Subsection B of the statute requires the sentencing court to consider any mitigating factors. State v. Franks, 373 So.2d 1307 (La.,1979). It appears that the trial court here ignored certain mitigating factors which should have been accorded some weight. The trial court’s opinion only briefly and indirectly alludes to these mitigating factors, stating that:

“We most emphatically do not agree, however, that because a defendant had a serious drug problem at the time he committed the rape, or that he was only seventeen years of age is sufficient justification to reduce or minimize the sentence.” (Tr. 179)

Thus, the mitigating factors were either discounted or ignored. They should have been considered in determining the period of imprisonment.

At the presentencing hearing, there was evidence of several statutory mitigating factors. The trial court should have articulated its weighing of the following considerations:

a. Whether the defendant seriously harmed the victim. LSA-C.Cr.P. art. 894.1 B(l) and (2).
b. Whether there were substantial grounds tending to excuse the defendant’s conduct, though failing to establish a defense. LSA-C.Cr.P. art. 894.1 B.
c. Whether the defendant led a law abiding life for a substantial period of time before commission of the crime. LSA-C.Cr.P. art. 894.1 B(7).
d. Whether the character and attitudes of the defendant indicate that he is unlikely to commit another crime. LSA-C. Cr.P. art. 894.1 B(9).

The legislature enacted LSA-C.Cr.P. art. 894.1 to insure that each crime and each criminal are considered individually before sentence is imposed. The guidelines of the statute assist a trial court in adapting a sentence to the offender and the offense. State v. Douglas, 389 So.2d 1263 (La.,1980); State v. Smith, 369 So.2d 136 (La.,1979); and State v. Jackson, 360 So.2d 842 (La.,1978). The trial court must articulate its reasons for imposing a particular sentence to allow this court an adequate review.

The trial court may have been mindful of the factors mentioned in LSA-C.Cr.P. art. 894.1, but this does not appear on the record. Since there was inadequate compliance with the statute by the trial court, the case must be remanded again for resentencing. State v. Cox, 369 So.2d 118 (La.,1979). The question of excessiveness of the sentence is pretermitted.

Defendant’s sentence is vacated and the case remanded to the trial court for resen-tencing.

SENTENCE REVERSED; CASE REMANDED.

LEMMON, J., dissents and assigns reasons.

GUIDRY, J. ad hoc, dissents and assigns reasons.

KLEES, J. ad hoc, dissents for the reasons assigned by GUIDRY, J. ad hoc.

LEMMON, Justice,

dissenting.

A three-hour sentencing hearing was held on remand, and the record is now complete. If the record supports the sentence imposed, a remand for compliance with C.Cr.P. Art. 894.1 is unnecessary. State v. Day, 391 So.2d 1147 (La.1980). Rather than remand, we should decide the issue squarely before us of whether the trial judge abused his sentencing discretion based on that record and on the reasons the judge stated in pronouncing sentence.

On the record evidence, viewed in the light most favorable to the prosecution, this criminal used deception and force to abduct and rape a totally innocent person driving on the streets. There was absolutely no provocation. He choked and bruised her, threatening to kill her at least twice. He also robbed her in the course of the incident.

Based on his admitted conduct defendant could reasonably have been charged with aggravated rape, kidnapping and robbery, but he was allowed to plead guilty to forcible rape. Although he received the maximum sentence for that offense, he could have fared much worse.

There were several mitigating circumstances. The 17-year old, voluntarily high on drugs, had only two prior offenses as a juvenile, neither of which involved violence. Although the present crime involved considerable violence, there were no dangerous weapons used. Further, defendant had a good work record for his age and a satisfactory school record.

All of these mitigating circumstances were before the trial judge, who rejected them in view of the seriousness of the totality of criminal conduct involved in this incident. Most significantly, the trial judge did not consider any inappropriate factors. When all pertinent factors are considered, I cannot say that the trial judge abused the vast discretion accorded him in performing his sentencing function or that the penalty is grossly disproportionate to the criminal conduct. I would affirm the sentence.

GUIDRY, Justice ad hoc,

dissenting.

I dissent from the majority’s decision to again remand this case to the trial court for resentencing.

Following initial remand of this matter, i. e., State v. Telsee, 388 So.2d 747 (La.1980), the trial court held a presentence hearing and imposed the same sentence as initially imposed. The evidence adduced at this pre-sentence hearing is set forth in the record. This court should review the record, without further remand, and determine the defendant’s contention of sentence excessiveness on its merits. This was the procedure followed in State v. Sepulvado, 367 So.2d 762 (La.1979). Accordingly, I respectfully dissent.

       Judges Edmond L. Guidry and G. William Swift of the Court of Appeal, Third Circuit, and Judge Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson and Lemmon.

      . The maximum sentence for the crime of forcible rape is forty years at hard labor without benefit of probation, parole or suspension of sentence. LSA-R.S. 14:42.1.

      . Defendant had complained that he was assured of a lesser sentence if he did not request a presentence hearing.

      . LSA-C.Cr.P. art. 894.1 provides as follows:
      “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      “(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      “(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most.effectively by his commitment to an institution; or
      “(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      “B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation;
      “(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      “(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      “(3) The defendant acted under strong provocation;
      “(4) There was substantial grounds tending to excuse or justify the defendant’s criminal ponduct, though failing to establish a defense;
      “(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      “(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      “(7) The defendant has not history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      “(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      “(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      “(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      “(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      “C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

      . For example, the apparently severe sentence in State v. Williams, 397 So.2d 1287 (La.1981) was set aside because the trial judge accorded considerable weight to a juvenile adjudication (presided over by the same judge) which was reversed for insufficiency of evidence. And in State v. Forshee, 395 So.2d 742 (La.1981) the trial judge in sentencing announced conclusions which had no factual support, and we set aside the disproportionate sentence and remanded for reconsideration of the conclusions and for resentencing.


author: COLE, Justice Ad Hoc.

text:
    STATE of Louisiana v. Kenneth J. PRADOS.
    Nos. 81-KA-0293, 81-KA-0294.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, William Hall, Asst. Dist. Attys., for plaintiff-appellee.
    Ferdinand Kleppner of Grisbaum & Kleppner, Metairie, for defendant-appellant.
   COLE, Justice Ad Hoc.

Defendant Kenneth Prados was charged by bill of information filed February 20, 1980 with two counts of armed robbery in violation of La.R.S. 14:64. On February 28, 1980 another bill of information was filed which charged the defendant with a single count of armed robbery. Initially, defendant entered pleas of not guilty on all three charges. However, after a plea bargain was reached with the state, he withdrew his former plea and pled guilty to two of the charges. On September 23, 1980, after reviewing the pre-sentence investigation report, the trial court sentenced the defendant to serve 10 years at hard labor on each count, the sentences to be served concurrently.

Defendant now appeals his sentences to this Court urging the single assignment of error set forth below, i. e., the trial court erred in imposing an excessive sentence.

The following facts were adduced from the Pre-Sentence Investigation Report, Transcript of Plea, and Transcript of Sentencing. On January 27, 1980, Kenneth Prados approached the desk of the Landmark Hotel with a handgun, pointed it at Ronald Crumb, and demanded all the money. The victim was told to lie on the floor and the defendant fled in an unknown direction. Approximately an hour later, the defendant entered the Holiday Inn, pointed a handgun at Mr. Burges, and demanded all the money from the register. The defendant placed the money in his pocket and exited the hotel. The victims identified the defendant through a photographic line-up as the perpetrator of the robberies.

In an interview with the probation and parole agent, the defendant admitted the commission of the crimes. He explained he had been given approximately $1,750.00 by several individuals and instructed to obtain five pounds of marijuana. Defendant stated he later told the drug dealers he was robbed of the money and they gave him only a few days to get it back. He stated he had committed the robberies because he feared for his life. The defendant admitted he smoked marijuana occasionally but does not indulge in heavy drugs. He also reiterated his claim the gun used in the robberies was not loaded.

The defense urges the two concurrent sentences of 10 years at hard labor were excessive in view of the prior record of the defendant, his youth, and the circumstances of the crime. It is argued the defendant should have been given two concurrent sentences of five years because of his youth, his unmarred record, and because the crimes had been committed with an unloaded gun while defendant was under severe pressure because of his wife’s drug addiction. It is also argued at the time the defendant entered the pleas of guilty, the trial judge indicated he would impose a sentence of not more than 10 years, and would reduce it if there were extenuating circumstances that came to the Court’s attention. The statute on armed robbery provides for imprisonment at hard labor for not less than five and for not more than ninety-nine years, without the benefit of parole, probation, or suspension of sentence. La.R.S. 14:64.

La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La. Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Day, 391 So.2d 1147 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, supra; State v. Sepulvado, supra. We have held a sentence is excessive if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Guiden, 399 So.2d 194, (La.1981), No. 80-KA-2589; State v. Bonanno, 384 So.2d 355 (La.1980).

At the sentencing hearing, the trial judge stated for the record he was imposing concurrent sentences of 10 years at hard labor because of the seriousness of the offenses, and because of the danger to the defendant and the victim during the perpetration of the crimes. He also noted the numerous contacts and letters he had received from the defendant’s family, employer, and friends in support of defendant’s good character. The trial judge further stated:

“The only thing I know that you simply took a gun and go into motels and rob the motel. I understand the type of people that you have been dealing with. I can appreciate the fact drug dealers have simply walked in to your home and took every thing you thought might have belonged to you or your wife, where you are dealing with some pretty hard people. I can see clearly what might become of that. I understand most of the drug situation was involved with your wife primarily but that does not change the fact one of the most serious crimes in Louisiana and I feel that any sentence lesser than the sentence I am going to give you would deprecate the seriousness of the crime in your mind. I am going to sentence you to ten years on each count to be served concurrently and with good time you should be out in about sixty months.”

The record reveals the defendant was twenty-three years old at the time of the commission of the offenses and was charged as a first offender. He is married but has no children. The sentence imposed by the trial court falls well within the lower range of sentences which might have been imposed under the statute.

In State v. Cox, 369 So.2d 118 (La.1979), we stated if the factual basis and individual considerations upon which the sentence is based appear in the record, review will focus upon whether the trial court’s large discretion has been abused. The trial judge, in compliance with Art. 894.1, articulated reasons for the sentence imposed, taking into account both the aggravating and mitigating circumstances in the case. Cf., State v. Franks, 373 So.2d 1307 (La.1978).

On this record under Art. 894.1, there is no abuse of the trial court’s discretion. Despite defendant’s youth, his first offender status, and the letters received from his family and friends, he has pleaded guilty to the commission of two very serious crimes. Although defense counsel argues defendant was under severe pressure because of his wife’s drug addiction, the defendant has admitted he was under pressure from drug dealers for the return of money they had given him to purchase marijuana.

The trial court had agreed to a maximum sentence of 10 years as a part of the plea bargain between the state and the defendant. Although the defense does not contend a breach of the bargain has occurred, it is argued the court should have imposed a lesser sentence based on the extenuating circumstances listed above. The trial judge, however, found the mitigating circumstances were not enough to reduce the sentences below 10 years. We agree with that conclusion, finding it to be fully supported by the record. It certainly cannot be said the trial judge abused his great discretion, considering the seriousness of the crimes involved, and the circumstances surrounding their commission.

Finding no merit in defendant’s contention the trial court erred in imposing an excessive sentence, we affirm his convictions and sentences.

AFFIRMED.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc., joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . As a part of a plea bargain, the State dismissed one of the counts in the February 20, 1980 indictment. Apparently as part of that bargain, the trial court committed itself to a sentence of no more than 10 years’ imprisonment at hard labor, pending the outcome of the presentence investigation. See text, infra.

      . In the Pre-sentence Investigation Report defendant admitted he had committed the robberies to pay off drug dealers from whom he had earlier received money to buy marijuana. In his reasons for sentence the trial judge refers to the drug involvement of both defendant and his wife.


author:
PER CURIAM.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Mearion R. BATEMAN.
    No. 81-KA-0347.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Steve Wimberly, Kenneth Sanders, Asst. Dist. At-tys., for plaintiff-appellee.
    Robert T. Garrity, Joseph Montgomery, Metairie, of Indigent Defender Bd., for defendant-appellant.
   PER CURIAM.

Defendant plead guilty to aggravated crime against nature in violation of LSA-R.S. 14:89.1 and was sentenced to nine years at hard labor. He has appealed, urging two errors.

The first assignment is that the trial court failed to properly inform defendant of his rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). At the time of the guilty plea, the trial court informed defendant that he was waiving his right to trial by jury, the right to confront his accusers and the privilege against self-incrimination. This assignment is without merit.

The second contention is that the sentence is excessive. The sentence resulted from a plea bargain which was agreed to by defendant, his counsel, the State, and the trial court. Defendant cannot now complain that the sentence is excessive. State v. Curry, 400 So.2d 614 (La.,1981). This assignment is without merit.

Accordingly, the conviction and sentence of defendant are affirmed.

AFFIRMED.

DENNIS, J., dissents with reason.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The guarantee against cruel, excessive, or unusual punishment is a constitutional safeguard. La. Const. Art. I, § 20. The mere fact that an accused enters a plea bargain does not necessarily establish that his waiver of this constitutional right was knowing or voluntary. Accordingly, in my opinion, a plea bargain cannot operate as an absolute bar to the challenge of a sentence as excessive. Nor does State v. Curry, 400 So.2d 614 (La. 1981) stand for this proposition. In that case, this court, with only four of its permanent members sitting, expressed the opinion that under the circumstances therein, there was no necessity of listing enumerated reasons and that the defendant cannot complain of excessive length. I respectfully disagree with both the dicta of Curry and the present majority’s misinterpretation of it. Although I agree that the failure of the trial judge to comply with his duty under La. C.Cr.P. art. 894.1 does not require that the sentence be set aside if the record otherwise clearly illumines his sentencing choice and demonstrates that the sentence is not arbitrary or excessive, State v. Martin, 400 So.2d 1063, on rehearing, 400 So.2d 1074 (La. 1981), our review for constitutional error cannot be precluded by a defendant’s agreement to plead guilty or to receive a particular sentence.

       Judges Edmond L. Guidry and G. William Swift of the Court of Appeal, Third Circuit, and Judge Robert J. Klees of the Court of Appeal, Foürth Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Dennis, Watson and Lem-mon.


author:
LEMMON, Justice.
     DIXON, Chief Justice

text:
    STATE of Louisiana v. Samuel J. BICKHAM.
    No. 81-KA-0386.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Peter J. Garcia, Sp. Pros., John J. Williams, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Tom W. Thornhill, Slidell, for defendant-appellant.
   LEMMON, Justice.

In this appeal from a conviction of armed robbery defendant principally questions the trial court’s rulings on motions to suppress evidence and identification and on a motion to appoint a lunacy commission. We affirm.

The robbery of a convenience store occurred at approximately 2:00 a. m. Three black males entered the store, where the night clerk was working alone. One robber, subsequently identified as defendant, ordered a pack of cigarettes, but then grabbed the clerk by the collar and put a knife to her throat. One of the other robbers then jumped over the counter and got money out of the register, while the third took bottles of liquor from the shelf. They also took a radio and the clerk’s purse and rings.

After the robbers left the store, the clerk called the police, stating that one of the robbers had a beard, one wore a brown jacket, and the third wore a multicolored shirt. Officer Williams, receiving the report of the robbery by radio, proceeded immediately toward the store. In checking the vicinity of the robbery, he noticed a black male with a beard driving toward the interstate highway. Since it was 2:00 a. m. and there were few vehicles on the road, the officer decided to follow the bearded black man. Upon turning onto the interstate highway, the officer turned on his blue lights and search lights, whereupon the heads of two more persons came into view.

The officer then turned on his siren, but the suspects increased their speed, with Williams in pursuit. Williams radioed ahead to another officer, who set up a roadblock. The suspects attempted to run the blockade, but after several shots were fired, the car swerved and smashed into the police car. The officers apprehended the suspects, recovering the stolen merchandise from the car.

The officers then returned the suspects to the store, where the clerk identified defendant as the person who had held a knife at her throat. He was charged, tried and convicted.

Defendant first contends that the trial court erred in denying his motion to suppress the evidence seized as the result of an allegedly illegal search and seizure. Defendant argues that the officers were unable to point to specific and articulable facts which would have warranted the initial stop of the defendant and his companions, so that any evidence seized as a result of the stop should be suppressed.

Law enforcement officers may make an investigatory stop when it is reasonable to believe that a suspect has engaged in criminal activity. G.Cr.P. Art. 215.1; State v. Robinson, 342 So.2d 183 (La.1977); see also, Terry v, Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). Reasonable cause for an investigatory stop is something less than probable cause. Nevertheless, the officer must have articu-lable knowledge of particular facts, which in conjunction with reasonable inferences drawn therefrom is sufficient to provide reasonable grounds to suspect the party involved of past, present or imminent criminal activity. State v. Wilson, 366 So.2d 1328 (La.1978). The existence of reasonable cause must be determined under the facts of each case by ascertaining whether the officer had sufficient knowledge of circumstances which would justify an infringement upon the individual’s right to be free of governmental interference. State v. Dixon, 337 So.2d 1165 (La.1976).

Knowledge that an offense has been committed is often a critical element in establishing reasonable cause. When the officer making the stop knows a crime has been committed, he has only to determine whether the additional trustworthy information justifies a man of ordinary caution to suspect the detained person of the offense. See State v. Collins, 378 So.2d 928 (La.1979).

Williams knew that an armed robbery had been committed by a bearded black man and observed a black male with a beard driving away from the scene immediately after the crime at 2:00 a. m., when there were few vehicles on the road. These circumstances justify the initial attempt to detain for an investigatory stop. Defendant’s attempt to escape after the officer put on his lights was consistent with the conduct of a person who had just committed a crime, and the appearance of two more persons in the car further supported the officer’s suspicion that this car was connected with the robbery. The fact that the officer had no description of the car itself and only vague descriptions of the suspects and their clothing does not defeat the legality of the stop under the overall circumstances of this case. The motion was properly denied.

Defendant additionally contends that the evidence must be suppressed because the officers were beyond their territorial jurisdiction at the time of the initial stop. Although the officer initiated his pursuit of defendant’s vehicle within the city limits (his territorial jurisdiction), he did not actually initiate the stop until he was outside his territorial jurisdiction. The actual location of the stop (or attempt to stop) is not of controlling significance in this case for several reasons.

First, the codal provisions which authorize lawful arrest both with and without a warrant empower officers in close pursuit to leave their territorial jurisdiction for the purpose of effecting an arrest. C.Cr.P. Arts. 204 and 213. Although C.Cr.P. Art. 215.1 does not contain explicit language relating to the officer’s right to make a “close pursuit” stop, common sense would certainly imply that such a procedure is appropriate within the “spirit” of the statute which authorizes a temporary detention. See C.Cr.P. Art. 3. Further, although the Louisiana “stop and frisk” statute authorizes peace officers to effectuate stops under defined circumstances, the statute does not expressly limit the peace officer to his territorial jurisdiction. While it is arguably reasonable to construe the statute as authorizing an investigatory stop only in the territorial jurisdiction in which the officer is authorized to make an arrest, it is equally reasonable to construe the statute as authorizing the officer in close pursuit to leave the jurisdiction to make an investigatory stop, when, as here, the officer initiated his pursuit for the purpose of stopping while within his jurisdiction.

The officer in this case properly “stopped” defendant. After initiating his pursuit at a point within his territorial jurisdiction, the officer was faced with exigent circumstances necessitating his departure. It would be absurd to require an officer under these circumstances to abandon his surveillance of an armed robbery suspect who is in the process of rapidly departing in an automobile in the early morning hours.

The ensuing arrest occurred at a point outside the officer’s territorial jurisdiction, but only after he left his jurisdiction because of exigent circumstances. Moreover, defendant was arrested for a felony, and C.Cr.P. Arts. 213(3) and 214 authorize private citizens and peace officers alike to arrest for felonies not committed in their presence. Thus, even if the police officer was acting only as a private citizen when he effectuated the arrest, it was valid under Louisiana statutory law. State v. Jones, 263 La. 164, 267 So.2d 559 (1972).

More significantly, we reject defendant’s contention that the remedy necessary for enforcement of the territorial jurisdiction rule is exclusion of reliable evidence produced as a result of arrests or stops initiated in good faith by an officer who began to act within his territorial limits.

In this regard State v. Patton, 374 So.2d 1211 (La.1979) and State v. Longlois, 374 So.2d 1208 (La.1979), cited by defendant, are clearly distinguishable from the case presented here. Both cases involved law enforcement agents with duties which were explicitly limited by statutes. And in both cases the offenses were misdemeanors. In sustaining motions to suppress evidence secured as a result of the officer’s conduct, the court in Patton and Longlois emphasized the explicit legislative limitations on the action of the particular law enforcement agent.

While the court in Longlois held that the wildlife agent’s unauthorized arrest for possession of marijuana constituted an “unreasonable seizure” prohibited by La.Const. Art. I, § 5 (1974), we decline to extend this rationale to the circumstances presented here. Even if it is assumed that the officer in the present case acted outside of his territorial jurisdiction, the officer’s conduct amounts to nothing more than a good faith statutory violation of a rule designed, not for the purpose of preventing unreasonable invasions of privacy, but for the delineation of the territorial zones of responsibility of various law enforcement agencies. Exclusion of reliable evidence obtained in an otherwise legal and good faith seizure would not serve the administration of justice or the purpose of the legislative directive of territorial responsibility.

Moreover, this court in the Patton and Longlois decisions did not intend to suggest that all violations of statutory restrictions on arrest will be deemed constitutional violations under La.Const. Art. I, § 5 (1974). Nor did we intend to extend the exclusionary rule to include non-constitutional violations of statutes which are not designed to protect the privacy interests of citizens. When the statutory limitation (or duty) alleged to have been violated by the officer is not designed to implement fundamental rights of privacy, this court should not employ the exclusionary rule as a device to enforce such legislative directives. This is, of course, particularly true when the facts strongly support a finding that the officer acted reasonably and in good faith in arguably exceeding the bounds of his authority.

In this case the officer’s actions in stopping and arresting defendant did not constitute an unreasonable seizure under either the Fourth Amendment or under La. Const. Art. I, § 5 (1974). The defendant’s motion to suppress was properly denied.

Defendant next contends that the trial court erred in denying the motion to suppress the clerk’s out-of-court identification of defendant because (1) defendant was not represented by counsel and (2) the identification procedure was impermissibly suggestive.

Within 15 minutes after the robbery three suspects were brought back to the store, where the clerk viewed them through a two-way mirror. She identified all of them by their clothing and identified defendant, by his beard and by the shirt and pants he was wearing, as the one who held a knife to her throat.

Defendant first argues that his constitutional right to counsel was violated because he did not have assistance of counsel at the time of the identification. Absent special circumstances the presence of counsel is not required at pre-indictment lineups. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Since due process safeguards usually provide adequate protection for a defendant before a formal charge, the right to counsel was explicitly limited in Kirby to a “criminal prosecution”, which commences only with the initiation of adversary judicial proceedings by formal charge, preliminary hearing, indictment information or arraignment.

In the present case defendant did not have an attorney at the time of the identification, and he did not request the presence of counsel. The identification was made immediately after the robbery. Moreover, defendant does not assert any special circumstances which would justify an exception to the general rule that the presence of counsel is not required at a pre-indictment line-up.

Defendant also argues that the direct confrontation between the suspect and the victim was impermissibly suggestive. In reviewing an identification procedure, the court must determine whether the procedure was so unnecessarily suggestive and so conducive to an irreparable mistaken identification that the defendant was denied due process of law. Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). A trial judge’s determination on the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion.

One-on-one confrontations between a suspect and a victim, while not favored by the law, are permissible when justified by the overall circumstances. State v. Dunbar, 356 So.2d 956 (La.1978). Such identification procedures are generally permitted when the accused is apprehended within a short time after the offense and is returned to the scene of the crime for on-the-spot identification. A prompt in-the-field identification, under appropriate circumstances, promotes accuracy, as well as expediting the release of innocent suspects.

In the present case the one-on-one in-field identification was closely associated in time with the commission of the crime, since the suspect was immediately apprehended and returned to the scene of the crime. Although she did not recall some of the particular details of his appearance, because she had been severely frightened, she positively identified him by his beard and clothes.

We conclude that this case does not present a substantial risk of misidentification. The motion was properly denied.

Defendant’s final contention is that the trial court erred in denying his motion for the appointment of a lunacy commission to examine him and ascertain his mental capacity to proceed.

On the day of trial, just prior to the voir dire examination, defense counsel made an oral motion for the defendant to be examined by a lunacy commission in accordance with C.Cr.P. Art. 642. However, counsel gave no reason to establish the need for a lunacy commission. The judge denied the motion. Counsel now argues that the judge abused his discretion in refusing to appoint a lunacy commission or to examine defendant to determine the necessity of a lunacy commission.

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant lacks the capacity to understand the proceedings against him or to assist in his defense. C.Cr.P. Art. 641. The defendant bears the burden of establishing that he lacks the capacity to understand the object, nature and consequences of the proceedings against him and that he is unable, in a rational as well as factual manner, to consult with counsel in a meaningful way. State v. Hamilton, 373 So.2d 179 (La.1979).

The issue of present insanity or mental incapacity to proceed may be raised at any stage of the proceedings. State v. Henson, 351 So.2d 1169 (La.1977). The court must order a mental examination when there are reasonable grounds to doubt defendant’s mental capacity to proceed. C.Cr.P. Art. 642. The trial judge’s determination is entitled to great weight on appeal and will not be set aside absent a clear abuse of discretion. State v. Weber, 364 So.2d 952 (La.1978).

Defense counsel failed to point out to the court at trial any basis for doubting defendant’s mental capacity to proceed. In brief on appeal counsel simply states that “prior to beginning proceedings in this case, the activity of the defendant led [him] to believe that the defendant best be examined by a lunacy commission”. Although counsel also notes that defendant had been treated by a psychologist at ages 9, 10, 15 and 17, he gives no further reasons to bolster his previously unsupported oral motion.

Moreover, a review of defendant’s testimony at trial indicated that defendant was capable of testifying without any problem and that he appeared to fully understand his rights and the nature of the proceedings. Defendant also stated that while he had seen a psychologist in the past, he has no present psychological problems.

As the defense failed to introduce any evidence or to allege any facts which even suggested that the accused was unable to understand the nature of the proceedings against him, the defendant’s presumption of sanity remained unrebutted, and the trial court had no reasonable ground to question his capacity to stand trial. C.Cr.P. Art. 642; R.S. 15:432; State v. Franks, 391 So.2d 1133 (La.1980). Under these circumstances the trial court did not abuse its discretion in denying defendant’s unsubstantiated request for appointment of a lunacy commission.

The conviction and sentence are affirmed.

DIXON, J., concurs with reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur. However, it seems to me to be especially unfortunate for this court to indicate, when it is not an issue in the case, (a simple, straightforward armed robbery, bound to be affirmed) that the “good faith” of an officer is relevant to determine the legality of his actions. It is what the officer does or does not do, and not what he knows or how he feels about it, that is relevant. I dread to think of the day that motions to suppress in criminal trials will be further prolonged by litigating whether some hardworking policeman, trying to do his job, was in “good faith” or “bad faith” when he arrested the defendant.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the First Circuit Court of Appeal participated in this decision as justices ad hoc, along with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . In Patton a district attorney’s investigator stopped a motorist for a traffic infraction. In Longlois a wildlife agent arrested defendant for possession of marijuana.

      . Wildlife agents, as Justice Blanche’s opinion points out, are limited in arrest powers to violations of wildlife regulations and to certain enumerated other offenses — not including possession of marijuana. See R.S. 56:108(H). District attorney’s investigators are expressly denied arrest powers except insofar as they may arrest as private citizens. See R.S. 16:13.1.

      . Counsel had been appointed to represent defendant almost five months before trial. Neither this counsel nor either of defendant’s two previous attorneys suggested any incapacity to proceed prior to the day of trial, and no explanation was offered for not raising the issue earlier.