author: SCHEB, Acting Chief Judge.

text:
    Everett E. HENKEL, Petitioner, v. David R. JASIN and Mary Ann Jasin, his wife, Respondents.
    No. 82-2857.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1983.
    Roland D. Waller, New Port Richey, for petitioner.
   SCHEB, Acting Chief Judge.

Petitioner, Everett E. Henkel, is a defendant in the trial court in a civil action seeking compensatory and punitive damages. He now seeks a writ of common law certiorari to quash a discovery order requiring him to produce extensive records concerning his financial worth.

Petitioner raises several points. The only one that merits discussion is his contention that the circuit court departed from the essential requirements of the law in denying his motion for a protective order in which he made a general attack on the relevance of the financial records he was ordered to produce. Petitioner admits that the complaint contains a prayer for punitive damages, making the question of his net worth relevant. Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975). Petitioner urges that punitive damages are improper in this ease, yet he fails to demonstrate whether a motion to dismiss had been filed or ruled on below. In this posture of the case, we are unable to say that the trial judge departed from the essential requirements of law in permitting the challenged discovery.

We note that several items requested by respondent appear overbroad even given the pendency of the count seeking punitive damages. Petitioner’s motion for protective order, however, did not object as to specific items and failed to show that good cause was present to limit or prohibit the discovery due to “annoyance, embarrassment, oppression, or undue burden or expense” as required by Florida Rule of Civil Procedure 1.280(c).

We deny certiorari without prejudice to petitioner promptly filing an amended motion for protective order in the trial court specifying precisely the items objected to with a showing of good, cause as contemplated by Rule 1.280(c).

Certiorari denied.

CAMPBELL and SCHOONOVER, JJ„ concur.


source: Caselaw Access Project

author: SCHWARTZ, Chief Judge.

license: Public Domain

text:
    Marshall GRABEL, Appellant, v. Joan GRABEL, Appellee.
    No. 82-2550.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1983.
    Melvyn B. Frumkes and Cynthia L. Greene, Miami, for appellant.
    Jerry A. Burns, Miami, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   On Motion to Strike Supersedeas Bond

SCHWARTZ, Chief Judge.

The order under review requires the husband to pay, in installments, accrued increases in the amounts of child support retroactive to the date of the appellee-wife’s petition for modification. Because the order is for support and is enforceable by contempt — that it thus provides for the alternatives of payment or imprisonment— we hold that it is not a “[mjoney [j]udgment” and one “solely for the payment of money” within the meaning of the title and text of Fla.R.App.P. 9.310(b)(1), under which posting a 115 per cent supersedeas bond effects an automatic stay pending review. See Florida Coast Bank of Pompano Beach v. Mayes, (Fla., 4th DCA Case No. 81-2272, opinion filed, December 29, 1982); compare, e.g., Proprietors Insurance Co. v. Valsecchi, 385 So.2d 749 (Fla. 3d DCA 1980). Accordingly, the wife’s motion to strike the bond posted pursuant to the rule is granted and the cause is remanded for the trial court’s discretionary consideration of an application for stay under Fla.R. App.P. 9.310(a).

Motion granted, remanded.


author: PER CURIAM.

text:
    Miriam DONNER and Arthur J. Morburger, Appellants, v. Steve EDELSTEIN, Assistant City of Miami Attorney, Michael J. Murphy, Esquire, Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., and The City of Miami, a municipal corporation, Appellees.
    No. 82-58.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 1983.

      Miriam Donner and Arthur J. Morburger, in pro. per.
    Jose R. Garcia-Pedrosa, City Atty. and Mikele S. Carter, Asst. City Atty., Fowler, White, Burnett, Hurley, Banick & Strick-root and Michael J. Murphy, for appellees.
    Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.
   ON SECOND MOTION FOR ORDER IN ACCORDANCE WITH MANDATE

PER CURIAM.

In our order of October 5, 1982, we informed the trial court that its Final Order of Dismissal entered September 17, 1982, did not comply with this court’s mandate issued July 8, 1982, and directed the trial court to conduct an in camera examination of documents claimed by the appellees to be privileged and to determine whether they are privileged or not. We are now advised by the appellants that the trial court’s September 17, 1982, order is still extant, and we hereby vacate such order. We are further advised that on November 22,1982, the documents claimed to be privileged were given to the trial court for in camera inspection and that no order determining privilege has been entered. In light of the fact that the action pending before the trial court is one to enforce the provisions of the Public Records Act, §§ 119.01-12, Fla.Stat. (1981), the action is entitled to priority over other pending cases. Accordingly, the trial court is ordered to complete its examination of the documents and enter an order thereon no later than February 18, 1983.

See also, 415 So.2d 830, 423 So.2d 367.


author: WATSON, Justice. MARCUS, Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Romela Grace TRAHAN and Max Dennis Leleaux.
    No. 82-KA-0423.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Rehearing Denied Feb. 11, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Eugene Bouquet, Larry Regan, Wayne Frey, Asst. Dist. Attys., for plaintiff-appellee.
    D. Michael Mooney, Lake Charles, for defendants-appellants.
   WATSON, Justice.

Defendants, Romela Grace Trahan and Max Dennis Leleaux, were both convicted of possession of marijuana with intent to distribute, LSA-R.S. 40:967 A(l), and possession of cocaine, LSA-R.S. 40:967 C. Romela Grace Trahan was sentenced to serve seven years at hard labor for possession of marijuana with intent to distribute and three consecutive years at hard labor for possession of cocaine. Max Dennis Le-leaux was sentenced to serve four years at hard labor for possession of marijuana with intent to distribute and four concurrent years at hard labor for possession of cocaine.

FACTS

Two Calcasieu Parish Sheriff’s Deputies received a tip about marijuana sales at a trailer from an anonymous informant. They verified the trailer’s location and description. An affidavit sworn at 11:48 P.M. on February 29, 1981, stated:

“[Cjertain large quantities of Marijuana can be found in a gold and white trailer which is located on the west side of Arizona Street, one mile south of the intersection of Patton and Arizona Streets and is the second residence north of the intersection of Sunny Wood Drive and Arizona Street and is directly across the street from the Overflow Machine Shop and there is a large sign advertising West Point Barber Shop in the front yard. The trailer faces east and west with the front door facing south and there is a silver Chevrolet Van in the yard. This residence is occupied by Ramola (sic) Tra-han, a white female, and a white male by the name of Max who is in his twenties, 5'11", 145 pounds, black hair and beard. This department has been receiving information on these people for the past several months that they are dealing in large quantities of Marijuana. This information has been received from reliable informants who have told this Department the above. These informants’ information has been cheeked out by other reliable informants and has been proven true and reliable. On this date, Tuesday, February 24,1981, a reliable informant who has been given (sic) this Department information for approximately the past four months and his information in the past has been checked out by other reliable informants and undercover agents and has proven to be true and reliable. This informant’s information in the past has resulted with this Department’s undercover agents being able to make several felony narcotic buys based on his information. This informant advised this Department within the past six (6) hours that he had been in the above described trailer and had personally seen large quantities of Marijuana in the rear bedroom of the trailer described above and that Ramola (sic) Trahan and Max were in the trailer and while he was there, a white male who he did not know or recognize came in and purchased a pound of Marijuana. The purpose of this Search Warrant is to obtain evidence which is needed in the criminal prosecution of Ra-mola (sic) Trahan and Max for the violation of Louisiana Revised Statute 40:967A(1).” (Tr. 53)

At 12:17 A.M. on February 25, 1981, the warrant was served on defendants Leleaux and Trahan, who were in their trailer. The two were arrested. Among the items seized from the trailer were: approximately one and three-quarters pounds of marijuana, part of it packaged in seventeen plastic bags; drug paraphernalia, including pipes, cigarette papers, clips, weighing scales and other devices for smoking, rolling, packaging and measuring marijuana; a bottle of “Sparkling Beauty”, a white Mannitol powder commonly used to cut cocaine; twenty-eight Polaroid photographs; a small vial or bottle, one-half to an inch in size, which had a slight residue of cocaine. The amount of cocaine was too small to be weighed and was consumed in the laboratory testing. The vial itself disappeared before trial. Much of the marijuana seized was in the bedroom where the informant said he witnessed a sale.

ASSIGNMENT OF ERROR NUMBER ONE

Defendants’ motion to suppress the evidence was denied. Defendants argue that the affidavit in support of the warrant fails to establish probable cause to believe that the informant had recently been in defendants’ trailer.

The pertinent language in the affidavit is:

“... This informant advised this Department within the past six (6) hours that he had been in the above described trailer....” (Tr. 53)

Defendant argues that this language could mean that the Department had been notified within six hours but the informant was in the trailer at some distant point in time. Thus, it is claimed that the information could have been stale. However, the judge who signed the search warrant could have reasonably inferred that the informant observed the marijuana transaction within six hours prior to execution of the affidavit. See State v. Turner, 337 So.2d 1090 (La., 1976)

“... [Affidavits for search warrants .. . must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity ... have no proper place in this area.” U.S. v. Ventresca, 380 U.S. 102 at 108, 85 S.Ct. 741 at 745, 13 L.Ed. 684 at 689 (1965) as quoted by the Louisiana Supreme Court in State v. Mena, 399 So.2d 149 at 152 (La., 1981).

Because of the promptness with which the deputies acted on the informant’s tip, it was probable that the contraband was still there. State v. Segers, 355 So.2d 238 (La., 1978) and State v. Boudreaux, 304 So.2d 343 (La., 1974). Compare State v. Thompson, 354 So.2d 513 (La., 1978) and State v. Lewis, 385 So.2d 226 (La., 1980).

The totality of the information in this affidavit establishes probable cause for a search warrant.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendants contend the trial court erred in admitting twenty-one photographs into evidence over a defense objection. The undated photographs were found on a bookshelf in defendants’ living room. They showed Max Leleaux and others smoking cigarettes and using smoking paraphernalia similar to that introduced into evidence. Although admitted into evidence, the photographs were never seen by the jury.

Defendant argues that the state failed to provide written notice of its intent to use the photographs as evidence of prior crimes. State v. Goza, 408 So.2d 1349 (La., 1982); State v. Prieur, 277 So.2d 126 (La., 1973); LSA-R.S. 15:445, 446. This notice requirement safeguards against the danger that a defendant may be unprepared to defend himself against unknown charges.

The only reference to the photographs was by Leleaux, who took the stand, admitted to use of marijuana, said the photographs were his and explained they were taken a year or two earlier in Mississippi. Although the state did not follow the notice requirements of Prieur, supra, the error in admitting the photographs was harmless, because they were never shown to the jury. The photographs were not used in such a prejudicial manner as to require reversal of defendant’s conviction.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendants argue that the verdicts rendered are contrary to the law and the evidence.

Viewing the evidence in the light most favorable to the prosecution, could a rational trier of fact have found beyond a reasonable doubt proof of each element of the crimes? Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Leleaux rented the trailer in his name, but Romela Grace Trahan also lived there. They were both present at the time of the raid. Marijuana was found in quantity in the bedroom, living room and kitchen. Because of the abundance and distribution of the marijuana in the trailer, there is no question that the defendants had possession.

Intent to distribute may be inferred from the circumstances. LSA-R.S. 15:445. The one and three quarters pounds of marijuana seized was partially packaged in seventeen plastic baggies. An expert witness, Francis Touchet, testified that this amount would make approximately 1,600 cigarettes, a number inconsistent with possession for personal use. State v. Tornabene, 337 So.2d 214 (La., 1976). Compare State v. Elzie, 343 So.2d 712 (La., 1977); State v. Greenway, 422 So.2d 1146 (La., 1982); State v. House, 325 So.2d 222 (La., 1975). The other drug paraphernalia such as scales also indicates that defendants possessed with intent to distribute.

There was certainly sufficient evidence to support the convictions for possession of marijuana with intent to distribute.

A more difficult problem is presented concerning the convictions for possession of cocaine. The only evidence was that a small vial containing a residue of cocaine had been found on a bedroom shelf of the trailer which had been rented by Leleaux for two and one-half to three years. He testified that he knew nothing about the vial or its origin. Neither the small glass vial nor the cocaine was produced at trial. The cocaine was consumed in testing and the vial was lost prior to trial.

The state’s witness, Touchet, testified that the actual amount of cocaine was “extremely small” and that he “could not quan-titate it.” In other words, there was only a trace of cocaine and it could not be measured or weighed.

The jurisprudence has not established precise guidelines as to what constitutes “possession” of drugs under the narcotic laws. Actual physical possession is, of course, sufficient and various cases hold that there may be “constructive possession”, when the material is not in the physical possession of a person but is under his dominion and control.

“A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control of it.... [GJuilty knowledge is an- essential ingredient of the crime of unlawful possession of an illegal drug....” State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971).

Determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. State v. Cann, 319 So.2d 396 (La., 1975).

The facts of the present case indicative of control and dominion is the circumstance that the vial was found in the bedroom of the trailer rented by Leleaux for over two and a half years and occupied by the defendant Trahan for an indeterminate length of time. The only evidence bearing on the evidence of guilty knowledge is Le-leaux’s testimony that he knew nothing about the vial or its contents; Trahan did not testify at trial. Also, the Mannitol, a material for cutting cocaine, was found in the trailer.

The question is whether under Jackson v. Virginia, supra, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that: (1) the defendants had dominion and control over the cocaine; and (2) they knowingly possessed it. There is no difficulty in concluding that the evidence showed beyond a reasonable doubt that Leleaux had dominion and control over the vial. As to Trahan, the conclusion is doubtful. However, the evidence falls short of reflecting guilty knowledge. Leleaux, as noted, disclaimed any knowledge of the vial and its contents and no evidence was produced to show such knowledge. The presence of. the cutting substance is not sufficient in itself to prove guilty knowledge. The evidence does not satisfy the Jackson v. Virginia test.

Therefore, the assignment of error has merit as to the conviction for possession of cocaine and the conviction must be set aside.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendants contend their sentences are excessive. LSA-Const., Art. 1, § 20.

The trial court considered certain mitigating factors: Leleaux had led a law abiding life with no prior criminal activity; he supports a minor child; he had been employed at the same job for over three years. His employer wrote a letter asking that Leleaux be allowed a chance of rehabilitation, and offered to assist in probation. However, the court found that Leleaux’s drug offenses were of a serious nature, and a threat to the safety of the community. Because of Leleaux’s extensive use of illicit drugs for an extended period, he was found to be in need of correctional treatment in a custodial environment.

The maximum which Leleaux could have received for possession of a controlled dangerous substance with intent to distribute is ten years. Defendant Leleaux admitted to use of marijuana over a long period of time. Four years, less than half the maximum, is not apparently excessive.

Romela Grace Trahan received seven years for possession of marijuana with intent to distribute. She was on probation from a suspended sentence for prior distribution of marijuana at the time of this offense. The court considered a mitigating factor: she is the mother of a small child and the child’s sole support. The court recognized that a sentence of confinement will impose an excessive hardship to that child. However, the court noted that any lesser sentence would deprecate the seriousness of her crime. He stated she is in need of correctional treatment in a custodial environment because her prior felony indicated she might commit another crime. The record on considerations met the sentencing guidelines of LSA-C.Cr.P. art. 894.-1. State v. Jacobs, 383 So.2d 342 (La., 1980).

A trial judge has wide discretion in imposition of sentences within the statutory limit, if there has been compliance with LSA-C.Cr.P. art. 894.1. Sentences imposed should not be set aside as excessive absent manifest abuse of discretion. State v. Spencer, 374 So.2d 1195 (La., 1979).

Both sentences for possession of marijuana with intent to distribute will be affirmed.

ASSIGNMENT OF ERROR NUMBER FIVE

By this assignment, defendants argue that the trial court erred in instructing the jury as follows: “An intention to distribute narcotics can be inferred from the quantity in the defendants’ possession.” (Tr. 80)

Intent can be inferred from the circumstance of a transaction. LSA-R.S. 15:445. An intention to distribute narcotics or other controlled dangerous substances can be inferred from the quantity in the

accused’s possession. State v. Sibley, 310 So.2d 100 (La., 1975). Compare State v. House, 325 So.2d 222 (La., 1975); State v. Ramoin, 410 So.2d 1010 (La., 1982); and, State v. Greenway, 422 So.2d 1146 (La., 1982). Here, the packaging and scales, as well as the quantity, indicated an intent to distribute.

This assignment lacks merit.

For the foregoing reasons, the convictions and sentences for possession of marijuana with intent to distribute are affirmed.

The convictions and sentences for possession of cocaine are reversed and vacated.

AFFIRMED IN PART; REVERSED IN PART.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

LEMMON, J., dissents in part and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of the convictions and sentences for possession of marijuana with intent to distribute. I dissent from the reversal of the convictions and sentences for possession of cocaine. Whether the defendants had the requisite guilty knowledge, which is an essential element of the crime of possession of an illegal drug, is a matter of proof by either direct or circumstantial evidence. In the instant ease, a vial containing cocaine was found in the possession of defendants. There was also evidence that Mannitol, a material for cutting cocaine, was also in the possession and control of the defendants. Viewing this evidence in the light most favorable to the prosecution, a rationale trier of fact could have found beyond a reasonable doubt that defendants had dominion and control over the cocaine and that they knowingly possessed it. Accordingly, I would affirm the convictions for possession of cocaine.

LEMMON, Justice,

dissenting in part.

The trace of cocaine in a small vial on the back of a shelf in a bedroom closet was not, by itself, sufficient evidence to support a conviction of possession of cocaine. However, the brown bottle of the Italian manni-tol (which was discovered by a different officer than the one who found the cocaine in the bedroom closet) casts a different complexion on the presence of a trace of cocaine in the trailer. Moreover, a gram scale, designed to weigh and calibrate powdery, crystalline substances such as cocaine, was also found in the trailer.

Under the overall evidence viewed in the light most favorable to the prosecution, a reasonable juror could have concluded that both Leleaux and Ms. Trahan had guilty knowledge of the cocaine which was under their joint dominion and control. I would affirm the convictions of possession of cocaine.

      . LSA-R.S. 40:967 A(l), at the time of the offense provided:
      “A. Manufacture; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally: “(1) To produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II;
      “(2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule II.”
      At the time of the offense, marijuana was contained in Schedule II.

      . LSA-R.S. 40:967 C, at the time of the offense provided:
      “C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner or provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this Part. Except as provided in Subsections E and F hereof, any person who violates this subsection shall be imprisoned with or without hard labor for not more than five years; and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.”
      At the time of the offense, cocaine was contained in Schedule II.

      . At the hearing, Deputy Albanese testified that he spoke to the informant at 9:45 P.M.

      . Leleaux testified at the hearing on the motion to suppress that only friends had been at the trailer that day, and all had denied being the informant. This does not negate the possibility that one of them was the informant.

      . Seven other photographs were excluded.

      . Even after removal of the seeds and stems, which the expert said were usable, 800 cigarettes could be made from this amount.

      . The reversal of the cocaine possession charge has no practical effect on the sentences received by defendants. Leleaux’s sentences were made concurrent. Although Trahan’s were made consecutive, it could be persuasively argued that the sentences should have been imposed concurrently under LSA-C.Cr.P. art. 883.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Nathaniel RICHARDSON, Jr.
    No. 82-KA-0202.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Richard Pe-tre, Jeffrey Bassett, John H. Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Howard McCurdy, Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

On April 18, 1981 Nathaniel Richardson, Jr., a twenty-six year old black male, was charged by bill of information with the crime of forcible rape of a twenty-one year old New Orleans woman (who will be referred to hereafter as Jane Brown) in violation of R.S. 14:42.1. After waiving his right to a jury trial, defendant was tried before a judge on June 30 and July 10 and found guilty as charged. His motion for a new trial was denied, and he was sentenced to serve two years at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals, arguing one assignment of error.

The victim, her boyfriend Michael Smith (fictitious name) and her friend Marie attended a concert sometime after 10:00 p.m. on April 17, 1981. On the way to the concert the trio smoked marijuana, but at the concert they neither smoked marijuana nor consumed any alcohol. When the concert ended at 2:00 a.m., Michael and Jane first dropped Marie off at Michael and Jane’s apartment and then proceeded to Johnny White’s Bar where they stayed until 4:30 a.m. After leaving the bar, Michael and Jane decided to have breakfast at “Molly’s.” Jane ordered breakfast while Michael ordered another cocktail. While Jane was eating, Michael spotted “Jerome” (Nathaniel Richardson), the defendant herein, “milling around.” Michael walked outside and asked Jerome to sing him a song. Michael testified that he had talked to Jerome several times over the past months requesting favorite songs and watching him sketch. Jane stated at trial that she had talked to Jerome briefly once two weeks earlier. After Jane finished her breakfast, she joined Michael and Jerome outside. Michael asked Jane if Jerome could stay at their apartment since “Jerome didn’t have a place to stay.” Jane agreed since Michael acknowledged that he knew Jerome.

They left “Molly’s” and smoked marijuana in the car on the way back to the apartment. When they returned to the apartment around 8:00 a.m., they found Marie exercising on the living room floor. For the next hour Marie continued her exercises and talked to Jane while Michael watched cartoons on television in the bedroom. Jerome stood on the balcony staring at Marie “licking his lips and making very vulgar faces, bulging his eyes, . .. rather ob-sceneQy]” so Marie stopped exercising. Michael asked Marie to call his employer to report that he would not be able to come in to work. After she completed this telephone call and after Jerome attempted “to make a pass at her,” Marie left around 8:45 a.m. for her home in Thibodaux.

Jane then retired to the bedroom with Michael where they began to have sexual intercourse, during which Jerome entered the bedroom through a french door opening onto the balcony. He attempted to join in Michael and Jane’s lovemaking by “kissing [Jane] on the thigh.” The couple had not been aware of‘Jerome’s presence in the room until that intrusion. At that point Jane jumped up and either Jane or Michael screamed at Jerome to get out, so Jerome left the room.

Defendant entered the bedroom a second time approximately ten minutes later. This time Michael got out of bed, told Jerome to leave and chased him back into the living room.

Michael and Jane fell asleep about 11:00 a.m. The alarm awakened Jane at 12:00 p.m. since she was scheduled to be at work at 1:00 p.m. She got out of bed, put on her robe and walked to the bathroom to shower. She shut the bathroom door and sat down on the toilet. Suddenly, Jerome opened the door, walked into the bathroom and sat on the floor in front of Jane. Jane testified that she was shocked by his actions and told him, “Look, man, I wish you’d leave. I’ve got to take a shower. I’ve got to go to work.” When Jerome refused to budge, Jane attempted to leave. As she stood up, Jerome grabbed her legs and put his face in her crotch. Jane struggled to free herself, but defendant threw her down on the floor. Although Jane screamed and hit defendant, he pinned her arms and had intercourse with her. According to Jane, the defendant also unsuccessfully attempted sodomy which caused her to bleed. After he released her, Jerome returned to the kitchen where he ate cheese and pears from the refrigerator. Jane remained in the bathroom for a few minutes since she was unsure of defendant’s next move. Finally she ran from the bathroom to her bedroom to awaken Michael. She did not scream at this time for fear of waking Carolyn, a tenant who occupied the second bedroom.

Michael testified that Jane ran into their bedroom, crying hysterically and screaming at him, “Why did you let him rape me. He just raped me.” Michael woke up, ran out of the bedroom and started swinging at Jerome. Defendant ran out of the apartment with Michael, naked, in pursuit. Half way down the stairs Michael realized that he was undressed so he ran back into the apartment to grab a towel. Michael caught up with Jerome on Decatur Street, punching him and calling him names. Jerome fled as Michael clutched for his towel.

Michael returned to the apartment, put on some shorts and resumed the chase. While searching for defendant through the shops in the French Quarter, Michael asked an off duty officer to contact the police. By the time Michael returned to the apartment, empty-handed, approximately twenty minutes later, two police officers were present questioning Jane and the tenant Carolyn.

After briefing the police officers, Michael left on his motorcycle to comb the French Quarter again. He finally spotted defendant at the corner of Ursuline and Decatur Streets. Defendant attempted to explain the situation to Michael who responded by fighting. After another foot chase, the pair collapsed from exhaustion. The police arrived and arrested defendant.

Defendant related a different version of the facts of this case, focusing on Jjane’s solicitation of and consent to sexual relations with him. Defendant testified that Jane approached him outside of “Molly’s.” She kissed him and allowed him to fondle her. Michael approached the two and informed defendant that “they had a free sort of relationship.” Jerome then suggested that they “go to the hotel or wherever you live and smoke some pot and have a few drinks and we can have some sex, obviously, she’s willing.” Then the three left, smoking marijuana on the way to the apartment as well as six or seven joints after they arrived there. Defendant claimed that Jane undressed in his presence and encouraged him to touch her while Michael was calling in sick to work. When Michael returned to the bedroom, he observed the intimacy between Jane and Jerome, commenting, “Yeah, I can see you two are going to get along just fine.” Defendant then left the bedroom to roll another joint. When he returned, Michael and Jane were making love. Defendant attempted to join in their lovemaking, but he stopped after Jane asked him what he was doing. He remained in the bedroom, smoking marijuana and observing the couple having sex. Since he felt that no one would believe what he had witnessed, defendant began to sketch the couple engaging in sodomy. Defendant was “too loaded” to complete his sketches and so he returned to the living room. A short time later Jane emerged from the bedroom in a short black house coat. Defendant expected her to come to the couch to have sex with him. Instead, she walked past defendant, stopped and glanced at him in an enticing manner. Defendant followed her into the bathroom where he proceeded to have cunnilingus with her. Then Jane laid down on the floor and defendant had intercourse with her, although he claimed that he did not reach a climax.

After this encounter, defendant walked out of the bathroom and into the kitchen. Approximately twenty minutes later, Jane, after showering and dressing for work, wandered into the kitchen where he was eating. After defendant teased her about her sexual activities with Michael, Jane returned to the bedroom where Michael was sleeping. Shortly thereafter, Michael charged out of the bedroom swinging at defendant and the pursuit through the French Quarter began.

Defendant first argues that the evidence adduced at trial was insufficient to support his conviction of forcible rape under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that a reversal is proper where the evidence, viewed in the light most favorable to the state, could not be found by a rational trier of fact to support the verdict beyond a reasonable doubt. This standard of review has been applied consistently by this court to consider the sufficiency of the evidence. State v. Ennis, 414 So.2d 661 (La.1982); State v. Stewart, 400 So.2d 633 (La.1981); State v. Guillot, 389 So.2d 68 (La.1980); State v. Landry, 381 So.2d 462 (La.1980); State v. Mathews, 375 So.2d 1165 (La.1979); State v. Abercrombie, 375 So.2d 1170 (La.1979), cert. denied, Abercrombie v. Louisiana, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980).

Defendant was charged under R.S. 14:42.1 with the crime of forcible rape. This statute defines forcible rape as:

“[A] rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.”

Accordingly, in Louisiana, to prove a charge of forcible rape, the state has the burden of proving that (1) anal or vaginal intercourse occurred; (2) without the lawful consent of the victim; (3) the victim’s resistance is prevented by force or threats of physical violence; and (4) the victim reasonably believes that such resistance would not prevent the rape. If each of these elements, when viewed in the light most favorable to the state, has been proved beyond a reasonable doubt, then the state has presented sufficient evidence to comply with Jackson v. Virginia, supra.

There was no dispute at trial that defendant engaged in sexual intercourse with the victim. Both the defendant and the victim testified that penetration occurred. Charles Crone, a criminalist with the New Orleans Police Department, testified that he discovered seminal fluid on both defendant’s trousers and the victim’s robe. Spermatozoa, however, was detected only on the victim’s robe. Blood was not spotted on either the pants or the robe.

The crucial factual question centered on whether Jane consented to the physical act or whether she was forced to engage in intercourse against her will. Applying the standard of review set forth in Jackson v. Virginia, supra, the evidence in this case is sufficient to uphold the conviction of forcible rape. The victim testified that the sexual intercourse occurred without her lawful consent. She stated that she struggled with the defendant, but was pinned down and overpowered by him.

Her testimony that force was used was amply supported by the expert testimony of the examining physician. Dr. Cary C. Allison, an emergency medicine resident of Charity Hospital, testified that he examined the victim for evidence of a sexual assault at 6:30 p.m. on April 18,1981. He detected two small three millimeter tears “at the junction of the dry sternal skin of the body meeting the wet mucosal skin of the vagina,” which in his opinion were twelve hours old or less. The tears were suggestive of penetration with force or without the normal lubrication of a sexually excited female. A rectal examination was “negative for blood and palpable mucosal defects.” Even though the physician discovered no bruises or abrasions, this discovery seems consistent with the testimony of the victim and her boyfriend that she did not “bruise that easy.” Dr. Allison also recalled that Jane was anxious and distraught, “upset, angry and with a determination to see the thing through.” The two policemen called to the scene verified the hysterical state of the victim immediately after the incident.

The victim testified that she screamed for help when the defendant attacked her. However, neither Carolyn nor Michael heard her cries for help. This failure to hear the screams was explained by the witnesses for the state. The apartment was located on a busy intersection in the French Quarter. A flea market was open for business directly across the street. One of the investigating officers observed a large noisy crowd roaming through the marketplace. The clamor from the street could be heard by the officer in the second floor apartment. At least one bathroom wall was brick; Michael testified that it was understandable why Jane was not heard since “she was in a closed room with alot of background noises.”

The evidence indicates that the victim attempted to resist, but was prevented by force. She reasonably believed that any further resistance would be useless since both her legs and her arms were pinned down, and her screams had been futile.

Viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the evidence sufficient to find the defendant guilty of forcible rape beyond a reasonable doubt. Jackson v. Virginia, supra. The evidence presented at trial by the state consisted almost entirely of the testimony of the victim and her boyfriend. Their version of the facts, together with the expert testimony of the examining physician and the criminalist, amply supports a finding that force was used. Defendant’s conduct in applying force to the victim’s person, despite her cries for help and her active resistance, coupled with the defendant’s admissions that intercourse occurred, well supports a conviction of forcible rape. State v. Turnbull, 377 So.2d 72 (La.1979).

In State v. Smith, 409 So.2d 271 (La.1982), this court held that the trial court erred in not suppressing a confession. Whether the state has borne its burden of proving a confession free and voluntary is a mixed question of law and fact.

In the case before us defendant asks that we evaluate the credibility of the witnesses and overturn the trial court on its factual determination of guilt. This is not the function of this court on appeal. La. Const. Article 5, § 5(C) (1974).

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

      . Marie testified at trial as follows:
      “Q What exactly did he do to make a pass at you?
      A Well, he was suggestive in that I offered everybody some oranges and he left it go down his lip and started licking his lips and he kept saying, ‘Why don’t you stay here?’ And I kept saying that I had to go back home.”

      . At trial Jane testified as follows:
      “Q How did you struggle?
      A I was pushing him away with my hands and trying to get my legs free and I couldn’t.
      Q And after the struggle, what happened then?
      A He threw me on the floor and I started yelling.
      Q How did he throw you down?
      A He just pushed me down. He had me in a way that he could push me down real easily. He had his arms around my legs like this. There was no way I could get free.
      Q And then what happened?
      A He threw me on the floor and then he pinned my arms and then he had intercourse.”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Donald LEACH.
    No. 82-WA-1625.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan S. Kemp, III, Dist. Atty., Sam J. DiLeo, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellant.
    William L. Brooks, Amite, Ron Macaluso, Seale, Macaluso & Ross, Hammond, for defendant-appellee.
   CALOGERO, Justice.

We are called upon in this case to assess the constitutionality of La.R.S. 13:1570(A)(5) which was enacted pursuant to the authorization granted by La. Const, art. 5 § 19.

The defendant Donald Leach, who was sixteen years and four months old at the time of an alleged aggravated rape, filed a motion to quash his grand jury indictment contending that La.R.S. 13:1570(A)(5), which allowed him to be tried as an adult in the district court, was unconstitutional. The trial judge agreed and granted the defendant’s motion. The state filed a writ application in this Court which we are treating as an appeal because our appellate jurisdiction extends to cases where a statute has been declared unconstitutional by a lower court. La. Const, art. 5 § 5(A).

For the reasons which follow, we find La.R.S. 13:1570(A)(5) is constitutional and remand the case to the district court for further proceedings.

Article 5 § 19 of the Louisiana Constitution of 1974, as amended effective November 30, 1979, provides essentially that a person alleged to have committed a crime prior to his seventeenth birthday is to be treated in court pursuant to special juvenile procedures. That same provision, however, authorizes the legislature (1) to enact laws by two-thirds vote treating differently juveniles arrested for having committed seven distinct serious felonies, and (2) to enact laws by two-thirds vote lowering the maximum ages of persons to whom only juvenile procedures shall apply, and (3) to enact laws by two-thirds vote to establish a procedure by which special juvenile procedures may be waived in order that adult procedures shall apply in individual cases.

After article 5 § 19 of the Louisiana Constitution was ratified by the people in 1979, the Legislature adopted R.S. 13:1570(A)(5) which provides essentially that a child fifteen years or older, charged with committing any of four of the constitutionally described serious felonies (first degree murder, second degree murder, manslaughter, or aggravated rape) is excepted from the requirement that he be handled only pursuant to special juvenile procedures, and that a child sixteen years or older charged with committing any of three of the constitutionally described serious felonies (armed robbery, aggravated burglary, or aggravated kidnapping) is similarly excepted from the juvenile court requirement.

When the defendant Leach was brought before the district court pursuant to La.R.S. 13:1570(A)(5), he specifically argued that the district court lacked jurisdiction in his case and that the indictment should be quashed because (1) the provisions of La. R.S. 13:1570(A)(5) violated La. Const, art. 5 § 19 and (2) because La.R.S. 13:1570(A)(5) violated defendant’s right to equal protection under the law guaranteed by the Fourteenth Amendment to the United States Constitution and article 1 § 3 of the Louisiana Constitution.

The more significant of defendant’s arguments is his contention related at (1) above, that is, that while constitutionally the legislature may cause to be treated as adults in district court juveniles arrested for having committed one or more of the seven serious felonies, and that while constitutionally the legislature may “lower the maximum ages of persons to whom” only “juvenile procedures shall apply”, the legislature may not create classes of juveniles for treatment as adults determined by the age and offense allegedly committed by the juvenile.

For the reasons which follow, we find this argument not meritorious.

The pertinent constitutional and statutory provisions, fully quoted, are as follows:

Article 5, § 19 of the Louisiana Constitution of 1974, effective November 30, 1979:

The determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be pursuant to special juvenile procedures which shall be provided by law. However, the legislature may (1) by a two-thirds vote of the elected members of each house provide that special juvenile procedures shall not apply to juveniles arrested for having committed first or second degree murder, manslaughter, aggravated rape, armed robbery, aggravated burglary or aggravated kidnapping, and (2) by two-thirds vote of the elected members of each house lower the maximum ages of persons to whom juvenile procedures shall apply, and (3) by two-thirds vote of the elected members of each house establish a procedure by which the court of original jurisdiction may waive special juvenile procedures in order that adult procedures shall apply in individual cases. The legislature, by a majority of the elected members of each house, shall make special provisions for detention and custody of juveniles who are subject to the jurisdiction of the district court pending determination of guilt or innocence.

R.S. 13:1570(A)(5), effective September 12, 1980:

Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
A. Concerning any child whose domicile is within the parish or who is found within the parish:
(5) Who violates any law or ordinance, except a child who, after having become fifteen years of age or older is charged with having committed first degree murder, second degree murder, manslaughter, aggravated rape, or a person who, after becoming sixteen years of age or older, is charged with having committed armed robbery, aggravated burglary, or aggravated kidnapping. Once such a child has been charged with having committed any offense listed in this Paragraph, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense, and a plea to, or conviction of, a lesser included offense shall not revest the court exercising juvenile jurisdiction of such a child.

The outset sentence of the constitutional provision mandates special juvenile procedures for those who allegedly have committed a crime prior to their seventeenth birthdays. Thereafter the legislative discretion to fashion exceptions to that rule is confined to three specific areas, two of which are at issue here.

The Legislature could have provided for adult treatment for juveniles charged with perpetrating any one or more of the seven enumerated crimes, and as well, could have provided for adult treatment for all juveniles of any given age less than seventeen (say, fourteen) charged with all crimes, including the seven enumerated in the constitutional provision.

In enacting La.R.S. 13:1570(A)(5) the Legislature did not choose either of these more extensive exceptions. The Legislature did not send to district court all juveniles charged with first or second degree murder, or manslaughter, or armed robbery, or aggravated burglary, or aggravated rape, or aggravated kidnapping. The Legislature did not enact a law to send to district court all juveniles charged with crime age fifteen, or some other age.

Rather the Legislature in their wisdom created three narrow classes of juveniles: (1) fifteen year olds and over charged with first degree murder, second degree murder, manslaughter, and/or aggravated rape; (2) sixteen year olds charged with armed robbery, aggravated burglary, and/or kidnapping; and (3) all other juveniles (i.e., under seventeen years of age) charged with crime. Admittedly the statute imposes a lowered maximum age for four of the constitutionally described serious felonies, a different lowered maximum age for three of the constitutionally described serious felonies, and no lowered age for all other criminal offenses.

And of course it is true that the constitutional provision, conjunctively, authorizes (1) adult treatment for classes of juveniles based on seriousness of offense, and (2) legislative reduction of the maximum age for juvenile treatment. It does not follow, however, that the constitutional provision does not authorize legislative reduction of the ages of different classes of juveniles based on seriousness of the offense. In fact, just the contrary appears to be so.

Considered alone the Legislature’s authority in La. Const, art. 5 § 19(2) to lower the maximum ages of persons to whom juvenile treatment shall be afforded, authorizes distinction among those juveniles who may be treated as adults [“maximum ages of persons”]. Seriousness of the crime is certainly one such rational distinction among persons. And if that authority to categorize juveniles by age and nature of crime charged is not expressly stated in subsection (2) it is clearly implied, inasmuch as subsection (2), immediately follows a reference to seven distinct serious crimes.

We need not rely entirely upon subsection (2), for a fair reading and application of subsections (1) and (2) together achieves the same result. In effect art. 5 § 19 says that the Legislature may by two-thirds vote pass laws allowing to be treated as adults, juveniles arrested for having committed any one or more of seven distinct felonies (first degree murder, or second degree murder, or manslaughter, or aggravated rape, or armed robbery or aggravated burglary or aggravated kidnapping), and they may lower the age of persons — categories of persons is no doubt fairly intended — to whom only juvenile procedures shall apply.

Read conjunctively, [ (1) and (2) are separated by the word “and”], it is well within the intendment of the constitutional provision that the Legislature should be permitted to apply adult procedures to differently aged juveniles falling into differing rational categories depending upon which of the seven serious felonies they may be charged with having committed. In this case they have done just that. The Legislature has determined to treat as adults only those sixteen or older juveniles who are alleged to have committed armed robbery, aggravated burglary, and/or aggravated kidnapping, and only those fifteen and older juveniles who are alleged to have committed first degree murder, second degree murder, manslaughter, and/or aggravated rape.

Therefore the defendant’s initial argument that La.R.S. 13:1570(A)(5) violates La. Const, art. 5 § 19 is without merit.

Defendant also asserts that La.R.S. 13:1570(A)(5) violates his right to equal protection of the law secured by the state and federal Constitutions in that the age limitations of the statute are arbitrary, capricious and unreasonable and are not rationally related to any legitimate state interest.

The United States Supreme Court, noting that an overwhelming majority of jurisdictions permitted the transfer of a minor from juvenile court jurisdictions in certain instances, observed in dicta in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) that: “not all juveniles can benefit from the special features and programs of the juvenile court system and that a procedure for transfer to an adult court should be available.” See also State v. Everfield, 342 So.2d 648 (La.1977).

The denial of the protections of the juvenile court system by the state’s classification of offenders by age and nature of offense has been upheld against similar equal protection challenges in the past by this and other courts. See State v. Smith, 400 So.2d 587 at 590-91 (La.1981); State v. Sheppard, 371 So.2d 1135 at 1138-39 (La.1979); Woodward v. Wainwright, 556 F.2d 781 (5th Cir.1978), cert. denied, 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d 794 (1978). Moreover, many states have established classifications which exclude offenders from juvenile court jurisdiction based.upon age and severity of offense. See Colo.Rev.Stat. Ann. § 19-1 — 104(4)(a) (1978); Conn.Gen. Stat.Ann. §§ 46b-126, 46b-127 (Supp.1980); Del.Code Ann. Title 10, § 938(a)(1), 939 (1974); Md.Cts. & Jud.Proc.Code Ann. § 3-804(d)(l) & (4) (Supp.1980); Miss.Code Ann. §§ 43 — 21—105(j), 43-21-159(3) (1981); N.Y.Fam.CtAct § 712(a)(ii) (McKinney Supp.1980); N.Y.Penal Law §§ 10.00(18) & 30.00(2) (McKinney Supp.1980); N.Y.Crim. Proc.Law §§ 180.75, 190.71, 210.43, 220.-10(5)(g) (McKinney Supp.1980); N.C.Gen. Stat. § 7A-608 (1981); Okla.Stat.Ann. Title 10, § 1104.2 (Supp.1980); R.I.Gen.Laws Ann. § 14-1-7.1 (1981); Vt.Stat.Ann. Title 33, §§ 635(b), 644(c) (Supp.1981). Equal protection attacks on such statutes have routinely been held to lack merit. See e.g., State v. Anonymous, 173 Conn. 414, 378 A.2d 528 (1977); State ex rel. Coats v. Rakestraw, 610 P.2d 256 (Okla.Cr.App.1980); State v. J.K., 383 A.2d 283 (Del.1977); cert. denied, 435 U.S. 1009, 98 S.Ct. 1882, 56 L.Ed.2d 392 (1978). See also Everfield, supra at 653 n. 2.

As this Court observed in State v. Petrovich, 396 So.2d 1318 at 1322 (La.1981):

[T]he guarantee of equal protection requires that state laws affect alike all persons and interests similarly situated. Where, as here, there is no involvement of a “suspect classification” or “fundamental right,” traditional equal protection analysis sustains a classification if it is not arbitrary and bears a rational relationship to a legitimate state interest. (Citations omitted)

In the instant case the classifications embodied are not arbitrary and bear a rational relationship to a legitimate state interest, the protection of its citizens by exposing older minors who are accused of committing serious and violent felonies to the usual procedures and sanctions of the state’s criminal law system. Woodward v. Wainwright, supra at 785.

Finally this sixteen year old defendant whose mental age is twelve years, one month argues that the use of his chronological or biological age to determine whether the district or the juvenile court will have jurisdiction over his case violates his equal protection rights by being arbitrary, capricious, unreasonable and bearing no rational relationship to any legitimate state interest.

The state’s interest here, the protection of its citizens, is legitimate. The age classifications it has drawn bear a rational relationship to that interest by the use of age and severity of offense. It would be unreasonable to expect the state to assess the mental age of each of its citizens in determining its laws. The designation of chronological age to set the parameters of the classifications in the instant offense affords the most reasonable, fair and even-handed method available to the state.

Defendant in the instant case has been treated no differently than any other person his age who may have committed the same crime. Because he stands before the law on equal terms with all others similarly situated, because he enjoys the same rights as belong to, and bears the same burdens as are imposed upon, others in a like situation, it cannot be said that the statute, rationally related to a legitimate state interest, violates his right to equal protection under the law. Detraz v. Fontana, 416 So.2d 1291 (La.1982); Bazley v. Tortorich, 397 So.2d 475 (La.1981); Everfield, supra.

All of defendant’s arguments in support of the contended for unconstitutionality of La.R.S. 13:1570(A)(5) are without merit.

Decree

For the foregoing reasons, we find La. R.S. 13:1570(A)(5) constitutional. The trial court’s granting the defendant’s motion to quash the indictment is reversed and the case remanded to the district court for further proceedings.

REVERSED AND REMANDED.

DENNIS, J., concurs.

      . Leach was indicted by the grand jury because the crime of aggravated rape is punishable by life imprisonment. See: La.R.S. 14:42(3) and La.C.Cr.P. art. 382.

      . Those seven felonies are: first degree murder, second degree murder, manslaughter, aggravated rape, armed robbery, aggravated burglary, or aggravated kidnapping.

      . This last provision, Subsection 3, is not pertinent to this case and will not be discussed further.

      . Defendant concedes that since age is not a suspect classification the test to be used under both the state and federal Constitutions in discerning equal protection violations is whether the classification has a reasonable basis rationally related to the achievement of a legitimate state interest.

      . Defendant submitted to the trial court the report of a clinical psychologist who examined defendant on April 13, 1982, apparently at the request of defense counsel. The initial report concludes that defendant is “borderline mentally retarded.” A supplemental report by the same psychologist states that defendant’s mental age is twelve years, one month.

      . There is not before us at this time any contention that defendant is incapable of proceeding.


author: MARCUS, Justice. CALOGERO, Justice,

text:
    Rena VINCENT v. Dr. Jerome J. ROMAGOSA, et al.
    No. 82-CA-1231.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      Gerald J. Block, J. Minos Simon, Ltd., Simon, Come & Block, Lafayette, for plaintiff-appellee.
    Mark Judice, Robert Lecky, Voorhies & Labbe, Lafayette, for defendants-appellants.
   MARCUS, Justice.

This is an appeal, pursuant to La. Const, art. 5, § 5(D), by Dr. Jerome D. Romagosa, his partnership, and the individual members thereof from a judgment of the district court declaring the Medical Malpractice Act unconstitutional because La.R.S. 40:1299.47, the provision for a pre-suit medical review panel, makes it “inherently impossible to convoke a medical review panel of impartial panelists.” We disagree and reverse.

The history of these proceedings (ire somewhat involved. Initially, Rena Vincent instituted a medical malpractice action in the district court against defendants, all of whom are qualified health care providers under the Medical Malpractice Act, La.R.S. 40:1299.41 et seq. Plaintiff alleged in her petition that she was entitled to circumvent the statutory requirement that she first submit her complaint to a medical review panel (La.R.S. 40:1299.47 B) because her claim involved physicians engaged in radiotherapy and defendant doctors were the only radiologists in defendants’ community or locality (Lafayette). The district judge sustained certain exceptions and dismissed plaintiff’s suit. The court of appeal affirmed finding the suit premature. The court further held that La.R.S. 40:1299.-47(C) did not require that physician panel members be selected from the same community or locality as defendants, “provided the physician has the other required qualifications and is willing to serve voluntarily.” Vincent v. Romagosa, 390 So.2d 270 (La.App.3d Cir.1980), writ denied.

In an attempt to select a panelist as required by La.R.S. 40:1299.47(C)(3), plaintiff’s attorney sent a letter to all radiotherapists known to him throughout the state. The letter was the same in each case except for the name and address of the particular doctor. The letter stated that plaintiff had a malpractice claim against defendants, described the nature of her injuries, and requested a response as to his or her availability to serve as plaintiff’s appointed panelist. The letter further provided that plaintiff was a pauper; therefore, all services would have to be rendered free of charge. Of the thirty-six physicians contacted, sixteen responded. Considering that only three had “unconditionally” agreed to serve “voluntarily” and as to these three there was evidence that they had been in communication with and potentially influenced by defendants, plaintiff filed a motion for a protective order to prohibit defendants from interfering with her right to select an impartial panelist. Defendants, having already selected their own panelist, filed a motion to compel plaintiff to select her panelist as required by law. La.R.S. 40:1299.47(C)(3). After a hearing on both motions, an order was issued prohibiting defendants from communicating with other prospective panelists until plaintiff selected a panelist and giving plaintiff thirty days in which to do so. Plaintiff indicated to the court that she would not be able to select a panelist because she intended to attack the constitutionality of the Medical Malpractice Act on the ground that it was impossible to obtain an impartial medical review panel.

Thereafter, plaintiff filed a rule to show cause why she should not be declared to be without an “effective, meaningful and constitutional administrative” hearing and why the Medical Malpractice Act should not be declared unconstitutional to the extent that a review panel is compelled. Plaintiff also prayed that the panelist selected by defendants be declared unqualified to serve. Plaintiff was granted subpoenas to compel the appearance of nineteen physicians at the hearing, nine to appear on the first day. Efforts by the Louisiana Medical Society to quash the subpoenas were unsuccessful.

At the conclusion of the hearings, the district judge declared the Medical Malpractice Act unconstitutional because it was “inherently impossible to convoke a medical review panel of impartial panelists.” His reasons for this conclusion were that (1) all potential panelists have a direct and substantial pecuniary interest in reducing medical malpractice claims, and (2) the ad hoc structure of the panel creates a potential for reversal of roles between panelists and defendant health care providers and thereby deprives panelists of that degree of detachment, neutrality and aloofness necessary to render an impartial opinion.

The effect of the district court’s judgment was to declare the Medical Malpractice Act in its entirety unconstitutional because La.R.S. 40:1299.47 (provision for pre-suit medical review panel) was unconstitutional on its face. Having done this, the court did not reach the issue of its constitutionality as applied in this case. It did, however, make a finding of fact that there were two or three available and willing physicians from whom plaintiff could choose her panelist.

First, we will address the constitutionality of La.R.S. 40:1299.47 on its face. In Everett v. Goldman, 359 So.2d 1256 (La.1978), the constitutionality of the statutory requirement that plaintiff first submit her complaint to a medical review panel before commencing action in court was before us. After a thorough analysis of its impact on plaintiff’s equal protection and due process rights, we found the provision constitutional. See also DeRouen v. Kolb, 397 So.2d 791 (La.1981); Seoane v. Ortho-Pharmaceuticals, Inc., 660 F.2d 146 (5th Cir.1981). In the instant case, we are simply presented with a different argument as to why the medical review panel is unconstitutional, that is, that it is impossible to obtain an impartial panel because of the “pecuniary interests” of potential panelists in reducing medical malpractice claims and their possible bias resulting from potential reversal of roles between panelists and defendant. We find no merit to this contention. To hold otherwise would amount to a blanket indictment against the entire medical profession. Possible reduction in medical malpractice claims is too remote to constitute a “pecuniary interest.” Likewise, potential reversal of roles between panelists and defendant is too speculative to be of any consequence. Additionally, the role of the physician panel members is not analogous to that of the judiciary. DeRouen, supra. The sole duty of the panel is to render an “expert opinion as to whether or not the [medical] evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint.” La.R.S. 40:1299.47(G). Each panelist takes an oath that he will render an opinion “without partiality or favoritism of any kind.” La. R.S. 40:1299.47(0X5). Irrespective of the panel’s opinion, a plaintiff may still sue in a court of law. Everett, supra. The panel’s report is admissible as evidence, but it “shall not be conclusive.” La.R.S. 40:1299.-47(H). Either party may question the panel before issuance of their report as to “any matters relevant to issues to be decided by the panel,” and, at trial, either party has the right to call any member of the panel as a witness. La.R.S. 40:1299.47(E) and (H). Given these procedural safeguards, any aura of credibility that the panel’s expert opinion may have beyond that of an expert witness does not detract from the plaintiff’s due process rights. Hence, we consider the trial judge erred in holding the Medical Malpractice Act unconstitutional because the composition of the medical review panel made it impossible to obtain an impartial panel.

Next, we consider the issue of whether the medical review panel provision is unconstitutional as applied in this case, that is, whether plaintiff can obtain a fair trial by an impartial medical review panel.

The record reflects that none of the fifteen physicians who testified at the hearing formed an opinion on the validity of plaintiff’s malpractice claim upon receipt of the letter from her attorney. All considered that further medical information was needed. A few contacted defendants for more information. They did so merely out of curiosity stemming from a desire to avoid problems in their own practice. The record shows that defendants did not provide anyone with medical information beyond that contained in the letter.

Almost all the radiotherapists contacted by plaintiff’s attorney were curious about why plaintiff was seeking a panelist from so far away, sometimes up to 200 miles, and why he had sent what appeared to be a form letter to every radiotherapist in the state, rather than contacting them personally by telephone which their past experience with legal cases had indicated was the accepted mode of obtaining an expert witness. Among immediate associates, there was generally some discussion on who, if anyone, could be freed to serve as a panelist for plaintiff. In many cases, distance and personal factors detracted from a willingness to serve. However, two physicians indicated a willingness to serve if the panel were convened in their own locality; three testified that they had contacted plaintiff’s attorney to say they would serve if needed but had been told they were not; and another, who had previously served on a panel and found in favor of the claimant, testified that he would be glad to serve although his hospital generally required remuneration. At least one other physician was glad to serve and would have responded so initially if plaintiff’s attorney had only telephoned him. Three more had unconditionally volunteered to serve in the first place.

In sum, we find that the evidence amply supports the availability of a number of willing radiotherapists from whom plaintiff could choose a panelist even though the panel would not be convened in their own locality. We consider this number exceeds the two or three found by the trial judge. While the physicians almost unanimously were disturbed at being subpoenaed away from their practice in numbers without pri- or notice or information concerning the nature of the hearing, generally, they were all conscious of their obligation and duty to serve as a member of a medical review panel. Clearly, plaintiff can obtain an impartial panel from available radiotherapists. Hence, we do not consider that the medical review panel provision of the Medical Malpractice Act is unconstitutional as applied to plaintiff in this case. See DeRouen, supra.

DECREE

For the reasons assigned, the judgment of the district court is reversed. Plaintiff’s rule to show cause is dismissed.

LEMMON, J., concurs.

■CALOGERO, J., concurs and assigns reasons.

WATSON, J., dissents.

CALOGERO, Justice,

concurring.

I concur in the majority’s finding constitutional the requirement that the plaintiff submit her complaint to a medical review panel before seeking redress in the courts (La.R.S. 40:1299.47(B)). This same provision was challenged along with three others of the Medical Malpractice Act of 1975 and found to be constitutional in Everett v. Goldman, 359 So.2d 1256 (La.1978). However, I cannot subscribe to the unsupported conclusions of the majority to the following effect: “[t]o hold otherwise would amount to a blanket indictment against the entire medical profession. Possible reduction in medical malpractice claims is too remote to constitute a ‘pecuniary interest.’ Likewise, potential reversal of roles between panelists and defendant is too speculative to be of any consequence.”

The constitutionality of the provision rests on its being a reasonable legislative response to a purported impending medical malpractice crisis in this state brought on by the inability of doctors and others to secure medical malpractice insurance at all or to gain medical malpractice insurance at tolerable rates. La.R.S. 40:1299.47(B) bears a real and substantial relationship to the preservation and promotion of the public welfare.

Screening by the medical review panel composed of three physicians (one selected by plaintiff, one selected by the defendant, one selected by the other two) and one non-voting lawyer, has no far reaching or especially adverse effect upon the malpractice victim’s or the health care provider’s rights. If the panel determines the claim is substantial, the claimant obviously is benefited. If the panel determines the claim is groundless, the claimant is informed of the opinions of the medical expert panelists. If he disagrees with their analysis, he may still sue for a vindication of his rights in a court of law. In all cases which go to trial the judge or jury remains the final arbiter of factual questions concerning liability and quantum.

      . Whereas, a panelist selected from within defendants’ community or locality is “required” to serve, La.R.S. 40:1299.47(C)(3)(b), except as provided in La.R.S. 40:1299.47(C)(3)(d).

      . This statement is not completely accurate. See La.R.S. 40:1299.47(1).


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Elliot Joseph DAVID.
    No. 82-KA-0150.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Rehearing Denied March 28,1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Morel, Jr., Dist. Atty., Don Almerico, Harry Morgan and Abbott J. Reeves, Asst. Dist. At-tys., for plaintiff-appellee.

      G. Walton Caire, Edgard, Richard J. Holmes, LaPlace, for defendant-appellant.
   DENNIS, Justice.

On March 31, 1981, the defendant and his wife entered a Paradis, Louisiana lounge. Over a period of about an hour, the defendant consumed some liquor and some beer. However, he did not appear to be intoxicated. After all but one of the customers had left for the evening, the defendant produced a .25 caliber pistol and demanded valuables from the customer, the bartender and a barmaid. When the defendant asked the customer whether he recognized him and received a muffled response, he placed the gun to the customer’s head and pulled the trigger. The weapon at first misfired, but the defendant pulled the trigger again, firing a fatal shot into the customer’s head from a distance of about two inches. After a brief scuffle with the bartender, the defendant fled with his wife, leaving behind some personal property, including an address book which the police used to track him down. He was arrested at his residence after being forced from the premises by tear gas. On the morning of his arrest, the defendant made oral and written statements in which he confessed to the robbery and the shooting.

The defendant was convicted of first degree murder by a jury which recommended a penalty of death. Defendant appealed filing eleven assignments of error. None of the assignments relating to the guilt phase of the proceedings has reversible merit. During the penalty hearing, however, the trial judge incorrectly instructed the jury as to its duty in deciding whether to recommend the death penalty or a sentence of life imprisonment without parole. Consequently, we will affirm the defendant’s conviction, but we are required to grant the defendant a new penalty hearing.

Assignment of Error Number One

By this assignment of error, the defendant asserts that the trial court erred when it ruled that the defendant was able to understand his actions on the date he committed the charged offense. In essence, the defendant argues that there was insufficient evidence to prove his sanity at the time of the instant offense.

A sanity commission of two psychiatrists examined the defendant on April 23, 1981. In their written report, both doctors concluded that the defendant was sane when he committed the offense and that he was able to appreciate the usual, natural, and probable consequences of his acts, and that he was not suffering from any psychological defect or disease. The defendant presented no evidence or testimony regarding his sanity.

The, trial court ruled that the defendant was able to distinguish right from wrong and to appreciate the natural consequences of his acts. The trial judge further found that the defendant was able to participate effectively in his defense and to assist his attorneys. Therefore, the court found the defendant able to stand trial.

At the trial, the two members of the sanity commission testified and confirmed their views that the defendant was sane on the date of the instant offense. A third psychiatrist, called by the defense, testified that the defendant understood right from wrong on the date of the murder. The jury rejected the insanity defense and rendered a verdict of guilty.

In Louisiana, an adult defendant is presumed to be sane and responsible for his actions. La.R.S. 15:432. However, a defendant may rebut this presumption by showing, by a preponderance of the evidence, that he was suffering from a mental disease or defect which rendered him incapable of distinguishing right from wrong with reference to the conduct in question. State v. Roy, 395 So.2d 664, 665-66 (La.1981); C.Cr.P. art. 652; La.R.S. 14:14. See, Note, The Insanity Defense in Louisiana: Presumptions, Burden of Proof and Appellate Review, 42 La.L.Rev. 1166 (1982). A reviewing court will reverse the trial judge’s ruling that the defendant is sane only when it finds “under the facts and circumstances of the case, that a rational fact finder, viewing the evidence in the light most favorable to the prosecution, could not have concluded that the defendant had failed to prove by a preponderance of the evidence that he was insane at the time of the offense.” State v. Roy, supra.

In the present case, the defendant presented no evidence of his alleged insanity at the sanity hearing. At trial, his own expert witness testified that the defendant understood right from wrong on the date of the offense. On the other hand, the two examining psychiatrists of the sanity commission reported and testified that the defendant was able to appreciate the consequences of his acts and to distinguish right from wrong at the time of his offense. Both of these doctors also testified that the defendant suffered from no psychological defect or disease.

Given these circumstances, the jury did not err in its rejection of the “not guilty and not guilty by reason of insanity” verdict because the defendant failed to prove his insanity by a preponderance of the evidence. State v. Roy, supra.

Accordingly, this assignment of error lacks merit.

Assignment of Error Number Two

By this assignment of error the defendant contends that the trial court erred when it denied his motion to suppress his confession. He argues that his confession was not free and voluntary because it was made while the defendant was in an abnormal physical and mental state produced by alcohol and Valium tablets, a lack of sleep, and tear gas used by the police to force him from his home. He asserts that his waiver of counsel was invalid because it was induced by the police playing on his concern for his wife’s well being and because the waiver was made without an officer ever asking the defendant directly if he wanted a lawyer.

The defendant was arrested at his residence at 2:52 a.m. on March 27, 1981 by members of the St. Charles Parish Sheriff’s Office. He was orally advised of his constitutional rights immediately after his arrest. The defendant was then transported to the detective bureau where he was again advised of his rights. Before he gave a formal statement, the defendant was advised of his rights for a third time. Thereafter, the defendant admitted to the robbery and the shooting, and he signed a written version of his oral confession.

During these events the defendant, although smelling of alcohol, did not appear to be intoxicated or impaired in any way. He seemed literate and conversed with the detectives without difficulty. He was given cigarettes and coffee during his questioning and was allowed to make several phone calls, including at least three to his wife.

The general rule is that, on the trial of a motion to suppress, the burden of proof is on the defendant to prove the grounds of his motion. La.C.Cr.P. art. 703(D). One exception to the rule is that the State has the burden of proving beyond a reasonable doubt the voluntariness of a confession which the defendant has moved to suppress as evidence at the trial on the merits. La. C.Cr.P. art. 703(D); La.R.S. 15:451; State v. Napier 385 So.2d 776 (La.1980); State v. Jones, 376 So.2d 125 (La.1979); State v. Volk, 369 So.2d 128 (La.1979); State v. Bouffanie, 364 So.2d 971 (La.1978); State v. Johnson, 363 So.2d 684 (La.1978). State v. Glover 343 So.2d 118 (La.1977). In reviewing the trial judge’s ruling as to the admissibility of a confession, his conclusions on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Bouffanie, supra.

Applying these precepts, we conclude that the trial court did not err when it found the confession to have been voluntary. The defendant appeared to have been drinking and claimed to have taken Valium tablets prior to his confession. However, during the period of questioning, the defendant was coherent and he responded to the questioning without impairment. Witnesses to defendant’s demeanor and behavior before the shooting said that he appeared to have been sober and coherent. The confession reads as a series of rational responses to the interrogating officers’ questions. Moreover, the interrogation setting appears to have been free of coercion. The defendant was seated without handcuffs at an officer’s desk while questioned. His requests for a telephone, cigarettes and coffee were met several times.

The record supports rejection of the defendant’s claims that he was not asked if he wanted an attorney and that the police officers played on his concerns for his wife to induce a waiver of his rights. The defendant was advised of his right to have an attorney present by three separate readings of his Miranda warnings. He signed a written waiver of this right prior to giving any statement. The assertion that the defendant feared for his wife’s well being is not supported by the evidence. The defendant was allowed to phone his wife at least three times during his questioning. Moreover, the interrogating officers’ testimony does not indicate they had any discussion with the defendant about his wife except perhaps in connection with their granting him permission to call her on the telephone.

Under the circumstances, the-trial judge did not err in concluding that the defendant knowingly and intelligently waived his constitutional rights and voluntarily confessed to the crime.

Accordingly, this assignment of error lacks merit.

Assignment of Error Number Four

The defendant contends that the trial court erred in failing to order a venue change pursuant to Code of Criminal Procedure article 621 et seq. In rejecting the motion for change of venue, the trial court apparently found that the defendant failed to carry his burden of proving that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial could not be obtained in the parish where the prosecution was pending. La.C.Cr.P. art. 622; State v. Bell, 315 So.2d 307 (La.1975). Although the trial court possesses a broad range of discretion in this area, see e.g., State v. Willie, 410 So.2d 1019 (1982), we are required to make an independent evaluation of the facts to determine whether the accused received a fair trial, unfettered by outside influences. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

The constitutional standard of fairness requires that a defendant have a panel of impartial, “indifferent” jurors. Qualified jurors need not, however, be totally ignorant of the facts and issues involved. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused rights, and it remains open to the defendant to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

In unusual circumstances, prejudice against the accused may be presumed. Although extensive knowledge in the community of either the crimes or the putative criminal and his prior crimes is not in itself sufficient to render a trial constitutionally unfair, unfairness of a constitutional magnitude will be presumed in the presence of a trial atmosphere which is utterly corrupted by press coverage or which is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob. See Murphy v. Florida, supra, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Rideau v. Louisiana 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1966). Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Sheppard v. Maxwell, supra.

In determining whether the defendant succeeded in showing actual prejudice against him to a degree that rendered a fair trial impossible, we have the benefit of a completed trial record. The record demonstrates that counsel for the defendant conducted a thorough voir dire of the prospective jurors. Of the one hundred and twelve prospective jurors, twenty-seven indicated that they had read or heard about the case. However, only six of the twenty-seven stated any opinion as to the defendant’s guilt or innocence. Of these, four testified that they could set aside that opinion and render a verdict based on the evidence presented at trial. The court sustained challenges for cause as to all four who had formed an opinion but who were unable to lay their preconceived opinion aside. In addition, the defendant exercised his privilege of challenging eleven other prospective jurors peremptorily, thus failing to exhaust all of his peremptory challenges. The jury selection procedure resulted in the seating of a jury consisting of three women and nine men. From our independent review of the record, we are convinced that the defendant failed to carry his burden of proving actual prejudice on the part of the jurors.

To bolster his argument in favor of a change of venue, the defense attorney entered into the record several newspaper articles relating to the instant offense and trial. Most of these articles appeared at the time of the commission of the murder, or shortly thereafter. The articles consist primarily of factual accounts of the crime and of the proceedings leading up to the defendant’s trial. Although the crime was extensively covered by the area news media, it was not attended by other inflamatory factors such as racial strife, see State v. Bell, supra, murder of a law enforcement official, State v. Felde, 382 So.2d 1384 (La.1980) or an egregious event such as a televised confession. See Rideau v. Louisiana, supra. On the contrary, the defendant and the victim were of the same race, residents of the same parish and patrons of the same barroom where thé homicide occurred. Extensive knowledge in the community of the crime and the alleged criminal’s identity is not in itself sufficient to justify a presumption of partiality, and the trial atmosphere in this case was not utterly corrupted by the press coverage. We believe that the qualifications possessed by each selected juror in this case met or exceeded the minimum requirement that “the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, supra.

Accordingly, this assignment of error lacks merit.

Assignment of Error Number Five

By this assignment of error, the defendant contends that the trial court erred in not allowing individual voir dire.

Articles 782-88 of the Louisiana Code of Criminal Procedure relate to the examination of potential jurors for service. No provision in our law either prohibits or requires the sequestration of prospective jurors for an individual voir dire. In general, details as to whether the potential jurors should be called singly or by groups are left to the court’s discretion. La.C.Cr.P. 784, comment c; art. 786. Unless there is a significant possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, there is no requirement that the examination of each juror must be conducted individually. Cf. State v. Goodson, 412 So.2d 1077 (La.1982); State v. Lindsey, 404 So.2d 466 (La.1981).

In the present case, the possibility that individual jurors would be ineligible because of their exposure to prejudicial material was remote. Indeed, as we have noted, the publicity given the crime and upcoming trial was not abnormal or sensational. The newspaper stories relating to the murder consisted of factual accounts of the crime. Only one editorial alluded to the crime and the trial, and this article did .not mention the defendant by name. Therefore, the trial judge did not abuse his discretion when he refused individual voir dire.

Accordingly, this assignment of error lacks merit.

Assignment of Error Number Six

By this assignment of error, the defendant complains that the trial court erroneously permitted the introduction of evidence unlawfully obtained from his residence. He contends that photographs used and introduced at trial were products of a warrantless search of his home. He argues that several items of physical evidence were seized pursuant to an invalid consent to search which the police obtained while he was intoxicated.

Several pieces of incriminating evidence, including a money bag and a wallet, were seized in the defendant’s home pursuant to a search conducted after the defendant had executed a written consent to search form. The defendant now argues that his intoxicated state at the time of his arrest vitiated his consent.

When a search is made with consent, the state must prove that the consent was freely and voluntarily given, as shown by the facts and circumstances of the individual case. State v. Robinson, 386 So.2d 1374 (La.1980). Under the United States Constitution, the test for the volun-tariness of a consent to search is a “totality of the circumstances” test and courts must examine all the surrounding circumstances to determine whether the consent was indeed voluntary. Scbneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The fact that a defendant is in a somewhat intoxicated state is a relevant circumstance to consider, but intoxication alone will not render the consent involuntary. State v. Ludwig, 423 So.2d 1073 (1982); State v. Strange, 334 So.2d 182, 184 (La.1976).

As we noted in discussing the vol-untariness of the defendant’s confession, he had consumed some alcohol and he claimed to have taken several Valium tablets before the commission of the robbery and murder. However, when he was arrested, the defendant appeared to be coherent. He responded directly to questions of police officers. The record suggests that the defendant understood the nature of the consent to search and was aware of the consequences of his actions. The articulate confession given by the defendant on the morning of his arrest further belies his argument that his intoxication was so great that he did not understand the waiver of his rights. Thus, the trial judge did not err when he allowed the introduction of the evidence seized pursuant to the defendant’s consent.

The introduction into evidence of the photographs of defendant’s house and washing machine was clearly not harmful or prejudicial to the defense. Accordingly, it is not necessary that we determine whether the officers were guilty of an unlawful intrusion by taking these photographs outside the building before obtaining the defendant’s signature on the consent to search form.

Accordingly, this assignment of error lacks merit.

THE PENALTY HEARING.

The defendant filed five assignments of error attacking his sentence of death. Two of these assignments require some comment by this court. Because we find merit in one of these assignments, we will pretermit discussion of the other three alleged errors.

A. Jury Instruction

The trial judge gave the following jury instruction at the close of the defendant’s sentencing hearing:

* sfc * * * *
If after giving consideration to all of the facts and the circumstances of the sentencing hearing in this case, and your minds are wavering, unsettled, and unsatisfied, then this is a doubt of which the law speaks and which you must resolve in favor of the defendant and return a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence; but, if that doubt does not exist in your minds as to whether or not the State has established aggravating circumstances or circumstances, then you are obliged to return a sentencing recommendation of death, (emphasis added).
$ * # sjs ‡ ¡Je

Thus, the trial judge instructed the jurors at the penalty hearing that they were obliged to recommend the death penalty if they found that the prosecution had established an aggravating circumstance. The instruction was directly contrary to our law. The sentence of death cannot be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists, but the jury is never obliged to recommend the death penalty and may recommend a sentence of life imprisonment without benefit of probation, parole or suspension of sentence in any case in which it finds the death sentence inappropriate. La.C.Cr.P. art. 905.3; 905.6. See, State v. Watson, 423 So.2d 1130 (La.1982). This is one of the principal features of our present death penalty scheme which has been expressly approved by the United States Supreme Court, see Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and is one of the significant differences between our present law and the former mandatory death penalty statute which was declared unconstitutional by the high court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

Consequently, we are duty bound to declare that the instruction was incorrect both because it is contrary to our law and because a different interpretation might cause the high court to strike down our death penalty statute as unconstitutional. Furthermore, we cannot say that the giving of this particular erroneous instruction to the jury was harmless because there is at least a reasonable possibility that a jury which has been told that it must recommend the death penalty if any aggravating circumstance exists will do just that, instead of determining whether the penalty is appropriate after weighing the aggravating and mitigating circumstances as required by law.

B. Voir Dire

The trial court during voir dire repeatedly asked each panel of prospective jurors whether all of them could impose the death penalty. When a juror responded negatively the court in most cases asked the juror if he could impose the death penalty under any circumstance or if he was philosophically opposed to it. Except for a few occasions, those jurors who voiced an objection to the death penalty were excused by the trial judge before the defense counsel had an opportunity to question them. The defendant contends that this practice deprived him of his right to a full voir dire.

A criminal defendant in Louisiana has a “right to full voir dire examination of prospective jurors.” La. Const, art. I, § 17. See also, La.C.Cr.P. art. 786. The accused’s right to “full voir dire examination” includes the right to make such inquiries of prospective jurors as will enable him to secure his constitutional rights, not only by showing grounds for challenges for cause, but also by eliciting facts which will empower him intelligently to exercise his right of peremptory challenge, State v. Boen, 362 So.2d 519 (La.1978); State v. Jackson, 358 So.2d 1263 (La.1978); and the right to examine a prospective juror challenged for cause by the prosecution in order to demonstrate his impartiality. State v. Shelton, 377 So.2d 96 (La.1979); See generally, State v. Claiborne, 397 So.2d 486 (La.1981).

When a defense attorney is precluded from voir dire examination of a prospective juror which may have demonstrated the juror’s ability to render an impartial verdict, the granting of a state challenge for cause by the trial court deprives an accused of his right to full voir dire examination. State v. Claiborne, supra. Thus, the trial court may avoid reversible error by allowing the defense attorney an opportunity to examine the potential juror in an attempt to “rehabilitate” the potential jur- or by showing that the juror could reach a fair and impartial verdict. Id.

In a capital case, no potential juror may be excused merely because he voices a general objection to the death penalty, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct, 1770, 20 L.Ed.2d 776 (1968), or because he cannot swear that the possibility of the death penalty would not “affect” his deliberation on any issue of fact, Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Thus, not every attitude against the death penalty may serve as grounds for excluding a potential juror. Arguably, therefore, as we have reasoned in one previous case, when a juror is challenged for cause because of his answers concerning the death penalty, the trial judge must give, the defense counsel an opportunity to traverse that juror for rehabilitation. See State v. Penns, 407 So.2d 678 (La.1981).

Nevertheless, because a reversal of the death sentence is required due to the trial judge’s clearly erroneous jury instruction, we set to one side without deciding the issue raised by the questionable voir dire in this case.

SUMMARY

Before we can affirm the imposition of a death penalty in the face of an error in the capital sentence hearing, we must be able to say beyond a reasonable doubt that the error made no difference to the jury in deciding whether to recommend a. sentence of death or life imprisonment. The error here was too fundamental for us to conclude that it was harmless. Contrary to law and a basic tenet of our capital sentencing statute, the jury was told it must recommend a death penalty if an aggravating circumstance exists. Our statute provides instead that the jury always has the discretion to reject the death penalty as inappropriate and recommend a life sentence without parole, probation or suspension of sentence. Since there was no doubt an aggravating circumstance existed in this case, the jury having been required to find one in order to convict the defendant of first degree murder, the judge’s instruction was tantamount to a directed verdict of a death sentence. Such an instruction is plainly erroneous and at cross purposes with our law which entrusts solely to the jury the function of selecting the appropriate penalty in a capital case. In effect, the judge’s instruction erased for this defendant most of the distinction between the constitutionally approved procedure and the mandatory death penalty law which the United States Supreme Court declared unconstitutional in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Accordingly, the jury’s recommendation and sentence based on this egregious error must be set aside and the trial court must be ordered to conduct a new penalty hearing before a properly instructed jury.

CONVICTION AFFIRMED; NEW PENALTY HEARING ORDERED.

      . In oral argument, the defense counsel contended that the improperly impaneled, “death qualified,” jury was more likely to vote to convict, and therefore the impropriety vitiated not only the death sentence, but also the conviction. However, most of the studies on this subject have been speculative at best and, in fact, “too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.” Witherspoon v. Illinois, 391 U.S. at 517, 88 S.Ct. at 1774. But see, State v. Miles, 339 So.2d 735, 740-41 (La.1976) (Tate, J. concurring) (concluding that such an error may deprive a defendant of a jury drawn from the entire community).
      In the present case, the defendant has not offered any evidence, statistics or studies to show that an improperly impaneled, “death qualified,” jury is more likely to favor the prosecution. Further, he has made no attempt to establish that the jury finally impaneled did not represent a sample from the entire community. Accordingly, we decline to reverse the defendant’s conviction on mere speculation.