author: DIXON, Justice.

text:
    STATE of Louisiana v. Rodney O. EAKER.
    No. 65152.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.

      Hewitt B. Johnson, Don H. Johnson, J. Eugene Osburn, Neal G. Johnson, Johnson, Johnson, Osburn & Johnson, Monroe, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Lee E. Ineichen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Shortly after midnight on June 20, 1977, Deputy Ray Cook of the Ouachita Parish Sheriff’s Department, received a telephone call from Ms. Pat Branch, asking that he come to her home at once. Present in Ms. Branch’s residence upon the arrival of law enforcement officers were Ms. Branch and defendant Rodney Eaker. On the floor of the room in which these two were sitting was the body of Harry Davis, the victim of two bullet wounds to the body and two to the head. On July 7, 1977, an affidavit was filed charging both Eaker and Branch with the second degree murder of Davis. On March 30, 1978, a grand jury indictment for first degree murder was filed against Eaker. Eaker was found guilty of murder in the first degree and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. His motion for a new trial was denied. Twenty-one errors were assigned, of which eleven are urged on appeal to this court.

Assignments of Error Nos. 1, 2, 3, 4 and 5

During the pretrial phase of this proceeding, defense counsel made repeated requests upon the district attorney’s office for discovery of statements made by Ms. Branch to law enforcement officers and to two grand juries. The discovery motions were based on C.Cr.P. 722, which provides:

“Upon motion of the defendant, the court shall order the district attorney to- permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confessions or inculpatory statements made by a codefendant and intended for use at trial. Exculpatory evidence shall be produced under this article even though it is not intended for use at trial.”

At hearings on defendant’s subsequent motions to compel discovery, held shortly before trial and almost a year after the filing of the affidavit, the state contended that discovery was not available because Branch was not a codefendant. The state also claimed that it had decided, shortly before these hearings, to “decline charges” against Branch because of insufficient evidence, but that the sheriff’s office had failed to file the state’s document dismissing the charge. At the second of the hearings held on this issue, the trial court permitted the state to dismiss the affidavit orally in open court, in conformity with the procedures for dismissal of prosecution provided by C.Cr.P. 691, and denied defendant access to any of Ms. Branch’s statements. This court denied defendant’s application for a stay order and for writs of review of this ruling. State v. Eaker, 359 So.2d 623 (La.1978).

In these assignments of error, defendant contends that the trial court erred in permitting the state to dismiss the affidavit against Ms. Branch and in denying defendant access to her statements. With regard to the district attorney’s power to dismiss a prosecution, C.Cr.P. 691 provides:

“The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court. The dismissal may be made orally by the district attorney in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of court. The clerk of court shall cause the dismissal to be entered on the minutes of the court.”

This court has held that the district attorney’s power to dismiss extends to bills of information and to affidavits charging violations of city ordinances. State v. Franton, 319 So.2d 405 (La.1975); City of Lake Charles v. Anderson, 248 La. 787, 182 So.2d 70 (1966). Dismissal of the affidavit was therefore a proper exercise of the district attorney’s discretion.

It is also defendant’s contention that, even if the affidavit was properly dismissed shortly before trial, Ms. Branch was a codefendant at the time of his motions for discovery. The state argues, on the other hand, that because a prosecution for an offense punishable by death or life imprisonment must be instituted by grand jury indictment under the provisions of C.Cr.P. 382, Ms. Branch did not become a codefendant by the mere filing of the affidavit. The definition of the term “defendant” to be used in the Code of Criminal Procedure, unless the context clearly indicates otherwise, is provided by article 934(4) which states: “ ‘Defendant’ means a person who has been charged with or accused of an offense.” The Official Revision Comment to this section notes that “(d) ‘Defendant’ is broadly defined so as to include a person ‘accused’ of an offense, even though he is not, as yet, officially charged.” It should also be noted that an indictment or the filing of a bill of information are, under C.Cr.P. 382, necessary prerequisites to the institution of prosecution, but not to merely charging an individual with or accusing him of an offense. The purpose of an indictment or information is to inform the accused and the court so that the defense can be prepared, the evidence can be regulated, and a plea of former jeopardy can be supported in the event of another trial. State v. Meunier, 354 So.2d 535 (La.1978); State v. Edwards, 287 So.2d 518 (La.1973); State v. Glover, 262 La. 495, 263 So.2d 866 (1972). These purposes would in no way be furthered by restricting the meaning of the term “defendant” to one against whom an indictment or bill of information has been filed, in the context of pretrial discovery. The purposes of the discovery statutes would be subverted by permitting the state to circumvent its statutory obligation by first denying that the person whose statements are requested is a codefendant and then dismissing the charges' against that individual at a hearing on the defense motions. The state should have provided the defense with access to any of Ms. Branch’s statements available under article 722, and the trial court erred in denying defendant’s motions to compel discovery.

Once we have reached this conclusion, we must further determine whether the state’s failure to disclose the requested statements constituted such a denial of defendant’s rights to due process as to require us to reverse his conviction and remand for a new trial. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that due process is violated when the prosecution withholds evidence favorable to an accused which is material either to guilt or to punishment. In United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392, 2401-2402, 49 L.Ed.2d 342, 343, 354-355 (1976), that court further delineated the concept of materiality:

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that 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.”

In State v. May, 339 So.2d 764 (La.1976), defendant filed a motion for all exculpatory evidence under Brady, supra, and also specifically for a letter allegedly authored by a co-indictee. The prosecution’s sole response was an assertion that it had no exculpatory evidence in its possession. Citing Agurs, supra, this court remanded the case for the trial court to determine whether the state had suppressed requested subject matter for which there was a substantial basis for claiming that materiality existed, and, if so, whether the material suppressed would, upon its evaluation in the context of the entire record, create a reasonable doubt as to defendant’s guilt. See also, State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 349 So.2d 286 (La.1977).

In the instant case, the record shows that Eaker admitted shooting the victim but introduced evidence tending to show that the homicide was justified because it was committed in self-defense, under R.S. 14:20, or in the defense of another person, R.S. 14:22. Ms. Branch, whose pretrial statements are at issue here, appeared at trial as a witness for the defense, not for the prosecution. Her testimony corroborated all of the other evidence introduced by Eaker to show that the homicide was justified, but she also testified, as did Eaker himself, that she was not a witness to the actual shootings. Her pretrial statements were used by the state for impeachment purposes only once during the trial: to show that she had once stated that the victim went outside, that she heard a shot, and that she was unable to tell whether the shot came from in front of him or from behind him.

It appears, then, that Ms. Branch’s pretrial statements could not have created any greater doubt as to the justification for the homicide than did her testimony at trial or any-of the other evidence introduced by the defense on this issue. Remanding the case to the trial court for inspection of her statements would therefore serve no purpose. Because the trial court’s error in denying defendant’s motion to compel production of her statements was not prejudicial to the defendant, these assignments of error are without merit.

Assignment of Error No. 7

In this assignment of error, defendant contends that the trial court erred in denying his challenges for cause of three jurors, Gunther, Spurgeon and Merriweather.

Defendant used two of his twelve peremptory challenges to excuse Gunther and Spurgeon. He accepted Merriweather initially, although Merriweather stated on voir dire that he was an acquaintance of Deputy Cook, who was to testify during the trial. After twelve jurors, including Merriweather, had been sworn, voir dire of Merri-weather was reopened when he volunteered the additional information that he had a nephew who worked in the Ouachita Parish Sheriff’s Department. At this point defendant, who had used all twelve of his peremptory challenges, attempted to re-examine Merriweather about his involvement with law enforcement personnel and activities, and challenged him for cause. This challenge was denied, and Merriweather subsequently was elected foreman of the jury.

Defendant’s challenge for cause of Mr. Gunther was based on his expression of extreme reservations concerning the possibility that the taking of a human life might ever be justified, the defense to be offered at trial. But after the trial judge instructed Gunther on the law of justifiable homicide, Gunther stated that he could accept the law without reservation and that he would approach the determination of defendant’s guilt or innocence with a fair and impartial state of mind. Mr. Spurgeon stated initially that he would tend to find the testimony of a law enforcement officer more credible than that of a lay witness, and that he had formed some idea of the facts of the case from earlier conversations concerning the incident. Again, however, following the court’s instructions as to impartiality and the obligation to determine guilt or innocence solely on the basis of the evidence presented at trial, this prospective juror stated that he could act in conformity with these instructions. It appears, then, that both jurors were rehabilitated and that these challenges for cause were properly denied. State v. Webb, 364 So.2d 984 (La.1978); State v. Demouchet, 353 So.2d 1025 (La.1977); State v. George, 346 So.2d 694 (La.1977).

With regard to Mr. Merriweather, defendant argues that the trial court erred in limiting his second voir dire to any partiality caused by the fact that Merriweather’s nephew was a member of the sheriff’s department, and in failing to sustain the challenge for cause on the ground of Merri-weather’s acquaintance with Deputy Cook. In response to defendant’s first contention, we note that the trial court reopened voir dire of Merriweather specifically for the sole purpose of investigating the relationship which Merriweather revealed after he was sworn as a juror. In response to the second contention, we note that the nature of Merriweather’s association with Deputy Cook was fully explored on the initial voir dire examination, after which the defense accepted Merriweather as a juror.

. This assignment of error is without merit.

Assignment of Error No. 10

Defendant here alleges that the trial court erred in denying him full, adequate and effective cross-examination of Deputy Cook with reference to inconsistencies between the content of a tape recorded statement made by the defendant and introduced by the state, and Cook’s testimony about the content of a prior unrecorded statement made by defendant. At a hearing to determine the voluntary nature of these statements, held out of the jury’s presence, Cook said that the defendant made an unrecorded statement that he had fired one of the four shots at the victim “because he wanted to get him out of his misery (and) he couldn’t stand to see him suffer.” Later, when questioned by the prosecution, regarding the same unrecorded statement, in the presence of the jury, Cook replied: “He said he had .always heard if you shoot somebody outside you are suppose (sic) to bring them back inside and there is another one that he made but — gosh, I can’t remember right offhand but we sat and talked for a little while.” A few minutes later, Cook recalled the statement he had previously forgotten as: “That when he drug him back inside that he couldn’t stand to see him suffer. So he shot him again twice, I believe.” After the jury heard defendant’s tape recorded statement (the gist of which, on the points at issue, was that Eaker had pulled, the victim back into the house either to call for police assistance or to keep him away from his car, and that he had fired the final shots to keep the victim from attacking him), the defense began to cross-examine Cook on all of these inconsistencies. The state objected to this line of questioning as “arguing with the witness” and, after a lengthy discussion before the bench, the court sustained the state’s objection, noting that the inconsistent statements were largely those of the defendant himself, not of the witness, and that the defense would have ample opportunity to point out the inconsistencies during its closing argument to the jury.

While R.S. 15:280 provides that a witness may be cross-examined upon the whole case, R.S. 15:275 vests the trial judge “with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross, and even though no objection be urged by counsel.” The trial court’s rulings regarding the scope and extent of cross-examination will not be disturbed in the absence of an abuse of discretion. State v. George, 346 So.2d 694 (La.1977); State v. Nero, 319 So.2d 303 (La.1975); State v. Fulmer, 263 La. 971, 270 So.2d 116 (1972). In the situation under review here, the defense was able to indicate to the jury the inconsistencies in Cook’s accounts of Eaker’s unrecorded statement, before cross-examination was curtailed. The issue of Cook’s credibility was therefore raised, and it was for the jury to weigh the recorded statement against the unrecorded statement. The judge did not abuse his discretion in sustaining the state’s objection.

There is no merit in this assignment of error.

Assignment of Error No. 11

Defendant contends that the trial court erred in finding that his unrecorded and recorded statements were voluntarily made and in admitting them into evidence. At the hearings on voluntariness, both Deputy Cook and another deputy testified that defendant was given the Miranda warnings before he made the unrecorded statement and that he did not appear to be particularly nervous or upset. The defendant argues, however, that the inconsistencies in Cook’s testimony about the content of this statement are proof of Cook’s unreliability. The defendant also notes the following interchange between Cook and Eaker, shortly after Cook began to take Eaker’s recorded statement:

Cook: “We’ve already gone over this a couple of times.”
Eaker: “Did I talk to you?”

The defense argues that Eaker could not have intelligently and knowingly waived his rights before making the unrecorded statement, if he was incapable, a few minutes later, of remembering that he had made such a statement. Defendant’s brief makes no mention of the fact that, on direct examination at trial, Eaker denied having made the unrecorded statement to Cook.

The voluntary nature of the recorded statement was again attested to by Deputy Cook and another deputy who testified that no threats or promises were made to defendant, and that Eaker appeared to be calm and to comprehend the nature of the proceedings. The waiver of rights form, read into the tape recording itself and acknowledged by Eaker in the recording, was signed by the defendant, Deputy Cook and the other deputy. At trial, Eaker admitted having given the recorded statement to the deputies and described it as “the real true feelings that I had at that time . . . ” Defendant’s brief notes, however, that when he was asked at the beginning of the statement whether he had been advised of his rights, he replied, “I guess so. I think so.” He contends that this is evidence that he was unaware of his rights when he made the statement.

In order for a confession or incul-patory statement to be introduced into evidence in a criminal trial, the state must affirmatively show that it was voluntarily given and was not obtained through fear, duress, intimidation, menaces, threats, inducements, or promises. R.S. 15:451; State v. Hollingsworth, 337 So.2d 461 (La.1976). The trial court’s conclusions as to the credibility and weight of the testimony relating to voluntariness will not be overturned unless they are not supported by the evidence. State v. Fowlkes, 352 So.2d 208 (La.1977). At the voluntariness hearings, the defense introduced no evidence to rebut the state’s evidence of voluntariness or to show that Eaker was unable to understand the waiver of his rights because of his disturbed state of mind. The trial court’s determination of voluntariness was correct, and this assignment of error is without merit.

Assignment of Error No. 16

In the course of Ms. Branch’s testimony for the defense, the trial court sustained the state’s objections to certain testimony regarding the victim’s violent character. The defendant alleges that the trial court erred in failing to allow him to examine Ms. Branch adequately on this point. The record shows, however, that Ms. Branch was later permitted to testify about specific incidents evidencing the victim’s dangerous character and about the defendant’s knowledge of at least one of those incidents. Any error committed by the trial court in sustaining the state’s objections did not prejudice the defendant, and this assignment of error is without merit.

Assignments of Error Nos. 20 and 21

These assignments of error concern this court’s ruling in State v. Payton, 361 So.2d 866 (La.1978), an opinion rendered six days after the jury found Eaker guilty of first degree murder and recommended the sentence of life imprisonment. In Payton, we found that the 1977 amendment to the second degree murder statute, R.S. 14:30.-1(B), defining one form of that offense as a killing with specific intent which would be first degree murder under R.S. 14:30 except for the absence of any of the aggravating circumstances provided by C.Cr.P. 905.4, amended the first degree murder statute, by implication, to require proof of at least one aggravating circumstance. We also found that the fact that an offense was committed in an especially heinous, atrocious, or cruel manner, C.Cr.P. 905.4(g), could not constitutionally form part of the definition of first degree murder. Defendant argues that the application of Payton to his conviction and sentence would warrant their reversal because the state attempted to prove that the crime was committed in an especially heinous manner.

Defendant’s argument ignores the fact that the statutory definition of a criminal offense is an aspect of the substantive law, and that the substantive law to be applied in a criminal prosecution is that which was in effect on the date of the offense. The crime of which defendant was found guilty was committed on June 20, 1977, more than two months before the September 9, 1977 effective date of Acts 1977, No. 121, which contained the implicit amendment of the first degree murder statute found to be unconstitutional in part by Payton. On the date of this offense, first degree murder was defined as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. The portion of the state’s case to which defendant objects, i. e. the evidence that Eaker shot the victim twice in the head after he was already critically wounded, was included in order to show specific intent and to rebut the justification defense, not to show that the crime was committed in an especially heinous, atrocious, or cruel manner; this latter factor was not an element of the first degree murder at that time.

There is no merit in these assignments of error.

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

      . The defense also moved for a protective order to prohibit the state from dismissing the affidavit. This motion was properly denied. See C.Cr.P. 691, infra.

      . On September 14, 1978, the state obtained a grand jury indictment charging Ms. Branch with first degree murder. When the trial court permitted the dismissal of the original affidavit, the state asked for a ruling on whether this constituted a declining of the charges, as the state contended, or a dismissal of the prosecution, as the court finally ruled. The state requested this ruling “because if the Court rules that the state dismissed its prosecution then we are limited by ... we have to re-file or file new charges within six months, otherwise we would be barred by the Code of Criminal Procedure.” It appears, then, that the state’s dismissal of the affidavit was not made in good faith, but rather for the sole purpose of denying defendant access to Ms. Branch’s statements.

      .Defendant contends that error was committed when the trial judge himself suggested to the prosecuting attorney that C.Cr.P. 691 would permit the oral dismissal of the affidavit in open court, a procedure promptly utilized by the state. But the record shows that it was counsel for the defense who first made reference to this provision of article 691, in a hearing held earlier on the day the affidavit was finally dismissed.

      . In State v. Kimble, 375 So.2d 924 (La.1979), defendant moved for discovery of statements made by Miller, a co-participant in the offense who was never charged but with whom defendant had been incarcerated in a Mississippi county jail. Dennis, J., concurring, found that Miller was a codefendant within the meaning of C.Cr.P. 722.

      . Included in the evidence introduced in support of this defense was testimony that the victim had a reputation for violence, that Ms. Branch had had previous difficulties with the victim and was afraid of him, that Ms. Branch summoned Eaker to her home on the night of the murder for protection against the victim, that the victim entered Ms. Branch’s home on the night of the killing by breaking down the door, and that the victim acted violently toward Ms. Branch and threatened both her and Eaker before the shootings occurred.

      . With regard to this alleged inconsistency, it should be noted that the state’s evidence showed that at least some of the bullet wounds were inflicted on the victim while he was inside the house. Eaker himself testified that he shot the victim at least once while he was in the house, followed him outside to the end of the carport, pulled him back into the house, and then fired at least one shot into the victim’s head.

      .The relevant grounds for challenging a juror for cause are set forth in C.Cr.P. 797, which provides in pertinent part:
      “The state or the defendant may challenge a juror for cause on the ground that:

      (2) The juror is not impartial, whatever the cause of his pártiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
      (3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
      (4) The juror will not accept the law as given to him by the court; or . . . ” „

      . The record shows that the trial court’s charge to the jury employed the definitions of first and second degree murder which did not become effective until after the date of this offense. No objection was made, however, so that this issue is not before us. We also note that this oversight could not have prejudiced the defendant. If the jury found him guilty of an offense which required both specific intent and an aggravating circumstance, it would certainly have found him guilty of an offense which required only specific intent.


source: Caselaw Access Project

author:
DIXON, Justice.
      DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Roosevelt ALLEN.
    No. 65226.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March ,3, 1980.

      Alton T. Moran, Director, M. Michele Fournet, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Bob Hester, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

On August 10, 1977 defendant was charged with first degree murder. R.S. 14:30. After a jury trial he was found guilty as charged; upon recommendation of the jury he was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant appeals his conviction and sentence, relying upon twelve assignments of error, seven of which he has neither argued nor briefed.

Assignment of Error No. 1

In this assignment of error, defendant contends that the trial judge erred in failing to grant defendant’s challenges for cause of two prospective jurors. During voir dire, prospective jurors were asked by defense counsel if they would believe the testimony of a law enforcement officer simply because of his occupation. Mrs. Lawrence replied that she would lean toward believing the testimony of a law enforcement officer since her brother and grandfather were both policemen. Although she stated that she would give more weight to the testimony of law enforcement officers, she said that she would not automatically believe a law enforcement officer just because of his occupation. When questioned by the prosecutor as to whether she would consider all the facts and not just the uniform in deciding whether to believe a witness, Mrs. Lawrence replied, “I think I could. Like I said, it wouldn’t interfere to that extent. I think I could judge it fairly.” Later she stated that if the state failed to prove its case beyond a reasonable doubt she would resolve that doubt in favor of the accused and return a verdict of not guilty. Defense counsel challenged Mrs. Lawrence for cause; the court denied the challenge, and the defense objected to the ruling.

Another prospective juror, Mr. Varner, similarly indicated that he would give more weight to the testimony of a law enforcement officer than that of a lay person. The trial judge questioned Mr. Varner and determined that Mr. Varner would listen to all of the testimony before he decided to believe a policeman instead of another witness. Defense counsel challenged Mr. Var-ner for cause; the court again denied the challenge.

Defendant argues that the prospective jurors’ responses during voir dire demonstrated that they could not be impartial and that the trial judge, therefore, abused his discretion in denying defendant’s challenges for cause. C.Cr.P. 797 provides that a juror may be excused for cause on either of the following pertinent grounds:

“(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.”

Where an accused has exhausted all of his peremptory challenges before completion of the panel, he is entitled to complain on appeal of a ruling refusing to maintain a challenge for cause made by him. State v. Qualls, 353 So.2d 978 (La.1977), State v. Ballard, 337 So.2d 481 (La.1976); C.Cr.P. 800. The record shows that defendant exhausted his peremptory challenges before completion of the panel; therefore, his objection is properly before this court.

A defendant needs only to show two things to obtain a reversal: (1) that the trial judge erred in refusing to sustain a challenge for cause by the defendant; and (2) that the defendant exhausted all of his peremptory challenges. State v. McIntyre, 365 So.2d 1348 (La.1978). But it should be noted that the trial judge is vested with broad discretion in ruling on a challenge for cause, and that ruling will not be disturbed on appeal absent a showing of abuse of discretion. State v. Drew, 360 So.2d 500 (La.1978). This court has held that a juror who will unquestioningly credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve. State v. Nolan, 341 So.2d 885 (La.1977); State v. Johnson, 324 So.2d 349 (La.1975). However, this case is distinguishable. Although initially both prospective jurors voiced opinions seemingly prejudicial to the defense, subsequently, upon further inquiry, both Mrs. Lawrence and Mr. Varner demonstrated their willingness and ability to decide the case impartially, according to the law and evidence. Therefore, under these circumstances, the challenges for cause were properly refused by the trial judge.

This assignment lacks merit.

Assignments of Error Nos. 2, 3 and 4

In these assignments of error, defendant contends that the trial judge erred in curtailing defense examination during voir dire. The Constitution of this state guarantees that “the accused shall have the right of full'voir dire examination of prospective jurors and to challenge jurors peremptorily.” La.Const., Article 1, § 17. C.Cr.P. 786 further provides that the court, the state and the defendant shall have the right to examine prospective jurors and that the scope of the examination shall be within the discretion of the court. Counsel in a criminal case is allowed a wide latitude in voir dire examination, and the scope of inquiry is best governed by a liberal discretion on the court’s part. State v. Williams, 375 So.2d 364 (La.1979); State v. Hayes, 364 So.2d 923 (La.1978). Thus, even though the defense is entitled to wide latitude in examining prospective jurors, it is the trial judge who determines the scope of the examination under the prevailing facts and circumstances. State v. Hawkins, 376 So.2d 943 (La.1979); State v. Vinet, 352 So.2d 684 (La.1977).

In reviewing the scope of voir dire, this court must consider the examination as a whole, or at least the entire record of examination of the prospective jurors during which defense contends such prejudicial curtailment occurred. State v. Roach, 338 So.2d 621 (La.1976). On voir dire, defense counsel sought to discern whether the fact that a prospective juror’s husband worked for the district attorney’s office as an investigator would influence her by asking the following question: “Mrs. Stewart, do you know if your husband’s job is at stake if — .” Her response was interrupted by the prosecutor who objected, contending that such a question insinuated that the state may try to load a jury and jeopardize a man’s job because his wife was called to serve as a juror. The trial judge questioned Mrs. Stewart as to whether her husband’s job would influence her service on the jury and she responded that it would not. The trial judge then sustained the prosecutor’s objection to defense counsel’s question and refused to allow the defense to proceed with any further questions to Mrs. Stewart concerning her husband’s employment. The court’s questioning established that Mrs. Stewart would not be influenced because of her husband’s job. Thus, the trial judge did not abuse his discretion in refusing to permit further questioning on this point.

In a related argument, defendant contends that the court erred in limiting his examination of two prospective jurors with regard to their predisposition toward policemen. Defense counsel was allowed to examine thoroughly both prospective jurors on their attitudes regarding police witnesses. In both instances the trial judge denied defense counsel’s challenges for cause and the defense persisted in propounding repetitious questions on the same issue. The court curtailed defendant’s examination, stating that there was no need to cover it again. This court has held that it is within the judge’s discretion to impose reasonable limitations in the interest of orderly trial procedure when the trial judge has granted the defense wide latitude in voir dire examination and defense counsel continues to pose repetitious questions on the subject of a challenge which had already been denied. State v. Alexander, 351 So.2d 505 (La.1977); State v. Square, 257 La. 743, 244 So.2d 200 (1971). The record indicates that the trial judge afforded the defense wide latitude in his voir dire. The ruling complained of merely prohibited repetitious questions by defense counsel on subjects of challenges which had previously been denied. We hold that the court’s ruling was a reasonable limitation upon counsel’s examination, and a permissible exercise of the court’s discretion.

These assignments lack merit.

Assignment of Error No. 5

In this assignment of error, defendant contends that the trial court erred in denying defendant’s motion to dismiss the entire jury panel based on a systematic exclusion of blacks. After the jury had been selected, defense counsel moved to dismiss the entire panel based on the systematic exclusion of blacks from the jury. Defendant’s argument was based solely on the fact that all nine of the state’s peremptory challenges were against blacks. The prosecutor declined to explain his peremptory challenges with the exception of noting that the state had accepted one black woman as a juror, but the defense had excused her. The trial court denied the motion to dismiss the panel and defendant objected to the ruling.

In State v. Washington, 375 So.2d 1162 (La.1979) and State v. Brown, 371 So.2d 751 (La.1979), this court held that a defendant is not denied equal protection by the state’s use of peremptory challenges against blacks unless there is a systematic exclusion of blacks over a period of time. In so doing, this court adhered to the principle of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in which the United States Supreme Court held that a showing that peremptory challenges were used to exclude blacks in a particular case did not establish a violation of equal protection under the Fourteenth Amendment of the United States Constitution. Rather, a showing of systematic exclusion over a period of time is required to present a constitutional issue. The burden is on defendant to establish a prima facie showing of such exclusion. In the present case, the defendant introduced no evidence to show that exclusion of blacks by peremptory challenges had occurred over a period of time. Therefore, his motion to dismiss the entire jury panel was properly denied.

This assignment lacks merit.

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

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I continue to think it unfortunate that this Court should ignore our state constitution and require a defendant to prove that a prosecutor has practiced racial discrimination “over a period of time” before the defendant can, in his one particular case, show that he has been prejudiced by racially motivated peremptory challenges. In the present case, however, the evidence does not establish a prima facie showing of discrimination even under the Louisiana constitution. See State v. Eames, 365 So.2d 1361 (La.1978) (Dennis, J., concurring).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Sidney JOHNSON.
    No. 65261.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.
    John Barkley Knight, Jr., Winnsboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., E. Rudolph McIntyre, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Sidney Johnson was indicted by the grand jury for first degree murder in violation of La.R.S. 14:30. After trial by jury, he was found guilty as charged. After a sentencing hearing conducted before the same jury that determined the issue of guilt, the jury unanimously recommended that defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in overruling his objection to the introduction into evidence of an inculpatory statement made by him to Officer Joe Powell at the time of his arrest on the ground that the state did not inform him of the statement in its answer to his motion for discovery and in refusing to order a mistrial on the same ground.

On March 14, 1979, defendant filed a motion requesting the court to order the district attorney to inform him of the substance of any oral statement which the state intended to offer in evidence made by defendant in- response to interrogation by a law enforcement officer. The state responded on March 19, 1979, that it had no knowledge of any such statement. On Friday, March 30, 1979, the assistant district attorney learned for the first time that defendant had disclosed the location of the shotgun allegedly used to commit the murder in question to Officer Joe Powell at the time of his arrest. A notice of the state’s intention to offer the statement in evidence, containing the substance of the statement, was placed in defense counsel’s box in the parish clerk’s office that same day, though the notice was not received by defense counsel until Monday, April 2,1979, the day on which defendant’s trial had been set. However, trial did not commence until Wednesday, April 4, 1979. Defendant did not move for a continuance.

La.Code Crim.P. art. 716(C) provides:

. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.

La.Code Crim.P. art. 729.3 provides for a continuing duty to disclose:

If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

La.Code Crim.P. art. 729.5(A) provides sanctions for a failure to comply with the discovery articles:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

We are satisfied that the assistant district attorney was in good faith and had no knowledge of the statement prior to Friday, March 30, 1979. Disclosure of the statement was made that same day and, though defendant did not actually receive it until Monday, April 2, defendant had actual notice two days before commencement of the .trial. Moreover, defendant did not seek a continuance as a result of not receiving notice of the statement earlier. Under the circumstances, we find that the state substantially complied with La.Code Crim.P. arts. 716(C) and 729.3. Hence, the trial judge did not abuse his discretion in overruling defendant’s objection to the introduction of the statement in evidence or in failing to order a mistrial.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial court erred in overruling his objection to the introduction into evidence of a shotgun because it was seized as a result of an illegal search and in denying his motion for a mistrial on the same ground.

The record reveals that on the morning of October 14, 1978, defendant was involved in an altercation with Joe McCarthy, Sr. at the Silver Spoon Cafe in Winnsboro, Louisiana. Defendant left the cafe but returned with a shotgun in the early morning hours of October 15, 1978, and shot McCarthy three times, killing him. Police officer Joe Powell and other officers investigating the incident arrived at the cafe and found three red 12 gauge shotgun shells on the floor near the victim.. After questioning witnesses, the officers set out to find defendant.

The officers drove to a house being rented by Luretha Swiney, the woman with whom defendant had been living. Several persons were inside the house when Officer Powell knocked on the front door, identified himself and asked if defendant was there. When informed that defendant was inside, Officer Powell leaped off the small front porch into the yard. Defendant emerged from the house through the front door and Officer Powell advised him that he was under arrest for the murder of Joe McCarthy, Sr. Officer Powell handcuffed defend-' ant and read him his Miranda rights; defendant stated that he understood his rights. Officer Powell then asked defendant where the shotgun was located and defendant replied that it was inside the house “under the mattress.”

Officer Powell entered the house and, as he stepped into the bedroom, Bobby Williams, one of the persons present inside the house, had turned up the mattress, exposing the shotgun. As Williams removed the gun and attempted to pass it to him, Officer Powell grabbed the shotgun from Williams’ hands. The shotgun was introduced into evidence as the weapon used to commit the murder of Joe McCarthy, Sr.

Unreasonable searches and seizures are prohibited by the fourth amendment to the federal constitution and by section 5 of article 1 of our state constitution. It is well settled under the fourth and fourteenth amendments that a search conducted without a warrant issued upon probable cause is “per se unreasonable . subject only to a few specifically established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to conserit. Schneckloth v. Bustamonte, supra. Hence, a search conducted pursuant to a valid consent is constitutionally permissible. Moreover, when the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given. Schneckloth v. Bustamonte, supra; Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). It is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. Therefore, the validity of the consent is determined by the facts and circumstances of each case. Schneckloth v. Bustamonte, supra.

In the instant case, defendant disclosed the location of the shotgun to the officers after he was read his Miranda rights and after stating he understood those rights. By telling the officers the shotgun was “in the house under the mattress,” defendant directed Officer Powell to the very spot where the shotgun was concealed. Thus, the seizure was the result of information volunteered by defendant after having been advised that he had a right to remain silent. In effect, defendant consented to a limited search in the house under the mattress for the shotgun. Upon being directed to the mattress in the house, Officer Powell walked inside and stepped into the bedroom to find Bobby Williams, one of the occupants of the house, lifting up the mattress revealing the shotgun. It is apparent that defendant’s disclosure of the shotgun’s location was intended as a consent to search because Bobby Williams overheard the statement, interpreted it as a directive to give Officer Powell the shotgun, and proceeded to do just that. Moreover, Officer Powell merely removed the shotgun from Williams’ possession once it was revealed to him.

That defendant was under arrest is indeed a factor to consider in determining whether defendant voluntarily consented to the search. The question is whether the officers used coercive tactics or took unlawful advantage of the arrest situation to obtain consent. United States v. Jones, 475 F.2d 723 (5th Cir.), cert. denied, 414 U.S. 841, 94 S.Ct. 96, 38 L.Ed.2d 77 (1973). As in Jones, a factor which weighs in favor of finding a voluntary consent is that defendant was given his Miranda warnings prior to the time his statement was made. No coercive tactics or unlawful advantage whatsoever took place; Officer Powell testified that he merely asked defendant where the shotgun was located.

A similar situation existed in United States v. Candeda, 469 F.2d 173 (2d Cir.1972), in which the defendant was arrested at his home for illegal transportation of firearms, was given his Miranda rights and asked whether he had any of the firearms he was accused of purchasing. Defendant stated, “[s]ome of them are there,” pointing to a carton about five feet from where he was standing; he also indicated that other weapons were in a desk located in the same room. The court found defendant had voluntarily consented to the search by directing the officers’ attention to the very spots where the guns were located.

Under the facts and circumstances of this case, we are unable to say that the trial court erred in determining that defendant voluntarily consented to the search under the mattress in the residence for the shotgun. The officer’s search did not exceed the bounds of the consent given when he seized the shotgun from Williams. Since the search was conducted pursuant to a valid consent, it was constitutionally permissible. Hence, the trial court did not err in overruling defendant’s objection to the introduction of the shotgun in evidence and in denying his motion for a mistrial.

DECREE

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


text:
    Yahya Zakaria ABDELBAKI and Iptessam Refaat Abdelbaki v. UNIVERSITY PRESBYTERIAN CHURCH.
    No. 65356.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearings Denied March 3, 1980.

      Arthur Cobb, Arthur Cobb, Ltd., A Law Corp., Baton Rouge, for plaintiffs-applicants.
    Ralph Brewer, Michael W. McKay, Baton Rouge, for defendant-respondent.
   MARCUS, Justice.

On December 1, 1975, plaintiffs, Mr. and Mrs. Abdelbaki, purchased a large, forty-year-old residence, located at 3000 Dalrym-ple Drive in Baton Rouge, Louisiana, from defendant, University Presbyterian Church, for the price of $95,000. Plaintiffs financed $71,000 with Union Federal Savings & Loan Association and gave defendant a $24,000 promissory note bearing interest at the rate of ten percent per annum, secured by a second mortgage, for the remainder of the purchase price. When plaintiffs began renovation of the house shortly after they moved in, they discovered extensive hidden termite damage.

Plaintiffs instituted this action against defendant to rescind the sale of the residence based on the aforesaid termite damage. Plaintiffs also sought damages. Defendant answered, denying the termite damage was of sufficient magnitude to warrant rescission of the sale and reconvened for the principal and interest due on the second mortgage note.

The trial court rendered judgment in favor of plaintiffs and against defendant finding the termite damage to be a redhibi-tory defect; the sale was rescinded, but no damages were allowed. On the reconven-tional demand, the court ordered plaintiffs to pay defendant interest at the rate of ten percent per annum on the $24,000 promissory note from December 1, 1975 (date of sale) until the property was returned to defendant; the interest ($200 per month) would serve as compensation for plaintiffs’ use of the premises during that period. Plaintiffs appealed and defendant answered the appeal. The court of appeal affirmed. Both parties applied to this court for writs. We denied the application of defendant but granted plaintiffs’ application to consider the claim that the courts below failed to require defendant “to pay interest for the ‘use’ of the $71,000” received at the sale and to reimburse plaintiffs for other expenses occasioned by the sale as well as those incurred for preservation of the premises as required by La.Civ.Code art. 2531. Additionally, plaintiffs claim, in brief to this court, that, since defendant knew of the defect in the premises, it should also be required to pay reasonable attorneys’ fees and be answerable to them in damages as provided for in La.Civ. Code art. 2545. Plaintiffs alternatively seek a reduction in the purchase price.

A seller impliedly warrants that the object sold is fit for the purpose intended and is free of hidden defects. La.Civ. Code arts. 2475, 2476. A redhibitory defect which would entitle a buyer to rescind a sale is a “defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” Id. art. 2520. In addition, the defect in the object must have existed before the sale and must not have been apparent by “simple” inspection. Id. arts. 2521, 2530. A buyer may also demand a reduction of the purchase price, rather than the rescission of the sale, “when the quality, which the thing sold has been declared to possess and which .it is found to want, is not of such importance as to induce [the buyer] to demand a redhibition.” Id. art. 2542. Article 2543 allows the judge to reduce the purchase price rather than rescind the sale in a redhi-bition action.

The reimbursement to which the buyer is entitled depends upon whether or not the seller knew of the defect in the object sold. Article 2531 provides in pertinent part:

The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.

Article 2545 provides:

The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of [the] price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.

The record reveals considerable evidence of extensive old termite infestation, but no active infestation. The termite damage was discovered when plaintiffs removed the existing carpeting on the floors and when sheetrock on one of the bedroom walls was removed. Termites had attacked wooden studs between the walls and had damaged wooden floors to the point where holes existed in the floors of several rooms. A structural engineer testified that extensive removal of walls and floors would be required in order to ascertain the total extent of the termite damage; estimated costs to search for and repair any damage ranged from $10,000 to $30,000. The trial judge inspected the premises and in his written reasons for judgment stated: “Inspection revealed that substantial old termite damage was present in the residence.”

The trial court found, and we agree, that plaintiffs could not have known the property was extensively damaged by termites. The damage was not apparent nor was it discoverable by simple inspection, being hidden behind the walls and baseboards and beneath carpeting covering the floors. We also agree that the termite damage was of such magnitude that plaintiffs could demand rescission of the sale; the defects were such that, if plaintiffs had known of their existence, they would not have purchased the home. Accordingly, the sale was correctly rescinded. Having reached this conclusion, we need not consider plaintiffs’ alternative demand for reduction of the purchase price.

We also concur in the trial court’s finding that defendant was in good faith, having no knowledge of the extensive hidden termite damage. Hence, art. 2545 is inapplicable and plaintiffs’ demands for damages and attorneys’ fees were properly rejected.

When a sale is rescinded, and the seller was in good faith, the purchaser should be restored, as much as possible, to the condition he enjoyed prior to the sale; the buyer returns the property to the seller and the seller returns the purchase price and reimburses the buyer with reasonable expenses occasioned by the sale as well as those incurred for the preservation of the property. La.Civ. Code art. 2531. Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978).

In the instant case, defendant is obligated to return the entire purchase price ($95,000). This includes the $71,000 cash received by it at the time of the sale as well as the cancellation of the $24,000 second mortgage note given by plaintiffs to defendant at that time for the balance of the purchase price. Among the expenses occasioned by the sale to be reimbursed by defendant are closing costs, costs of loan appraisal and all homestead charges, such as interest, taxes and insurance. Because plaintiffs will be obligated to cause the mortgage which now encumbers the property in favor of Union Federal Savings & Loan Association for $71,000 (first mortgage loan made by plaintiffs to finance the cash portion of the purchase price) to be cancelled, defendant must also reimburse plaintiffs for any expenses of releasing the mortgage, such as penalties charged by the mortgagee for early termination of the loan. Also, all costs of reconveyance of the property by plaintiffs to defendant should be borne by defendant. Plaintiffs are further entitled to reimbursement of any expenses incurred for the preservation of the property.

The trial court failed to determine most of the expenses which defendant must reimburse plaintiffs; the judgment was confined to interest plaintiffs failed to pay on the $24,000 promissory note held by defendant. The court directed plaintiffs to pay interest owing on this note ($200 per month) as compensation for their use of the house. Treating plaintiffs’ contention that the courts below failed to require defendant “to pay interest for the ‘use’ of the $71,000” received at the sale as a claim to require defendant to reimburse plaintiffs for the interest paid on the $71,000 loan made by them with the savings and loan association to finance the cash portion of the purchase price, we find no merit in the contention based on the following facts.

Plaintiffs were obligated to pay interest on two separate mortgage notes. Plaintiffs’ monthly payment on the note held by the savings and loan association was $571.45 but the record does not reveal what portion of this amount was for interest. Accordingly, we will assume for our purposes that $550 of the monthly payment was for interest. Plaintiffs were also obligated to pay defendant $200 per month as interest on the $24,000 second mortgage note. Hence, the total interest on the two loans to finance the purchase price was $750 per month, an expense of the sale to which plaintiffs are entitled to be reimbursed. However, art. 2531 provides that expenses occasioned by the sale are subject to a credit for the value of “any fruits or use” which the purchaser has drawn from the property. In this case, plaintiffs received two valuable benefits from the property. First, the property included a smaller three-bedroom house adjoining the garage of the main residence. Plaintiffs rented this house to students for $350 per month. Crediting the $750 monthly interest expense with this income, there remains a balance of $400 for which plaintiffs would be entitled to be reimbursed. However, we feel that plaintiffs’ use of the large four-bedroom main house, together with other benefits of ownership, even though diminished by inconveniences incurred because of the defective nature of the premises, is worth $400 per month. Hence, plaintiffs’ claim for interest expense as an expense occasioned by the sale is cancelled out by the credit for the value of the “fruits and use” which they received from the property. Therefore, we affirm the trial court’s finding that plaintiffs must pay defendant the $200 per month interest owed on the $24,000 second mortgage note.

However, we find that the trial judge did err in failing to order reimbursement to plaintiffs of other reasonable expenses occasioned by the sale as well as those incurred for the preservation of the property. The exact amount of these expenses are not reflected in the record. Hence, the case must be remanded to the trial court for a hearing to determine the amount of these expenses.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed in part and reversed in part and the case is remanded to the trial court for further proceedings in accordance with the views herein expressed.

BLANCHE, J. recused.

      . 375 So.2d 952 (La.1979).

      . 375 So.2d 948 (La. 1979).

      . See Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978); Bernofsky v. Schwartz, 370 So.2d 590 (La.App.4th Cir. 1979).


author: PER CURIAM. PER CURIAM.

text:
    STATE of Louisiana v. Patrick ZENO.
    No. 65383.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    On Rehearing March 3, 1980.
    Marion Overton White, Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plain tiff-appel-lee.
   PER CURIAM.

After considering the arguments of counsel and examining the record we find the defendant’s assignments of error to be without merit for reasons assigned in our unpublished appendix on file under this docket number.

In our review, however, we have discovered an error patent on the face of the record. The bill of information, which accuses defendant of having “robbed Joseph Menard and Scurdy Menard, in violation of the provisions of R.S. 14:64,” charges him with a single offense. State v. Foe, 337 So.2d 491 (La.1976); State v. Ware, 345 So.2d 33 (La.1977). Nevertheless, the jury was allowed to return two separate verdicts of guilty and the trial judge sentenced defendant to two sentences of fifteen years at hard labor. Accordingly, the sentences must be set aside and the trial court must recast its judgment to impose one conviction and one sentence as a result of this prosecution.

A single conviction of armed robbery is affirmed. Otherwise the sentences and judgments of conviction herein are set aside and the case is remanded for resentencing and recasting of the judgment.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

After considering the rehearing application submitted by the state and examining the record, we find that our original opinion must be amended.

The state has supplemented the record with an amended bill of information, timely filed in the trial court, which sufficiently charged the defendant with two counts of armed robbery. The jury, therefore, properly found him guilty of two crimes of armed robbery, and the defendant was sentenced correctly to two concurrent sentences of fifteen years at hard labor.

Accordingly, we amend our original opinion and affirm both of the defendant’s convictions and answer. In all other respects we adhere to our opinion on original hearing.


author: WATSON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Allen R. BOLDEN.
    No. 65385.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.

      Howard M. Fish, Asst. Indigent Defender, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Robert W. Gillespie, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   WATSON, Justice.

Allen R. Bolden pled guilty to possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1 and to possession of an illegal firearm in violation of LSA-R.S. 40:1785, and reserved the right of appeal from the trial court’s denial of his motion to suppress. State v. Crosby, 338 So.2d 584 (La., 1976). Defendant was sentenced to three and one-half years at hard labor on the first charge and a consecutive year at hard labor on the second charge. On appeal, defendant relies on one assignment of error.

The assignment of error relates to the denial of defendant’s motion to suppress the sawed-off shotgun seized at the time of arrest. The issue is whether the police officer had the right to make a forcible stop and search of defendant, i. e., whether there were reasonable grounds for suspicion of criminal conduct.

I. FACTS

The evidence at the trial of the motion to suppress was as follows. On February 9, 1979, at approximately 11:00 P.M., Officer Robert Rudd of the Shreveport Police Department, was stopped by an unidentified citizen, who reported that a black male in a nearby nightclub, “The Player’s Choice”, had a sawed-off shotgun stuck in the front of his pants. The man was described as being of medium height and slender build, wearing a black hat and black leather coat. (Tr. Vol. II, p. 6)

Officer Rudd and the citizen proceeded to the Player’s Choice Lounge but found it closed. Officers Gurley and Rodgers met them there, and Officer Gurley obtained a more complete description of the suspect. He was a black male, a couple of inches taller than Gurley, who was wearing a black hat; a black full length leather coat; a vest; and light colored pants, tan or gold. He was in the company of two other men, and the shotgun was in the right side of his trousers. (Tr. Vol. II, pp. 12-13) Officer Gurley, a black policeman, knew from experience that most of the patrons of The Player’s Choice went after hours to the Harlem House Cafe (Tr. Vol. II, p. 12). There was no one fitting the description in the Harlem House Cafe, and Officer Gurley waited in his patrol car across the street.

Approximately five minutes later, a man wearing a black hat, black leather coat, gold vest and gold pants got out of a car and walked away from the cafe. Two other people in the car entered the cafe. Officer Gurley got out of the police car and called to Bolden, the defendant, who stopped (Tr. Vol. II, pp. 14-15). Officer Gurley then frisked the outer clothing of the suspect and felt a hard object. He pushed the unbuttoned coat aside and saw the butt of a weapon. A light struggle ensued before Bolden was subdued with the assistance of Officer Rodgers. The weapon, a twelve gauge sawed-off shotgun, was seized and the defendant was placed under arrest.

II.

The seizure of the gun was valid only if the police officer had reasonable grounds for both (A) the initial detention of defendant; and (B) the frisk for weapons.

(A) INVESTIGATORY STOP

The Fourth and Fourteenth Amendments to the Federal Constitution, as well as Article 1, § 5 of the Louisiana Constitution of 1974, protect against unreasonable searches and seizures. An investigatory stop on the street constitutes a “seizure”, even though the purpose of the stop is limited and the resulting detention brief. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Louisiana has provided by statute for questioning of a person on reasonable suspicion of criminal activity and for a weapon search when there is a reasonable suspicion of danger to life and limb. LSA-C.Cr.P. art. 215.1.

Reason for an investigatory stop may be less than probable cause, but the detaining officer must have knowledge of facts which imply criminal behavior to justify interference with an individual’s freedom. State v. Chopin, 372 So.2d 1222 (La., 1979); State v. Robinson, 342 So.2d 183 (La., 1977).

An informant’s tip can provide a police officer with reasonable cause to detain and question a suspect. State v. Jernigan, 377 So.2d 1222 (La., 1979). Informant’s tips vary greatly, however, in their value and reliability, rendering impossible one rule to cover every situation. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

The tip in the instant case was anonymous, although the tipster originally accompanied the police in their investigation. Defendant contends that, absent a known informant or some corroboration by independent sources, the policeman’s actions in the present case were unreasonable.

In State v. Jernigan, supra, this court upheld an investigatory stop based on an anonymous tip which particularly described an individual at a certain location wearing a yellow shirt and blue pants who was suspected of carrying a concealed weapon. Also, see State v. Brown, 370 So.2d 547 (La., 1979). Information received from an anonymous tipster must carry enough indicia of reliability to justify the stop. The extensive information received here was fully corroborated by police observation.

In order to assess the reasonableness of an officer’s conduct it is also necessary to weigh the governmental interest which allegedly justifies the intrusion upon rights of private citizens; the need to search or seize must be balanced against the harm of invasion. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The crime being investigated here involved a sawed-off shotgun, which is an exceptionally dangerous weapon. It presented an immediate danger to the public, particularly in a nightclub setting. There was an acute public interest in swift police action.

Under the circumstances, which include (1) suspicion of a crime involving a particularly dangerous weapon, (2) a detailed eyewitness description of the suspect, and (3) verification by police observation in every detail, Officer Gurley was justified in detaining defendant.

(B) WEAPON FRISK

Even after a lawful stop, a police officer is not always justified in frisking a suspect for weapons. See State v. Hunter, 375 So.2d 99 (La., 1979). A weapon frisk is justified under circumstances where a “reasonably prudent man . . . would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909 (1968). It is sufficient that an officer establish a “substantial possibility” of danger by pointing to particular facts which support such a reasonable inference. State v. Hunter, supra, at 101. See also Comment, Terry Revisited: Critical Update on Recent Stop-and-Frisk Developments, 1977 Wis.L.Rev. 877, 896.

In the course of the investigatory stop nothing transpired to dissuade Officer Gurley in his belief that defendant was armed and dangerous. Under the circumstances, a limited protective search of defendant’s outer clothing for weapons was justified.

III.

The initial detention for investigation and subsequent frisk of defendant by Officer Gurley were justified. The trial judge did not err in denying defendant’s motion to suppress the shotgun.

DECREE

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

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Disregarding the limits of reasonable cause for stop carefully marked out by Justice Rehnquist in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the majority opinion approves a detention and search based on an informant’s tip having no more indicia of reliability than an anonymous telephone tip. The Supreme Court majority in Adams approved the police officer’s action in plucking a gun from the defendant’s waistband after receiving a tip that defendant had a gun in this spot and was carrying narcotics. The central reason given for this being a justifiable response to an informant’s tip was that “[t]he informant was known to [the officer] personally and had provided him with information in the past . . . [making] a stronger case than obtains in the case of an anonymous telephone tip.” 407 U.S. at 146, 92 S.Ct. at 1923. Warning that “[s]ome tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation . ,” the high court expressly approved unverified tips as providing justifiable bases for investigatory stops in only two situations — “when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime.” 407 U.S. at 147, 92 S.Ct. at 1924. In the present case the tipster was not credible, i. e., he was not known to the police and had not provided information in the past, and he was not the victim of a street crime seeking immediate police aid. His tip was completely lacking in indicia of reliability. The officers therefore had no reasonable cause to stop and question the defendant who had engaged in no suspicious behavior whatsoever.

The majority opinion vindicates the concerns of the dissenters in Adams v. Williams, supra, that the easy extension of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to “possessory offenses” is a serious intrusion on Fourth Amendment safeguards. My brethren’s opinion today in fact fulfills the prophecy of Chief Judge Friendly that there is involved in such an extension “too much danger that, instead of the stop being the object and the protective frisk an incident thereto, the reverse will be true.” Williams v. Adams, 436 F.2d 30 at 38 (2 Cir. 1970), dissenting opinion.

      . Defendant has neither briefed nor argued Assignment of Error Number Two; therefore, we consider it to have been abandoned. State v. Bennett, 345 So.2d 1129 (La., 1977); State v. Blanton, 325 So.2d 586 (La., 1976).


author: BLANCHE, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Alfred Lee MATTHEWS.
    No. 65415.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.

      Robert Glass, Glass & Reed, New Orleans, Thomas J. Divens, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., Walter Naquin, Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

The defendant was indicted for first degree murder and was found guilty of manslaughter by a unanimous jury. He was sentenced to nine years imprisonment at hard labor. The incident began when the defendant’s sister-in-law went shopping at Rouse’s Supermarket and the owner of the store detained her on an accusation of shoplifting. Defendant’s sister, who was also in the store, believed that the woman was being beaten by some of the male employees of the store and immediately called the woman’s husband and asked him to come to her aid. Shortly thereafter, the husband arrived, accompanied by his two brothers, one of whom was the defendant, and demanded to know who had hit his wife. When the wife pointed to Mr. Rouse, the store owner, the two began to fight. Deputy Proctor of the Lafourche Parish Sheriff’s Office, who had reported to the store to investigate the shoplifting complaint, stepped in to break up the fight and during the course of this endeavor, drew his pistol and smashed the defendant’s brother across the face. During the free-for-all which then ensued, Proctor’s pistol fell to the floor and the defendant picked it up and pointed it at the officer. At this point, the state’s and the defendant’s versions of the facts vary. According to the state, Deputy Proctor kept a distance of five feet between himself and the defendant the entire time until the shots were fired. The defense contended that Deputy Proctor grabbed the defendant’s arm and during the struggle over the gun, the shots went off.

The defendant’s sole argument on appeal is that the trial court erred in refusing to instruct the jury on the law of negligent homicide. The defendant had first requested that the trial court instruct the jury that negligent homicide is responsive to a first degree murder indictment and that the court deliver its standard negligent homicide definition and instruction to the jury. In the alternative, the defendant requested that the court deliver its standard negligent homicide definition to the jury and further charge the jury as follows:

“I have just defined, and instructed you on, the crime of negligent homicide. Negligent homicide is, along with first degree murder, second degree murder and manslaughter, one of the four degrees or grades of homicide provided for in the Louisiana Criminal Code. However, by a separate provision of the Louisiana Code of Criminal Procedure, the Legislature has decreed that negligent homicide should not be a responsive verdict to an indictment for first degree murder. Therefore, if you believe beyond a reasonable doubt that the defendant is guilty of negligent homicide, but you do not believe beyond a reasonable doubt that he is guilty of any other grade of homicide which I have instructed is responsive to the charge of first degree murder, you must return a verdict of not guilty.”

The trial court refused to give either of these instructions.

Code of Criminal Procedure art. 807 establishes the trial court’s duty to give special instructions as follows:

“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

The trial court properly rejected defendant’s first requested instruction following this Court’s decisions which have repeatedly upheld the constitutionality of Louisiana’s responsive verdict system. State v. Marse, 365 So.2d 1319, 1322 (La.1979); State v. Qualls, 353 So.2d 978 (La.1977); State v. Cook, 345 So.2d 29 (La.1977). Therefore, the requested charge was not correct and pertinent, since it improperly stated the law as to the responsive verdicts to a first degree murder indictment.

While it is the duty of the trial judge to give a requested charge which does not require qualification, limitation or explanation, requested charges which are already substantially given and covered by the general charge are properly refused. State v. Badon, 338 So.2d 665 (La.1976); State v. White, 254 La. 389, 223 So.2d 843 (1969). In the instant case, the trial court instructed the jury that they must find the defendant guilty beyond a reasonable doubt before they could render a verdict of guilty of the offense charged or any lesser included offense. He further emphasized that the state must have proved each element of the offense or of a lesser included offense as follows:

“The burden that the state carries, if it wishes to overcome the defendant’s presumption of innocence, extends to each element of the crime with which he is charged and each element of this crime must have been proven by the evidence . beyond a reasonable doubt before you can vote to convict this defendant.”

Because the defendant had raised the defense of an accident, the court discussed the effect of a finding of fact by the jury that the shooting was accidental. The trial judge stated, “an accident is by definition an unintentional act. The defense of accident' is a full defense to the charge of shooting with a specific intent to kill or to inflict great bodily harm. The state has the burden of proving that the defendant shot the decedent with specific intent to kill or to inflict great bodily harm, and further, that the shooting was not excusable as an accident.”

The court Emphasized in its instructions that the jury’s duty is to apply the law as given:

“You have to have moral fibre and courage to withstand any pressure put on you by your fellow jurors because you have taken an oath that you will follow the law and the law does not permit you to compromise your convictions. You can not agree to a lesser verdict for instance, that is, that the defendant is guilty of a lesser crime if you think no crime has been proven beyond a reasonable doubt . Before you can vote that the defendant is guilty of the crime with which he is charged or one of the lesser included offenses which I will discuss with you shortly, you must have been convinced beyond a reasonable doubt. Anything else would be immoral or illegal.” .

The instructions by the judge clearly admonished the jury that it could not return a verdict of guilty of the crime charged or any lesser included crime without first finding that the state had proved each and every element of the crime charged, or its lesser included offenses, beyond a reasonable doubt.

Insofar as the requested charge on negligent homicide advised the jury of the possible accidental nature of the homicide, the charge was proper, though the trial judge more appropriately followed the mandate of C.Cr.P. art. 807 when he explained that they must exonerate the defendant if they found the .shooting accidental. Therefore, we conclude that the trial court properly rejected the defendant’s requested charge because he included the contingency of an accidental death in his general charge and properly advised them that a finding of accidental death should result in a verdict of not guilty. The instructions of the trial court were also clear that a verdict of guilty to any of the included offenses could not be returned unless the state had proved beyond a reasonable doubt each and every element of such lesser included offenses.

The defendant suggests that the jury returned a verdict of guilty of manslaughter rather than a not guilty verdict because they felt that defendant was at least guilty of something and that manslaughter was there only alternative. We can not and will not assume that the jury compromised their verdict in that fashion for to do so we would have to assume that each and every juror violated his oath and the duty of his office.

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

AFFIRMED.

DENNIS, J., dissents with reasons.

CALOGERO, J., dissents and joins in reasons assigned by DENNIS, J.

DENNIS, Justice,

dissenting.

I respectfully dissent. In State v. Marse, 365 So.2d 1319 (La.1979) we held that if one reasonable view of the evidence in a first degree murder prosecution would support a finding of negligent homicide by the jury then the trial judge’s refusal to give an instruction on negligent homicide would violate a defendant’s right to a wholly correct and pertinent special charge. In that case, however, we found that the trial judge’s failure to give such requested instruction was harmless error.

Although the trial judge in Marse did not give the requested instruction, the jurors did receive information from the judge and defense counsel as to the law of negligent homicide and were instructed that they were required to find the defendant not guilty if there was a reasonable doubt as to all grades of the offense charged. In the present case the trial judge never actually instructed the jury on the law of negligent homicide, but spoke only generally in terms of an “accidental” killing. I do not believe that this instruction can be deemed sufficient to hold the failure to give the requested instruction on negligent homicide harmless.