author:
MARCUS, Justice.
      CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Thomas M. STRAMIELLO.
    No. 67433.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Edward Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Cora R. Schley, Schley & VanDyke, Alexandria, for defendant-appellant.
   MARCUS, Justice.

Thomas M. Stramiello was charged by bill of information with simple escape from “Camp Beauregard Work Release Center, a unit of the Louisiana Department of Corrections” in violation of La.R.S. 14:110. At arraignment, defendant entered a plea of not guilty and not guilty by reason of insanity to the indictment. After trial by jury, defendant was found guilty as charged and sentenced to serve three and one-half years at hard labor. The trial judge expressly directed that the sentence be served consecutively with any other sentence. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

Defendant was convicted of armed robbery and crime against nature and sentenced to serve time at Angola. After serving eighteen months, he was sent by the Department of Corrections to the Camp Beauregard Work Release Center in Pine-ville, Louisiana. Defendant was a maintenance inmate and was allowed to attend trade classes. On May 20, 1976, defendant presented a letter purportedly from the Alexandria Trade School which stated that he was enrolled in a special class that met that evening. He was taken to the school by a Department of Corrections officer so he could attend the class. When the officer later returned to bring him back to the center, the officer was unable to locate him and discovered from the school authorities that no class had been scheduled for that evening. Defendant was listed as an escapee and an all points bulletin was issued for his arrest. He later turned himself in to the authorities in New York and was. booked on a warrant issued by Louisiana for simple escape. There were delays in the extradition process. Defendant was released in New York on bond and subsequently arrested for rape. He pled guilty to the charge and was sentenced by the New York court to six to twelve years. This sentence was to run concurrently with any sentence that he was presently serving in Louisiana and any sentence he might receive for the pending charge of simple escape. Defendant waived extradition and returned to Louisiana to face trial on the instant charge of simple escape.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in overruling his objection to an irrelevant question asked him on cross-examination.

During the state’s cross-examination of defendant concerning the events leading up to his escape, the following question was asked:

In this period of May, 1976, wasn’t there a lot of publicity about the Camp Beauregard Work Release Center and inmates escaping therefrom and raping and certain citizens around Camp Beauregard Work Release ...

Defendant objected on the ground of irrelevancy. The state responded that further questioning would make the question relevant. The objection was overruled. The state then questioned defendant about the publicity and the shake-up it had caused in the work release program. Defendant was asked if at the time he was concerned that the shake-up might result in his being sent back to prison and if he feared for his life if this happened because of the stigma attached to prisoners sent to work release. Defendant admitted that the threat was there, “Always on my mind. Always on everybody’s mind.”

A witness may be cross-examined on the whole case. La.R.S. 15:280. Relevant evidence is that tending to show the commission of the offense and the intent. La.R.S. 15:441. A trial judge’s determination regarding the relevancy of offered testimony is entitled to great weight and should not be overturned absent a clear abuse of discretion. State v. Winston, 343 So.2d 171 (La.1977).

In the instant case, defendant had testified on direct examination that he did not recall the events surrounding his escape on the night in question. The state was attempting to show motive for his departure, that is, that defendant feared the publicity had caused a shake-up in the work release program that might result in his being sent back to prison where his life would be in danger. Under the circumstances, we are unable to say that the trial judge abused his discretion in overruling defendant’s objection to the question based on irrelevancy.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in sustaining an objection to a question asked of his mother on direct examination on the ground of irrelevancy.

Defendant had testified that he remembered nothing about the armed robbery and the crime against nature for which he was convicted in 1974 because he was under a great amount of stress and in an amnesic state at the time. During defendant’s mother’s testimony, she stated that her son “showed extreme stress the entire time” she visited him in 1973, shortly before he committed the said crimes. When defense counsel asked defendant’s mother how this stress manifested itself, the state objected on the ground of irrelevancy. The objection was sustained.

In brief to this court, defendant argues that since he remembers nothing about the other crimes he committed due to amnesia caused by stress, the question was relevant to show what occurred on the previous occasion in order to explain what occurred on this occasion.

A trial judge’s determination regarding the relevancy of offered testimony is entitled to great weight and should not be overturned absent a clear abuse of discretion. State v. Winston, 343 So.2d 171 (La.1977). In the instant case, the stress symptoms about which the witness was questioned took place three years prior to the commission of defendant’s escape from the work release center. Because the stress occurred so long prior to the crime for which defendant was on trial, we cannot say the trial judge abused his discretion in sustaining the state’s objection on the ground of irrelevancy.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in permitting the state, over his objection, to ask his mother an improper question on cross-examination.

During cross-examination of defendant’s mother, the state asked if her son ever told her how he had escaped. After stating that she did not inquire into the details of his escape, the state asked, “He didn’t tell you that he had hit a guard over the head and escaped?” She responded: “No. Well, . . . we asked if anyone was hurt — .” Defendant objected on the ground that the question assumed a fact not proven. The trial judge overruled the objection. The witness then responded that, “We wanted to know if anyone was hurt, and ... we were told, no, and we just dropped it at that.” The state attempted to further question the witness on whether defendant had told her how he had accomplished his escape but was without success.

Defendant’s defense to the charge was that at the time he left the Beauregard Work Release Center, he was in an amnesic state, unaware of and not in control of his actions, and consequently incapable of forming the intent required to commit the crime of simple escape. Through cross-examination of defendant’s mother, the state was attempting to prove that defendant was not in an amnesic state at the time of his escape by showing that he had discussed the details of his escape with her. Apparently, the state asked the objected-to question, hoping that the witness would deny any violence took place and testify that her son told her that he merely left the center by use of a letter purported to be from a trade school.

We do not consider the question improper cross-examination of the witness. The evidence attempted to be elicited by the question would have been relevant to negate the defense of amnesia and to prove intentional departure (an essential element of the crime charged). Hence, the trial judge did not err in overruling defendant’s objection to the question.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in permitting the state, over his objections, to question witnesses about the letter defendant used in making his escape. He argues that the letter itself was the best evidence of its contents; therefore, parol evidence concerning its contents was inadmissible.

On the day of his escape, defendant presented a letter purportedly from a trade school which stated that he was enrolled in a special class that met that evening. Defendant was dropped off at the school and, when the officer who had taken him to school later returned to pick him up, the officer was unable to locate him and discovered from school authorities that no class had been scheduled for that evening.

La.R.S. 15:436 provides:

The best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced.

La.R.S.15:437 further provides:

Matters which can be proved only by written evidence can not be established by parol; but the contents of a document may be proved by parol, if its loss or destruction be shown, or if it is in the possession of the adverse party and he fails to produce it after reasonable notice.

The best evidence rule is applicable only when the purpose of offering evidence of the writing is to establish the truth of statements contained therein. When evidence is not offered for the purpose of proving the truth of a writing’s contents, but for the purpose of impeaching a witness, the rule is not applicable. Wharton’s Criminal Evidence § 533 (13th ed. 1973). In the instant case, the state was not attempting to prove the truth of the statements contained in the letter, that is, that defendant was enrolled in a special class that met on the evening in question. On the contrary, the state’s theory of the case was that defendant made his escape by presenting a letter which contained the falsehood that defendant was enrolled in the special class. The state used the testimony about the letter to impeach defendant’s claim that he was in an amnesic state during the time he left the center and thus could not have the requisite intent to commit the crime of simple escape. Hence, the best evidence rule is not applicable here.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in defining reasonable doubt in his charge to the jury. He argues that the definition improperly included a phrase that the doubt must be such as would “give rise to a grave uncertainty.”

There is no merit to this contention. This court has repeatedly held that a jury charge must be considered as a whole and has declined to reverse a conviction on the ground of an erroneous instruction unless the disputed portion, when viewed in light of the entire charge, is erroneous and prejudicial. State v. Dupre, 369 So.2d 1303 (La.1979). Here, the charge on reasonable doubt, when considered in its entirety, was neither erroneous not prejudicial.

Defendant also contends the trial judge erred in his charge to the jury on intent. He argues that the charge contains a prohibited presumption. The record contains no objection by defendant at the time the charge was given. This court has consistently held that, absent a contemporaneous objection, a defendant may not on appeal complain of the trial judge’s charge to the jury. State v. Mitchell, 319 So.2d 357 (La.1975). Hence, the alleged error is not before us for review. In any event, there is no merit to defendant’s contention as the trial judge’s charge on intent does not contain a prohibited presumption.

In sum, Assignment of Error No. 6 is without merit.

DECREE

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

DIXON, C. J., and LEMMON, J., specially concur.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., dissents with reasons.

CALOGERO, Justice,

concurring.

I concur in the result reached by the majority. In assignment of error number three, defendant contends that the trial judge erred in permitting the district attorney to ask defendant’s mother the following question:

“He [defendant] didn’t tell you that he had hit a guard over the head and escaped?”

Defense counsel objected to the question on the grounds that the question assumed a fact not proven. (There is no evidence in the record that defendant accomplished his escape by striking a guard. To the contrary, the evidence indicated that the defendant simply walked off while unattended at school.) The trial court overruled this objection and the majority affirms that ruling for the reason that the question was not improper cross-examination of a witness.

For this narrow reason, and because of the stated grounds for the objection, I concur in the Court determination and affirmance of the conviction. I do believe, however, that the question was improper, not because it assumed a fact not in evidence, but because the district attorney referred to another crime (contra La.C.Cr.P. art. 770).

DENNIS, Justice,

dissenting in part.

I respectfully dissent in part.

La.R.S. 14:110(A) provides that a “person who is participating in a work release program as defined in Paragraph (2) hereof and who commits the crime of simple escape shall be imprisoned with or without hard labor for not less than six months nor more than one year and any such sentence shall not run concurrently with any other sentence.” The sentence of three and one-half years at hard labor imposed by the trial judge, therefore, appears to be illegal and excessive. Furthermore, the majority’s statement that the best evidence rule applies only to written documents offered for the truth of the matter asserted therein is questionable.

      . Assignment of Error No. 5 was neither briefed nor argued. We therefore consider this assignment of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

       Under C.Cr.P. art. 770 a reference to another crime alleged to have been committed by the defendant mandates a mistrial where the evidence is not otherwise admissible.


source: Caselaw Access Project

author: MARCUS, Justice. CALOGERO, Justice, LEMMON, Justice, DIXON, Chief Justice

license: Public Domain

text:
    H & H SEWER SYSTEMS, INC. v. INSURANCE GUARANTY ASSOCIATION.
    No. 67680.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      Ben Louis Day, Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendant-applicant.
    Roy S. Halcomb, Jr., Broussard, Bolton & Halcomb, Robert Downing, Neblett, Führer & Broussard, Alexandria, for plaintiff-respondent.
   MARCUS, Justice.

The Town of Campti contracted with South Coastal Construction Company to install a sewer system for said town. In compliance with Section 2241 of the public contracts law (La.R.S. 38:2181-2316), South Coastal furnished two performance bonds issued by Summit Insurance Company of New York. Subsequently, South Coastal defaulted on the contract thus making Summit liable on its bonds. Pursuant to a. provision in the bonds, Summit elected to complete the contract in accordance with its terms and conditions and contracted with H & H Sewer Systems, Inc. to complete the job on a cost plus ten percent basis. H & H Sewer submitted claims amounting to $21,-501 which were not paid. Thereafter, Summit was placed in liquidation by order of the New York Supreme Court. By order of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana, Summit was ordered insolvent and placed in ancillary receivership.

H & H Sewer filed suit against Insurance Guaranty Association seeking to recover payment under the Insurance Guaranty Association Law (La.R.S. 22:1375-1394) which provides for the payment of covered claims under certain insurance policies where the insurer becomes insolvent. The district court granted a summary judgment dismissing plaintiff’s suit on the ground that the claim was not a “covered claim” within the scope of La.R.S. 22:1379(3). The court of appeal reversed and remanded the case holding that plaintiff’s claim was one arising out of and within the coverage of the bonds furnished by Summit and that defendant was therefore not entitled to summary judgment. Defendant’s application to this court for certiorari was denied on the ground that the judgment was not final. On remand, the district court held that plaintiff’s claim was covered by the Insurance Guaranty Association Law and that defendant was liable for the unpaid claim of $21,501. In an opinion designated not for publication, the court of appeal affirmed, stating that its original opinion was the rule of law to be followed in this case, and it saw no reason to reconsider the case. On defendant’s application, we granted cer-tiorari to review the correctness of that decision.

La.R.S. 22:1382(1) provides in pertinent part that the Insurance Guaranty Association shall:

(a) Be obligated to the extent of the covered claims existing prior to the determination of the insurer’s insolvency.. . . [and]
(b) Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent.

A “covered claim” is defined in La.R.S. 22:1379(3) as an “unpaid claim ... which arises out of and is within the coverage . .. of an insurance policy.... ”

As it has been stipulated by both parties that Summit owed H & H Sewer $21,501 for labor and materials and that Summit did become insolvent, the sole issue for our determination is whether H & H Sewer’s claim is a covered claim, that is, one which arises out of and is within the coverage of the performance bonds.

Both performance bonds listed South Coastal as “Contractor,” the Town of Campti as “Owner” and Summit as “Surety,” and contained the following provisions:

(1)Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having performed Owner’s obligation thereunder, the Surety may remedy the default, or shall
(a) Complete the Contract in accordance with its terms and conditions or
(b) Obtain bid or bids for submission to Owner for completing the Contract in accordance with its terms and conditions, and upon determination by Owner and Surety of the lowest responsible bidder, arrange for a contract between such bidder and Owner and make available, as work progresses, sufficient funds to pay cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the penalty set forth in this instrument. The term “balance of the contract price”, as used herein, shall mean the total amount payable by Owner to Contractor under the Contract and any amendments thereto, less the amount properly paid by Owner to Contractor.
(2) The Contractor and Surety hereby jointly agree with the Owner that any claimant as hereinafter defined, who has not been paid for labor or materials furnished by such claimant, may sue on this bond for the use of such claimant in the name of the Owner. . . .
(3) A claimant, as used in paragraph 2 of this instrument, is defined as one having a direct contract with the Contractor or with a sub-contractor of the Contractor for labor, material, or both, used or reasonably required for use in the performance of the Contract.

The bonds gave Summit two options if the contractor was in default for failing to perform under the contract: (a) Complete the contract itself in accordance with its terms and conditions; or (b) obtain bids and arrange a contract between the Town of Campti and the lowest responsible bidder for completion of the contract in accordance with its terms and conditions. Under both options, the contract is to be completed in accordance with its terms and conditions. Thus, the bonds not only covered the performance of the contract by the original contractor, South Coastal, but also covered the performance of the contract should Summit exercise either of its options. When Summit exercised its option to com-píete the contract itself, Summit was fulfilling its continuing obligation to guarantee the completion of the contract in accordance with its terms and conditions. Due to South Coastal’s default, Summit, as surety for South Coastal, became responsible for completing the contract and making payments for all labor and materials used in the performance of the contract. H & H Sewer had a direct contract with Summit for labor and materials used in performance of the contract between the Town of Camp-ti and South Coastal and thus is a claimant as defined in provision (3) of the performance bonds. Its claim against Summit is clearly one arising out of and within the coverage of the performance bonds. Due to Summit’s insolvency, Insurance Guaranty Association is obligated under La.R.S. 22:1382(1) to pay H & H Sewer’s covered claim of $21,501.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

CALOGERO, J., concurs and assigns reasons.

LEMMON, J., concurs and assigns reasons.

DIXON, C. J., dissents with reasons.

CALOGERO, Justice,

concurring.

I disagree that H & H Sewer Systems, Inc., is a “claimant” as defined in the surety contract. Nevertheless, I am of the opinion that H & H has a covered claim under the Insurance Guaranty Association Law (R.S. 22:1375 et seq.) as that law is reasonably construed and with respect for the apparent legislative intent. In my view, R.S. 22:1379 contemplates within its scope H & H’s claim, although perhaps not one specifically defined under the bond. Had H & H filed a lien against the city pursuant to R.S. 38:2242, the city would surely have had a claim against Insurance Guaranty Association as one arising out of and within the coverage of an insurance policy. The same purpose is served, without the circuitousness of the above procedure, by allowing H & H to recover directly from Insurance Guaranty Association.

For the above reasons, I respectively concur.

LEMMON, Justice,

concurring.

When South Coastal defaulted, Summit arranged for a contract between plaintiff and the City, under (l)(b) of the performance bond, to complete the original contract. The Public Works Act requires a bond for all such contracts, and all parties (including Summit) apparently considered that the original bond covered the work necessary to complete the original contract. (Certainly Summit could not have required the City to pay an additional premium for a new bond covering work to be performed under the contract covered by the old bond.) Under these circumstances plaintiff’s claim for this work, which fulfills Summit’s obligation under the original bond, was a “covered claim”.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

H & H was not a “claimant” under the bond, because its contract was with Summit, not the contractor or subcontractor.

      . At the time the contract was executed, La. R.S. 38:2241 provided:
      Whenever the state or any state board or agency or any political subdivision of the state enters into a contract in excess of one thousand dollars for the construction, alteration, or repair of any public works, the official representative of the governing authority shall reduce the contract to writing and have it signed by the parties. He shall require of the contractor a bond, with good, solvent, and sufficient surety in a sum not less than fifty percent of the contract price for the faithful performance of the contract with an additional obligation for the payment by the contractor or subcontractor for all work done, labor performed, or material or supplies furnished for the construction, alteration, or repair of any public works, or for furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works. No modifications, omissions, additions in or to the terms of the contract, in the plans or specifications or in the manner and mode of payment shall in any manner affect the obligation of the surety. The bond shall be executed by the contractor with surety or sureties approved by the officials representing the state, state board or agency, or political subdivision and shall be recorded with the contract in the office of the recorder of mortgages in the parish where the work is to be done not later than thirty days after the work has begun.

      . 349 So.2d 965 (La.App. 1st Cir. 1977).

      . 350 So.2d 1211 (La.1977).

      . 385 So.2d 801 (La.1980).

      According to R.S. 22:1379(3), a covered claim is an unpaid claim which “arises out of and is within the coverage of ... an insurance policy to which this Part applies issued by an insurer, if such insurer becomes an insolvent insurer” (Emphasis provided.)


author: MARCUS, Justice.

text:
    STATE of Louisiana v. William Wayne MESHELL.
    No. 80-KA-1538.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Don M. Burkett, Many, for defendant-appellant.
   MARCUS, Justice.

William Wayne Meshell was charged by bill of information with cruelty to a juvenile in violation of La.R.S. 14:93. After trial by jury, defendant was found guilty as charged and sentenced to serve seven years at hard labor and to pay a fine of $750. On appeal, defendant relies on a single assignment of error for reversal of his conviction and sentence. Finding merit to defendant’s assigned error, we reverse.

Defendant contends the trial judge erred in denying his motion for a mistrial based on the state’s failure to comply with his request for discovery.

On September 26, 1979, defense counsel filed a motion for discovery requesting, inter alia, “that the District Attorney or the appropriate law enforcement agency furnish to the defendant a copy of any record of his criminal arrest and conviction that is in their possession or custody.” On October 2, 1979, the state filed an answer responding that it had “none.” On the date set for the hearing on the motion for discovery (October 4, 1979), defense counsel advised the court that he was satisfied with the district attorney’s answer.

Trial commenced on March 10,1980. Defendant’s wife, Amber A. Meshell, testified that early on the morning of February 4, 1979, she and her husband were awakened by the cries of their six and one-half month old son, Michael Meshell. When defendant’s efforts to quiet the child proved unsuccessful, he picked up a belt, wrapped it around his hand and struck the inside of the infant’s left foot several times. When the crying continued to persist, defendant slapped the right side of the infant’s face. While several other witnesses testified for the state, defendant’s wife was the sole person to witness the commission of the alleged offense.

After the state rested its case, the assistant district attorney furnished defense counsel with a copy of defendant’s “rap sheet” which revealed that defendant had been previously convicted of “child abuse” on April 22, 1975. Outside the presence of the jury, the assistant district attorney stated that he had discovered the rap sheet upon review of his file the previous day. Defendant moved for a mistrial. The trial judge denied the motion, finding that “the state afforded that information at the first opportunity after it discovered its existence.”

La.Code Crim.P. art. 717 provides:

Upon motion of the defendant, the court shall order the district attorney or the appropriate law enforcement agency to furnish to defendant a copy of any record of his criminal arrests and convictions that is in their possession or custody-

La.Code Crim.P. art. 729.3 provides:

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:

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.

Article 717 requires the district attorney to furnish a copy of defendant’s rap sheet upon request. Article 729.3 imposes a continuing duty upon a party prior to or during trial to promptly notify the other party and the court of the discovery of additional evidence previously requested by the other party and subject to discovery or inspection under the court order. Article 729.5(A) provides for the sanctions the court may impose when it is brought to the attention of the court that a party has failed to comply with discovery and inspection or an order issued pursuant thereto.

In the instant case, defendant requested a copy of his rap sheet well in advance of trial. The state responded that it had “none.” On the day prior to trial, the assistant district attorney discovered the rap sheet upon review of his file. Nonetheless, he failed to furnish defendant with a copy of it until after the state had rested its case.

If the state had furnished defense counsel with a copy of defendant’s rap sheet prior to trial, counsel might have attempted to negotiate a plea bargain by pleading his client guilty. This course of action might have been particularly advantageous to the accused in view of his previous conviction for child abuse. Or defense counsel could have requested a continuance to meet the evidence rather than having to move for a mistrial. This would have avoided the need to abort the trial. Moreover, defense counsel’s voir dire of prospective jurors and cross-examination of state witnesses might have been conducted in a different manner had he been aware that the state was in possession of defendant’s rap sheet. Most important, we agree with defense counsel that the state’s belated compliance with his request for discovery effectively denied defendant the right to take the stand. Defense counsel stated that, prior to the state’s furnishing him with a copy of defendant’s rap sheet, he intended to place defendant on the stand as his sole witness; however, in view of this new development, he felt that he could not do so. He argues that had he known of defendant’s rap sheet prior to trial, he would have undertaken a different defense strategy.

We conclude that the failure of the state to furnish defense counsel with a copy of defendant’s rap sheet until after the state had rested its case constituted a clear violation of its continuing duty to promptly notify defendant of its discovery of the additional evidence. Under the circumstances hereinabove recited, a substantial right of the accused, that is, the right to prepare an adequate defense, was affected. Hence, the trial judge abused his discretion in failing to grant a mistrial. We must reverse. La.Code Crim.P. art. 921.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded to the district court for a new trial.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Macedonia TURNER.
    No. 67796.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., A. Zach Butterworth, Asst. Dist. Atty., for plaintiff-appellee.
    Cora R. Schley, Gravel, Schley & Van Dyke, Alexandria, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Macedonia Turner, was arrested on January 17 at the Louisiana State Penitentiary in Angola, Louisiana and subsequently indicted by a West Feliciana Grand Jury for the crime of introducing contraband into the prison in violation of R.S. 14:402. Defendant’s Motion to Suppress the Evidence (valium pills) was denied by the trial court, and the case proceeded to trial. Thereafter, defendant was found guilty as charged by a twelve-person jury. Defendant filed a Motion for Arrest of Judgment alleging R.S. 14:402 was unconstitutional, which was denied. Defendant timely filed a Motion for a New Trial on the basis of newly discovered evidence, i. e. a prescription for the valium, but the motion was withdrawn and the defendant was sentenced to two years at hard labor. The ease is now before us on appeal.

On January 17 the defendant, her daughter-in-law and a minor son of the defendant went to the state penitentiary at Angola to visit two of the defendant’s sons who were incarcerated there. Defendant had been making this same trip twice each month for the preceding IV2 years and, on this visit, parked outside the main gate and boarded the bus for a two-mile trip to Camp A’s visiting room. According to the defendant and her daughter-in-law, on a previous visit, the contents of their purses were stolen when they left them inside their parked car. Since purses were not allowed in the visiting room, the two women sought to solve the problem on this trip by removing the valuables from their purses and taking them into the prison on their persons by concealing them in their brassieres.

Defendant testified she also removed her valium medication from her purse, wrapped it in some tinfoil, and placed it in her brassiere. Defendant’s story is contradicted by the two female prison employees who conducted the searches of the two women prior to their admission to the visiting room. They testified the daughter-in-law was not wearing a brassiere that day, and the defendant had her money and identification in her small, wallet-sized purse and only the 13 valium pills were concealed in her brassiere.

Defendant testified that she is a diabetic with high blood pressure, hypertension and migraine headaches, and that she regularly takes blood pressure medicine, insulin twice daily, and valium medication three times daily, all in accordance with a doctor’s prescription. Although defendant testified that she always kept all of her medication with her at all times, on that particular day, she was out of all her medical supplies except the valium pills.

Upon arriving at the visiting area, the defendant was conducted to a private room where, in the presence of the two female prison employees, she was requested to remove her clothing. This special request was made because Thomas Guerin, a Criminal Investigator with the Department of Corrections, had requested of the visiting room personnel that all persons visiting the Turner brothers be thoroughly searched. Likewise, the defendant’s daughter-in-law was searched.

Defendant testified that when told of this request, she promptly complied and stated that all she had was her money and pills, which she willingly gave the employees. The two female prison employees contradicted this, saying that while she voluntarily removed her outer garments, that it took three requests to persuade her to slide her brassiere above her breasts. When she finally did so, the valium pills were the only item found and they were in two separate tinfoil wrappings on each side of her brassiere. Defendant was then arrested for introducing contraband, as the pills were found to be diazepam, commonly known as valium.

Defendant appeals her conviction on the basis of five assignments of error.

Assignment of Error Number 1

Defendant contends the trial court erred in refusing to suppress the valium seized pursuant to the search of her person conducted by the female prison employees. Unreasonable searches and seizures are prohibited by the Fourth and Fourteenth Amendments to the United States Constitution, and by the Louisiana Constitution of 1974, art. 1, § 5. A search conducted without a warrant is per se unreasonable unless it falls within one of the specifically delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Williams, 366 So.2d 1369 (La.1978). One of these exceptions is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Morris, 340 So.2d 195 (La.1976).

Defendant knew she would be searched when she went to visit at Angola, for she testified on direct examination:

“Q. Are you aware of signs existing at Angola about searches?
A. Well, when I would go in, they would search my little purse. This little purse.
Q. This would be a normal occurrence for you then?
A. Yes.
Q. Whenever you would go to Angola? A. Yes.
Q. You would expect to be searched when you went to Angola?
A. Yes.
Q. How many times in the past had you been searched?
A. Well, we would be searched every time we would go over there. They search your purse.”

Defendant’s daughter-in-law confirmed this expectation of being searched when she testified on direct examination:

“Q. Have you seen any signs outside the entrance?
A. Yes, sir.
Q. What do these signs say?
A. You are liable to be searched at any time upon entering these grounds.”

Besides knowing that she was subject to be searched upon entering Angola, the defendant clearly consented to this search as she testified on direct examination:

“Q. Once you were asked to be searched, what was your procedure than?
A. I told her okay. I said I got my pills and my money.”

Though the two female prison employees disagreed with the defendant’s candor about her pills, they did agree with her that she consented to the search.

In State v. Pitts, 263 La. 38, 267 So.2d 186 (1972), we said:

"This Court can take notice of the unique problems prison authorities have in preventing contraband from reaching the hands of the prison population. In order to maintain prison security, certain measures must be taken to insure the visitors to the prison do not smuggle contraband articles to the inmates. Persons who wish to visit prisons must therefore realize that their persons are subject to search if they intend to enter the prison confines.”

Defendant not only realized she might be searched in order to visit her sons in Angola, but she consented to this search. Thus, the search that produced the valium was conducted pursuant to a valid search warrant exception.

This assignment of error is without merit.

Assignment of Error Number 2

Defendant contends the trial court erred in permitting a witness, Jerry Harrison, to testify as to procedures within the state crime laboratory over the objection of the defense counsel.

Mr. Harrison has a B.A. in chemistry and biology; had attended a course for drug enforcement administration in Washington, D.C.; had attended the FBI school; had attended many seminars at the . crime lab during various scientific association meetings; and had been working at the crime lab for the last eight years identifying narcotics and dangerous substances. He was tendered by the state as an expert and after some defense questions he was recognized by the court as an expert.

Later in the trial, as the state was establishing the chain of custody of the pills from the search of the defendant to the courtroom, Mr. Harrison was testifying as to the usual procedure the crime lab followed when the drugs to be tested were received. The defense objected and the state responded that the procedure was clearly within his knowledge. The defense argued that Mr. Harrison’s position at the crime lab was the actual analysis of chemicals and substances, not .administrative duties. The trial court overruled the objection and let Mr. Harrison testify as to the crime lab policies. Later, on cross-examination, the defendant asked:

“Q. You would not be in a position to see the paper work that occurs where the drugs are delivered?
A. Well, we are all subject to being called at any time to check material into the evidence room. Grace was called that day because she was handy. Anybody that’s handy, like myself, can be called up to sign and inspect material ■ and place it into the evidence room.”

The defendant made the same objection, which the court overruled.

Defendant’s argument appears to be that if this testimony had not been allowed the chain of custody would have been broken and the evidence not admitted. We believe the procedure of the crime lab was well within the knowledge of Mr. Harrison for, besides analyzing drugs, he had often accepted evidence in the crime lab and he certainly knew the procedure.

In this case, the state did identify the valium pills as those taken from the defendant by the 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. State v. Paster, 373 So.2d 170 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). The defendant does not contest the chain of custody in any regard, except for alleging Mr. Harrison should not have been allowed to testify as to the crime lab procedures. We find he could properly do so and was not a broken link in the complete chain of custody.

This assignment of error is without merit.

Assignment of Error Number 3

Defendant contends the testimony of Tom Guerin, Criminal Investigator with the Louisiana Department of Corrections, was so prejudicial in its repeated use of hearsay evidence over the strenuous objection of defense counsel as to constitute manifestly reversible error.

■ On direct examination the assistant district attorney instructed Mr. Guerin several times to testify to things within his own knowledge without saying what someone else had told him. Nevertheless, in response to questions from the assistant district attorney, Mr. Guerin made several supposedly hearsay statements in the jury’s presence. Finally, the following dialogue took place:

“Q. Mr. Guerin, without saying what someone told you, if you received the report, the action you did as a result of that report?
A. I received a report that possibly the Turner brothers were receiving contraband of some type of drugs during a visit.
BY THE COURT:
Wait a minute.
DEFENSE COUNSEL:
I object. It’s highly prejudicial and may we approach the bench please?

Whereupon the trial judge admonished the jury to disregard the response. The defense objected to the admonishment saying it was not sufficient to relieve the prejudice, and moved for a mistrial. The court overruled the motion for a mistrial and again admonished the jury to disregard the response.

Hearsay information is inadmissible in criminal trials. R.S. 15:434; State v. Jacobs, 344 So.2d 659 (La.1976). However, Mr. Guerin’s testimony concerning the information he received was not offered to prove the truth of that information but, rather, to show his reason for ordering a search of all of the Turner brothers’ visitors. Therefore, this testimony was not hearsay. State v. Martin, 356 So.2d 1370 (La.1978); C. McCormick, Evidence, § 249 (Cleary Ed. 1972); Pugh, Louisiana Evidence Law, p. 429 (1974).

This Court has held in situations similar to the present that the witness is limited to a statement that he took a particular action as a result of the information received and that it is not proper to allow the witness to testify concerning the conclusions of the informer that the defendant was guilty of a crime. State v. Murphy, 309 So.2d 134 (La.1975). Here, the assistant district attorney properly limited Mr. Gue-rin to answering what actions he took for, after the admonishment, he questioned the witness as follows:

“Q. Mr. Guerin, do you have any direct knowledge concerning the facts that you were speaking about earlier that are just within your own knowledge, not from what anyone else has told you.
A. No, sir, I don’t have any direct knowledge.
Q. But apparently as a result of something, you asked that a search be conducted, is that correct?
A. Yes, I did.”

Once Mr. Guerin testified that he ordered the searches because of reports concerning the Turner brothers receiving contraband, his testimony was complete. Mr. Guerin did not testify, nor was he asked to do so, as to the conclusions of any informer as to the present defendant’s involvement in the crime. Murphy, supra.

This Court has noted that a police officer who, during the trial, continuously makes reference to inadmissible evidence should not be held to a lesser standard than judges or prosecutors. State v. Schwartz, 354 So.2d 1332 (La.1978), footnote 2. This footnote indicates our previous determination is erroneous that a police officer is not a “court official” whose reference to inadmissible other crimes evidence mandates a mistrial under C.Cr.P. art. 770. State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Hardy, 344 So.2d 1018 (La.1977). We need not address this issue of whether Mr. Guerin, an experienced law enforcement officer, was a “court official”, for unlike the officer in Schwartz, he did not refer to inadmissible other crimes committed by the defendant in violation of C.Cr.P. art. 770(2).

In accordance with C.Cr.P. art. 771, the trial judge felt the remarks made by Mr. Guerin were prejudicial to the defendant and admonished the jury to disregard them. It should be noted the defense counsel did not then complain that the remarks were hearsay or a reference to inadmissible other crimes; rather, he alleged they were prejudicial. The trial judge agreed that they were prejudicial enough to warrant an admonishment, but not enough to declare a mistrial. We see no abuse of discretion in this situation.

This assignment of error is without merit.

Assignments of Error Numbers 4 & 5

Defendant contends that the motion in arrest of judgment should have been granted, and that her conviction should be reversed because R.S. 14:402(A) is an unconstitutional statute.

Though the predecessor to R.S. 14:402 was held constitutional in State v. Morgan, 238 La. 829, 116 So.2d 682 (1960), its wording was substantially revised by Acts 1976, No. 241, § 1, amended by Acts 1977, No. 326, § 1; Acts 1978, No. 731, § 1; and this Court has not had an occasion to rule on its validity.

Defendant challenges the present statute on the following grounds: vagueness, insufficient notice to the defendant as to what acts are proscribed, and delegation of too much of the legislative function of what is criminal to the authorities operating the prison facility.

The United States Supreme Court has held that a party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights; and, as a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. County of Ulster v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). We have adhered to this position by saying that only a person whose rights are injuriously affected by those provisions of the law sought to be declared unconstitutional can be heard to challenge the constitutionality thereof. City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974); State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (La.1949).

We need not address the defendant’s contentions concerning R.S. 14:402(A), for she was not convicted of the allegedly vague definition of contraband that she complains of; therefore, she has no standing to argue its constitutionality. Rather, her behavior fell squarely within the portion of the statute that states:

“Contraband includes but is not limited to any substance or device defined in the Uniform Controlled Dangerous Substance Law, except where prescribed by a physician.”

Valium is a substance included in the Uniform Controlled Dangerous Substance Law, R.S. 40:964, Schedule IV(A)(17), and it was not prescribed to the Turner brothers.

The defendant is not adversely affected by the portions of R.S. 14:402 that she considers unconstitutional; therefore, she lacks the standing to challenge it. Instead, she was convicted of violating that portion of the statute that clearly dictates her behavior was illegal and she has not presented a valid argument to us to render this definition of contraband unconstitutional.

These two assignments of error considering the constitutionality of R.S. 14:402 are without merit.

For the above reasons, the five assignments of error made by the defendant are without merit, and the defendant’s conviction and sentence are affirmed.

AFFIRMED.

DENNIS, J., dissents. The police officer’s remarks were inadmissible other crimes evidence.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Donald Ray BELL. STATE of Louisiana v. Charles CLAIBON.
    Nos. 80-K-2151, 80-KA-2081.
    Supreme Court of Louisiana.
    Feb. 5, 1981.
    Frank J. Saia, M. Michele Fournet, Baton Rouge, for defendants-movants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff.
   DIXON, Chief Justice.

The defendants in these cases have moved to vacate our orders assigning court of appeal judges to this court as justices ad hoc to assist in reviewing criminal appeals. They contend that the assignments are neither not authorized by the state constitution or are in conflict with it.

The court’s power to assign judges to assist courts other than their own within the judicial branch in furtherance of the administration of justice is explicit and unfettered. Article 5, § 5(A) of the Louisiana Constitution of 1974 provides without qualification that the Supreme Court “may assign a sitting or retired judge to any court. All efforts to limit this plenary power during the 1973 constitutional convention were decisively rejected. STATE OF LOUISIANA CONSTITUTIONAL CONVENTION OF 1973 Verbatim Transcripts August 15, 1973 at 50-76. This court’s supervisory jurisdiction and assignment powers under the Constitution of 1921 were expressly retained and strengthened by the 1974 Constitution. See Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765, 786 et seq. (1977).

The arguments in support of the motions to vacate the appointments are wholly without substance and merit.

The motions are denied.

      . The Supreme Court’s power of appointment is not limited to cases in which a vacancy exists. Article 5, § 22(B) is a specific provision for filling vacancies and newly created judge-ships. It differs from the provision concerning the appointment of sitting or retired judges to any court; those appointed to fill a vacancy or a newly created judgeship need not be judges, and are ineligible to fill the vacancy or the new office.


author: PER CURIAM.

text:
    STATE of Louisiana v. Estelle CAREY.
    No. 80-KA-2020.
    Supreme Court of Louisiana.
    Feb. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, W. C. Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-appellee.
    James S. Weidner, Jr., Tooley, Waldmann & Weidner, Gretna, for defendant-appellant.
   PER CURIAM.

Over the course of eight years, defendant, the mother of seven, received welfare payments and benefits to which she was not entitled, by misrepresenting that she was neither employed nor receiving financial support from the children’s father. She was charged by bill of information with the theft of food stamps, medical benefits and currency (welfare payments) valued at $26,-633.42 belonging to the State Department of Family Services. On January 21, 1980, the amount of the theft was amended downward to $10,170.42, and defendant pleaded guilty. Thereafter, the court sentenced her to serve five years at hard labor, but suspended sentence and placed defendant on five years’ active probation, with the special conditions that she serve one year in parish prison, and make restitution to Family Services at the rate of $50 per week from the time of her release until the entire amount stolen ($10,170.42) was paid.

On appeal, defendant argues that the sentence is excessive and unsupported by any statement of reasons. The latter complaint requires that the sentence be set aside, for there has been no compliance with the directive of Louisiana Code of Criminal Procedure Article 894.1 that the court “state for the record the considerations taken into account ... in imposing sentence.” See, State v. Bourgeois, 388 So.2d 359 (La.1980); State v. Kenner, 384 So.2d 413 (La.1980).

The inadequacy of a statement of sentencing reasons has sometimes been overlooked on appeal where the record itself explains the sentence imposed. See, State v. Day, 391 So.2d 1147 (La.1980), No. 67,359; State v. Jones, 381 So.2d 416 (La.1980). However, that is not the case here. Defendant, a 39-year-old mother of seven, is a first offender. Her poor educational background allows only limited employment opportunities: at present, she is earning $528 per month, a bare match for the most basic monthly expenses of her family. Thus, the schedule of payments established by the trial court is virtually unsupportable by defendant, and the additional sentence of imprisonment, a hardship in itself, can only contribute to defendant’s difficulties in making full reimbursement.

The purpose of probation is to promote the defendant’s rehabilitation by allowing him or her to reintegrate into society without confinement. State v. Clark, 391 So.2d 1174 (La.1980). It holds no promise and serves no purpose if the conditions are so harsh that the probationer is destined for failure at the outset.

Accordingly, defendant’s conviction is affirmed, but the sentence is set aside and the ease is remanded for resentencing in accordance with the views expressed herein.

MARCUS and LEMMON, JJ., concur in the result.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Otis DAWSON.
    No. 67807.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-appellee.
    Bobby D. Sutton, Glenn E. Walker, Burnett, Sutton, Walker & Callaway, Shreveport, for defendant-appellant.
   WATSON, Justice.

Defendant, Otis Dawson, age thirty-eight, was indicted for the aggravated rape of a thirteen year old girl. LSA-R.S. 14:42. A jury found him guilty of forcible rape by a ten to two vote. LSA-R.S. 14:42.1. Dawson was sentenced to twenty years at hard labor: a minimum of two without benefit of probation, parole or suspension of sentence. He has appealed, assigning eight errors in the trial court.

FACTS

The victim testified that Dawson had come to her residence on November 7, 1978, with Calvin French, whom she knew well. French suggested that Dawson would pay to have sex with her, but she refused. When French left briefly, Dawson threw her down on the couch; she scratched him. Dawson told French when they left that he had a 4:00 P.M. date with the girl; that he was going to pay her $20 but then take it back.

When the victim went to a nearby Fina gas station for a soft drink around 1:00 P.M., Dawson was there in his truck. He held a knife to her throat and forced her to accompany him. Dawson stopped at the S & S convenience store (now Michelle’s) about eight miles away and went inside. The victim remained in the truck, testifying that she was frightened and unaware of her location.

Defense witnesses established that Dawson remained in the S & S for about forty-five minutes and obtained a loan of $75 from the owners, Mr. and Mrs. Whitfield. While Dawson was inside, an employee, Billy Coates, moved the truck. Coates noticed nothing unusual about the occupant.

Defendant drove to a secluded area, where the rape took place. Before returning the girl to the Fina station, Dawson stopped at the Thrifty Liquor store and a McDonald’s. Immediately after reaching her home, the girl reported the rape to her mother, who called the police. They testified that the victim was crying and appeared to be very upset.

Dr. Lawrence Hill testified that the girl had had recent intercourse and had a tear in the vagina. Her face was scratched and bruised. Defendant, through counsel, admitted intercourse with the girl but contended it was consensual.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court refused to allow' defendant to question Dr. Hill regarding the girl’s last sexual activity, approximately a month before the rape, because of the rape shield law, LSA-R.S. 15:498. Defendant contends that this evidence should have been admitted as a fact forming the basis of Dr. Hill’s expert opinion under LSA-R.S. 15:465. However, Dr. Hill only testified about the clinical findings made during his physical examination of the victim and did not voice an opinion about whether or not she had been raped. Defendant also argues that this history was important to his defense of consent, and the ruling deprived him of a fair trial in violation of Article 1, Section 16, of the Louisiana Constitution of 1974.

Both Dr. Hill and the victim testified that she was menstruating at the time of the rape. Defendant’s unproven theory was that the prior sexual activity also took place during a menstrual period and this showed either: (1) a propensity to such conduct at that time of the month; or (2) a rebuttal of the inference that sex at that time was not consensual.

Granting that Louisiana’s rape shield law might unconstitutionally restrict a defendant’s right of confrontation in some instances, that is not the case here. See 39 La.L. Rev. 956; the concurring opinion in State v. Decuir, 364 So.2d 946 at 948 (La., 1978) and 40 La.L.Rev. 785. The evidence which Dawson’s counsel sought to elicit was essentially irrelevant. State v. Decuir, supra. The victim’s prior sexual activity with someone else had no bearing on the issue of her consent to this encounter a month later.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defense counsel attempted to elicit testimony from Dr. Joe Ben Hayes, an expert forensic psychiatrist, that Dawson does not have the “... capacity to obtain sexual gratifications through the use of force, violence or threats.” (Vol. 3, p. 119) The trial court ruled that, if Dr. Hayes gave his expert opinion as to Dawson’s capacity to commit this crime, the State would be allowed to test the facts upon which he based that opinion by cross-examining him about Dawson’s prior sexual offenses. Defendant contends that this ruling was erroneous.

If the defense had elicited from Dr. Hayes testimony that Dawson was not by nature a rapist, cross-examination about whether the doctor had heard of the similar offenses charged against Dawson in the past would have been proper to test the basis and reliability of his expert opinion. LSA-R.S. 15:464; 15:465; 15:486.

Given the proper foundation, an expert witness might state whether a defendant has the psychological capacity to commit a particular crime. State v. Mallett, 357 So.2d 1105 (La., 1978). However, the State would then be entitled to cross-examine about the facts upon which that opinion was based. LSA-R.S. 15:465. Here, defense counsel did not pursue its examination of Dr. Hayes after the trial court’s ruling. However, if Dr. Hayes had testified that Dawson’s characteristics were not compatible with the crime of rape, the State would have been entitled to ask Dr. Hayes whether he had heard of the prior offenses, which were relevant to the basis and competency of Dr. Hayes’ opinion.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

This assignment of error does not raise any issues which were not resolved in the discussion of assignments of error number one and two and lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

At defendant’s request, the trial court charged the jury with the penalty for aggravated rape. Defendant complains that the trial court erred in also instructing the jury as to the penalties for the other responsive verdicts to the charge, contending that the penalty provisions of the lesser included offenses were irrelevant under State v. Harris, 258 La. 720, 247 So.2d 847 (1971).

. The charge to the jury concerning the penalties for the responsive verdicts was within the trial court’s discretion. State v. Blackwell, 298 So.2d 798 (La., 1974).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends that a new trial should have been granted because the verdict was contrary to the law and the evidence. In effect, defendant argues that a rational trier of fact could not have found the essential elements of forcible rape beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Pilon v. Bordenkircher, 444 U.S. 1, 100 S.Ct. 7, 62 L.Ed.2d 1 (1979). In this assignment defendant relies primarily on the contention that the victim could have asked for help or escaped during the forty-five minutes that Dawson was in the S & S store. The jury apparently accepted her testimony that she was too frightened and uncertain to flee at that point. Moreover, her failure to leave the truck does not necessarily imply consent to the later act of rape. Her physical condition and emotional state following the occurrence and the fact that she reported the crime at the first opportunity were sufficient to convince a rational trier of fact that forcible rape occurred.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER SIX

This assignment of error was effectively abandoned.

ASSIGNMENT OF ERROR NUMBER SEVEN

Defendant contends that the sentence was excessive. After a hearing and extensive testimony, the trial court fully articulated the reasons for the sentence. In particular, it was noted that Dawson’s record of sex crimes indicated a likelihood of the offense reoccurring; that Dawson needed rehabilitation and treatment in a custodial environment; and that, even though there was no serious harm to the victim, a lengthy sentence was indicated to prevent further crimes. There was no abuse of discretion. A sentence of twenty years, as opposed to a maximum of forty years, is not excessive under these circumstances.

This assignment of error lacks merit.

For the foregoing reasons, the conviction and sentence of defendant, Otis Dawson, are affirmed.

AFFIRMED.

LEMMON, J., concurs.


author: WATSON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Leon WILLIAMS, Jr. STATE of Louisiana v. Eric JOHNSON.
    Nos. 80-K(A)-1444, 80-K(A)-1689.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Dissenting Opinion Dec. 19, 1980.
    Rehearing Denied Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David Paddison, Joseph Meyer, Jr., Asst. Dist. Attys., for plaintiff-relator.
    Morris Hyman, New Orleans, Orleans Indigent Defender Program, for defendant-respondent, Leon Williams, Jr.
    James C. Lawrence, Jr., New Orleans, Orleans Indigent Defender Program, for defendant-respondent, Eric Johnson.
   WATSON, Justice.

In separate proceedings, defendants, Leon Williams, Jr. and Eric Johnson, were charged with being felons in unlawful possession of firearms. LSA-R.S. 14:95.1. Defendants filed motions to quash the charges, alleging that their prior guilty pleas were defective under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The charges were quashed because the previous convictions were entered without valid waivers of Williams’ privilege against self-incrimination, and Johnson's right to a jury trial. The State was granted writs of certiorari.

The State contends that defendants are barred from a collateral attack on their prior pleas by the decision in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). Lewis held that 18 U.S.C. App. § 1202(a)(1), the federal equivalent to LSA-R.S. 14:95.1, prohibits a convicted felon from possessing a firearm even if the predicate felony is subject to collateral attack on constitutional grounds. The prior conviction of Lewis was allegedly based on an uncounselled guilty plea. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Lewis had served his prison term but had not been pardoned or had his conviction vacated. The United States Supreme Court relied on the legislative history which reflected:

“... an intent to impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced and directed the passage of Title VII, repeatedly stressed conviction, not a ‘valid’ conviction, and not a conviction not subject to constitutional challenge, as the criterion.... ” 445 U.S. 62, 100 S.Ct. 919, 63 L.Ed.2d 207.

LSA-R.S. 14:95.1 is also directed at “.. . any person who has been convicted of.. . ” certain offenses. As in the federal statute: “No modifier is present, and nothing suggests any restriction on the scope of the term ‘convicted’.” 445 U.S. 60, 100 S.Ct. 918, 63 L.Ed.2d 206. One classified as a convicted felon loses his right to bear arms. State v. Clement, 368 So.2d 1037 (La.1979). Until that status is changed and the disability removed, a convicted felon can possess a gun only if: (1) ten years have passed; or (2) a special permit is granted. LSA-R.S. 14:95.1 C(1) and (2). [Compare 18 U.S.C. § 925(c).] The Louisiana statute is less restrictive than 18 U.S.C. App. § 1202, which applies to all felonies, and does not provide for a prescriptive period. The Louisiana legislature, like Congress, “. .. could rationally conclude that any felony conviction, even a allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm.” 445 U.S. 66, 100 S.Ct. 921, 63 L.Ed.2d 210. LSA-R.S. 14:95.1 represents a reasonable exercise of the police power.

“Its purpose is to limit the possession of firearms by persons who, by their past commission of certain specified serious felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity.” State v. Amos, 343 So.2d 166 at 168 (La.1977).

That threat is not lessened by a technical defect in the prior felony conviction.

State v. Martin, 382 So.2d 933 (La.1980), decided without knowledge of United States v. Lewis, supra, held that a defect in the guilty plea to the predicate felony is a defense to a charge under LSA-R.S. 14:95.-1. Dicta in State v. Virgil, 390 So.2d 520 (1980) reaffirmed Martin. However, in light of the United States Supreme Court’s guidelines in Lewis, State v. Martin is overruled. A person charged under LSA-R.S. 14:95.1 cannot attack the predicate felony on collateral constitutional grounds.

For the foregoing reasons, the trial courts’ rulings are vacated and set aside, and the cases are remanded for further proceedings.

REVERSED AND REMANDED.

DIXON, C. J., dissents.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents for reasons assigned by CALOGERO, J.

CALOGERO, Justice,

dissenting.

I cannot agree with the majority that the case of Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), is authority for holding Boykin inapplicable to the case at bar. Whatever the merit of the Lewis decision, that case dealt with a federal firearm law which, while similar to our R.S. 14:95.1 in import, was preceded by a legislative history that has not been shown to be common to our statute and which the Lewis court relied heavily upon in its determination of that case; hence, it is inapplicable.

Considering the Louisiana statutory and Constitutional provisions I am of the opinion that the absence of Boykin waivers in the defendants’ precedent convictions preclude defendants’ classification as a “felon” in a prosecution for violating R.S. 14:95.1. A felon, in my view, is one who has been properly convicted of a felony.

For the reason that the defendants’ prior guilty pleas were defective under Boykin, I would follow our line of cases beginning with State v. Martin, 382 So.2d 933 (La.1980), and reaffirmed by State v. Virgil, 390 So.2d 520 (La.1980), and affirm the decision of the district court quashing the bills of information.

      . 18 U.S.C. App. § 1202(a)(1) provides in pertinent part:
      “(a) Any person who—
      “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
      ******
      “and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” See also 18 U.S.C. § 922(h)(1).

      . LSA-R.S. 14:95.1 provides in pertinent part:
      “A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon.
      ******
      “C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
      “(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
      “(2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides, or in the case of Orleans Parish the superintendent of police, for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit. * * ”

      . His uncounselled plea could not have been used for enhancement of punishment under a recidivist statute, such as Louisiana’s habitual offender law, LSA-R.S. 15:529.1. State v. Lewis, supra; State v. Holden, 375 So.2d 1372 (La.1979); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The prior plea also could not have been considered for sentencing purposes, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) and State v. Williams, 384 So.2d 779 (La.1980), or to impeach his credibility. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Alvin REDIC.
    No. 80-KA-1361.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.
    Howard Fish, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-appellee.
   LEMMON, Justice.

The principal issue in this appeal is the admissibility of an inculpatory statement made by defendant to police officers.

On March 12,1979 an elderly woman was abducted at knife point from the parking lot at a Shreveport hospital. Her assailant forced his way into her car and ordered her to drive to a wooded area, where he raped and robbed her and forced her to submit to an act of oral sex.

The assailant instructed his victim to have a good look at him so that she could report him to police and have him taken off the streets. With this strange parting comment, he released her. She fled and reported the incident.

Shortly thereafter police arrested a suspect, who confessed to the offense. The news of the suspect’s arrest in connection with rape was reported in the Shreveport newspapers.

Not long thereafter, during the evening of March 18, 1979, defendant walked into the Shreveport Police Station and advised the officer on duty at the desk that he was responsible for the March 12 rape-robbery. He stated that he had learned from a newspaper report that another person was being held for the crime and that he did not want an innocent man to go to prison for his crime. When told by officers that the suspect in custody had confessed, defendant responded by revealing several facts about the offense. The officers verified those details from the case file and telephoned the detective who was directing the investigation. The detective requested that they ask defendant if he knew what type of automobile the victim was driving. The officers did so. When told that defendant correctly described the automobile, the detective told the officers that he was on his way to the station.

The officers then advised defendant of his Miranda rights and did not question him further. Defendant was permitted to wait in a chair in the police office (where he reportedly fell asleep) until the investigating detective arrived.

Upon arrival the detective again advised defendant of his Miranda rights. Defendant thereafter gave a complete, detailed confession.

Defendant was subsequently convicted of aggravated rape, armed robbery, and aggravated crime against nature. He was sentenced concurrently to life imprisonment at hard labor without parole (aggravated rape), forty years imprisonment at hard labor without parole (armed robbery), and ten years imprisonment at hard labor (aggravated crime against nature).

Defendant urges reversal of his conviction because the prosecution introduced evidence of his statement describing the victim’s automobile which he had given to the officers at the desk in response to the question requested by the investigating officer. He does not contest the admissibility of the initial statements admitting culpability when he first came to the police station or the admissibility of the detailed confession given after he received Miranda warnings.

Defendant’s contention could be disposed of simply by holding that any error in admitting the statement is harmless beyond a reasonable doubt, inasmuch as the more self-condemning statements given prior to and after the questioned incriminatory response concerning the vehicle description were conceded to have been properly admitted. See State v. Jones, 386 So.2d 1363 (La.1980); State v. Gibson, 391 So.2d 421 (La.1980); Null v. Wainwright, 508 F.2d 340 (5th Cir. 1975). However, such an approach would be inappropriate here, because the trial court did not err in admitting the statement. Although “harmless” in light of the circumstances, admission of the statement was not “error”.

Even voluntary statements made in response to “custodial interrogation” are inadmissible to prove the guiit of the declar-ant, unless preceded by the warnings required by Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), and by La.Const. art. 1, § 13 (1974). In this case there is no doubt that the officers reasonably should have known that the procedure employed (the “asking”) was likely to produce an incriminating response (if the defendant was in fact the culprit). Compare State v. Castillo, 389 So.2d 1307 (La.1980); State v. Jones, above; Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Thus, the critical inquiry is whether the defendant was in custody at the time the question was posed concerning the vehicle’s description. See Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976).

Immediately prior to that question defendant clearly was not yet in custody since he had voluntarily come to the station to reveal and expiate his guilt. Yet, immediately after his accurate response giving the correct description of the vehicle, he was probably in custody as the desk officers recognized by immediately giving warnings when the investigating detective informed them he was on his way to the station. The question distilled from this analysis is whether an ineffable “shift” from a noncustodial to a custodial relationship occurred prior to the challenged question and response.

In State v. Menne, 380 So.2d 14 (La.1980), this court observed:

“In explication of the basic rights to the assistance of counsel and the freedom from self-incrimination, the Supreme Court in Miranda v. Arizona held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By ‘custodial interrogation,’ the Miranda court meant ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ Thus, it is clear that the constitutional warnings are required in ‘situations falling short of a formal placing in arrest ... in which the accused may be said to be under custody or significant restraint.’
“No less is required by Article I, § 13 of the 1974 Louisiana Constitution. By providing that a person 'arrested or detained in connection with the investigation’ of an offense must be fully advised of his rights, the framers intended to require that investigating officers give the warnings anytime such a citizen was deprived of his liberty in a significant way or was not free to go as he pleased.
“Whether a person has been taken into custody, detained or deprived of his freedom of action in a significant way must be decided by an objective test. Any formulation making the need for Miranda warnings depend upon how each individual being questioned perceived his situation would require a prescience neither the police nor any one else possesses. On the other hand, a standard hinging on the inner intentions of the police would fail to recognize Miranda’s concern with the coercive effect of the ‘atmosphere’ from the point of view of the person being questioned.’ ” (Citations omitted.)

Past decisions of this court have considered several factors in determining whether there was a custodial interrogation. Pertinent areas of inquiry are whether there was probable cause to arrest, whether the investigation had focused on the suspect, whether under the circumstances a reasonable person would have believed he was in custody, whether the statements and actions of the suspect indicated he reasonably believed he was in custody, and whether the statements and actions of the officers indicated an intent to restrain the suspect. No single factor is alone determinative, and each case must be evaluated objectively. See Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972); State v. Roach, 322 So.2d 222 (La.1975).

Although in the present case there was probable cause to arrest because of the initial admission, absence of any other pertinent factor mitigates against a finding that the relationship was “custodial” prior to the challenged statement. Before that critical point the focus of the investigation still remained on the self-confessed suspect already in custody. The defendant had voluntarily appeared at the police station and had perceived no conduct on the part of the police which would reasonably lead him to believe that he was yet under restraint. The officers’ actions clearly indicate they were still trying to decide whether to restrain defendant when they asked the challenged question, and indeed they asked the question in order to determine whether to investigate him at all.

Thus, the shift from a noncustodial to a custodial relationship did not take place until after the question concerning the car’s description was correctly answered. When the situation is evaluated from an objective standard, it is clear that no restraints were imposed on defendant prior to that question’s being answered. The officers were not ready to accept defendant’s proffered surrender to their custody until they learned that he knew enough about the crime to cast suspicion on the earlier suspect’s confession.

Thus, although defendant’s response was prompted by a police question, he was not yet in custody, and his obviously voluntary statement need not be excluded because it was not preceded by Miranda warnings.

Defendant’s remaining assignments require only the application of well-settled principles of law and are treated in an' unpublished appendix.

The conviction and sentence are affirmed.

AFFIRMED.

DENNIS, J., concurs, disagreeing only with the remarks pertaining to harmless error.


author: LEMMON, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. Gregory SMITH.
    No. 67511.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Fred P. Harper, Jr., Louise Korns, Lance Africk, Asst. Dist. Attys., for plaintiff-appellee.
   LEMMON, Justice.

In this appeal from a conviction of second degree murder the principal issue involves defendant’s attempt to suppress the murder weapon seized incident to the allegedly unlawful arrest of Wilbert Kelly.

I.

On June 20,1978 the body of an unidentified female was discovered in an isolated wooded area of Orleans Parish. The victim apparently had been shot repeatedly with a .45 caliber pistol and a .38 caliber pistol. A slug recovered from her body was submitted to the crime laboratory for analysis. Medical opinion fixed the time of death as the nighttime hours of the evening prior to the discovery of the body.

The victim was eventually identified as Veronica Dubuchet, but apparently little other information was uncovered until an unexpected, critical clue was provided by the crime laboratory.

On July 17 the crime laboratory, in examining a .45 caliber automatic which had been recently submitted for testing, identified the pistol as the weapon which fired the slug found in Miss Dubuchet’s body. The pistol had been seized by the police during the arrest of a wanted fugitive named Wilbert Kelly at the home of Bernard McGee.

This information led police to a series of interviews with several individuals who were with Miss Dubuchet on the evening of her death. Police eventually learned that defendant, in the company of several other men, took Miss Dubuchet to the lonely spot where her body was found and, as she begged for her life, shot her mercilessly .with the .45 caliber automatic and then with a .38 caliber derringer until she died.

Defendant was ultimately convicted of second degree murder. After being adjudicated a habitual offender, he was sentenced to life imprisonment at hard labor.

II.

Prior to trial defendant moved to suppress the .45 caliber pistol seized from McGee’s home incident to Kelly’s arrest, contending that the warrantless arrest was illegal under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) and State v. Brown, 387 So.2d 567 (La.1980). Although none of defendant’s reasonable expectations of privacy were implicated by the police entry into McGee’s home or their seizure of a pistol in Kelly’s possession, La.Const. art. 1, § 5 (1974), as construed by this court in State v. Hebert, 351 So.2d 434 (La.1977) and State v. Culotta, 343 So.2d 977 (La.1977), permits defendant to question the legality of the police conduct leading to the seizure. Compare Rakas v. Illinois, 435 U.S. 922, 98 S.Ct. 1438, 55 L.Ed.2d 515 (1978); Rawlings v. Kentucky, - U.S. -, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

The evidence presented at the motion to suppress established that Officer Dewey Varnado on July 11, 1978 was requested to assist in the apprehension of a female probationer in connection with a probation violation. When the woman was brought to police headquarters, she offered to provide information about a wanted subject, Wilbert Kelly, in exchange for leniency. A check of the records of “wanted” subjects revealed that Kelly was being sought on charges of armed robbery and attempted murder of police officers.

When Varnado accepted the woman’s offer to help locate Kelly, she dialed a telephone number and engaged in a conversation with Bernard McGee, telling McGee that she knew Kelly was at his house and that she was afraid he would get into trouble if Kelly was permitted to remain there. McGee apparently revealed that Kelly was still at his residence, and the woman covered the receiver with her hand and relayed the information to Varnado.

Varnado immediately summoned assistance and went directly to McGee’s residence, arriving within a half hour. In fact, McGee was still on the phone with the woman when the officers arrived. .

Three armed officers surrounded the house, while Varnado and a fifth officer approached the front door with shotguns in their hands. When McGee answered Var-nado’s knock at the door, Varnado told McGee they were there to apprehend Wilbert Kelly. The officers entered the house, and when McGee indicated someone was in the back room, the officers proceeded into that room and found Kelly asleep on a sofa bed, with a .45 caliber automatic on the bed. The officers ordered Kelly out of the bed and arrested him, seizing the pistol in the course of a protective search.

On appeal defendant argues that the warrantless arrest of Kelly after the non-consensual entry in McGee’s house violated the dictates of the Payton decision and that suppression of the pistol seized in that arrest is required.

We observe initially that the Payton decision does not control this case. In Payton the defendant’s own reasonable expectations of privacy were breached by the war-rantless, nonconsensual entry into Payton’s own home. In the present case the defendant had no Fourth Amendment interest violated which gave rise to a right on his part to question the validity of the seizure. His right to litigate the validity of this seizure arises only under the Louisiana Constitution.

In State v. Brown, above, this court, recognizing the parallel between the United States Supreme Court’s approach to the Fourth Amendment and the proper result under the state constitution, held that a warrantless, non-consensual entry into a defendant’s home for the purpose of an arrest was constitutionally invalid, unless such entry was necessitated by exigent circumstances. The court also found that the photographic lineup was a product of that illegal arrest, but nevertheless affirmed the conviction because the in-court identification was clearly free from taint of arrest.

The Brown decision clearly applied the principles of Payton to suppress evidence obtained as a result of a warrantless arrest in a defendant’s home in the absence of exigent circumstances. Nevertheless, we conclude that suppression of the evidence is not required in the present case.

First, the facts of the present case presented the officers with exigent circumstances necessitating a prompt entry to secure the arrest of a dangerous felon. The officers were seeking an individual wanted for violent felonies involving danger to human life. His benefactor, McGee, had effectively been warned that he (McGee) would get into trouble if he allowed Kelly to remain hidden on his premises, and the officers wasted no time in going immediately to McGee’s home. Hindsight may have revealed that their haste was unnecessary, but the officers’ concern that Kelly might flee was reasonable, particularly in light of the fact that he was located on the premises of a third person.

Second, we hold that State v. Brown, above, is not to be given retroactive effect.

As the United States Supreme Court noted in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the deterrent function of the exclusionary rule is not served by retroactive application to situations in which officers acted in good faith reliance on previously announced standards. The court in Peltier accordingly refused to accord retroactive application to its decisions limiting border patrol search authority and upheld searches which were conducted pursuant to previously announced regulations that, although not declared invalid at the time of the questioned search, were later declared to be unconstitutional infringements of the Fourth Amendment. The same result should obtain here under the Louisiana Constitution, especially since the question involved is not one of the fairness of the trial or the determination of guilt or innocence.

III.

Our conclusion that the Payton and Brown decisions do not require suppression of the pistol does not completely dispose of the issue of the legality of Kelly’s arrest. There remains the question of the reasonableness of the officers’ belief that Kelly was in McGee’s home and that probable cause existed for Kelly’s arrest.

There is little question here that the officers had a substantial basis for believing that Kelly was in McGee’s home. The female probationer freely offered her assistance to the police and fully explained the basis on which she based her information. She revealed her acquaintance with McGee and telephoned him in the officer’s presence to confirm Kelly’s presence. When McGee reported that Kelly was still there, she gave officers the signal to proceed and held McGee in conversation until the police arrived. Her credibility and the reliability of her information were apparent from the circumstances. See State v. Abadie, 390 So.2d 517 (La.1980). Furthermore, the officers entered only the living room portion of the house for safety reasons and did not go into the rear portion of the residence until McGee confirmed the presence of “a friend” who was staying with him.

The issue of probable cause presents a more difficult problem. Although the officers acted in good faith reliance on the “wanted” report issued by other New Orleans police officers as a justification for Kelly’s arrest, the mere fact that Kelly was “wanted” does not establish that there was in fact probable cause for his arrest. Perhaps that fact was a sufficient basis for Varnado’s reasonable belief that the officers had probable cause to believe that Kelly committed the crimes, but such boot strapping cannot substitute for probable cause in order to satisfy the Fourth Amendment’s restrictions on police seizures of persons or the parallel restrictions found in the Louisiana Constitution.

Neither party introduced evidence on the issue of probable cause for Kelly’s arrest at the hearing on the motion to suppress. We accordingly base our determination of that issue on allocation of the burden of proof. We hold that when a defendant seeks to exclude physical evidence seized pursuant to the arrest of a third person, the burden falls upon the defendant to demonstrate that the arrest was not supported by probable cause.

Normally, the burden is on the prosecution to justify a warrantless arrest or search of a defendant in order to use the evidence which is a product of the arrest or search. See State v. Franklin, 353 So.2d 1315 (La.1978). However, in cases involving the arrest of third persons, we analogize the burden of proof issue to those decisions of this court which hold that a defendant challenging the voluntariness of the confession of a third person must carry the burden of proving by a preponderance of the evidence that the person did not give the confession voluntarily. See State v. Bouffanie, 364 So.2d 971 (La.1978); State v. Williams, 385 So.2d 214 (La.1980).

This approach accommodates the competing societal interests, on the one hand, of admitting highly reliable and probative physical evidence and, on the other hand, of deterring unreasonable police conduct. The approach is particularly appropriate to the situation in which the complaint does not concern the defendant’s federally protected constitutional right to his own privacy. If the defendant wishes to utilize the expanded exclusionary rule of the Louisiana Constitution when he is adversely affected by a seizure which violates another person’s reasonable expectation of privacy, it is appropriate to require that the defendant establish the police conduct was unreasonable.

In this case defendant has not carried his burden of establishing that the police arrested Kelly without probable cause. Accordingly, the trial court did not err in denying the motion to suppress.

Defendant’s other assignments are controlled by the application of well established principles and are treated in an unpublished appendix.

The conviction and sentence are affirmed.

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

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

If there was no probable cause to arrest Kelly, defendant has the right under the Louisiana Constitution (Art. 1, § 5) to suppress what was illegally seized at Kelly’s arrest.

      . Because defendant lacks standing under the Fourth Amendment, we need not decide whether Payton is to be given retroactive effect. The United States Supreme Court has not decided this issue, and we are not persuaded that general principles of retroactive application require such a result. In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the court said “[i]t is indisputable ... that in every case in which the court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the fact finding process, the court has concluded that any such new constitutional principle would be accorded only prospective application.” See also Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), holding that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was not to be given retroactive effect, and State v. Bible, 389 So.2d 42 (La.1980), holding that Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) was not to be given retroactive effect.

      . In State v. Ranker, 343 So.2d 189 (La.1977), this court expressed concern about the constitutionality of C.Cr.P. art. 224’s authorization of forcible entry into a place where the person to be arrested “is reasonably believed to be”. That expression in dicta, however, is not a sufficient reason to exclude probative physical evidence seized in this case by police who were acting in conformity with existing legislative standards. Compare United States v. Blake, 632 F.2d 731 (9th Cir.1980).
      The implication in the Brown decision that Payton is to be given retroactive effect is dicta and does not govern here at any rate, because the warrantless entry was into Brown’s own home.

      . Although we do not predicate our holding on consent, we note the prosecution’s contention that McGee did not voice objection to the entry and did not attempt to refuse entry to the police. It is also noteworthy that the police approached McGee’s home in the mid-afternoon hours.

      . As stated earlier, the Fourth Amendment is not the basis of our analysis because Smith has no privacy interest involved in Kelly’s seizure at McGee’s home. Rather, Smith had the right to raise the validity of Kelly’s arrest only under La.Const. art. 1, § 5 (1974).

      . The defendant’s contentions regarding the illegality of the arrest and subsequent seizure focused on the manner in which the entry was effected and not upon the lack of probable cause for Kelly’s arrest.

      . In fact, when the prosecutor during the hearing on the motion to suppress attempted to elicit from one officer the information that had been obtained from other sources, defendant objected that the response would call for “hearsay”. The trial court erroneously sustained the objection.
      The hearsay rule is not required to be applied at suppression hearings. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Devenow, 220 So.2d 78 (La.1969). Information relayed to a policeman from other sources can be treated at a suppression hearing as “non-hearsay” and may be considered insofar as it tends to prove that such information was in fact given to the officer. Whether he was reasonable in acting on the report is tested by other factors, such as the reliability of the manner in which the information was obtained and the credibility of the person reporting. See State v. Paciera, 290 So.2d 681 (La.1974).

      . In a case, such as presented here, in which police officers are working in a large urban police department, a request (or “wanted”) by one police officer alerting others that he has probable cause to arrest a suspect can be acted upon by other police officers. The test of the validity of the arrest, for purposes of the exclusionary rule, ultimately rests upon whether the investigating officers had sufficient facts to support probable cause. See United States v. Ragsdale, 470 F.2d 24 (5th Cir. 1972).