author: DENNIS, Justice. MARCUS, Justice BLANCHE, Justice

text:
    STATE of Louisiana v. Elmo Patrick SONNIER.
    No. 80-K-1846.
    Supreme Court of Louisiana.
    June 22, 1981.
    Rehearing Denied Sept. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos Burke, Asst. Dist. Atty., for plaintiff-appellee.
    Allen McElroy, Jr., McElroy & Ramsey, Ltd., Berwick, for defendant-appellant.
   DENNIS, Justice.

This is Elmo Patrick Sonnier’s second appeal from sentences of death for slaying two youths parked on a country road. In his first appeal this court affirmed his first degree murder convictions, reversed his death sentence because of a procedural error which occurred during the penalty hearing, and remanded the case for a new sentence proceeding. State v. Sonnier, 379 So.2d 1336 (La.1980). The district court conducted such a hearing and again sentenced Sonnier to death in accordance with the jury’s recommendation. In this appeal Sonnier argues that his death sentences are based on both procedural and substantive errors. He also seeks to attack his convictions and obtain a new trial on the question of guilt or innocence despite the finality of this court’s decree on these issues.

Ultimately, we conclude that defendant’s sentence of death must be affirmed. A new sentencing proceeding was conducted eliminating the error which caused reversal of the original sentence. Defendant’s appeal raises no new issues which warrant a second nullification.

In assessing the extent of Elmo Patrick Sonnier’s culpability in the first degree murders, the jury in the sentence proceeding now under review had to sift through several versions of the facts accumulated in numerous inculpatory statements and three trials. When Elmo Patrick Sonnier and his brother, Eddie James Sonnier, were first apprehended they each gave a confession laying the blame primarily on Elmo, the older brother and the only one with a felony crime record. The state first prosecuted Elmo Patrick Sonnier and obtained convictions of first degree murder and death sentences, based primarily on Sonnier’s confessions and his brother’s testimony, which, contrary to Elmo Patrick Sonnier’s trial testimony, depicted Elmo as the instigator and the victims’ actual executioner. The state next prosecuted the younger brother, Eddie James Sonnier and was again successful in obtaining convictions and death penalties. However, both brothers’ death penalties were reversed on appeal: Elmo Patrick Sonnier’s because of a procedural error, which required that his case be remanded for a new sentencing proceeding. 379 So.2d at 1368-72; Eddie James Sonnier’s because the death penalty was excessive in view of his subsidiary role in the crimes, requiring reduction of his sentences to life imprisonment without parole. State v. Sonnier, 380 So.2d 1 (La.1979). At Elmo’s second penalty hearing, on remand, his brother Eddie, no longer exposed to the death penalty, dramatically changed his story to coincide with Elmo’s testimony. Eddie recanted his previous testimony and claimed that he, instead of Elmo, pulled the trigger of the murder weapon and played the dominant role throughout the criminal episode. The prosecution, however, effectively used the brothers’ confessions and Eddie’s previous trial testimony to challenge their credibility. Consequently, the jury’s threshold question was whether Elmo Patrick Sonnier was the principal malefactor or a compliant follower in the course of criminal conduct.

The jury’s apparent conclusion that Elmo Patrick Sonnier was primarily responsible for the murders and should be sentenced to death is warranted by the record. From the evidence the jury could have found beyond a reasonable doubt that Elmo played the predominant role in the actual killings and most of the aggravating circumstances. Specifically, the evidence adequately supports the following factual findings.

On the evening of November 4, 1977 Elmo Patrick Sonnier and his younger brother, Eddie James Sonnier, left St. Mar-tinville in Elmo’s car to go rabbit hunting. With them they carried two .22 caliber rifles, two sheriff or security guard badges and a set of handcuffs. After spending a considerable time riding around, Elmo suggested they look for lovers in parked automobiles. They soon came across an automobile parked in a remote part of St. Martin Parish at about 1:00 a. m. Elmo Patrick Sonnier approached the car and displayed his badge to the young occupants, David LeBlanc and Loretta Bourque. Posing as a police officer, Elmo told David and Loretta that he was taking them to the landowner who would determine whether to press charges against them for trespassing. Elmo ordered them from the automobile, confiscated their licenses and handcuffed them. However, because Elmo’s car had a flat tire, the youths were placed in the back seat of their own vehicle. Elmo told his brother to drive, but Eddie refused. Elmo took the wheel and drove the automobile with his three passengers twenty-one miles over rural roads he had learned as a local cab driver to a remote oil field in Iberia Parish. David and Loretta were removed from the car, and the young man was handcuffed to a tree. After telling Eddie he was going to “scare” them, Elmo led Loretta into the woods, leaving David with his brother.

Growing impatient for his brother’s return, Eddie James Sonnier followed him into the forest. Upon discovering that Elmo had forced Miss Bourque to have sexual intercourse, Eddie talked to her and she submitted to him also in return for the couple’s safe release. After the second rape, Bourque and LeBlanc were brought back toward the car. But Elmo told his brother the victims could not be released because they now had information which could send him back to prison. David and Loretta were forced to lie on the ground side by side. Elmo Patrick Sonnier fired six .22 caliber rifle shots alternately into the heads of the youths while his brother held a flashlight. The first two shots were sufficient to kill them instantaneously.

The brothers left the bodies and drove LeBlanc’s car back to the scene of the abduction. After changing Elmo’s flat tire they kept a jack taken from the LeBlanc vehicle. The next day the brothers divided some money taken from the young couple and buried the rifles in another remote area.

Many of the facts of this narrative casting Elmo Patrick Sonnier in the dominant role were controverted by the testimony of both brothers at his second penalty hearing. Nevertheless, the jury was justified in rejecting their testimony at this hearing because of the brothers’ confessions, Eddie James Sonnier’s previous trial testimony and other weaknesses and inconsistencies in the brothers’ testimony.

Defendant has filed seven assignments of error. Although some of these overlap with arguments on capital sentence review and others are not properly raised at this stage of the proceedings, we will consider them all. Furthermore, in this capital case, we will notice and pass judgment on any other error which appears in the record.

Assignment of Error Affecting the Determination of Guilt

Assignment of Error Number 2

In assignment number two the defendant argues that it was error for the trial court to deny his motion for a new trial on the question of guilt based on Eddie James Sonnier’s testimony that he, not Elmo, actually killed the victims and played the dominant role in each aggravating circumstance found by the jury. Pretermitting whether the motion was timely, we find no merit in the assignment.

A trial judge must grant a new trial whenever new and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty. La.C.Cr.P. art. 851. In the present case the trial judge reasonably could have concluded that Eddie’s recantation would not have created a reasonable doubt of guilt in the mind of any reasonable juror.

If the recantation could have been introduced in evidence at trial along with Eddie’s testimony casting most of the blame on his brother, it, of course, would have had some effect. However, in fairly assessing the effect, we must also hypothesize that the jury would have been aware that Eddie changed his story after being relieved of fear of the death penalty and that he had an opportunity to confer with Elmo about his testimony. Also, the jury had before it, not only Eddie’s original testimony, but the confessions of both Eddie and Elmo which placed the smoking gun in Elmo’s hands. Furthermore, Eddie’s recantation did not totally exculpate Elmo from complicity in the crime of first degree murder. It confirmed that he was a willing participant in the events leading up to and following the actual killings. In view of the other evidence pointing to Elmo as the real instigator and executioner, we agree that Eddie’s recantation probably would not have changed the verdict of guilty of first degree murder if it had been introduced.

Assignments of Procedural Error Affecting Sentence

Assignment of Error Number 4

In assignment number four defendant argues that the trial court erred by failing to exclude all witnesses from the courtroom during closing arguments. He contends that the presence during closing arguments of a father of one victim and the police officer witnesses unduly influenced the jury to impose the death penalty.

The court may order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with any one other than the district attorney or defense counsel; the court may modify its order in the interest of justice. La.C.Cr.P. art. 764. The purpose of this article is to insure that a witness will testify as to his own knowledge of the case without being influenced by testimony of other witnesses and to strengthen the role of cross-examination in developing the facts. State v. Walton, 360 So.2d 166 (La.1978); State v. McDaniel, 340 So.2d 242 (La.1976).

In this case, the purpose of sequestration of the witnesses was fulfilled, since they had completed their testimony when they were allowed to listen to closing arguments. The statutory rule permits the court to terminate or modify sequestration after a witness’ testimony can no longer be influenced or in the interest of justice. La. C.Cr.P. art. 764. Nevertheless, in the event of actual prejudice to a defendant in a capital case, the trial court’s failure to exclude a witness would constitute error. However, in the present case there was no showing of actual prejudice or extraordinary circumstances from which we may infer that prejudice occurred. Cf. State v. Prejean, 379 So.2d 240 (La.1980).

Assignment of Error Number 5

In assignment number five defendant complains of the trial court’s refusal to give the following special written charge: “I charge you that in your deliberations on punishment, you are not to return a sentence of death if you determine that the defendant, Elmo Patrick Sonnier, was not the responsible party who pulled the trigger on the weapon which killed the victims.”

A requested special charge must be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. ' La.C.Cr.P. art. 807. In this case the requested charge was not wholly correct and did require qualification, limitation and explanation.

One who aids and abets in the commission of a first degree murder may be charged and convicted of the crime as a principal, provided that he specifically intended to kill or to inflict great bodily harm on the victim. State v. Holmes, 388 So.2d 722 (La.1980); cf. State v. McAllister, 366 So.2d 1340 (La.1978). The capital punishment scheme by which this case is governed calls for the sentencing hearing to focus on the circumstances of the offense and the character and propensities of the offender. La.R.S. 14:30 (1950), as amended by 1978 Acts, No. 657, § 1; La.C.Cr.P. arts. 905 et seq., as enacted by 1976 Acts, No. 694, § 1. In a proceeding to determine penalty, however, the jury is not required to recommend a sentence of life imprisonment merely because the defendant did not himself directly commit the act constituting the first degree murder. Instead, the jury should weigh the fact that the murder weapon was employed directly by the defendant’s accomplice, rather than the defendant, as a mitigating circumstance in determining the appropriate penalty. La.C.Cr.P. art. 905.5(g).

Several members of the United States Supreme Court are of the view that it violates the Eighth Amendment to impose the death penalty without a finding that the defendant possessed a purpose to cause the death of the victim. See Lockett v. Ohio, 438 U.S. 586, 619, 98 S.Ct. 2954, 2972, 57 L.Ed.2d 973 (Marshall, J., concurring), 621, 98 S.Ct. at 2973 (White, J., concurring and dissenting). Furthermore, it is clearly unconstitutional to impose the death penalty in such a case without permitting the jury to consider as a mitigating circumstance the fact that the defendant did not personally commit the murder. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). However, Louisiana’s capital punishment regime is not vulnerable to attack on either score. A finding that an accomplice specifically intended to kill or to inflict great bodily harm is necessary before he can be convicted of first degree murder. State v. Holmes, supra. The sentencing proceeding jury may consider as a mitigating circumstance that the offender was a principal whose participation was relatively minor, and any other relevant mitigating circumstance. La.C.Cr.P. art. 905.5(g), (h).

Assignment of Error Number 6

In assignment number six defendant contends reversible error occurred when the court refused to give another special requested charge:

“Ladies and Gentlemen of the jury, I charge you that in your determination of punishment, you must make a determination that any aggravating circumstance has been proven to exist by competent evidence beyond a reasonable doubt. Further, in determining whether any mitigating circumstance has been proven to exist you must determine that such does exist unless such is disproved by the State of Louisiana by proof beyond a reasonable doubt. Thus, if the State of Louisiana fails in its proof of any aggravating circumstance, you are to return a sentence of life imprisonment. Further, if the State of Louisiana fails to disprove that any mitigating circumstance exists, then you are to return a sentence of life imprisonment.”

The defendant’s special requested charge is based on a misunderstanding of the capital sentence proceeding. After a verdict of guilty to first degree murder, a sentencing hearing is conducted. La.C. Cr.P. arts. 905 et seq. The sentence will be life imprisonment unless the jury finds unanimously and beyond a reasonable doubt at least one statutorily defined “aggravating circumstance.” La.C.Cr.P. art. 905.3. Having found an aggravating circumstance, however, the jury is not required to impose the death penalty. Instead, it is merely authorized to impose it after considering evidence of any mitigating circumstances. La.C.Cr.P. art. 905.3. Unless the jury determines unanimously that the death penalty should be imposed, the defendant will be sentenced to life imprisonment without parole, probation or suspension of sentence. In the event the jury imposes the death penalty, it must designate in writing the aggravating circumstance which is found to exist beyond a reasonable doubt. La.C. Cr.P. art. 905.7. See State v. Payton, 361 So.2d 866 (La.1978).

The capital sentencing procedure does not establish any presumptions or burdens of proof with respect to mitigating circumstances. The jury is required to consider evidence of any mitigating circumstances, and to weigh it against any aggravating circumstance which it has unanimously found beyond a reasonable doubt, before recommending the more appropriate penalty, either a penalty of life imprisonment without parole or a sentence of death. Accordingly, the defendant’s special requested charge is incorrect in the several instances in which it is inconsistent with this procedure.

Assignment of Substantive Errors Affecting the Sentence

Assignments of Error Numbers 1, 3 and 7

In assignments numbers one, three and seven defendant expounds a mixture of arguments. He contends that he has been denied equal protection of the laws by having been selected as the only one to receive the death penalty of two accomplices convicted of the same crime. Moreover, he argues the evidence does not warrant a finding that his culpability was so much greater than his brother’s as to justify the death penalty.

The statutes under which defendant’s death sentence was imposed were based on those approved by the United States Supreme Court as providing adequate standards to guide the jury in selecting those among first degree murderers who should receive the death penalty. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); State v. Payton, 361 So.2d 866 (La.1978). There is nothing in the rationale of the high court’s decision which would indicate that the same selection process could not be used to decide who, if anyone, among persons involved in the same first degree murder, should be chosen to suffer capital punishment.

For reasons previously given in this opinion, we conclude that the evidence adequately supports findings that defendant initiated a course of criminal conduct which culminated in his direct commission of two first degree murders, that he played the predominant role in each of the aggravating circumstances found by the jury, and a finding that the death sentence is the appropriate penalty in his ease.

CAPITAL SENTENCE REVIEW

Every sentence of death is reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court determines whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Louisiana Supreme Court Rule 28, § 1.

A. Aggravating Circumstances

In recommending the death penalty, the jury found and listed five aggravating circumstances. La.C.Cr.P. arts. 905.4, 905.7. We have reviewed the record with respect to each aggravating circumstance and conclude that the evidence is sufficient to support a reasonable jury’s finding beyond a reasonable doubt of four of the five aggravating circumstances.

The jury found that the offender was engaged in the perpetration of aggravated kidnapping. La.C.Cr.P. art. 905.-4(a). Aggravated kidnapping includes the forcible seizing and carrying of a person from one place to another with the intent to force the victim to give up anything of apparent value, or to grant an advantage or immunity to secure his or her release. La. R.S. 14:44. Sexual gratification constitutes something of apparent value for purposes of the statute. State v. Eddie Sonnier, 380 So.2d 1 (La.1980); State v. Dupre, 369 So.2d 1303 (La.1979). The record supports a finding beyond a reasonable doubt that Elmo Patrick Sonnier seized and carried the couple from one place to another with the intention of forcing the female victim to have sexual intercourse with him.

The jury found that the offender was engaged in the perpetration of aggravated burglary and armed robbery. La.C. Cr.P. art. 905.4(a). Aggravated burglary includes the unauthorized entering of a movable where a person is present, with the intent to commit a felony or theft therein, when the offender is armed with a dangerous weapon. La.R.S. 14:60. Armed robbery is the theft of anything of value from the person or immediate control of another by use of force or intimidation, while armed with a dangerous weapon. La.R.S. 14:64. Evidence was introduced that Elmo Patrick Sonnier was armed with a dangerous weapon when he entered the automobile in which the victims were parked, that he intended to commit kidnapping and theft, and that he and Eddie committed armed robbery by taking money, wallets and drivers’ licenses from the victims.

The jury found that the offender knowingly created a risk of death or great bodily harm to more than one person. La.C.Cr.P. art. 905.4(d). A majority of this court has held that this aggravating circumstance is established when the defendant by a single and consecutive course of conduct contemplates and causes a great risk to more than one person. State v. Monroe, 397 So.2d 1258 (La.1981); State v. Culberth, 390 So.2d 847 (La.1980). In this case the execution of two victims lying side by side with six rapid rifle shots clearly amounts to a single consecutive course of conduct by which defendant contemplated a great risk to more than one person.

The jury found that each offense of first degree murder was committed in an especially heinous, atrocious or cruel manner. La.C.Cr.P. art. 905.4(g). This court has held that in order for the jury to conclude that the offense was committed under this aggravating circumstance there must exist evidence, from which the jury could find beyond a reasonable doubt, that there was torture or the pitiless infliction of unnecessary pain on the victim. State v. Monroe, 397 So.2d 1258 (La.1981); State v. English, 367 So.2d 815, 823 (La.1979).

The United States Supreme Court’s decision in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) contains lessons pertinent to the application of Louisiana’s “especially heinous manner” aggravating circumstance. In that case, the high court reversed death sentences based on convictions of two counts of murder and a Georgia jury’s finding that the aggravating circumstance as to each conviction was that the offense was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.” The evidence at trial showed that the defendant went to a trailer where his wife, mother-in-law and daughter were located, shot his wife in the head with a shotgun through a window, killing her instantly, and then proceeded into the trailer, where after striking and injuring his fleeing daughter with the barrel of the gun he shot his mother-in-law in the head also killing her instantly. The trial court, in instructing the jury on the aggravating circumstance, merely quoted the bare statutory language. The Georgia Supreme Court, in affirming the sentences, held that the evidence supported the jury’s finding of the statutory aggravating circumstance and simply asserted that the verdict was “factually substantiated.”

Although unable to agree on an opinion, six members of the United States Supreme Court agreed that the Georgia Supreme Court had erred in violation of the Eighth and Fourteenth Amendments in affirming the death sentences. Because of the lack of a majority opinion and the complexity of the plurality opinion, the scope of the court’s decision is uncertain. The court held clearly that a death sentence cannot be upheld on the ground that the murder was “outrageously or wantonly vile, horrible or inhuman in that it involved ... depravity of mind” without a narrowing construction of “depravity of mind” by the state supreme court providing rational criteria for distinguishing a case in which the death penalty is to be imposed from the many cases in which it is not. 100 S.Ct. at 1767, 64 L.Ed.2d at 409. Additionally, the various opinions of the justices expound two other recommendations or nascent rules of law: (a) a death sentence may be upheld on the ground that the murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture” if “torture” is construed so as to require evidence of serious physical abuse of the victim before death, 100 S.Ct. at 1766 (plurality opinion of Stewart, J.) and (b) it is not enough for a reviewing court to apply a narrowing construction to ambiguous terms such as “depravity of mind” or “torture;” the jury must be instructed on the proper, narrow construction of the statute. 100 S.Ct. at 1765 (plurality opinion of Stewart, J.); 100 S.Ct. at 1769 (Marshall, J., concurring).

Because of the similarity of thought and language in the Georgia and Louisiana statutory definitions of “especially heinous” and “outrageously vile” aggravating circumstances, some of the teachings of Godfrey are directly applicable to the Louisiana capital punishment regime: This court should continue to apply the narrowing construction it has employed in previous cases, viz., in order for the jury to find that the offense was committed in an especially heinous, atrocious or cruel manner there must exist evidence, from which the jury could find beyond a reasonable doubt, that there was torture or the pitiless infliction of unnecessary pain on the victim. This construction should be clarified to include an explanation that “torture” requires evidence of serious physical abuse of the victim before death. Finally, since the United States Supreme Court has made it clear that the sentencer’s discretion must be channelled and guided by clear, objective and specific standards, this court should require that juries considering whether to impose the death penalty on the basis of this aggravating circumstance must be instructed on the proper, narrow construction of the statute.

In the present case the jury’s findings that the homicides were committed in an especially heinous, atrocious or cruel manner were of questionable constitutional validity. The jury was not instructed on the proper, narrow construction of the statute. There was no evidence that the male victim was subjected to any serious physical abuse, and the evidence may not be constitutionally sufficient to support a finding that the female was a victim of torture or the pitiless infliction of unnecessary pain.

However, the evidence was clearly sufficient to support the jury’s findings of four out of the five aggravating circumstances it listed. A majority of this court has held that it knows of no constitutional requirement that a death sentence be vacated whenever the jury errs in only one of its findings of several statutory aggravating circumstances. State v. Monroe, 397 So.2d 1258 (La.1981). Accordingly, the failure of one aggravating circumstance in this case does not so taint the proceedings as to invalidate the other aggravating circumstances found or the sentence of death.

B. Proportionality of Sentence

Upon reviewing Elmo Patrick Sonnier’s first appeal, the original opinion of this court set forth in detail his significant characteristics and propensities, as reflected by the record:

“Elmo Patrick Sonnier is a white male, age twenty-eight years (twenty-six at the time of the offense). He attended school through the seventh grade at which time he quit and went to work in the oil fields. The Wechsler Adult Intelligence Scale Test conducted on January 31, 1978, indicated a verbal I.Q. score of dull-normal range (84), a performance I.Q. score in the average range (98) and a full scale I.Q. in the average range (90). No neurological impairment was noted by the Bender-Gestalt Test. The Rorschach Examination indicated the defendant had contact with reality and there were indications of a potential for above average creativity and intelligence.
“Sonnier’s criminal record reveals five arrests as a juvenile: disturbance (no disposition); simple burglary and simple criminal damage (indefinite period of supervised probation); simple burglary (continued probation until April 24, 1967); fight (released); juvenile trouble (released). His adult record includes an attempted theft of a boat for which he was released. He was convicted on two counts of auto theft in 1968 and sentenced to four and three years at hard labor. (The sentences ran concurrently.) He was paroled in 1970. On July 7,1970, he was arrested on a charge of theft by false pretenses but the case was dismissed. In November of 1970, he was arrested and charged with the theft of a shotgun and a television which resulted in his parole being revoked. During the period he was on parole, he was in trouble for non-support, and changing jobs and residences. Defendant served out his term at Angola and was discharged on March 10, 1972. “Defendant worked in the oil fields until 1975, except for the period he was at Angola. He worked on a hog farm in Texas for one year and returned to Louisiana in 1976. He was then employed by Hub Security until September of 1976 when he was fired because he had falsified his application for employment and his employer suspected he had stolen some money from a client. The defendant then took a job with B & B Security Police until March of 1977 when he began working for Jo-Dee Equipment Rental where he was employed at the time of his arrest. He was regarded by Jo-Dee as a reliable employee.” 379 So.2d 1362-63.

The record before us today does not reveal any relevant new evidence of the defendant’s character or propensities.

On defendant’s first appeal this court compared his case extensively with two other first degree murder cases in the district in which sentence was imposed after January 1, 1976: (1) James Lee Bullock; (2) Frank Bennett. State v. Sonnier, 379 So.2d at 1363. Since his first appeal there have been two additional first degree murder cases in the district in which sentence was imposed.

Marcel Knott was tried in St. Mary Parish after a change of venue from St. Martin Parish was ordered. The case grew out of a feud between two families, the Knotts and the Hayes, who had been close friends at one time but who had been divided by an inter-family dispute. One evening Knott and his wife were in Henderson where they backed into a parked car. Officers Hayes and Courville investigated the accident and were subjected to such verbal abuse by Mrs. Knott that Officer Hayes forced her into the patrol car. Knott then began shooting at the officers, killing Courville but only wounding Hayes. He was convicted of second degree murder and was sentenced to life imprisonment. For a comparison of the Knott case with Eddie James Sonnier’s ease see State v. Sonnier, 380 So.2d 1, 7-9 (La.1980).

David Liner was convicted of first degree murder but the jury sentenced him to life imprisonment. Liner was convicted of murdering his neighbor by repeatedly stabbing her with forks and butter knives until she bled to death. The attack was precipitated by the victim’s rejection of Liner’s sexual advances which followed an argument that Liner had with his wife earlier the same evening. At the trial there was expert testimony to the effect that Liner had been psychotic, a schizophrenic and paranoid type, for at least ten years. In addition one expert testified that the defendant did not know the difference between right and wrong with respect to the offense. In addition at the sentencing phase of the trial the father of the victim who had known Liner all his life took the stand and asked that the jury spare his life. See State v. Liner, 397 So.2d 506 (La.1981).

The other first degree murder trials in the district were a result of the murders in this case. Eddie James Sonnier was convicted of first degree murder and sentenced to death, but we reversed his conviction because our review of the record in his case indicated that the jury’s recommendation of death did not conform to the sentences meted out in the other first degree murder cases because the defendant’s intent to kill was not clearly shown in Eddie’s case, because the jury apparently ignored several mitigating factors and because we concluded that the evidence indicated that Eddie played a relatively minor role in the creation of the aggravating circumstances found by the jury. 380 So.2d at 8-9. Elmo Patrick Sonnier’s first penalty proceeding, of course, also resulted in a death sentence which we reversed because of an erroneous and misleading jury instruction. 379 So.2d at 1369-72.

The homicides in Bullock, Bennett, and Knott all occurred after there was an altercation or confrontation between the victims and the defendants. These cases thus differed from the instant case in at least this respect. It is true that the victims in Bullock and Liner suffered more painful deaths, but in this case there was evidence of rape and kidnapping not present in any of the other murders. In both Bennett and Liner there was significant evidence questioning defendant’s sanity or mental stability. There was no evidence that Elmo Patrick Sonnier had a mental disease or incapacity. Although the murder in Liner was as shocking and senseless, Liner’s questionable mental stability and the plea by the victim’s father in that case explains the jury’s decision to spare his life. The death penalty in the present case, therefore, does not appear arbitrary, capricious or disproportionate to the results reached in other first degree murder trials in the district.

C. Passion, Prejudice or Arbitrariness

The death sentence in this case involved no issue of racial prejudice. Both the victims and the perpetrators were white. Nor did local passion play a role in this sentencing hearing, for venue for the sentencing hearing was changed from New Iberia, the site of the crime and first trial, to St. Mary Parish. Our review of the record does not indicate that the death penalty was imposed arbitrarily or without reason.

Conclusion

The defendant’s convictions and sentences of death are affirmed.

AFFIRMED.

LEMMON, J., concurs.

MARCUS, J., concurs and assigns reasons.

BLANCHE, J., concurs with reasons.

MARCUS, Justice

(concurring).

I agree that defendant’s convictions and sentences should be affirmed; however, I consider that the murders were committed in an “especially heinous, atrocious or cruel manner.” Accordingly, I respectfully concur.

BLANCHE, Justice

(concurring).

I concur in the very excellent sentence review, but dissent from the opinion’s holding that the crime was not committed in an especially heinous, atrocious or cruel manner. I do agree that although all murders are heinous and atrocious, any system that seeks to distinguish rationally among murders in terms of heinousness must necessarily incorporate into that concept some idea of torture, or the pitiless infliction of unnecessary pain on the victim. I would not, however, limit the infliction of pain to physical pain, as mental pain may be as much or more devastating in its nature and scope.

The young female victim in this case was piteously raped by the defendant and gave in to his brother in order to secure the safe release of herself and her boyfriend. Thereafter, she and her boyfriend were turned face down on the ground and executed, the first shot missing its mark.

In my view, rape is an infliction of unnecessary pain on the victim, and amounts to both mental as well as physical torture. See this writer’s original opinion in this case at 379 So.2d 1336 (La.1980).

      . On one occasion, in Elmo Patrick Sonnier’s first appeal, in the original opinion of this court, a majority subscribed to the notion that the “torture or pitiless infliction of pain” could be either “physical or psychological.” State v. Sonnier, 379 So.2d 1336, 1361 (La.1980). In retrospect, this appears to be such a broad and vague addition to our construction of the aggravating circumstance as to violate the Eighth and Fourteenth Amendments. See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

      . On several occasions, I have dissented from this opinion. See State v. Monroe, 397 So.2d 1258 (La.1981); State v. Williams, 383 So.2d 369, 375 (La.1980); State v. Sonnier, 379 So.2d 1336, 1364 (La.1980); State v. Martin, 376 So.2d 300, 314 (La.1979). However, my view has failed to garner any other vo£e on this court. Acknowledging the futility of continual dissents on this issue, I reluctantly join the majority position until such time as its error is recognized by other members of this court or the United States Supreme Court.


source: Caselaw Access Project

author: WATSON, Justice. MARCUS, Justice BLANCHE, Justice DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Randolph WARREN a/k/a Randolph Mason.
    No. 80-K-2375.

    Supreme Court of Louisiana.
    June 22, 1981.
    Rehearing Denied Sept. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John F. Rowley, Dist. Atty., Glenn E. Diaz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-applicant.
    Ovide M. Tregle, Jr., Metairie, Walter Drake, Chalmette, for defendant-respondent.

       Consolidated for argument with State v. Cusher, 400 So.2d 601 (La., 1981).

   WATSON, Justice.

In this habeas corpus application, the issue is whether defendant, Randolph Warren, is entitled to have his guilty pleas set aside because the trial fudge did not advise him more than six years ago of the right to confront his accusers and the privilege against compulsory self-incrimination.

Randolph Warren had three indictments against him: one for armed robbery and two for aggravated rape. He pled guilty to the armed robbery charge and guilty without capital punishment to the two charges of aggravated rape. On November 13, 1974, Warren received two concurrent sentences of life imprisonment for the rapes and ten consecutive years for the armed robbery.

Currently, in every Louisiana felony case, the trial judge is required to articulate the three rights prescribed by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).

The question is whether, many years later, defendant should be permitted to withdraw his pleas “... and be given another choice between admitting ... guilt and putting the State to its proof.” McMann v. Richardson, 397 U.S. 759 at 773, 90 S.Ct. 1441 at 1450, 25 L.Ed.2d 763 at 775 (1970).

If the pleas are set aside and a new trial required, it is probable that the state’s case, no matter how strong six years ago, would be impossible of proof. Victims of rape would be unable or unwilling to go through a prosecution after the lapse of six years. Because of the length of time between the pleas and the habeas corpus application, the state is entitled to prove that the pleas by defendant were intelligently and voluntarily made, the fundamental Boykin requirement. McChesney v. Henderson, 482 F.2d 1101 (5 Cir. 1973); Brown v. Jernigan, 622 F.2d 914 (5 Cir. 1980); Wright v. United States, 624 F.2d 557 (5 Cir. 1980); and Pollinzi v. Estelle, 628 F.2d 417 (5 Cir. 1980).

The court reporter lost all notes pertaining to Warren’s guilty plea hearing. No record of the guilty plea colloquy with the trial judge is available. Because of this defect in the record, the trial court granted Warren’s application for a writ of habeas corpus and vacated his guilty pleas.

A statement in the record by the trial court filed June 4, 1974, recites the following:

“ACKNOWLEDGEMENT OF RIGHTS ON ENTRY OF A PLEA OF GUILTY “I am required as Judge of the 25th Judicial District Court, Parish of St. Bernard, to ascertain from you the following information. I am also going to explain the nature of the crime of which you are charged. I will also explain the consequences of your plea of Guilty.
“I will read to you the following. If you have any questions or if you do not understand, stop me and I will give you any additional instructions which you may require.
“I have requested your attorney to also advise you of your rights.
“I will read this to you and your attorney and require both of you to sign as an acknowledgement thereto.
“(1) You are charged with the crime of aggravated rape (R.S. 14:42) which occurred on the 19th day of June, 1973. The mandatory sentence which I must impose is life imprisonment upon a plea by you of Guilty Without Capital Punishment.
“(2) Has anyone done any of the following acts against either you or any member of your family in order for you to plead guilty?
“Used force, intimidation, coercion, promise or reward, and further,
“Do you understand that the plea of guilty is your decision and no one can force you to so plead?
“That to plead guilty is your voluntary act and must be free from any vice which you render your ability to plead guilty inadequate?
“(3) You have the right to a jury trial, which jury may either find you guilty as charged, not guilty or guilty of a lessor crime.
“(4) You have the right to have an attorney to defend you. If you cannot afford an attorney, I will appoint one for you, which will be free of all cost to you. “(5) If you plead guilty, you do not have the right to appeal any defects which might have occurred in your case.
“In other words, by pleading guilty you waive any defects in either,
“a) An illegal arrest
“b) An illegal search and seizure
“c) An illegal confession
“d) An illegal lineup, and
“e) The fact that the state might not be able to prove said charge.
“By pleading guilty, you are telling the court that you have committed the crime for which you are charged, that you are the person who did commit said crime, and you are ready for sentencing. You therefore have no further legal delays. “I, as judge, have read to the defendant the above and I am satisfied that the defendant has entered a voluntary plea of guilty, that the defendant was aware of the nature of the charge against him and that I am satisfied that he did in fact commit said crime. Further, that the defendant understands the consequence of said plea of guilty.
“Chalmette, Louisiana, June 4, 1974.
/s/ August A. Nobile, Jr.
Judge” (Tr. 14-15)

One of Warren’s trial attorneys signed a statement at the time of his guilty pleas:

“I, as an attorney for the defendant, was present during the questioning of defendant with regard to his plea. I have also instructed the defendant of his rights and the consequence of said plea of guilty. I am satisfied that the plea is a voluntary act of the defendant.”

Warren also signed a statement, as follows:

“I, as the defendant, have been instructed by the court of the nature of the charge against me and that the act of pleading guilty is a free and voluntary act on my part; that no one can force me to plead guilty; that by pleading guilty I admit that I committed the said crime and am ready for sentencing to the penitentiary. The judge has further instructed me of the consequences of said act of pleading guilty.”

These statements are relevant to the question of whether Warren’s pleas were free and voluntary but do not alone establish that the pleas were valid. There were extensive pretrial proceedings prior to entry of the pleas, which indicate the pleas may have been intelligently made. Warren escaped the possibility of capital punishment, but received no other sentencing benefit. The matter is remanded for an evidentiary hearing on the question of whether the 1974 guilty pleas were voluntarily and intelligently entered by defendant. The burden of proof will be on the state. Pertinent evidence will be the testimony of trial counsel and any other testimony which might reconstruct the circumstances at the time the pleas were entered. State v. Smith, 375 So.2d 1328 (La., 1979); McChesney v. Henderson, supra; Pollinzi v. Estelle, supra.

For the foregoing reasons, the trial court ruling granting Warren’s application for a writ of habeas corpus and vacating his 1974 guilty pleas is reversed and the matter is remanded for an evidentiary hearing.

REVERSED AND REMANDED.

MARCUS and BLANCHE, JJ., concur and assign reasons.

DENNIS, J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DENNIS, J., in State v. Cusher, 400 So.2d 601 (La.1981).

MARCUS, Justice

(concurring).

In my view, the length of time between a guilty plea and the habeas application to set aside the guilty plea for failure of the trial judge to articulate the three rights prescribed by Boykin is only one of the factors in the determination of whether the guilty plea by defendant was intelligently and voluntarily made. It is the totality of all the facts and circumstances that determines whether the guilty plea was intelligently and voluntarily made. Accordingly, I agree that the ruling of the trial judge granting defendant’s application for habeas relief and vacating his guilty pleas is properly reversed and the case remanded for an evi-dentiary hearing on the question of whether the guilty pleas were voluntarily and intelligently entered by defendant. I respectfully concur.

BLANCHE, Justice

(concurring).

I concur with the majority opinion for the following reasons.

The majority holds that “Because of the length of time between the pleas and the habeas corpus application, the State is entitled to prove that the pleas by defendant were intelligently and voluntarily made, the fundamental Boykin requirement ... ”. I agree that the fundamental inquiry in determining the validity of a guilty plea is whether that plea is intelligent, or knowing, and voluntary. I also agree with the majority that when a guilty plea is attacked, the state should be allowed to make a showing that the plea was knowing and voluntary.

However, I disagree with the majority holding that this inquiry and' opportunity for proof arises only in situations where there is a great length of time between the pleas and the habeas corpus application. Regardless of the length of time between a guilty plea and an attack on that plea, the test in determining whether a guilty plea is valid is whether that plea is knowingly and voluntarily made. A court should look to the totality of the circumstances surrounding that plea in making this determination. I do not agree with the majority view expressed in footnote 2 that “where, as in State v. Williams, 384 So.2d 779 (La.1980), a plea is relatively recent [1979] the colloquy with the trial judge must affirmatively establish a waiver of the three constitutional Boykin rights ... ”. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) does not require this “three right articulation” as a prerequisite to a valid guilty plea and the application of a “three right articulation rule”, once again endorsed by the majority herein, creates injustice and does not in fact result in a true determination of whether a guilty plea was knowing and voluntary.

In 1969 in Boykin v. Alabama, supra, the United States Supreme Court examined a guilty plea to common law robbery, an offense which was punishable by death in Alabama. In that case, defendant pleaded guilty at his arraignment to five indictments for common law robbery three days after counsel was appointed to represent him. According to the Boykin majority, “so far as the record shows, the judge asked no questions of petitioner concerning his plea and petitioner did not address the court.” A jury sentenced defendant to death on each of the indictments. The United States Supreme Court reversed that defendant’s conviction based upon his guilty plea, endorsing the dissenting justices of the Alabama Supreme Court’s view that there was reversible error “ ‘because the record does not disclose that the defendant voluntarily and understandingly entered his plea of guilty.’ ”

In the course of its opinion in Boykin, the Court noted that several federal constitutional rights are waived when a defendant pleads guilty in a state trial: First, the privilege against the compulsory self incrimination; second, the right to a trial by jury; and third, the right to confront one’s accusers. The court continued, “we cannot presume a waiver of these three important federal rights from a silent record.”

This Court has, since Boykin, attempted to delineate what showing the state is required to make in order to prove that a guilty plea in a Louisiana state proceeding has been knowingly and voluntarily entered in compliance with Boykin. In State ex rel. Jackson v. Henderson, 255 So.2d 85 (La. 1971), we held that pleas of guilty would be set aside absent a showing that defendant was informed of and expressly and knowingly waived his privilege against compulsory self incrimination, his right to a trial by jury and his right to confront his accusers. The Jackson Court reserved the issues of whether the judge himself must examine the defendant and whether a contemporaneous record of the examination must be made. The Court ultimately required that the state produce a contemporaneous record of defendant’s guilty plea colloquy with the trial judge affirmatively showing the waiver of the above three rights in instances where a prior conviction based on a guilty plea was used to enhance the penalty under our multiple offender laws, State v. Martin, 379 So.2d 1092 (La.1980), as interpreted by State v. Williams, 384 So.2d 779 (La.1980), or where a guilty plea serves as the basis for a prior conviction where that conviction is an essential element of the crime charged. State v. Martin, 382 So.2d 933 (La.1980); State v. Bolton, 379 So.2d 722 (La.1980), as interpreted by State v. Williams, supra. The Court held that the same showing would be required in order to withstand a direct attack on a conviction on the basis that the guilty plea was not knowingly and voluntarily made. State v. Williams, supra.

Since the Boykin decision our courts have gradually developed the above outlined hard and fast rule to test the validity of guilty pleas and to serve as a guide to the trial judges in the taking of a guilty plea. The rule was most recently affirmed by the majority herein with regard to “relatively recent” pleas. The mandates of this rule, i. e. that the trial judge himself conduct a colloquy with the defendant, explaining to him that by pleading guilty defendant waives his privilege against compulsory self incrimination, his right to a trial by jury and his right to confront his accusers and that the defendant expressly and knowingly waives these rights and that a contemporaneous record of the guilty plea colloquy be made, provide not only a settled guide for trial judges, but a certain standard for reviewing the validity of a guilty plea when that plea is attacked either collaterally or directly. However, the rule we have developed is far from ideal and does not conclusively serve the intended purpose of ascertaining whether a guilty plea is knowing and voluntary.

Although this Court has repeatedly referred to the “three right articulation rule” as an application of the Boykin decision, the Boykin holding does not compel the guilty plea procedure we have developed. As noted above, the defendant in Boykin pleaded guilty to offenses for which he was sentenced to die and “so far as the record shows the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court.” The United States Supreme Court ruled that “the three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error ‘because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.’ ”

The Boykin court did not expressly require a “three right articulation rule” when it held that the record in the case failed to show that defendant’s guilty plea was a knowing and voluntary one. The court did, in the course of its opinion, mention the three federal constitutional rights referred to above and then stated, “We cannot presume a waiver of these three important federal rights from a silent record.”

In Jackson, supra, this Court held that this Boykin language required that a defendant be informed of, and expressly and knowingly waive, each right. We have interpreted the following language in Boykin to require a contemporaneous record of the colloquy between the trial judge and the defendant to withstand either a direct or collateral attack of a guilty plea: “When the judge discharges that function [making certain that a defendant has a full understanding of what his plea connotes and of its consequence] he leaves a record adequate for any review that may be later sought [citations omitted] and forestalls, the spinoff of'collateral proceedings that seek to probe murky memories.” State v. Williams, 384 So.2d 779 (La.1980).

Although all of the above quoted language is found within the parameters of the Boykin decision, the listing of the three federal constitutional rights waived by a guilty plea and the benefits of a contemporaneous record of a colloquy between the judge and defendant reflecting a waiver of these rights are phrased more as observations and recommendations rather than serving to set out mandatory “formula” prerequisites for valid guilty pleas. This Court noted in State ex rel. LeBlanc v. Henderson, 259 So.2d 557 (La.1972) that “a majority of the state decisions thus far require only that the trial judge canvass the matter, with the defendant to verify that the plea is freely and understanding^ made.” Louisiana’s formulistic interpretation of the requirements of Boykin apparently remains a minority view among other states. The majority of other jurisdictions do not vacate guilty pleas for failure of the record of that plea to affirmatively reflect a waiver of the three constitutional rights mentioned in Boykin. J. E. Bond, Plea Bargaining and Guilty Pleas, Clark Boardman Co., Ltd., New York, N.Y., 1978, § 3.08[2] p. 96.2. Significantly, the United States Supreme Court itself has not, since Boykin, clarified its language in Boykin as mandating the “three right articulation rule” which is at this time the law in Louisiana.

In fact, as emphasized in McChesney v. Henderon, 482 F.2d 1101 (5th Cir. 1973), in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court upheld a guilty plea on the basis that it was “voluntary” and “intelligent”, citing Boykin. The Brady decision at no point indicated that a three right articulation is required when a guilty plea is entered. In Footnote 4, 90 S.Ct. at p. 1468 of Brady, the court noted that “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty, entered his plea understandingly and voluntarily.”

In the McChesney case, the 5th Circuit examined a Louisiana state court guilty plea and held that “there is no requirement that there be express articulation and waiver of the 3 constitutional rights referred to in Boykin by the defendant at the time of acceptance of his guilty plea, if it appears from the record that the accused’s plea was intelligent and voluntarily made, with knowledge of its consequences.” 482 F.2d at 1110. The Court further held that “... in deciding the voluntariness of McChes-ney’s guilty plea consideration must be given to the record of proceedings not only which transpired when the plea was accepted, but also in the post conviction state evidentiary hearing.” 482 F.2d at 1111.

I urge that the key inquiry where the validity of a guilty plea is at issue is whether that plea is knowing and voluntary, and that this is the determination that is constitutionally required. This Court has recently affirmed the fact that the validity of a guilty plea turns upon whether it was a knowing and voluntary plea. State v. Galliano, 396 So.2d 1288 (La.1981). Although the defendant in that case had been informed of and waived the three constitutional rights mentioned in Boykin, we held that the court had the power “notwithstanding a record waiver of constitutional rights, to determine whether other factors present at the time of a guilty plea, whether inside or outside the plea colloquy record, were sufficient to render the plea involuntary or unintelligent.” Galliano, supra, at p. 1290. In Galliano, we affirmed the trial court ruling vacating a guilty plea based upon the finding that it was not voluntary and intelligent and in doing so, looked to a statement by the trial judge (who had accepted defendant’s plea) at the hearing on a motion to withdraw the plea, that he had misled defendant when taking the plea. Thus, this case also stands for the proposition that a court may look beyond the transcript of a plea colloquy to determine the voluntariness of a guilty plea.

Requiring an express on-the-record colloquy between the trial judge and the defendant reflecting a waiver of the three constitutional rights mentioned in Boykin does not resolve the issue of voluntariness of a guilty plea as our decision in Galliano illustrates, although it does serve as a workable starting point in that determination. If the three right articulation rule is strictly applied, it effectively blocks a true inquiry into whether a knowing and voluntary guilty plea was tendered where there has been a failure to comply with an element of the rule in instances where, in fact, a defendant’s rights have been carefully guarded and protected by the court and his attorney, and he was indeed fully aware of the consequences of his plea and voluntarily entered that plea. It is patently unjust to allow successful attacks on guilty pleas solely because records of the plea were, perhaps, destroyed or the record omits an element of the three right articulation rule.

Despite the defects of the three right articulation rule, it would be counterproductive to discard a rule in which the courts of this jurisdiction have invested so much time and effort. As noted above, the three right articulation rule serves as a settled guideline for a judge in the taking of a guilty plea and provides a formula method for ascertaining that the defendant is aware of certain consequences of his guilty plea prior to entering that plea.

I would utilize the three right articulation rule in the future as a starting point in the determination of whether a guilty plea is knowing and voluntary. In cases where the three right articulation rule as developed by this Court has been complied with, the burden of proof would be on the defendant to show that the guilty plea is invalid. The defendant may show, as in Galliano, with evidence found within the transcript of his guilty plea proceeding or with other pertinent evidence, that his plea was for some reason invalid. In cases where there is a failure of strict compliance with this rule when the guilty plea is attacked, the burden would be on the state to show that the plea was nevertheless valid (i. e. knowing and voluntary). The state could do so with evidence either from the guilty plea proceedings or otherwise to indicate that the plea was, in fact, a knowing and voluntary one.

I agree with the remand in this case to allow the state an opportunity »to prove that defendant’s plea was knowing and voluntary.

DENNIS, Justice,

dissenting.

I respectfully dissent for the reasons stated in my dissenting opinion in State v. Cusher, 400 So.2d 601 (La.1981).

      . Warren was told of his right to trial by jury.

      . Where, as in State v. Williams, 384 So.2d 779 (La., 1980), a plea is relatively recent [1979] the colloquy with the trial judge must affirmatively establish a waiver of the three constitutional Boykin rights. State v. Martin, 379 So.2d 1092 (La., 1980) applied the State ex rel Jackson v. Henderson rule to a 1974 conviction. However, the opinion is of questionable precedential value because C. J. Summers who concurred originally later filed an opinion which indicates disagreement with the result. 379 So.2d 1094.

      . The Court did create somewhat of a caveat to this rule in State v. Dunn, 390 So.2d 525 (La.1980). In that case, we upheld a trial judge’s refusal to set aside a guilty plea although the colloquy between the trial judge and the defendant did not include an explanation to defendant of his right against self incrimination. However, we found that the plea was constitutionally sufficient in that there was an affirmative showing in the record of an express and knowing waiver of defendant’s privilege against self incrimination since the record included a guilty plea form signed by defendant containing a waiver of this right. The trial court had questioned defendant as to whether his attorney had explained the provisions of the guilty plea form, asked if he had any questions about it and asked if the initials and signature on the form were defendant’s. Defendant verified his signature, indicated that his attorney had explained the provisions of the form to him and stated he had no questions about the form.

      . Some factors the court should look to in determining whether a plea was free and voluntary are: the extent of compliance with the three right articulation rule; generally any attempt made by the trial judge to ascertain whether defendant’s plea was free and voluntary; whether defendant was advised as to the nature of the charges against him, the acts sufficient to constitute the offense of which he is accused and the permissible range of sentences. Boykin v. Alabama, supra, footnote 7; the quality of defendant’s representation by his counsel where the defendant was represented by counsel, State v. Beatty, 391 So.2d 828 (La.1980); and whether defendant’s rights were explained to him by an attorney or whether defendant knowingly signed a waiver of rights form. State v. Dunn, 390 So.2d 525 (La.1980).


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

text:
    Florestine JENKINS, et al. v. JEFFERSON PARISH SHERIFF’S OFFICE.
    No. 80-C-1794.
    Supreme Court of Louisiana.
    June 22, 1981.
    Rehearing Denied Sept. 4, 1981.
    Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-applicant.
    Kenneth V. Ward, Jr. of Cronvich, Wambsgans & Michalczyk, New Orleans, for defendant-respondent.
   LEMMON, Justice.

We granted certiorari to review a judgment which held that the sheriff of a parish was not vicariously liable for the tort of a deputy sheriff committed in the exercise of the function for which the deputy was employed. 392 So.2d 684 (La.1980). We now reverse and hold that C.C. art. 2320 imposes liability on a sheriff, in his official capacity as employer of his deputy (but not in a personal capacity), for the deputy’s torts in the course and scope of employment.

I.

Plaintiff’s suit seeks recovery for damages allegedly caused by the negligence of a Jefferson Parish deputy sheriff in the operation of an official vehicle while on duty. The trial court dismissed Sheriff Alwynn J. Cronvich from the action on an exception of no cause of action. The court of appeal affirmed. 385 So.2d 578 (4th Cir. 1980).

II.

In Foster v. Hampton, 352 So.2d 197 (La.1977) Chief Justice Dixon undertook a thorough historical review of the legislative and jurisprudential developments regarding a sheriff’s vicarious liability for his deputy’s torts. The opinion relied on R.S. 33:1433, which expressly provided (since its 1950 amendment) that a sheriff was not liable for a tort committed by one of his deputies, beyond the amount of the deputy’s bond, unless the deputy acted in compliance with a direct order of the sheriff and in the sheriff’s presence. The opinion restated the common law notion adopted in Gray v. DeBretton, 192 La. 628, 188 So. 722 (1939) that the relationship between a sheriff and his deputy was official, rather than private, and was not one of master and servant, since the deputy’s authority and duties were prescribed by law.

The Foster decision further noted that a deputy sheriff is an officer of the state, which might be considered the deputy’s employer, but observed that the state was not a party to that suit. The decision did, however, expressly affirm the intermediate court’s holding that the parish was not vicariously liable for the torts of a sheriff or his deputy.

The plaintiff in Foster then filed suit against the state, and this court subsequently held that the state was vicariously liable for the deputy’s tort. See Foster v. Hampton, 381 So.2d 789 (La.1980).

In the meantime the first Foster decision of 1977 had generated a flurry of legislative activity. Acts 1978, No. 318, revised R.S. 33:1433 and added R.S. 42:1441.

The amendment to R.S. 33:1433 deleted the language, relied on in the first Foster decision, regarding the sheriff’s general immunity from liability except for the deputy’s acts in compliance with a direct order of and in the presence of the sheriff. Moreover, the title of Act 318, after referring to the “liability, of sheriffs for acts or torts of their deputies” stated that act’s object to be “to delete certain limitations on such liability”.

Significantly, in the same Act 318 the Legislature, for the obvious purpose of overruling the dicta in the first Foster decision, added R.S. 42:1441, which provides in pertinent part:

“The state of Louisiana shall not be liable for any damage caused by a district attorney, coroner, assessor, sheriff, clerk of court, or public officer of a political subdivision within the course and scope of his official duties, or damage caused by an employee of a district attorney, coroner, assessor, sheriff, clerk of court, or public officer of a political subdivision.
“B. The provisions of Subsection A hereof are not intended to and shall not be construed to affect any personal liability which may arise from damage caused by any public officer of a political subdivision, or by a district attorney, coroner, assessor, sheriff, clerk of court, or the employee of any such public officer, nor shall the provisions of said Subsection A be construed to amend or repeal R.S. 13:5108.1.”

The accident at issue in the present case occurred after the effective date of Act 318. Accordingly, we must construe the effect of both acts as applicable to the facts of this case.

III.

First, we note that the state is not a party to the present litigation. Therefore, while noting the questionable constitutionality of R.S. 42:1441 in its conflict with the 1974 Constitution’s abolition of governmental immunity, we cannot squarely decide the state’s liability in this case. Nevertheless, we can refer to R.S. 42:1441 in determining the legislative intent of Act 318 and in attempting to identify the real employer of a sheriff’s deputy. To achieve this identification we must assess the realities of the employment situation in the light of present day tort law and must reassess the prior jurisprudential and legislative attempts to arrive at a workable solution to the problem of responsibility to the innocent tort victim.

The reality of the situation is that there does exist an employment relationship between a sheriff and his deputies. The sheriff, and not the state, hires and fires deputies, exercises direct and -indirect supervision and control over them, fixes their time and place of work, and generally allocates their responsibility and assigns their duties. Although the money for the operation of the various sheriffs’ departments may come from various sources of public funds (primarily fees as tax collector and in civil and criminal matters), the sheriffs disburse the allocated funds and actually pay most of the salaries of the deputies with these funds. No one but the sheriff can realistically be viewed as the employer of the deputies. Whether the sheriff is the appropriate governmental entity on which to impose liability for the employment-related torts of the deputy sheriff is a more difficult question.

The doctrine of respondeat superior is based on the rationale that the enterprise should pay for damages caused by one who is acting in furtherance of the enterprise. Here, there is no enterprise. The deputy on duty is acting in furtherance of the public good, and the damages caused by those actions of the deputy should be paid by public funds.

The Legislature, in enacting Act 318 of 1978, has clearly indicated its intention that governmental responsibility for torts committed by a public employee should be placed on the public officer most closely related to the tortfeasor. The Legislature also removed the previous statutory immunity enjoyed by the sheriff. Moreover, as noted in the discussion of the employment relationship, neither the state nor the parish (the other logical entities on which liability might be imposed) exercises any significant control over sheriff’s deputies. We conclude that the sheriff is the appropriate governmental entity on which to place responsibility for the torts of a deputy sheriff.

However, in the employment relationship which gives rise to delictual responsibility, the sheriff acts solely in his official capacity; he cannot reasonably be viewed as acting in a personal capacity in the employment relationship. Therefore, if the sheriff as an employer is to be held vicariously liable for the torts of his employee, he is liable only because he is sheriff and is only liable to the extent that he holds that office. He is not liable personally, and his personal funds and property cannot be subjected to execution of a judgment decreeing that liability. The public funds which are to be used to compensate victims of the torts committed by sheriff’s deputies are the public funds controlled by the deputy’s employer. The sheriff should be no more personally responsible for the deputy’s torts than he is (in the absence of special circumstances) for the deputy’s salary, or for the gasoline purchased for official vehicles. It is the officer who is responsible.

How the obligation may be enforced is one of the practical problems not solved by this decision. In this case, for example, any judgment against this sheriff in his official capacity will have to be recovered (disregarding the probability of liability insurance) from the official funds of his successor sheriff, since Cronvich is no longer in office. Future incidents can be provided for by liability insurance. While pending unlitigated claims may cause budget problems, perhaps special legislative appropriations may be required for special interim cases arising after Act 318 and before this opinion. Nevertheless, this area of the law so badly needs clarification that the present result is required (especially when the intention of Act 318 is considered). An overall legislative plan of action (rather than of reaction) is needed to resolve the problem of which governmental entity is responsible in this type case so that the appropriate entity may set aside funds to cover that responsibility with liability insurance.

For these reasons the judgments of the lower courts are reversed insofar as they dismissed the suit against Sheriff Alwynn J. Cronvich in his official capacity. The judgments are affirmed, however, insofar as they dismissed the suit against Sheriff Alwynn J. Cronvich in his personal capacity.

BLANCHE, J., dissents and hands down reasons therefor.

MARCUS and WATSON, JJ., dissent and assign reasons.

BLANCHE, Justice

(concurring in part; dissenting in part).

The court of appeal, in ruling on an exception of no cause of action filed by Sheriff Cronvich, dismissed plaintiff’s suit against Cronvich, relying upon the holding of Foster v. Hampton, 352 So.2d 197 (La.1977) that a sheriff is not liable for the negligent acts of his deputy under the doctrine of respondeat superior unless the deputy is engaged in an official act, and the operation of an automobile without negligence is not the performance of an official duty. I wholeheartedly agree with the majority opinion that Foster is no longer good law.

Foster relied upon older jurisprudence in this state which severely limited the liability of a sheriff for the acts of his deputies and which specifically held that the doctrine of respondeat superior did not apply to the sheriff/deputy sheriff relationship. See Gray v. DeBretton, 192 La. 628, 188 So. 722 (1939). The rationale cited for the doctrine that a sheriff is only liable for “official acts” of his deputies is that the relationship between a sheriff and his deputy is an official and not a private relation and the deputy is not a representative of the sheriff in his official capacity, but he is a public officer whose authority and duty are delegated by law. Gray, supra.

In Gray, the Court held that when a deputy sheriff, while taking an arrestee into custody in a sheriff’s department vehicle, strikes pedestrians with that vehicle, he is not engaged in an “official act” so as to make the sheriff liable for the deputy’s negligence. The Court noted, however, that “. . . e. g., if the sheriff or a deputy has a car under seizure, and by reason of the negligent driving or handling of the car, it is damaged, the negligence in that case involves an official act. Likewise, it is the duty of the sheriff and his deputy to secure and protect a prisoner in his custody, and if, by the negligent operation of a car, or by the careless handling of a pistol, the prisoner is injured, such negligence and carelessness constitute a violation of an official duty for which the sheriff and the surety on his official bond are liable... ”, Gray, supra 188 So. at 726. It is obvious that the distinctions among situations in which a sheriff is liable for the negligent acts of his deputies under this “official act” doctrine are illogical and unjust. This doctrine should certainly be discarded and I agree with the majority that the doctrine of re-spondeat superior should be applied to hold the employer of a deputy sheriff liable for the torts of the deputy. The entity benefit-ting from the services of the deputy should be responsible for the negligence of that deputy occurring in the course and scope of his employment.

As noted by the majority, Act No. 318 of 1978 sought to legislatively overrule the majority holding of this Court in Foster v. Hampton, 381 So.2d 789 (La.1980) that the state was the employer of a deputy sheriff and could be liable for this employee’s torts under the doctrine of respondeat superior. In the same Act, the legislature eliminated a former statutory limitation on a sheriff’s liability for the actions of his deputy which was even more stringent than the jurisprudential “official act” doctrine. This legislation left the way open for the imposition of respondeat superior liability on a sheriff for the delictual acts of his deputy.

I do not necessarily disagree with the majority’s conclusion that the true employer of a deputy sheriff is the sheriff and that since a deputy on duty is acting in the furtherance of the public good, damages caused by the tortious actions of the deputy should be paid by the public funds controlled by the deputy’s employer. Nevertheless, I dissent from these pronouncements as holdings in this case. The only issue before this Court in this case was whether plaintiff stated a cause of action against Sheriff Cronvich.

In order to state a cause of action under the doctrine of respondeat superior, a plaintiff must allege the existence of an employer-employee relationship, that there was negligence on the part of the employee and that the tortious acts of the employee were committed in the course and scope of the employment. Moreau v. Landry, 305 So.2d 671 (1st Cir. 1974). Plaintiffs alleged that Deputy Boutuell was negligent in his operation of the sheriff’s department vehicle while working in the course and scope of his employment with the sheriff’s office, that defendant Alwynn J. Cronvich was the Sheriff of Jefferson Parish “at all times hereto pertinent”, and that Cronvich was responsible under the doctrine of responde-at superior for damages to petitioners caused by Boutuell’s negligence. I would find that these allegations are sufficient to state a cause of action against defendant Cronvich and would hold that there is no longer any obstacle to the application of the doctrine of respondeat superior to a sheriff and his employees.

Since there is no evidence in the record of this case of facts, aside from the allegations of plaintiff, which prove an employment relationship (e. g. who hired the deputy, who supervised and controlled him, who fixed his time and place of work, who paid his salary, etc.), I would hold only that plaintiff did state a cause of action. I consider an actual holding that this sheriff was the employer of this deputy premature and would, therefore, remand for evidence on this issue, in the course of plaintiff’s proof of the other elements of her cause of action which would entitle her to recovery. I would also pretermit a decision determining the source of funds from which any judgment that might be acquired in this suit may be satisfied until such judgment is secured and the issue presents itself should that judgment not be paid and execution of the judgment sought.

MARCUS, Justice

(dissenting).

I disagree with the majority's conclusion that the sheriff is liable in his official capacity as employer of his deputy for the deputy’s torts in the course and scope of employment. Rather, I am of the opinion that the sheriff is only responsible for acts and omissions of deputies when they are acting in performance of their official duties. Gray v. DeBretton, 192 La. 628, 188 So. 722 (1939). Accordingly, I respectfully dissent.

WATSON, Justice

(dissenting).

I dissent from the majority’s conclusion that the sheriff is liable in his official capacity as employer of his deputy for the deputy’s torts in the course and scope of employment. Likewise, I strongly disagree with the idea expressed that a judgment against the sheriff may be executed against his successor’s departmental funds.

Foster v. Hampton, 352 So.2d 197 (La., 1977) held that a sheriff is liable for a deputy’s tort only when the deputy acts “ ‘. in compliance with a direct order of and in the personal presence of, the said sheriff.. 352 So.2d 201, quoting LSA-R.S. 33:1433. That statute was amended by Act 318 of 1978, effective September 8, 1978. Plaintiffs contend that Act 318 of 1978, by eliminating the language quoted in Foster, supra, from the statute, made sheriffs liable for all employment related torts of their deputies.

The language which was deleted from the statute in 1978 had been added by Act No. 426 of 1950. Before the 1950 enactment sheriffs were “responsible for” their deputies. The 1950 enactment, which limited the sheriff’s liability, also deleted the prior affirmation of responsibility. The 1978 enactment, which removed the limitation, did not restore a positive statutory basis for liability.

The former language, which made sheriffs “responsible for” their deputies, was added by Act No. 8 of the Extra Session of 1940, after the 1939 Supreme Court opinion in Gray v. DeBretton. Gray held that the negligence of a deputy in driving the sheriff’s automobile while transporting a prisoner was not an official act. At the time of Gray, there was no express language making a sheriff responsible for the acts of his deputy. See the Court of Appeal opinion in Gray. In the absence of a statute, the Court of Appeal in Gray relied on common law authorities to hold that a sheriff was nonetheless responsible for his deputy’s acts when performing certain official acts. The Supreme Court opinion in Gray made it clear that the deputy was not an employee, and there was no liability under the doctrine of respondeat superior. A deputy sheriff is not an employee of the sheriff. Foster v. Hampton, 352 So.2d 197 (La., 1977); State v. Titus; State v. Jones; Williams v. Guerre. Foster v. Hampton, 381 So.2d 789 (La., 1980) held that a deputy sheriff is a public officer with official duties whose true employer is the State. Also see State v. Mayeaux.

The title of Act 318 of 1978 states that it is intended “to delete certain limitations” on the liability of sheriffs for the torts of their deputies. Nothing in the title or body of the Act provides that sheriffs are the employers of their deputies or that they are responsible for their torts.

There is no statute which makes a deputy sheriff an employee of the sheriff. In the absence of such an enactment, the jurisprudence, which holds that the deputy sheriff is a State employee, must prevail. The 1978 legislation relied on by plaintiffs did not make sheriffs liable for the acts of their deputies. Such an intent cannot be inferred. Removal of the statutory limitation was not accompanied by a reinstatement of the prior language making the sheriff responsible for the acts of his deputies. The amendment or partial repeal of a law does not revive the former law. State v. Tugwell ; LSA-Const. 1974, Art. 3 § 15(B). Deletion of the limiting language in 1978 did not have the effect of reviving the prior law or enacting a positive provision of law.

The intention of the legislature is shown by its enactments. Act 318 of 1978 does not state what the sheriff’s liability is after removal of the limitation. The title of a statute determines its object but cannot enlarge its text. Melancon v. Mizell. The 1978 deletion of the language added in 1950 left the law with no clear statement of a sheriff’s liability for a deputy’s torts, the Gray situation when Gray was decided, therefore controls.

The Court of Appeal correctly held that any intent to legislatively overrule the prior jurisprudence is not apparent. Plaintiffs’ petition does not state a cause of action against Sheriff Alwynn J. Cronvich.

Therefore, I respectfully dissent.

      . The court of appeal also affirmed the dismissal in the same judgment of the “Jefferson Parish Sheriffs Office”. Plaintiffs do not assign any error to that portion of the judgment.

      . The Gray decision and other earlier decisions were undoubtedly influenced by underlying considerations of governmental immunity. That doctrine had been abolished when the Foster case arose, but the court was faced with numerous decisions and statutes which reflected the influence of the doctrine.
      Nevertheless, the Foster decision relied on the tort victim’s right to recover against the state as the deputy’s employer in order to maintain the constitutionality of R.S. 33:1433.

      . This case does not involve the sheriffs liability for his own negligence, as might occur, for example, when the sheriff sends a deputy out on patrol in a motor vehicle when the sheriff actually knew that the deputy was intoxicated.

      . The pleadings indicate there was liability insurance coverage in this case.

      . See R.S. 33:1450, which expressly authorizes sheriffs to purchase liability insurance for this purpose.

      . See, for example, the suggested approach in K. Murchison, The Work of the Louisiana Appellate Courts for the 1977-1978 Term-Local Government Law, 39 La.L.Rev. 657, 843 at 878 (1979).

      . 1978 Amendment: Deleted a paragraph in subsection A which read:
      “No sheriff of any parish of this state, nor his sureties, shall be liable for any act or tort committed by one of his deputies, or by any person commissioned as deputy sheriff by him, beyond the amount of the bond or limits of liability insurance furnished by said deputy sheriff, unless said deputy sheriff in the commission of the said act or tort, acts in compliance with a direct order of, and in the personal presence of, the said sheriff, at the time the act or tort is committed.”

      . Act No. 8 of the Extra Session of 1940 provided:
      “To amend and reenact Section 3542 of the Revised Statutes of Louisiana of 1870, as amended by Act No. 27 of the Third Extraordinary Session of 1934, relative to deputy sheriffs, and to repeal all laws or parts of laws in conflict with this Act.
      * * * * * #
      “ ‘Section 3542. The Sheriff of each parish, the Criminal Sheriff of the Parish of Orleans and the Civil Sheriff of the Parish of Orleans may appoint as many deputies as he may deem necessary, or as may be authorized by law, but he remains responsible for them, and they must, before entering on their duties, take the oath of office. This appointment and oath must be entered on the records of the Court, provided that the Commission Council of the City of New Orleans shall fix the salaries and number of the Deputy Criminal Sheriffs in the City of New Orleans, Parish of Orleans, provided that the salaries fixed shall not be less than eighty-seven and one-half percentum of the salaries as are now fixed by law, and provided further, that a sufficient sum of money be set aside in the annual budget and appropriated' out of the general fund of the said City of New Orleans to provide for not less than eighty-nine assistants, clerks and deputies, to be employed monthly.’
      "Section 2. That if any section or sentence of this Act be declared unconstitutional, the remainder shall continue in full force and effect.
      “Section 3. That all laws or parts of laws in conflict herewith be, and the same are, hereby repealed.”

      . 192 La. 628, 188 So. 722 (1939).

      . Gray v. DeBretton, 184 So. 390 (La.App. 1 Cir. 1938).

      . 152 La. 1011, 95 So. 106 (1922).

      . 181 La. 390, 159 So. 594 (1935).

      . 182 La. 745, 162 So. 609 (1935).

      . 228 La. 6, 81 So.2d 426 (1955).

      .The positive deficiencies of Act 318 of 1978 are readily apparent:
      “... Unfortunately, the legislative response suffers from two defects: it does not impose liability on the sheriff for the negligent operation of a motor vehicle by his deputy, and its provision with respect to state liability is probably unconstitutional. Although the legislation eliminates the statutory basis for relieving the sheriff of personal liability, it does nothing with respect to the court’s alternate basis for its holding — the prior decisions establishing that the negligent operation of an official vehicle by a deputy is not an ‘official act’ for which the sheriff is liable. Not only does the 1978 act fail to impose liability on the sheriff, but its attempt to limit the state’s liability appears to fly in the face of the 1974 constitution’s abolition of governmental immunity. Even if the sheriff were rendered liable, the plaintiff would still lack a governmental defendant to assume liability for the deputy’s conduct because the sheriff’s liability is personal and does not affect a governmental entity.” 39 La.Law Rev. 877-878.

      . 199 La. 18, 5 So.2d 370 (1941).

      . LSA-Const. 1974, Art. 3 § 15(B) provides:
      “No General Reference. A bill enacting, amending or reviving a law shall set forth completely the provisions of the law enacted, amended or revived. No system or code of laws shall be adopted by general reference to it.”

      . 216 La. 711, 44 So.2d 826 (1950).

      . This result would not preclude recovery under a liability policy issued to cover negligent acts of a sheriff’s office and its deputies. See LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La., 1978). The defense is personal to the sheriff. Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (1968).


author: PONDER, Justice Ad Hoc.

text:
    STATE of Louisiana v. James Michael HEBERT.
    No. 80-KA-2864.
    Supreme Court of Louisiana.
    June 22, 1981.
    Rehearing Denied Sept. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Richard E. Chaffin, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Frank Gremillion, Baton Rouge, for defendant-appellant.
   PONDER, Justice Ad Hoc.

James Michael Hebert was convicted on nine counts of public bribery. On Count I, he was sentenced to three years at hard labor and a fine of $1,000.00 plus costs, in default of which he was to serve 60 days in jail. On each of the other eight counts, he was sentenced to serve three years imprisonment, to run concurrently.with the sentence on the first count.

On appeal, he assigns errors that:

1. the court refused to quash the indictment because the bill of information was multiplicitous;

2. the court refused to quash the indictment and to grant a new trial on grounds of entrapment;

3. the court overruled objections to introduction of evidence of other crimes without Prieur notice and hearing;

4. the court erred in denying the use of the words “prior trial” rather than “prior hearing”;

5. the court refused to give a charge that an offer to bribe and a bribe payment constituted a single offense; and

6. the court erred in imposing sentence for improper motives.

While Trooper Biossat, of the Intelligence Division of Louisiana State Police, was making an alcoholic beverage inspection of defendant’s place of business, the Clown Room, in March, 1977, defendant made the remark that “he’d like to take care of someone who would keep the heat off him.” In December, 1977, defendant called Biossat and his co-worker aside to ask what could be done to take the “heat off.” After Bios-sat had given some partially true information to Hebert, defendant, on January 19, 1978, offered to give and Biossat agreed to take $300.00 a week for protection. On January 26, Hebert gave Biossat $100.00. On February 27, Hebert dropped the offer to $150.00 per week. On February 28, March 10, 14, 28, 29 and April 5, payments of $150.00 each were made. Count I was the offer of January 20, Count III was the offer of February 27, and Counts II and IV through IX were the payments listed above.

The first assignment of error is that the bill of information charged one offense in nine counts.

La. R.S. 14:118 reads in pertinent part:

“Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
(1) Public officer or public employee; or
♦ * * * * *
Whoever commits the crime of public bribery shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.”

As we read the statute it proscribes both the giving and the offering to give without a provision that the offer and the taking shall together constitute a single offense. Defendant relies on State v. Ponthier, 391 So.2d 1138 (La.1980) in which the court held that the offer to give $700.00 to influence the officer’s conduct in two matters and the payment of several installments constituted only two offenses. We distinguish the Pon-thier case by pointing out that the payments to the officer were installments on a set price for the “fixing” of a DWI charge and a simple battery charge. The specific intent was to influence the officer in only two respects. Hebert was to receive continuing help with anything that might arise. The gravamen of the charges was not represented by one charge, two charges or even three charges.

The Federal Courts have arrived at a like conclusion in similar situations. United State v. Alaimo, 297 F.2d 604 (3rd Cir. 1961); Patton v. United States, 42 F.2d 68 (8th Cir. 1930); Biddle v. Wilmot, 14 F.2d 505 (8th Cir. 1926).

We find no merit in the assignment.

Defendant complains that he was enticed into offering a bribe to the officer. The conversations of March and December, 1977, convince us otherwise. The statements that defendant had “some heat on him” and that he wanted to know what could be done were the opening ploys and from the evidence were the first in the relationship between defendant and Bios-sat. The original moving force was not the “creative activity of the law enforcement officers.” Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); State v. Turner, 241 La. 94, 127 So.2d 512 (1961).

There is no merit in the contentions that the court erred in refusing to quash the indictment and in refusing to grant a new trial because there was entrapment.

Defendant then contends that the testimony of the March and December discussions was evidence of other crimes requiring the Prieur notice and hearing. We disagree. Both discussions were merely preliminary probing. No offer was made. No one at that time thought one was made. We do not believe that the jury could reasonably reach the conclusion that a crime of public bribery was perpetrated on either occasion. The assignment is without merit.

The contention that defendant should have been allowed to refer to a prior trial rather than to a prior hearing arose in cross-examining Trooper Biossat about his failure to testify in the original trial about the March and December discussions. Bios-sat explained that he had not testified about the conversations because he had been asked no questions about them. The proof of a prior trial can be highly prejudicial. See State v. Lee, 346 So.2d 682 (La. 1977); State v. Reed, 324 So.2d 373 (La. 1975). La.C.Cr.P. Art. 857 requires that a new trial be with as little prejudice to either party as if it had never been tried.

We find no error.

Defendant claims the court erred in refusing to give a requested charge:

“I instruct you that, in connection with the offense of bribery as defined by the Louisiana Criminal Code which definition I have already [read] to you, that a payment made by a defendant to a public officer or public employee made pursuant to an earlier offer to make such payment, does not constitute a second offense but is merely the completion or culmination of a single offense of bribery actually completed when the earlier offer was made.”

For the reasons assigned above, we found that more than one offense had been committed. The charge would not. have been correct. Its giving was, therefore, not required. La.C.Cr.P. Art. 807.

Defendant assigns as error but does not brief the court’s imposition of sentence upon improper considerations, as an example to others and upon the court’s belief that defendant was engaged in prostitution and gambling. The court specifically stated that proof of prostitution and gambling would have justified a maximum sentence. The reason of example to others was not expressed in those explicit terms and was embodied in a long explanation of reasons for the sentence.

We find no error.

For these reasons the conviction and the sentences are affirmed.

       Judges Lottinger, Edwards and Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . State v. Prieur, 277 So.2d 126 (La. 1973).

      . “The state and the defendant shall have the right before argument to submit to the court ' special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
      A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”