author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Harold G. ROUSSEL, Jr.
    No. 65342.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
    Rehearing Denied April 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David J. Cortes, Asst. Dist. Atty., for plaintiff-appellee.
    Bernard S. Dolbear, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

On February 16, 1978, defendant Harold G. Roussel, Jr. was indicted by the Orleans Parish Grand Jury for the aggravated rape of a twenty-three year old New Orleans woman (who will be referred to hereafter as Ms. Jones). Defendant waived his right to a jury trial and was tried before a judge who found him guilty of forcible rape and sentenced him to twelve years imprisonment at hard labor. On appeal to this Court defendant argues three assignments of error.

At approximately 12:15 p. m. on the night of January 21, 1978, Ms. Jones offered a ride to a hitchhiker on St. Charles Avenue in New Orleans. Shortly after getting in the car the rider asked her if she wanted to smoke some marijuana. When she stated that she did, the rider told her to drive to the 1600 block of Carondelet Street. The rider got out of the car and disappeared down an alley separating 1628 and 1630 Carondelet Street. The man returned shortly thereafter with some marijuana.

Ms. Jones then started driving back towards her home in uptown New Orleans. When she reached Coliseum Square she agreed to pull over at the man’s request so that he could roll a marijuana cigarette. While they were smoking the cigarette the rider began making advances. When Ms. Jones resisted, the man grabbed her by the throat and forced her over into the passenger seat. The rider took her purse, locked both doors, and began driving in an uptown direction. The man drove around with Ms. Jones in the car for an undetermined amount of time, possibly as long as an hour and a half. At periodic intervals the hitchhiker threatened to kill Ms. Jones, stating at one point that he would “blow her brains out” if she refused to cooperate.

Finally the hitchhiker drove back to a warehouse area along the river near South Front and Marengo Streets, stopped the car, told the victim that he had a gun and threatened to shoot her. The man then proceeded to rape her. When he finished the hitchhiker cleaned himself with Kleenex and ordered Ms. Jones to do the same and to throw the tissue out of the window when she was finished.

The rapist started the car and while proceeding back towards Carondelet Street looked at Ms. Jones’ identification in her wallet. He stopped the car somewhere on Carondelet Street and warned Ms. Jones that he knew where she lived and that if she said anything he would “Close your mouth for good.” Before leaving the car he wiped off the door handles, the stick shift, and the steering wheel with tissue. He left the car, taking her gloves and money with him.

Ms. Jones drove home, took a bath, and slept until mid-afternoon. When she awoke she drove to a restaurant and bar looking for an off-duty police officer to talk to. The proprietor introduced her to a plainclothes policeman who advised her to call the police station.

She did so and after the police arrived the victim gave a description of the rapist to a detective, informing him that the rapist had a tattoo on his left arm shaped like an “X.” Ms. Jones then accompanied the detective to the block of Carondelet Street where the defendant had obtained the marijuana and to the spot where the rape had taken place. The detective recovered several pieces of Kleenex tissue at that spot which later proved to have traces of sperm and seminal fluid on them.

One week after the rape took place Ms. Jones recognized the rapist standing outside of a bar on Prytania Street wearing the same coat that he had worn on the night of the rape. She stopped in the vicinity and walked past the bar where she saw defendant inside, by then using the telephone. She called the police. They came and arrested defendant. He had the victim’s gloves in his coat pocket.

ASSIGNMENT OF ERROR NO. 1.

Defendant’s principal argument on appeal is that the state improperly withheld exculpatory evidence despite defendant’s general pre-trial request for all exculpatory material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defendant contends that the state should have disclosed evidence, known to the state, that the victim was an ex-heroin addict who had served five years in a Texas penitentiary for possession of heroin, and that on the night of the rape Ms. Jones was under methadone treatment and smoked a marijuana cigarette with her attacker shortly before the rape. Ms. Jones admitted to the above facts at trial.

When the reliability of a witness may be determinative of guilt or innocence, evidence which impeaches the testimony of that witness may fall within the Brady rule that the state must disclose material exculpatory evidence. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Bailey, 367 So.2d 368 (La.1979). We assume without deciding that the material here is Brady information which should have been disclosed prior to trial. However, the finding that the state should have disclosed certain information' prior to trial and did not, does not necessarily require that a defendant’s conviction be reversed. State v. Falkins, 356 So.2d 415 (La.1978).

Reversal of a conviction is not required under Brady unless the omission of the non-disclosed evidence deprived defendant of his constitutional right to a fair trial. State v. Falkins, supra. The United States Supreme Court in United States v. Agurs stated the test an appellate court must use in determining whether defendant’s right to a fair trial has been violated by the non-disclosure of evidence, where, as in the instant case, only a general request for exculpatory material has been made:

“It necessarily follows that [in a post-trial hearing by the court] if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” United States v. Agurs, 427 U.S. 97, 113, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976).

In the present case, however, the issue is not what effect non-disclosed evidence might have had on the trier of fact (the judge heard the impeaching evidence at trial), but whether the late disclosure of the impeaching evidence so prejudiced the defendant that he was denied his constitutional right to a fair trial. State v. Manning, 380 So.2d 46 (La.1980), United States v. Kaplan, 554 F.2d 577 (3 Cir. 1977), United States v. Miller, 529 F.2d 1125 (9 Cir. 1976). We conclude that the state’s failure to disclose the alleged exculpatory information prior to trial did not deprive defendant of his right to a fair trial.

Defense counsel learned that Ms. Jones had smoked a marijuana cigarette with her assailant when she testified on direct examination. Shortly after defense counsel began cross-examination of Ms. Jones, she stated that she was in a vocational rehabilitation program. When defendant asked what she was being rehabilitated from, the victim admitted to being an ex-heroin addict. Upon further questioning the victim admitted to serving five years in a Texas prison after being convicted of possession of heroin. When direct examination resumed the victim testified that she had successfully completed a drug rehabilitation program. On re-cross the victim admitted that she was taking methadone as part of a methadone treatment program at the time of the rape.

Defense counsel’s cross-examination of Ms. Jones on the details of her use of drugs and her prior drug conviction was thorough and extensive. In response to his questioning the victim admitted that she had originally been sentenced to probation for possession of heroin, but her probation had been revoked and she had to serve five years in prison, completed two years before this rape. In addition to establishing that Ms. Jones was undergoing methadone treatment at the time of the rape, defense counsel showed that Ms. Jones had agreed to smoke marijuana with the hitchhiker after driving two blocks from the place where she had picked him up.

The record demonstrates that defense was able to effectively present all such impeaching material within the state’s possession to the trier of fact. See United States v. Miller, supra. There is no justification here for granting a new trial so that a different judge or jury could hear the same evidence, a point tacitly admitted by defendant in brief when explaining why he had not asked for a mistrial: “By this time the Trial Judge had heard and seen the evidence presented and a mistrial would only be a re-play by a now well-rehearsed prosecution . . . ” (emphasis provided)

However, defendant raises two arguments why this Court should grant a new trial notwithstanding the fact that the allegedly exculpatory material was presented to the trier of fact:

(1) Defendant contends that if the state had disclosed the evidence prior to trial, defendant would have chosen to be tried by a jury, and
(2) The state’s failure to disclose prevented the defendant from presenting the testimony of experts who could perhaps have described the effect marijuana smoking would have upon a person taking methadone.

The crux of defendant’s first argument is that he would have chosen a trial ‘by jury rather than a judge trial if he had known before trial that the victim was an ex-heroin addict who had smoked marijuana with her alleged assailant. Defendant argues that a jury would more likely have attached greater significance to these factors in assessing defendant’s guilt or innocence.

Defendant’s argument is not especially persuasive. His defense was not that the convicted drug addict victim had consented to intercourse. Rather his defense was alibi. He contended that he had never seen the victim before trial and that at the time in question he was helping a friend work at a service station. This reasoning does not entirely defuse his argument, however, for he could argue that non-disclosure affected the defense his client chose, or alternatively, that even with a non-proven alibi defense a jury disposed to look disparagingly upon the victim’s character might have acquitted anyway.

The primary reason, however, that we find this argument without merit is that the defendant misconstrues the scope of Brady. Brady is not a rule of discovery designed to help defendants decide tactical questions such as whether to waive trial by jury. United States v. Kaplan, 554 F.2d at 579. The purpose of the Brady rule is to insure that defendants receive their constitutional right to a fair trial guaranteed by the due process clause, a trial in which the trier of fact has before it all available material exculpatory evidence. Defendant received his constitutionally mandated fair trial and is not entitled to a new trial because he has decided after being found guilty by a judge that he might have fared better before a jury. Defendant would have been tried by a jury, but he knowingly and intelligently chose to waive that right. Article I, Section 20, Louisiana Constitution, C.Cr.P. art. 780.

Defendant’s second argument is that the state’s failure to disclose the evidence prior to trial prevented defendant from presenting expert testimony on the effect marijuana smoking has upon a person on methadone. Defendant contends that he was denied his due process right to a fair trial because the state’s failure to disclose timely prevented defendant from presenting testimony on the significance of the alleged exculpatory material.

In light of the victim’s detailed and accurate .testimony and other corroborating evidence, it is doubtful that such expert testimony (even if it had been presented and assuming it would have been to the effect that a marijuana smoker on methadone has problems with respect tp powers of observation and memory) would have created a reasonable doubt as to defendant’s guilt. Nonetheless, we need not speculate on the possibility that such expert testimony that defendant might have presented may have created a reasonable doubt as to defendant’s guilt, because defendant did not object at trial to this late discovery of alleged Brady material. At trial he did not argue prejudice from an inability to present such expert testimony, and did not ask the trial judge for a recess in the judge trial so that he might have time to prepare and present this expert testimony. C.Cr.P. art. 729.5; C.Cr.P. art. 841. If defendant were prejudiced by the alleged prosecutorial error in failing to disclose the impeaching material prior to trial, defendant had the power to cure any error and eradicate any resulting prejudice by asking the trial court for a recess when he learned about the alleged Brady material at trial. See United States v. Dansker, 565 F.2d 1262, 1265 (3 Cir. 1977); United States v. Shelton, 588 F.2d 1242 (9 Cir. 1978).

We agree with the- trial judge that it would have been preferable if the prosecution had disclosed the information at issue here prior to trial. Non-disclosure and tardy disclosure of information which may constitute Brady material invite delay, protracted litigation, and involve the risk that an otherwise valid conviction must be reversed and a new trial ordered. Nonetheless, in the case at bar defendant’s late discovery of the alleged exculpatory information did not deprive defendant of an opportunity to effectively present the alleged Brady material to the trier of fact. Therefore we cannot say that defendant was denied his constitutional right to a fair trial. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment defendant urges that the trial court erred in allowing into evidence hair samples taken from the defendant and from a brush allegedly left in the victim’s automobile. This contention is based upon defense counsel’s argument that no foundation was laid for the introduction of such samples into evidence.

The test for admissibility of demonstrative evidence was described in State v. Paster, 373 So.2d 170 (La.1979):

“To admit demonstrative evidence at trial, the law requires that the object be ' identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the trier of fact. State v. Drew, 360 So.2d 500 (La.1978).”

In the case at bar, Ms. Jones identified State Exhibit 5 as a hairbrush found in a vent on the driver’s side of her 1976 Toyota Célica, some five or six days after the alleged offense. Since-the brush did not belong to Ms. Jones or any of her friends, police suspected that it may have been left in the vehicle by defendant. Following defendant’s arrest, Detective Ortigue took the brush from Ms. Jones’s vehicle and turned it over to Detective Cobb. Detective Cobb identified the brush as the one received from complainant and testified that she entered it into the police evidence locker.

For purposes of comparison, Officers Wood and Calo of the New Orleans Police Department requested and received from the defendant several strands of hair from his head. This sample was then placed in an envelope and placed in Detective Cobb’s custody.

Both samples were subsequently given to crime lab officer Daniel Waguespack for microscopic comparison.. At trial, Wagues-pack identified both samples and repprted that his microscopic examination showed substantial similarity between the two samples. In fact, the Officer’s analysis showed the two samples to be similar in all microscopic characteristics. However, Officer Waguespack also admitted that hair analysis had not yet reached such a degree of sophistication as to allow definite identification of an individual.

Under these circumstances the hair samples are admissible under the “more probable than not” test enunciated in Paster, supra. The hairbrush and hair samples were identified both visually and by chain of custody as the material related to this case. Furthermore, the trial court was correct in ruling that questions relative to the state of the art of hair analysis went to the weight rather than to the admissibility of the evidence. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment, defendant claims that his sentence is excessive, in violation of Art. I, § 20 of the 1974 Louisiana Constitution.

On August 15, 1978, following his conviction of forcible rape, defendant Roussel was sentenced to twelve years at hard labor in the custody of the Louisiana Department of Corrections. Since this was defendant’s first felony conviction, the trial judge recommended incarceration at the first offender institution at DeQuincy. The minimum prison term for the offense of forcible rape is two years, but the trial court may, in the ■ exercise of its sentencing discretion, elect to imprison an offender for any term between two and forty years. La.R.S. 14:42.1.

However, by reason of the state constitutional prohibition against excessive sentences, the trial judge does not possess unbridled discretion to impose a sentence within statutory limits. This Court has determined that excessiveness of sentence poses a question of law reviewable under its appellate jurisdiction. State v. Sepulvado, 367 So.2d 762 (La.1979). In reviewing ex-cessiveness of sentences, this Court has noted that “. . . the statutory criteria legislatively provided by La.C.Cr.P. art. 894.1 (1977), which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness, provides appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous' sentencing alternative.” See also State v. Cox, 369 So.2d 118 (La.1979).

In complying with the mandate of Article 894.1 the trial judge found that defendant was in need of correctional treatment. This finding was based on this offense as well as Mr. Roussel’s numerous arrests for minor offenses and his history of trouble in school. The court emphasized the seriousness of Mr. Roussel’s offense, noting that the victim had been kept with -the defendant for a long period of time either at gunpoint or by use of threats which the victim believed were backed by a weapon. Finding that defendant had shown no remorse for the offense, Judge Becker then imposed a sentence of twelve years’ imprisonment.

Testimony adduced at trial provides an ample basis for Judge Becker’s sentencing decision. The victim was taken by defendant to a deserted warehouse area in New Orleans and there forced to perform various sexual acts following threats by the defendant that he would kill her if she refused to cooperate. At all times, the victim believed Mr. Roussel to be holding a gun. Before departing, defendant robbed the victim and threatened (after looking at her identification) “to get her” if she ever spoke to the police. It is clear that defendant’s act was quite serious. Defendant acted in utter disregard of the harm his conduct might cause.

The record reveals only one possible mitigating circumstance, that being the defendant’s status as a first felony offender. This factor was considered by the trial judge in imposing the. twelve year sentence, and no doubt accounted for the judge’s recommendation of incarceration at a first offender facility. The facts adduced in the instant case gave the trial judge adequate reason to impose a twelve year sentence. There has been no abuse of the trial court’s sentencing discretion.

This assignment is without merit.

Decree

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

AFFIRMED.

SUMMERS, C. J., dissents.

      . The following evidence strongly supports the judge’s finding of guilt:
      (1) On the day after the rape before Ms. Jones had any clue as to the rapist’s identity (or even if the rapist lived in the New Orleans area) she took a detective to an alley between 1628 and 1630 Carondelet Street that she had seen the rapist enter when he went to get some marijuana. When the police arrested defendant they discovered that he lived at 1630 Car-ondelet Street.
      (2) Ms. Jones’ description of the assailant’s appearance given to an officer the day after the rape matched that of the defendant.
      (3) The victim’s description of the design and location of a tattoo on her assailant’s arm matched that of a tattoo on defendant’s arm.
      (4) The Kleenex tissue found at the location where Ms. Jones had told the police the rape had taken place, when tested, proved positive for the presence of sperm and seminal fluid.
      (5) Seminal fluid was found on the underwear worn by Ms. Jones on the night of the rape and turned over to the police the next day.
      (6) A hairbrush in Ms. Jones’ car not belonging to Ms. Jones or any of her friends contained strands of hair with characteristics similar to defendant’s.
      (7) Defendant was wearing a coat at the time of his arrest which Ms. Jones recognized and identified as the same coat that her attacker wore.
      (8) The victim’s gloves were found in defendant’s coat pocket when he was arrested.
      (9) The victim had told the police on the day after the crime that before the rider got out of her car to obtain some marijuana, he took off his coat and left it in her car despite the fact that it was raining and cold that night. An explanation for this peculiar behavior occurred when the defendant’s mother took the witness stand and stated that defendant and his brother were constantly fighting because defendant continued to wear his brother’s coat without permission.

      . The United States Supreme Court specifically rejected the proposition advanced by defendant, that Brady requires that the defendant be granted a new trial where additional material “might have helped the defense” or “might have affected the outcome of the trial.” United States v. Agurs, 427 U.S. at 108, 109, 96 S.Ct. at 2400.

      . As Assignment of Error Number 3 was not argued in brief, it is assumed to be abandoned.

      . La.C.Cr.P. art. 894.1 provides:
      “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 conduct, 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 no 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.”


source: Caselaw Access Project

author:
SUMMERS, Chief Justice.
     STONE, Justice ad hoc CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Kenneth Lee SIMMONS.
    No. 64875.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 7, 1980.

      Numa Bertel, Jr., Robert F. Barnard, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Chief Justice.

On March 19, 1963 defendant Kenneth Lee Simmons and Eddie Monroe were indicted by a grand jury for the offense of first degree murder, a violation of Article 30 of the Criminal Code. On June 29, 1963, following a trial by a jury, both defendants were found guilty as charged. On April 8, 1965 they were sentenced to death by electrocution.

During 1968 defendant Simmons escaped from custody and was a fugitive until 1978. In the meantime codefendant Monroe was granted an out-of-time appeal in 1973 and his conviction and sentence were reversed. State v. Monroe, 305 So.2d 902 (La.1974). Monroe subsequently pled guilty to manslaughter. Defendant Simmons was granted this out-of-time appeal on March 29, 1979. This case arises out of the fact that thirty-year-old Marieanne Chestnut was fatally shot and robbed on the night of March 1,1963 on the parking lot of a Schwegmann Supermarket in New Orleans. A police investigation into the murder led to the arrest of Kenneth Lee Simmons who eventually confessed to the offense and implicated Eddie Monroe.

Three assignments of error are urged on this appeal.

Assignment 1: Four motions were filed in advance of trial on behalf of defendant. Three are urged here. They were a motion for change of venue, application for a lunacy commission and a motion for severance.

In the motion for change of venue it was alleged that defendant’s inculpatory statement was televised in the New Orleans area. In answer the State asserted that this meagre defense allegation was not sufficient to support a finding of undue prejudice on the part of the jury trying the case. The trial judge ruled that the State’s answer was good and sufficient in law, to which the defense objected.

While the record contains no transcript of a special hearing on this motion, the testimony at trial discloses that media reporters were present in an adjoining room while the police reduced defendant’s confession to writing. The reporters could see what was transpiring but apparently could not overhear the defendant’s confession. The record indicates, further, that two news cameramen testified. In brief the defense represents that defendant made an oral confession and subsequently a written confession. The written confession was televised at the time of signing and telecast by all stations in the greater New Orleans area.

Assuming the facts set forth in defense brief and considering the facts shown in this record the showing does not warrant a change of venue. A change of venue should be granted only when the applicant proves that prejudice exists in the public mind or that undue influence would be exerted against defendant or for any other reason a fair and impartial trial could not be had in the parish where the prosecution is pending. '

In deciding whether to grant a change of venue the Court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of prospective jurors on voir dire examination or the testimony of witnesses at the trial. La.Code Crim.Pro. art. 622. See also State v. Bell, 315 So.2d 307 (La.1975).

In this State the burden is on defendant to establish that he is unable to obtain a fair trial in the parish where the prosecution is pending. State v. Berry, 329 So.2d 728 (La.1976). To be entitled to a change of venue defendant must prove that there is such prejudice in the collective mind of the community that a fair trial is impossible. State v. Sheppard, 350 So.2d 615 (La.1977). The burden of proof requires more than a mere showing that the public was aware of the facts that surround the offense. State v. Steward, 325 So.2d 819 (La.1976).

Defendant’s application for the appointment of a lunacy commission was opposed by the State. Defendant relies upon letters from the Milne Boys’ Home and Charity Hospital to support the application. The Superintendent of the Boys’ Home and the Director of Charity Hospital indicate that Simmons was hostile and that he had been deprived of moral and financial advantages. Evidence of tests administered to defendant at an Evaluation Center, together with a psychiatric examination, indicated (hat he possessed “dissocial reaction secondary to environment.” These showings, the defense argues, furnished grounds indicating that defendant was mentally defective and it was error for the trial judge to refuse to appoint a commission to inquire into his capacity to assist counsel in his defense.

When this case was tried the law provided that “The court may order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed. . . . ” La. Code Crim.Pro. art. 643.

Considering the time lapse between the trial of this case and the inconclusive showing made by the defense on this out-of-time appeal, it may not be said that the discretion reposed in the trial judge by Article 643 was abused. The showing relied upon by the defense does not establish reasonable ground to doubt defendant’s mental capacity to proceed.

Defendant’s motion for severance is based upon the fact-that the codefendant made a confession against defendant’s interest and a claim that antagonistic defenses were presented. At trial the State introduced two written statements made by Monroe, the codefendant. The first statement indicated Simmons did the shooting during the robbery; the second revealed that Monroe actually shot the victim and at the same time portrayed Simmons as the instigator of the robbery. Oh the other hand Simmons’ confession portrayed Monroe as the instigator.

While the confessions of these defendants do purport to shift the blame for the shooting to the other, the defenses are not by reasons thereof rendered antagonistic. Both confessions involve both defendants as principals. Only the extent of participation is contradictory. The degree of blame each seeks to cast upon the other does not suffice to warrant severance. State v. Bradford, 367 So.2d 745 (La.1979); State v. Williams, 355 So.2d 1291 (La.1978).

Assignment 3: Admitting an oral and written confession of defendant into evidence is urged as error in this assignment. Statements by this seventeen-year-old defendant are alleged to have been obtained by coercion after defendant was isolated from his parents and before he was taken to a committing magistrate. Thus, it is argued, the confessions were not free and voluntary.

Defendant testified out of the presence of the jury to the circumstances leading to and surrounding the contested statements. The offense was committed on March 1, 1963 and defendant was arrested and confessed the next day. He was not advised of the Miranda rights later required by the United States Supreme Court prior to custodial interrogation. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although he testified that he was afraid at the time and was threatened by his interrogators, the three police officers and the civilian witness who were present denied those claims and testified that defendant’s confessions were free and voluntary.

It is apparent, therefore, that the issue faced by the trial judge was one of credibility which was determined adversely to the defendant. The record supports the ruling and it will not be disturbed. State v. Simmons, 340 So.2d 1357 (La.1976); State v. Hills, 337 So.2d 1155 (La.1976).

Assignment 5: Admission of codefendant Monroe’s confessions are the focus of the contentions involved in this assignment.

Monroe did not take the stand, but his two separate written confessions were introduced implicating Simmons in the robbery and murder. In reversing Monroe’s conviction on appeal we hold that his confessions were not free and voluntary and were therefore improperly admitted in evidence. See State v. Monroe, 305 So.2d 902 (La.1974).

Here Simmons asserts that the confessions were improperly admitted for the additional reason that the introduction of a codefendant’s confession poses a substantial threat to an accused’s right to confront the witnesses against him, arguing, as the Court held in Burton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), “The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.”

If it be conceded that introduction of ■Monroe’s confession was improper, as the defense argues, the State takes the position that the error, if any, was harmless. Monroe’s second confession was substantially similar to defendant’s own confession which was also admitted into evidence. Relying upon our decision in State v. McSpaddin, 341 So.2d 868 (La.1977), the State argues “[T]he admission of the eonfession[s] of a codefendant does not vitiate a defendant’s conviction where the defendant’s own confession was also introduced into evidence and it ‘interlocked’ or was ‘substantially identical’ with the confession of his co-defendant.” See also United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973), cert. denied, 414 U.S. 1072, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973).

Monroe’s first confession indicated Simmons was the party who did the shooting while Monroe waited in the getaway car. His second confession recanted this version and admitted that Simmons remained in the car while he robbed and murdered the victim. Simmons’ confession is in substantial agreement with this latter version of Monroe’s statement with some exceptions.

Monroe’s confession sets forth that Simmons provided the gun and suggested the robbery. It portrays Simmons as the most active participant who encouraged Monroe to leave the car and rob the victim. Simmons’ confession, in contrast, asserts that Monroe provided the gun and suggested the robbery, while Simmons’ only role was to wait in the car. These discrepancies, however, were not determinative of guilt or innocence of the defendants. All of the statements showed that Simmons was a principal in the robbery-murder. His admissions furnished the evidence necessary to support his conviction. Introduction of Monroe’s confession was, therefore, harmless. In light of his admission Monroe’s statements did not prejudice Simmons.

Assignment 6: Article 30 of the Criminal Code prescribing the death penalty, as it existed at the time of this offense, was rendered unconstitutional by the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In keeping with our decisions in like situations, Simmons’ death penalty must be set aside and the case must be remanded to the trial court with instructions to sentence defendant to imprisonment for life. State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).

For the reasons assigned the conviction is affirmed and the case is remanded for re-sentencing in accordance with the reasons assigned.

STONE, Justice ad hoc, dissents with reasons.

CALOGERO, J., dissents and assigns reasons.

STONE, Justice ad hoc

(dissenting).

I respectfully dissent.

Defendant’s assignment of error number one regarding the telecast of the signing of his confession seems to have merit. A hearing on the change of venue request should have been held in view of this unusual circumstance.

Likewise, a lunacy commission should have been appointed under the circumstances here present.

I would reverse and remand.

CALOGERO, Justice,

dissenting.

This defendant and a co-defendant, Eddie Monroe (a/k/a Eddie Bell), were tried together on June 29, 1963. They'were each convicted of the first degree murder of Marieanne Chestnut, arising out of an incident that occurred on March 1, 1963, in New Orleans. This Court reviewed Monroe’s conviction arising out of the same trial we review here and reversed Monroe’s conviction. State v. Monroe, 305 So.2d 902 (La.1973). We found that Monroe’s confession was involuntary and that the admission of Simmons’ confession into evidence violated Monroe’s Bruton rights because Simmons did not take the stand and subject himself to cross-examination by counsel for co-defendant Monroe. State v. Monroe, 305 So.2d at 914, 915; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Simmons is only now having his simultaneous conviction reviewed by this Court.

The admission of co-defendant Monroe’s confession as relates to Simmons’ trial and conviction was similarly erroneous and prejudicial for the identical reasons we expressed in State v. Monroe, supra, upon holding the Simmons confession inadmissible in the trial of Monroe. There is the additional error here that the Bruton violation consisted of the admission of a (later determined) involuntary confession of Monroe. That Monroe confession was ruled inadmissible based upon testimony showing “continued intimidation and physical mistreatment.” It was offered into evidence to complement the state’s case (as it related to Simmons) and to corroborate the truthfulness of Simmons’ confession (which Simmons alleges was involuntary due to threats made against him). Not only was Monroe’s confession involuntary and for that reason inadmissible, but its introduction into evidence violated Simmons’ right to cross-examine or confront Monroe as to the truthfulness of his statement. United States Constitution, Amendment VI, Louisiana Constitution, Article I, Section 16.

There are additional reasons why I take issue with the majority opinion. It has to do with the majority’s relying upon the rationale of McSpaddin, 341 So.2d 868, and Ortiz, 476 F.2d 37, cert. den., 414 U.S. 1072, 94 S.Ct. 591, 38 L.Ed.2d 482, that an “interlocking” confession of a co-defendant is admissible against the defendant when a co-defendant refuses to take the stand, notwithstanding Bruton.

Where the defendant presents a serious complaint that his confession was involuntary, it is illogical to say that the introduction of a “substantially identical” hearsay confession by his co-defendant is not prejudicial to defendant. State v. Monroe, 305 So.2d at 915. The fact that the police may be able to coerce a second defendant into making an identical involuntary confession does not give credibility to the confession of either defendant or co-defendant. The untruthfulness of both confessions is exactly what defendant complains about here. The introduction of a co-defendant’s confession in these circumstances is particularly egregious because a jury inclined to consider that defendant’s confession was perhaps involuntary would be inclined to dismiss their concerns when they hear a similar confession from another person.

Here, unlike McSpaddin, supra and Ortiz, supra, the confession of the co-defendant was later determined to be involuntary. State v. Monroe, supra. While the trial court could not have known that the Mon-róe confession would later be found to have been involuntary, nonetheless, the fact remains that the admission into evidence of the co-defendant’s involuntary, hearsay (as it relates to Simmons) confession when the co-defendant did not take the witness stand substantially prejudiced defendant. This was surely not an instance where the introduction of Monroe’s confession was harmless. State v. Monroe, 305 So.2d at 915; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

I would reverse Simmons’ conviction without reaching the issue of whether Simmons’ confession was voluntary. Our judgments in the Monroe and Simmons appeals are inconsistent.

       Jesse N. Stone participated in this decision as Associate Justice ad hoc.


author: BLANCHE, Justice. WATSON, J., PER CURIAM.

text:
    TRINIDAD PETROLEUM COMPANY v. PIONEER NATURAL GAS COMPANY et al.
    No. 65388.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 9, 1980.

      George W. Hardy, III, Baton Rouge, J. P. Mauffray, Jr., Jena, for plaintiff-applicant.
    Richard B. Sadler, Jr., David P. Spence, Provosty, Sadler & deLaunay, Alexandria, for defendants-respondents.
   BLANCHE, Justice.

Plaintiff is lessee holding, by assignments, two mineral leases. The leases were granted originally by Pioneer as lessor. The petitions allege that plaintiff holds a working interest in the lease affecting one tract of land and all of the executive rights in a second lease affecting another tract of land. In this suit the relief sought by plaintiff against Pioneer has several objects. First, it would recognize that the lease is still in force. It also alleges that the lease should not be cancelled or treated as having been ended by prescription because plaintiff was prevented from carrying on operations on the lease because of blowouts which occurred, rendering it impossible to carry out further work on the leased premises, at least until the blowout could be brought under control or would bridge over, thus shutting itself off. This, plaintiff claims, brings into operation the Force Maj-eure clause of the leases which would relieve it of the obligation to operate the lease during such period. Additionally, plaintiff seeks damages caused from the action of lessor by treating the lease at an end and giving a subsequent lease to other parties, thereby causing economic loss to plaintiff. Plaintiff also seeks payment of damages from the other parties, i. e. payment for loss arising from the wrongful action of these parties resulting in a loss of profits which should be paid or should have been paid to plaintiff from any minerals produced from the tract affected by the lease.

No trial has been held in the matter, though a hearing was held in connection with the preliminary matters on which the trial court based its decision to dismiss. That hearing was on a defense rule to show cause why a writ of sequestration granted to plaintiffs should not be dissolved, on various defense exceptions of no right and no cause of action and on defense motions for summary judgment. The trial court dismissed the action based upon defendants’ exceptions of no cause and no right of action.

On its first hearing, the Court of Appeal for the Third Circuit reversed and remanded the case for trial on the merits. Thereafter, the court granted a rehearing and concluded that the appeal was not timely for the reason that the action should be characterized as a possessory action. Based on this finding, the court applied C.C.P. art. 3662 which appears to require that the delay for filing an appeal from a judgment disposing of a possessory action must be within thirty days of the time the appeal period commences to run. Since the appeal herein was filed after thirty (but within sixty) days of the time the period began to run, the court declared that it lacked jurisdiction and the judgment of the district court was final. The court’s judgment then annulled and set aside its prior decision and dismissed the appeal. We granted plaintiff’s application for writs in order to consider the matter.

Plaintiff’s argument has presented a preliminary question which must be resolved before we would be able to address the issue of the interpretation and application of C.C.P. art. 3662. The question presented is whether it is proper to consider this action as a possessory action due to the nature of the relief sought.

Under the Mineral Code plaintiff, Trinidad, and defendant, Pioneer, are both owners of mineral rights. These rights are characterized in our law as real rights or as incorporeal immovables. Thus, under the provisions of the Code of Civil Procedure, either one may “assert, protect and defend” its rights as could the owner or possessor of any immovable property. It is clear that a possessory action is considered a real action. The owner of a mineral right may assert a possessory action, and we find no direct prohibition to the assertion of the possessory action by the lessee against the lessor.

Under ordinary circumstances, a lessor and lessee may not assert the posses-sory action against each other. The rights and obligations as between them are governed by the lease, and the question of possession adverse to the other does not arise except in circumstances which are not applicable here. It is also clear that the lessor who grants a mineral lease may not assert the real actions (including a possesso-ry action) against his lessee, in the cases in which he seeks a declaration that the lease has terminated because of a resolutory condition contained therein. This amounts to a specific recognition that the lessor “bound by a mineral lease cannot possess adversely to his lessee.” 11

The situation presently before us appears to be the inverse of the position contemplated by C.C.P. art. 3670, in that the lessee is seeking to assert the continued existence of the mineral lease and the nonoccurrence of a resolutory condition in the lease due to the blowout and reworking necessitated thereby acting as a Force Maj-eure. The pleadings which were filed were couched in the terms and form of a posses-sory action, but the claims which are being asserted appear to partake more of the nature of a suit based upon the obligations of the parties under their contract, i. e. the lease.

[4] Recently we have considered the question of the nature of actions possible between a mineral lessor and mineral lessee. In Smith v. W. Va. Oil & Gas Co., 373 So.2d 488 (La.1979), the action was for termination of the lease because of unauthorized use of the land by the lessee. In that case the lessor sought injunctive relief and we concluded that this was not the appropriate form of relief, stating at 492: “In the light of applicable provisions of the Mineral Code and of the Code of Civil Procedure, neither the mineral lessor nor the mineral lessee are regarded as in possession adverse to the other for purposes of the real actions or of affording injunctive relief under La.C.Civ.P. art. 3663 to the lessor-owner of the land against his lessee’s use or exercise of rights granted by the mineral lease.” This was a clear recognition that, in cases between the lessor and lessee, treatment of the dispute as being a “real action” would not be appropriate, even though the rights are characterized as “real rights”. We did recognize that, as against other parties the real , actions may be appropriate, but that the lessor and lessee bear a special relationship to each other that may make real actions inappropriate as between them.

We believe that the point of view expressed in Smith should apply to the case now before us. The particular procedures for the possessory action are designed to reach the ultimate issues of ownership. In a mineral lease situation, in which the parties are really contesting questions having to do with the application of rights under the lease, it is more appropriate to regard the action as one seeking to determine.the rights of the parties under the lease contract, and thus to view the parties as urging an ordinary action rather than a real action. We believe that our statement in Smith that “neither the mineral lessor nor the mineral lessee are regarded as in possession adverse to the other for purposes of the real actions” is fully applicable to the case now before us.

Since this is not a real action, the time within which a party may file for an appeal is sixty days, not thirty days. The appeal is therefore timely and should not have been dismissed.

Viewing the initial result reached by the court of appeal as correct, we now reverse the decision of the district court which dismissed on exceptions of no cause and no right of action and remand the case to the district court for trial on the merits.

WATSON, J.,

dissents, being of the opinion that the Court of Appeal’s opinion dismissing was correct.

ON APPLICATION FOR REHEARING

PER CURIAM.

Applications for rehearing have been filed by respondents Pioneer Natural Gas Company, Royal Mineral Corporation and MBM Partnership. Although we find that the applications are essentially without merit and that our judgment herein reversing the Court of Appeal’s dismissal of relator’s appeal is correct, we nonetheless conclude that our affirming the Court of Appeal’s’original judgment (a judgment which reversed the trial court) is inappropriate, primarily because the judgment in the Court of Appeal has never become final in that court.

Accordingly, the applications for rehearing are denied but our judgment on original hearing is amended so as to pretermit review of the Court of Appeal’s original action and to remand the case to the Court of Appeal for further consideration.

DIXON, C.J., and WATSON, J., would grant a rehearing.

      . The exact status of Pioneer is not clear, but it appears probable that Pioneer is itself a lessee, and the more correct designation of plaintiff might be sub-lessee holding under assignment of the subleases granted by Pioneer. We do not consider that the exact designation is significant at this point.

      . The two tracts of land involved herein are in LaSalle Parish and are more particularly described as follows:
      Tract i: Township 11 North — Range 3 East
      Section 30: N/2 of the NW/4,
      SW/4 of the NW/4,
      W/2 NW/4 NE/4
      Tract 2: Township 11 North — Range 3 East
      Section 19: SE/4 of the NE/4;
      NW/4 of the NE/4;
      NW/4;
      W/2 of the SW/4;
      SE/4
      The court of appeal noted in its original opinion that the tract in Section 30 was to be treated differently, as Trinidad’s counsel, in oral argument, “acknowledged this lease had terminated and that his client no longer claimed any real right in the lands formerly covered thereby.” We presume that this suit, in fact, now only concerns the tract in Section 19.

      . The other two defendants in this case are Royal Mineral Corporation and MBM Partnership. Plaintiff claims that Pioneer granted new leases to Royal, who then conveyed its interests to MBM. Plaintiff claims that both of these parties acted to harm the interests which Trinidad still holds.

      . The parties themselves' had framed some of their pleadings and some of their arguments in the form of a possessory action.

      . “R.S. 31:
      “§ 16. Basic mineral rights; status as real rights
      The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease. This enumeration does not exclude the creation of other mineral rights by a landowner. Mineral rights are real rights and are subject either to the prescription of nonuse for ten years or to special rules of law governing the term of their existence.”
      “§ 18. Nature of mineral rights
      A mineral right is an incorporeal immovable. It is alienable and heritable. The situs of a mineral right is the parish or parishes in which the land burdened is located. All sales, contracts, and judgments affecting mineral rights are subject to the laws of registry.”

      .Code of Civil Procedure:
      “Art. 3664. Mineral rights asserted, protected and defended as other immovables
      The owner of a mineral right may assert, protect, and defend his right in the same manner as the ownership or possession of other immovable property, and without the concurrence, joinder, or consent of the owner of the land or mineral rights.”

      . Code of Civil Procedure, Book VII, Title II, Chapter 1.

      . This is evident from art. 3665 et seq. of the Code of Civil Procedure. In particular, art. 3665 states:
      “If the owner of a mineral right possesses his right by use or exercise according to its nature, he becomes entitled one year and a day from the date of commencement of his possession to assert the possessory action. Thereafter, if there has been no adverse possession sufficient to include mineral rights, his right to assert the possessory action continues for one year from the date on which his right to bring the action matured or from the last day on which he was in possession of his right by use or exercise thereof, whichever is later.”

      . The definition of a possessory action and those who may assert it are covered by C.C.P. arts. 3655 and 3656, which state:
      “Art. 3655. Possessory action
      The possessory action is one brought by the possessor of immovable property or of a real right to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.”
      “Art. 3656. Same; parties; venue
      A plaintiff in a possessory action Shall be one who possesses for himself. A person entitled to the use or usufruct of immovable property, and one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor, and not for himself.
      The possessory action shall be brought against the person who caused the disturbance, and in the venue provided by Article 80(1), even when the plaintiff prays for a judgment for the fruits and revenues of the property, or for damages.”

      . and 11. This is specifically stated in C.C.P. art. 3670. The comment under this article, as the comment under R.S. 31:154 (the Mineral Code), specifically recognizes that the mineral lessor “bound by a mineral lease cannot possess adversely to his lessee”, a primary reason being that the parties both claim under the same chain of title, and the rights of one derive from the rights which the other has. The full texts of the article and comment are as follows:
      “Art. 3670. Real actions against mineral lessee unavailable to mineral lessor or possessor bound by lease
      One who has granted a mineral lease, or who possesses under a title subject to a mineral lease, whether or not the lease is disclosed by his act of acquisition, cannot assert the real actions against thé lessee on account of the termination of the lease by running of the term or occurrence of an express resolutory condition. Added by Acts 1974, No. 547, § 2, eff. Jan. 1, 1975.”
      Comment — 1974
      “Article 3670 is a procedural corollary to Article 154 of the Mineral Code, which exempts the mineral lessor or the possessor of land under a title subject to a mineral lease from the rule that a good faith possessor under just title is in possession of mineral rights inherent in perfect ownership except to the extent such rights are reserved in the act under which he possesses or the act is expressly made subject to outstanding mineral rights. In essence, the nature of the mineral lease is such that the lessor, or one possessing under a title subject to a previously granted lease, cannot be deemed to possess adversely to the lessee. In this regard' see the comment following Article 154 of the Mineral Code. Given the principle that a mineral lessor or possessor bound by a mineral lease cannot possess adversely to his lessee, he should not be permitted to bring the real actions against the lessee. Technically, it might be possible for the lessor to bring a petitory action, but as both parties claim under the same chain of title, neither can deny the basic title in a suit to determine whether the lease has expired. Thus, the proper procedure is an ordinary action, against the lessee for a judgment holding that the lease has expired and ordering it cancelled from the public records. It should be noted that under Article 121 of the Mineral Code a mineral lessee is permitted to take leases from those claiming adversely to his lessor. If the lessee should assert a claim based on a lease from an adverse claimant, then the real actions would be appropriate. Article 3670 is applicable only when the contest is over whether the lease has expired. It does not deal with suits for cancellation, or' dissolution, based upon nonperformance to the obligations of the lease. These are suits for enforcement of the implied resolutory condition existent in all commutative contracts and are not in the nature of real actions. La.Civil Code Art. 2046 (1870).”

      . As between the plaintiff and the other defendants, most of the claims appear to be those which are delictual in nature, though this is difficult to ascertain at this stage of the proceedings—the claims may be delictual or quasi contractual in nature—depending upon what could be shown in a full presentation of the evidence.

      . See footnotes 10 and 11, supra. Additionally, a possessory action may be converted to a petitory action when one party asserts its claim as owner, and the resulting judgment settles the issue of ownership. There would be considerable difficulties raised if such were permitted in cases involving mineral rights since the mineral.law recognizes many possible persons as having real rights and as being owners. It is certainly preferable to treat the relationship between lessor and lessee as one arising out of the contract (which recognizes the true rela.tionship which exists) than to carry over the fictions which serve a purpose in other situations and create potentially insoluble puzzles in our law.

      . C.C.P. art. 2087. We do not mean to infer that the Court of Appeal is correct in the application of C.C.P. art. 3662 to all judgments in cases in which a real action is proper. We do not reach that issue in this case.


author: SUMMERS, Chief Justice. DENNIS, Justice,'

text:
    STATE of Louisiana v. James Louis HUMPHREY.
    No. 65614.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., George Perez, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-respondent.
    Thomas L. Lorenzi, Richard P. Ieyoub, Lake Charles, for defendant-relator.
   SUMMERS, Chief Justice.

By a two-count indictment the Calcasieu Parish Grand Jury indicted James Louis Humphrey with the April 28, 1978 second degree murder of his children Latasha Denise Humphrey and Janice Faye Humphrey. As amended the indictment charged defendant with manslaughter in two counts. Count one set forth that he “Did, while engaged in the perpetration or attempted perpetration of an intentional misdemeanor directly affecting the person, viz: simple battery in violation of R.S. 14:35, kill and slay one Latasha Denise Brouchet a/k/a Latasha Denise Humphrey in violation of Section 2(a) of R.S. 14:31.”

Count two contains the identical charge against defendant for killing Janice Faye Brouchet a/k/a Janice Faye Humphrey.

At the hearing on the State’s motion to amend the indictment on July 24, 1979, the State filed a notice to introduce evidence of other crimes at the trial, which was objected to by the defense. On the day of trial the notice was amended to express the State’s intent to introduce: “evidence of simple batteries committed upon-the decedents, Latasha D. Brouchet and Janice F. Brouchet, by the defendant,” which the State alleged was admissible “to show that the defendant possessed the requisite intent to perpetrate an intentional misdemeanor directly affecting the person at the time of the offense charged in the amended indictment herein.” The notice stated the alleged other batteries occurred on June 29, 1977 and April 25, 1978.

Defendant again objected that the notice as amended referring to evidence of other crimes the State intended to introduce failed to comply with this Court’s decision in State v. Prieur, 277 So.2d 134 (La.1973). The objection was overruled by the trial judge and the defense applied for review under our supervisory jurisdiction. We granted certiorari.

The State claimed at the hearing that in proving the defendant killed his minor children while engaged in committing simple battery, the evidence of abuse on two prior occasions is admissible to prove intent; that this evidence was admissible to demonstrate not only the requisite intent under the statute but also the modus operandi employed by defendant, the earlier offenses being so peculiarly distinctive one could logically say they are the work of the same person. Furthermore, the State argued, the evidence of other similar acts was substantially relevant to prove defendant was the perpetrator of the offense charged.

In State v. Bradford, 259 La. 381, 250 So.2d 375 (1971) the court held that in a prosecution for the murder of a foster child evidence of beatings inflicted by the defendant upon other foster children entrusted to her care was admissible in order to show a system of severe chastisement which exceeded ordinary parental authority. This evidence, the court held, was admissible as proof that the homicide was willful and felonious, showing system and intent under Sections 445 and 446 of Title 15 of the Revised Statutes.

Such evidence of child abuse may be limited to rebutting a defense of justification such as accident or the exercise of parental authority and normal discipline. And while the evidence of. prior beatings may not be admissible to show intent in this manslaughter prosecution where specific intent is not an element of the crime, it may be relevant to show a system of beatings if the prior offenses meet the test of similarity. In State v. Showers, 359 So.2d 104 (La.1978), this court held that in order for proof of other crimes to be admissible to establish a system or a certain modus oper- and^ the other crimes must be distinctively similar.

Similarity to the crime charged is explicit in the State’s notice which refers to simple batteries committed upon these same victims by the same defendant on June 29, 1977 and April 25, 1978. And while the June 29, 1977 prior offense may fail upon analysis to meet the test of relevancy because of its remoteness in point of time, the same cannot be said of the April 25, 1978 beating which occurred just three days before the fatal April 28, 1978 beating by this same defendant on these same victims. So proximate in time and place is this beating of one of the victims that the testimony of the mother of the deceased child concerning this prior beating may reasonably be said to be part of the res gestae showing the cause of death. State v. Hatcher, 372 So.2d 1024 (La.1979). Evidence of the April 25, 1978 offense is therefore admissible.

For the reasons assigned, evidence of the prior offense alleged to have been committed on June 29,1977 is inadmissible; whereas, evidence of the April 25, 1978 offense because of its similarity and proximity in point of time is admissible at the trial. The case is remanded to the trial court to be proceeded with in accordance with law and the reasons and decree of this opinion.

DIXON, J., concurs, but believes the battery was not part of the res gestae. •

CALOGERO, J., concurs.

DENNIS, Justice,'

would grant the rehearing.

Perhaps the other crimes evidence would be admissible for the purpose suggested by my brethren, Dixon, C. J., and Calogero, J. However, as I read the majority opinion it does not limit the use of the other crimes evidence to the state’s rebuttal.


author:
BLANCHE, Justice.
     DENNIS, J., CALOGERO, Justice,

text:
    STATE of Louisiana v. Robert BENITEZ.
    No. 64521.
    Supreme Court of Louisiana.
    March 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, James' Maxwell, Asst. Dist. Attys., for plaintiff-appellee.
    Michael E. Soileau, New Orleans, for defendant-appellant.
   ON REHEARING

BLANCHE, Justice.

After a jury trial, defendant, Robert Ben-itez, was convicted of distribution of heroin in violation of R.S. 40:966. He was sentenced to life imprisonment without benefit of probation or suspension of sentence. We affirmed his conviction and sentence in a Per Curiam opinion. On defendant’s application, we granted a rehearing.

At trial, the state presented the following evidence: On October 15, 1977, defendant sold three papers of heroin to an undercover agent. Another undercover agent corroborated that he saw defendant and the undercover agent meet, but did not see exactly what changed hands. Both testified that an informer was used to make the arrest, and both identified the informer. The substance contained in the packets was identified as heroin by a chemist for the Jefferson Parish Sheriff’s Office. The chemist testified that he ran the initial screening test, but that a more definitive test was required to be done at Charity Hospital because his office lacked the sophisticated equipment required for the test. At Charity, the test was run by the chief toxicologist; however, the witness testified that he examined the graphs as they were being produced on the machine, and ascertained that the material tested was heroin.

During trial, the defense called as its own witness the informer, whose identity had been revealed at trial by the two undercover agents. The informer testified that he had talked with these agents during the noon recess of the trial in violation of the sequestration order. Defense counsel then objected to the informer testifying after learning that he had talked with others about the trial. This objection was overruled and defendant then requested that the informer be considered as a hostile witness even though he had been called as his own witness, and no testimony had, at that time, been elicited. The court denied this request. Defense then called a woman who had been living with the defendant at the time of the sale. She testified that the informer had given the defendant an envelope purportedly containing instructions to a third person regarding the repair of defendant’s motorcycle.

Defense counsel also sought to call one of the undercover agents as an impeachment witness so as to point out the inconsistency in the testimony of the informer concerning-what he had told the agents regarding his fear for his life.

We now consider the assignments of error relied upon by defendant for reversal of his conviction.

Assignments of Error Numbers 4 and 7

These assignments relate to the defendant’s allegation of error in permitting the chemist for the Jefferson Parish Sheriff’s Office to testify that the substance in the package was heroin when he did not personally conduct the definitive test made at the Charity Hospital. Defense counsel argues that inasmuch as this witness did not personally conduct the definitive test, his testimony identifying the substance as heroin was hearsay: Although defense counsel cross-examined the expert witness concerning the manner and method in which the test had been conducted at the Charity Hospital, he nevertheless failed to object at the trial to the introduction of the testimony into evidence. This Court has steadfastly refused to consider alleged errors when there was no objection at trial. A new ground for an objection cannot be raised for the first time on appeal. C.Cr.P. art. 841; State v. Kelly, 375 So.2d 1344 (La.1979); State v. Valentine, 364 So.2d 595 (La.1978); State v. Williams, 343 So.2d 1026 (La.1977).

Regardless of the competency of the witness to personally conduct the test at Charity Hospital, he explained to the jury that when the graph of the heroin used in the testing machine was compared with the graph made of the sample tested, that he made the comparison. He further stated that based on his observation of the graphs, the sample tested was heroin. The weight of this testimony was for the jury to decide. C.Cr.P. art. 802(2).

Assignment of Error Number 13

Defense counsel contends that the trial judge should have declared a mistrial because a defense witness violated the court’s sequestration order.

Two police agents, who were state witnesses, testified that the confidential informant in the case had approached them, claiming that he feared for his life because a spectator in the courtroom had threatened him. The informant asked the agents about their testimony. One agent diverted the informant by telling him, “When you go in there, you tell the truth. If you don’t remember something, you don’t remember it.” The other agent told the informant that “we weren’t to discuss anything that occurred on the stand or any merits of the case . . . ”. When the informant testified, he claimed he did not remember informing on the defendant. Defense counsel argues that the agent’s statement, “If you don’t remember something, you don’t remember it”, unwittingly placed in the informant’s mind the idea of suffering a convenient loss of memory. The trial judge ruled that the sequestration order had not been violated because the agents and the informant had not actually discussed the case.

Louisiana Code of Criminal Procedure article 764 provides:

“Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel.”

The purposes of sequestration of witnesses are to prevent their testimony from being affected by the testimony of prior witnesses, and to strengthen the role of cross-examination in developing the facts. State v. Wilson, 360 So.2d 166 (La.1978); State v. Lewis, 367 So.2d 1155 (La.1979). A trial judge’s ruling on a violation of sequestration will not be reversed absent a showing of abuse of discretion. State v. Mullins, 353 So.2d 243 (La.1977); State v. Calloway, 343 So.2d 694 (La.1977).

Because the agents did not discuss their testimony or the facts of the ease, the trial judge did not err in refusing to grant a mistrial.

Assignment of Error Number 15

Defense counsel contends the trial judge erred in ruling that the confidential informant was not a hostile witness. Evidently, the ruling was prompted by the fact that the defendant called the informant as his own witness despite his prior knowledge that the witness was, in fact, the informant. A ruling that the witness was hostile would have allowed the defense to impeach the witness, R.S. 15:487, and to ask leading questions (cross-examination), R.S. 15:277.

Once again, because counsel failed to object at trial to the ruling of the lower court, we cannot review the question of the hostility of the witness. C.Cr.P. art. 841; State v. Kelly, 375 So.2d 1344 (La.1979); State v. Valentine, 364 So.2d 595 (La.1978); State v. Williams, 343 So.2d 1026 (La.1977).

Assignment of Error Number 17

This argument refers to the court’s refusal to allow defendant to recall one of the state’s witnesses for impeachment purposes. As set forth hereinabove, the prosecutor had elicited a statement from the informant (the state’s informant, but the defense’s witness) that he was testifying without fear for his life. The jury heard these disclaimers, but it had not heard the completely different account of the encounter given by the agents. One undercover agent testified, while the jury was out of the courtroom, that the informant had talked to him about “fear for his life”. The informant had come up to them and stated to both agents that he was, in fact, afraid of someone sitting in the courtroom. Counsel for defendant, desiring to call this inconsistency to the attention of the jury, informed the court specifically that he wished to call the undercover agent back to the stand as “an impeachment witness”. The trial court sustained the state’s objection to this procedure.

In our opinion, the trial judge did not abuse his discretion in this regard. Defense counsel called the informant as his own witness and could have impeached him, but only on a showing of hostility or surprise. R.S. 15:487. As counsel failed to make such a showing, the trial judge’s ruling was correct.

Assignment of Error Number 19

By this assignment, defendant alleges that his sentence is not in conformity with law. Our examination of the record and applicable statute, La. Acts 1977, Act No. 631 § 1, reveals that the defendant was not sentenced in excess of the statute; the trial judge had no alternative except to impose the only sentence authorized by law —namely, life imprisonment without benefit of probation or suspension of sentence.

This assignment is without merit.

DECREE

Accordingly, the conviction and sentence of defendant are affirmed.

AFFIRMED.

DENNIS, J.,

concurs, but does not agree with statement relative to exclusion of witnesses who violate exclusion.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I dissent. I am of the opinion that Argument No. 1 (Assignments of Error Nos. 4 and 7) has merit. Objection was made in these assignments to the hearsay testimony of the witness from the Jefferson Parish Sheriff’s Department. The witness testified as an expert despite his admission that he had not run the test and in fact was not qualified to run the test. This witness who was not qualified as an expert was allowed to testify as to his conclusion that the substance tested was heroin based on his observation of a graph read-out which gives the results produced by the test. The testimony was clearly hearsay and should have been excluded.

Furthermore, I find merit in Assignment of Error No. 13. There was a violation of the sequestration order when a state informant after being admonished not to discuss the case with other witnesses engaged in a conversation with two police agents. The agents suggested to the informant that he might testify that he did not remember. Thereafter, while being examined by the defense the witness had difficulty remembering, admitting that he was confused even about the conversation that he had with the police agents in the hallway during the trial.

       Chief Judge PAUL B. LANDRY, retired participated in this decision as an Associate Justice Ad Hoc.


text:
    STATE of Louisiana v. Vance BRADY, Jr.
    No. 65533.
    Supreme Court of Louisiana.
    March 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., J. Kevin McNary, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Robert F. Barnard, New Orleans, Orleans Indigent Defender Program, George M. Strickler, Jr., Supervising Atty., Marc L. Bonin, Michael F. Bertucci, Student Practitioners, Tulane Appellate Advocacy Program for defendant-appellant.
   CALOGERO, Justice.

Defendant Vance Brady, Jr., was charged by bill of information with armed robbery on November 14, 1977. Defendant entered a plea of not guilty. Defendant’s first two trials ended in hung juries. On April 4, 1979, a twelve member jury found defendant guilty of simple robbery.

Charles Brown, a bartender and victim of the crime, was the state’s only witness. Mr. Brown testified that on October 20, 1977, at approximately 7:00 p. m. two men entered the Devil’s Dungeon Lounge separately. The men ordered fruit drinks and talked. They asked Mr. Brown, the bartender, if there were any other employees present. Shortly thereafter one of the men grabbed Mr. Brown and announced “This is a stickup.” Brown was told to lie down on the floor, where he was bound and gagged. The two robbers locked the door, ransacked the bar, and took cash, Brown’s wallet, and a gun.

All of defendant’s assignments of error relate to defendant’s attempt to question Mr. Brown about a previous arrest of his for intentionally carrying a concealed weapon approximately one year before the trial in this case took place. During cross-examination defense counsel asked Mr. Brown if he had “made a deal with the D.A.” in return for his testimony. The state objected at this point in order to prevent the witness from answering the question. The trial judge sustained the state’s objection and the witness was not required to answer the question.

At a bench conference held shortly thereafter out of the presence of the jury defense counsel renewed his objection to the court’s ruling and stated for the record his grounds for objecting. Defense counsel stated that Mr. Brown had been charged with intentionally carrying a concealed weapon more than a year before the trial in this case and had forfeited bond; and that the state was delaying action in that case until after the trial of this defendant. He then asked the court to “note an objection under Article 492 of Title 15,” a statute which relates to the questioning of witnesses as to their interest or bias in a particular case:

“When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.” R.S. 15:492

The trial judge sustained the state’s objection to the question on the grounds that R.S. 14:495, concerning the questioning of witnesses about prior criminal convictions, allows only evidence of a conviction (and not an arrest) to be used in impeaching the credibility of a witness:

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can' only be questioned as to conviction, and as provided herein.” R.S. 15:495

On appeal to this Court defendant raises three arguments:

1) The trial judge denied defendant his statutory right of effective cross-examination by refusing to permit him to cross-examine the only state witness concerning a criminal charge pending against the witness in an effort to show that the witness was biased and/or interested in the case being tried. (Assignment of Error No. 1)
2) The trial court’s refusal to allow the defendant to cross-examine the only witness to testify for the state to show the witness’ bias or interest in the case violated defendant’s right to confront his accuser guaranteed by the United States and Louisiana Constitutions. (Assignment of Error No. 1)
3)The trial court denied defendant his right to a fair trial by permitting the prosecution to argue that the victim had no interest in the case, after preventing defendant’s cross-examining the witness on that very matter, his interest in the case. (Assignment of Error No. 2)

We reverse. The trial judge’s ruling denied defendant his statutory right to question a witness concerning his bias or interest in the case and violated defendant’s constitutional right of cross-examination (confrontation), there having been no valid statutory or other reason to curtail such cross-examination. The error complained of in defendant’s second assignment of error (see 3 above) is particularly egregious because the court’s permitting the state to argue that its witness had no interest in the case compounded the errors complained of in defendant’s first assignment of error.

Louisiana Revised Statute 15:495, the statute relied upon by the trial court to limit defendant’s cross-examination, states in pertinent part: “. . . no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested . . ” Louisiana Revised Statute 15:495 was amended in part in 1952 to remove a provision which had allowed the witnesses to be impeached by questioning them as to whether they had ever been indicted or arrested. Apparently the Legislature amended the statute because they felt that the trier of fact might “ascribe undue weight to the accusation of guilt” by jumping to an unwarranted conclusion that the witness was guilty of the crime for which he was arrested and “then concluding that such a person is unworthy of belief.” Pugh, The Work of the Louisiana Supreme Court, for the 1958-1959 Term, 20 La.L.R. 341 (1960).

Louisiana Revised Statute 15:495 permits cross-examination as to a witness’ convictions as theoretically relevant to a witness’ credibility in general, regardless of when or for what crime the witness was convicted. When impeachment is sought on these grounds, the fact that a witness has been arrested or indicted is not logically relevant to this purpose because an arrest or an indictment is only an accusation. State v. Robinson, 337 So.2d 1169, 1171 (La.1976); See also Pugh, Louisiana Evidence Law, 133, 134 (1974).

The trial judge’s ruling missed the point. Defendant’s attempted cross-examination about the arrest was not for the purpose of impeaching the witness’ general credibility — the arrest was not presented as proof that the witness is not credible because he has an arrest record. If that had been the case the trial court’s ruling would have been correct. Rather, the focus of defendant’s questioning was to establish that the district attorney’s office had leverage over Mr. Brown as a result of the pending charge (or at least that Mr. Brown might have assumed so), a reason why Mr. Brown’s credibility was or might be suspect in this particular case. R.S. 15:492 permits a witness to be questioned as to “any particular fact showing or tending to show” bias or interest in the case on trial and this Court has held on numerous occasions that a witness’ hope or knowledge that he will receive leniency from the state is highly relevant to establish bias or interest. State v. Daniels, 378 So.2d 1361 (La.1979); State v. Bailey, 367 So.2d 368 (La.1979); State v. Franks, 363 So.2d 518 (La.1978); State v. Robinson, supra; State v. Lewis, 236 La. 473, 108 So.2d 93 (La.1959).

The right to cross-examine witnesses concerning their interest in a case is not only a statutory right, it is a right protected by the Sixth Amendment to the United States Constitution and Article I, Section 16 of the Louisiana Constitution. The United States Supreme Court stated in Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065 (1965) that the right of cross-examination is included in the right of an accused to confront witnesses against him. See also Davis v. Alaska, 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105 (1974); Douglas v. Alabama, 380 U.S. 415, 13 L.Ed.2d 934, 85 S.Ct. 1074 (1965). The Louisiana Constitution explicitly guarantees defendants the right of cross-examination: “An accused is entitled to confront and cross-examine the witnesses against him ..” Louisiana Constitution, Article I, Section 16. Under both constitutions the exposure of a witness’ motivation in testifying is a proper right of cross-examination. See, United States v. Davis, 415 U.S. at 316, 94 S.Ct. at 1110; Greene v. McElroy, 360 U.S. 474, 496, 3 L.Ed.2d 1377, 79 S.Ct. 1400 (1959).

The trial court’s ruling prevented the defendant from directly challenging the disinterestedness of the prosecution’s only witness and prevented the jury from considering relevant information which could have diminished or negated the credibility of the state’s only witness. We conclude that the limitation of defendant's cross-examination was prejudicial to the substantial rights of the accused, both his statutory right to impeach a witness’ credibility by showing bias or interest and his constitutional right to cross-examine a witness against him. R.S. 15:492, United States Constitution, Amendment VI, Louisiana Constitution, Article I, Section 16. C.Cr.P. art. 921.

Decree

For the. foregoing reasons the conviction and sentence are reversed and the defendant is granted a new trial.

REVERSED; NEW TRIAL ORDERED.

       PAUL B. LANDRY, Jr., C. J., retired, participated in this decision as an Associate Justice Ad Hoc.

      . We are constrained to note the existence of one case in our jurisprudence, however, which is at variance with these expressions and authorities. See State v. Romano, 320 So.2d 167 (La.1975) and a criticism of that case, Pugh, The Work of the Louisiana Appellate Courts for the 1975-1976 Term, 37 La.L.R. 588 (1977).

      . Code of Criminal Procedure, Article 921, in effect on the date of this trial, provides:
      “A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”


author: SUMMERS, Chief Justice.

text:
    STATE of Louisiana v. Victor Kent THOMPSON.
    No. 65562.
    Supreme Court of Louisiana.
    March 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-respondent.
    Charles R. Brackin, Voelker, Ragland, Brackin & Crigler, Lake Providence, for defendant-relator.
   SUMMERS, Chief Justice.

Defendant Victor Kent Thompson was arrested on May 18, 1979 accused of aggravated rape and aggravated crime against nature. On May 29, 1979 he signed a psychological stress evaluation release wherein he acknowledged that he would voluntarily submit to evaluation by a psychological stress evaluator. The release also absolved the District Attorney and those acting in his behalf from all claims arising out of the examination. He inserted in the prepared form of the release this exception: “This test information may not be released to any outside agency without my permission.” Defense counsel signed the release as a witness.

In the recorded interrogation termed as a pre-test interview, which followed that same day, defendant acknowledged, when interrogated by an investigator for the District Attorney, his understanding of, and the voluntary nature of, the release and his willingness to take the psychological stress evaluation test. At that time defense counsel declared that the psychological stress evaluation test would be conducted with his permission and at his request.

In response to interrogation by an investigator for the District Attorney defendant recounted the facts and circumstances surrounding the alleged offense in the pre-test interview. He admitted that the female involved performed oral sex on him and that he had sexual intercourse with her. However, his statement was to the effect that he used no force and that she consented. The psychological stress evaluation test followed the pre-test interview.

Two days later on May 31, 1979 the Oua-chita Parish Grand Jury returned a two-count indictment charging defendant with aggravated rape and crime against nature.

Thereafter, in reply to questions propounded in a motion for a bill of particulars and discovery, the State attached a copy of the transcription of the recorded pre-test interview and the psychological stress evaluation test. Defendant moved to suppress both, alleging that the test and the pre-test interview which referred to the test were inadmissible and would be prejudicial to him. At the hearing on the motion to suppress the State’s attorney confirmed that it was the intention of the prosecution to introduce the pre-test statement into evidence at the trial. The State makes no contention that the record of the test proper or its results are admissible in evidence.

The trial judge denied the motion to suppress, ruling that references to the psychological stress evaluation test contained in the pre-test interview “would merely indicate to the jury that the defendant and his counsel gave permission for a PSE test to be administered.” In the opinion of the trial judge there was nothing in the pre-test statement which disclosed that a psychological stress evaluation test was ever given, much less what the results were.

From this ruling defendant sought review. Certiorari was granted.

On the authority of State v. Catanese, 368 So.2d 975 (La.1979), holding that the results of PSE tests are not admissible at trial and Section 450 of Title 15 of the Revised Statutes which requires that every confession, admission or declaration sought to be used against anyone must be used in its entirety, the defense contends that the trial judge was in error. The argument is that the error stems from holding that the pre-test interview and the PSE test which followed were separate and distinct, and the pre-test statement was admissible notwithstanding that it referred to the fact that a PSE test would be conducted.

According to the defense the pretest statement is an integral part of the PSE test. Without an interview, the argument goes, there could be no test. Furthermore, the defense contends that the defendant understood that he granted the interview with the understanding that it was part of the test. To corroborate this position the defense points to the clause inserted in the release which unequivocally states that, “This test information may not be released to any outside agency without my permission.” Additional support for this position is noted in the copy of the PSE test available to us in the record.

In the very beginning of the interrogation in the test immediately following the pre-test interview after asking defendant what day it was, the investigator asked him, “Are you afraid I’m going to ask you a question we have not discussed?” This question followed a lengthy pre-test, detailed discussion of the facts and circumstances surrounding the sexual encounter between defendant and the prosecutrix, which transcribed in single space type consumed sixteen pages. Obviously the test question referred to this lengthy discussion immediately preceding the question. This identical question was propounded to defendant on three occasions at the beginning of the three phases of the test following the so-called pre-test interview. In our opinion the pre-test interview was in reality an integral part of the test proper and that portion cannot realistically be considered separate and apart from what the State would have us consider to be the test.

Upon the premise that PSE tests are inadmissible, therefore, we hold that the statement sought to be introduced into evidence by the State is inadmissible for it is an integral part of the test conducted in this case. State v. Catanese, 368 So.2d 975 (La.1979).

Moreover, the explicit declaration contained in the release by defendant that, “This test information may not be released to any outside agency without my permission.” must, under the facts and circumstances of this case be construed to mean that defendant was not consenting to the use of his following statements against him in a court of law.

For the reasons assigned, the ruling of the trial judge is reversed and set aside and the defendant’s motion to suppress is granted. The case is remanded to the trial court to be proceeded with according to law and in a manner not inconsistent with this opinion and decree.

DENNIS, J., concurs.

      . While Catanese dealt with a polygraph test and not a PSE test, the two tests operate on similar principles; the latter is based on changes in a person’s voice when he is under stress and is, if anything, less reliable than the polygraph. Catanese then is authority for holding PSE tests inadmissible.


author: PER CURIAM.

text:
    Marcos ROSALES v. DIXIE MILL SUPPLY COMPANY, INC. et al.
    No. 66009.
    Supreme Court of Louisiana.
    March 10, 1980.
    Rehearing Denied April 7, 1980.
    Bruce J. Borrello, Metairie, for defendant, Curtis Noll Corp., applicant.
    John J. Cooper, Christovich & Kearney, New Orleans, for respondent Reynolds Metals Co.
   PER CURIAM.

Having considered the record, the briefs and oral arguments of the parties, we conclude that the court of appeal’s opinion and judgment, 376 So.2d 179 are correct and should be affirmed.

AFFIRMED.

       The Honorable EDWARD A. de la HOUSSAYE, III participated in this decision as an Associate Justice Ad Hoc.


text:
    STATE of Louisiana v. James Edward SMITH.
    No. 66030.
    Supreme Court of Louisiana.
    March 12, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, III, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    William L. Brooks, Amite, for defendant-appellant.
   PER CURIAM.

Affirmed. Defendant has challenged his adjudication as a multiple offender under Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), claiming that he did not understand the nature of the charge against him in pleading guilty to attempt simple burglary in 1972. He did not state the grounds for his objection in the trial court and we will therefore not consider the question on direct review. La. C.Cr.P. Art. 841. Defendant’s opportunity for review is by application to the trial court for habeas corpus relief. See State v. Nelson, 379 So.2d 1072 (La.1980).