author: CALOGERO, Justice. DENNIS, Justice, DIXON, Chief Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Richard Glen NAAS.
    No. 80-KA-2446.
    Supreme Court of Louisiana.
    June 22, 1981.
    Dissenting Opinion July 21, 1981.
    On Rehearing Dec. 14, 1981.
    Rehearing Denied Feb. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
    James D. Sparks, Jr., Monroe, for defendant-appellant.
   CALOGERO, Justice.

Richard Glen Naas was charged by bill of indictment on March 30, 1978, with second degree murder, a violation of R.S. 14:30.1. Trial was held before a jury of twelve and a conviction was returned by an eleven to one vote. The court imposed a sentence of life imprisonment at hard labor without probation or suspension of sentence, and without parole eligibility for forty years. Defendant appeals his conviction to this Court on the basis of numerous assignments of error.

At trial, the following facts were adduced. In the early morning hours of March 8,1978, officers of the Monroe Police Department were called by the manager of the local Ramada Inn to investigate a possible homicide at that motel. Upon entering room 428, the officers discovered the body of the victim, John J. Mirambell, Jr., submerged in the bathtub. The victim’s hands were tied behind his back and, according to the pathologist’s report, the victim had received multiple cuts, bruises, and lacerations, along with two non-fatal stab wounds to the back and a fatal gunshot wound to the left temple.

The victim was a resident of the New Orleans area and had been in Monroe on business. At the time of his death, he was engaged to be married to Ms. Amanda Keller, also of the New Orleans area. Ms. Keller had previously dated the defendant, Richard Naas, but had broken off her relationship with him. On March 4, 1978, several days before the murder, Ms. Keller announced to the defendant her plans to marry Mirambell.

The state’s case against defendant consisted of the following: the testimony of several witnesses that the defendant several days after the homicide had a black eye, suggestive of the possibility that shortly before, he was involved in some sort of fracas, or struggle; a money clip found in possession of the defendant which several witnesses said was similar to one owned by the victim; the testimony of one Mary Kelly, a waitress at Monroe’s Kokomo Restaurant, who identified the defendant as having been present in that establishment on the evening prior to the murder; the testimony of Sylvester Grant, a cellmate of the defendant following defendant’s arrest for the instant crime, that the defendant admitted committing the Ramada Inn murder; the testimony of the victim’s mother, sister, and receptionist that they had received telephone calls shortly before the murder from an unknown male inquiring concerning the whereabouts of the victim; and the testimony of Amanda Keller’s roommate that she had received a call from the defendant on the night of the murder which in her opinion sounded as if it was being made long distance.

Because we find merit in defendant’s assignment of error number 40-A, pertaining to the Motion for New Trial, and reverse on that grounds, discussion of defendant’s other assignments of error is unnecessary.

In connection with defendant’s Motion for New Trial, a post-trial hearing was conducted at which pertinent testimony from the following witnesses was given: Gene Juergens, who was a co-worker of defendant, stated that he had informed Detective Cummings upon being asked by the officer to inspect a money clip seized from the defendant’s apartment that the clip appeared to be the one belonging to the defendant ; Paul Scoriels, an acquaintance of defendant, testified that he had seen defendant at the Jefferson Parish Courthouse on Monday, March 6, 1977, one day before the murder, and had at that time observed defendant to be sporting a mustache; Kenneth Walker and Johnny Jackson, both former cellmates of Sylvester Grant and of defendant, testified that they heard Grant brag repeatedly that he himself had committed the homicide at the Ramada Inn; Connie Naas, defendant’s ex-wife, stated that the money clip taken by police from the defendant’s apartment was a gift to defendant from his employer in New Orleans some years prior to the homicide; Trudy Defrene, a waitress at the Round Table Lounge in Gretna, Louisiana, testified that she had told police a week after the murder that she saw defendant in the Round Table between 8:30 and 10:00 p. m. on Tuesday, March 7, 1978.

The law pertaining to the granting of Motions for New Trial is set out in C.Cr.P. art. 851, which provides:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) 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;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

Defendant’s motion is grounded on C.Cr.P. art. 851(3). It is urged that the testimony offered post-trial constitutes new and material evidence, which was not discovered before or during trial, defendant’s diligence notwithstanding, and which would probably have changed the verdict. The motion is further based on C.Cr.P. art. 851(4), the defendant’s position being that a newly discovered error or defect is present by reason of the state’s knowledge of and failure to disclose the statements of Gene Jurgens and Trudy Dufrene, which statements are arguably exculpatory in nature.

While defendant’s claims as they relate to C.Cr.P. art. 851(4) and to the Brady motions are not entirely without merit, the state’s failure to disclose the arguably exculpatory statements was not “prejudicial error” as would be required by the statute. Furthermore, the new evidence offered in the form of Paul Scoriels’ testimony that defendant was in the Jefferson Parish Courthouse on March 6, 1978, while material and substantial, cannot conclusively be said to “probably have changed the verdict or judgment of guilty if introduced at trial.” C.Cr.P. art. 851(3). However, because in our view the single most damaging piece of evidence against defendant was Sylvester Grant’s account of the defendant’s admission of guilt, we hold that the impeaching testimonies of Kenneth Walker and Johnny Jackson are evidence which, if given at trial, would have cast serious doubt upon the credibility of Grant and would probably have changed the verdict or judgment of guilty. C.Cr.P. art. 851(3).

We need not find that Grant probably committed the murder, rather than defendant. Rather, it suffices that these accounts of Grant’s own confessions strongly impeach Grant’s testimony.

Our holding with regard to newly discovered evidence requires that such evidence “... notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during trial.” C.Cr.P. art. 851(3). Discussion of the defendant’s reasonable diligence requires mention of another of his arguments to this Court, namely, the one dealing with the pre-trial Prayer for Oyer.

The defense, in preparation for trial, made a Motion for Prayer for Oyer toward the end of April, 1978. The motion was granted by the trial judge under C.Cr.P. art. 716B in response to a prayer asking “... the State to furnish (defendant) copies of all oral, taped and/or written confessions, statements, and/or admissions allegedly made by the Defendant either before or after his arrest for the alleged offense for which he is charged herein.” On April 26, 1978, the state answered the prayer with a transcript of the recording of a statement made by the defendant to the police. Sylvester Grant was placed in the Ouachita Parish Jail with defendant on May 25, 1978, and approached the police with his account of defendant’s confessions on June 2, 1978. At that time, Grant’s statement was recorded and transcribed as was a similar statement made by him to police several days later, on June 5th. Testimony of witnesses at trial indicate that the District Attorney was made aware of the content of both of Grant’s statements within a week of their having been made to the police. The defense was not informed of the existence of this purported confession made by defendant to Grant until February 5, 1979, the very first day of trial, when the state in accordance with C.Cr.P. art. 768 related its intention to use the statement at trial.

C.Cr.P. art. 729.3 provides:

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

In the defendant’s argument relative to these assignments, it is correctly stated that the prosecution neglected its continuing duty to disclose, as set out in C.Cr.P. art. 729.3, by failing to apprise the defendant during the eight months prior to trial of the existence of Sylvester Grant’s account of the defendant’s confession. It is only because defendant did not object on these specific grounds to the introduction of Grant’s statement at trial that we do not reverse the conviction on the basis of this egregious omission by the state.

It is one thing to say that defendant cannot complain of the introduction of Grant’s damning testimony because defendant did not object on the appropriate grounds. It is entirely another, however, for this Court to find that defendant’s lack of diligence caused him not to discover before conclusion of trial the witnesses who would later impeach Grant, in a situation where the state has withheld whether in- ■ tentionally or negligently, until the first day of trial, information which for eight months they had- a duty to disclose. On the contrary, we find that defendant’s late discovery of the evidence was not the result of any lack of diligence on his part.

In summary, Kenneth Walker’s and Johnny Jackson’s recitals that Grant had confessed his own commission of the Mirambell murder was discovered after the verdict of guilty; that late discovery came about notwithstanding the exercise of reasonable diligence on the part of defendant; and had such evidence been introduced at the trial it would probably have changed the verdict of guilty. Therefore, defendant is entitled to a new trial. C.Cr.P. art. 851.

Decree

For these reasons, we hold that the trial court should have granted defendant’s Motion for New Trial. Accordingly, the conviction is reversed and the case is remanded for a new trial.

REVERSED; REMANDED; NEW TRIAL ORDERED.

DENNIS, J., dissents with reasons.

WATSON, J., dissents.

DENNIS, Justice,

dissenting.

I respectfully dissent. Defendant neither briefed nor argued — and therefore has abandoned — the assignment of error the majority determines to contain reversible merit. The state in brief provides the likely reason for the defense omission: evidently the two witnesses who would be called to impeach the state’s principal witness have since recanted their testimony given at the hearing on the motion for a new trial. We should not reverse the trial court ruling on an issue the defense itself has implicitly conceded to be without substance.

ON REHEARING

DIXON, Chief Justice.

We granted a rehearing in this case to reconsider our decision that the trial court should have granted defendant’s motion for a new trial based on the testimony of two prisoners at the hearing of the motion which impeached the testimony of the state’s key witness.

Defendant, Richard Glen Naas, was charged by bill of indictment with second degree murder in violation of R.S. 14:30.1. The jury returned a verdict of guilty and Naas was sentenced to life imprisonment at hard labor without probation or suspension of sentence, and without parole eligibility for forty years.

We adopt the facts as recited in our original opinion:

“... In the early morning hours of March 8, 1978, officers of the Monroe' Police Department were called by the manager of the local Ramada Inn to investigate a possible homicide at that motel. Upon entering room 428, the officers discovered the body of the victim, John J. Mirambell, Jr., submerged in the bathtub. The victim’s hands were tied behind his back and, according to the pathologist’s report, the victim had multiple cuts, bruises, and lacerations, along with two non-fatal stab wounds to the back and a fatal gunshot wound to the left temple. The Victim was a resident of the New Orleans area and had been in Monroe on business. At the time of his death, he was engaged to be married to Ms. Amanda Keller, also of the New Orleans area. Ms. Keller had previously dated the defendant, Richard Naas, but had broken off her relationship with him. On March 4, 1978, several days before the murder, Ms. Keller announced to the defendant her plans to marry Mirambell.
The state’s case against defendant consisted of the following: the testimony of several witnesses that the defendant several days after the homicide had a black eye, suggestive of the possibility that shortly before, he was involved in some sort of fracas, or struggle; a money clip found in possession of the defendant which several witnesses said was similar to one owned by the victim; the testimony of one Mary Kelly, a waitress at Monroe’s Kokomo Restaurant, who identified the defendant as having been present in that establishment on the evening prior to the murder; the testimony of Sylvester Grant, a cellmate of the defendant following defendant’s arrest for the instant crime, that the defendant admitted committing the Ramada Inn murder; the testimony of the victim’s mother, sister, and receptionist that they had received telephone calls shortly before the murder from an unknown male inquiring concerning the whereabouts of the victim; and the testimony of Amanda Keller’s roommate that she had received a call from the defendant on the night of the murder which in her opinion sounded as if it was being made long distance.”

A hearing was held in connection with defendant’s motion for a new trial, at which the following testimony was given:

“. .. Gene Juergens, who was a co-worker of defendant, stated that he had informed Detective Cummings upon being asked by the officer to inspect a money clip seized from the defendant’s apartment that the clip appeared to be the one belonging to the defendant; Paul Scor-iels, an acquaintance of defendant, testified that he had seen defendant at the Jefferson Parish Courthouse on Monday, March 6, 1977, one day before the murder, and had at that time observed defendant to be sporting a mustache; Kenneth Walker and Johnny Jackson, both former cellmates of Sylvester Grant and of defendant, testified that they heard Grant brag repeatedly that he himself had committed the homicide at the Ramada Inn; Connie Naas, defendant’s ex-wife, stated that the money clip taken by police from the defendant’s apartment was a gift to defendant from his employer in New Orleans some years prior to the homicide; Trudy Dufrene, a waitress at the Round Table Lounge in Gretna, Louisiana, testified that she had told police a week after the murder that she saw defendant in the Round Table between 8:30 and 10:00 p. m. on Tuesday, March 7, 1978.”

Assignments of Error Nos. 40 and 40A

By these assignments, defendant argues that the testimony of Kenneth Walker and Johnny Jackson given at the hearing on the motion for a new trial constitutes new and material evidence sufficient to justify a new trial under C.Cr.P. 851(3). In our original opinion, we agreed with defendant and held that the impeachment testimony of Walker and Jackson would have cast serious doubt on the credibility of the state’s key witness, Sylvester Grant, and would have probably changed the verdict.

Upon a careful reexamination of the testimony adduced at the hearing on the motion for a new trial, we are of the opinion that our initial determination to order a néw trial under C.Cr.P. 851(3) was erroneous. The test to be utilized is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Provost, 352 So.2d 661 (La.1977). In view of the questionable nature of “jailbird” testimony, we are of the belief that the trial court’s denial of defendant’s motion should not have been disturbed. Our original decision rested solely on the testimony of two cellmates, Walker and Jackson. We now believe that too much credence was given to and weight placed on their sketchy testimony. The substance of their testimony offered at the hearing was merely that Grant told them he committed a murder at some Ramada Inn. They were unable to provide any details or specific facts such as Grant’s motive for the crime. Walker testified vaguely that Grant said somebody “was messing with his old lady or wife or something, ... or cursed her or something.” We hold that defendant failed to show that this testimony is so material that it ought to produce a different result.

Assignments of Error Nos. 2A, 3, 34, 37, 38, 39, 40, 41, 42, 44, 50, 51, 52 and 53

By these assignments, defendant urges that the state’s failure to furnish notice of the existence and substance of oral inculpatory statements constitutes reversible error. Defendant insists that the state’s refusal to comply with discovery amounts to a prejudicial error or defect within the meaning of C.Cr.P. 851(4). It is undisputed that the state failed to supply Naas with the name of its key witness, Sylvester Grant, despite a discovery order directed at such information, until the morning of trial. Aside from not disclosing Grant’s name, the defense also contends that the state failed to inform it that two individuals, Trudy Dufrene and A. J. Doming, who were interviewed during the police investigation of the murder, had told police that they saw defendant in the New Orleans area on the night of the crime. This contention is partially erroneous. In the state’s answer to defendant’s motion for a bill of particulars, the state revealed the name and address of Trudy Dufrene and reported that Dufrene said she might have seen Naas on the night of the crime. Had defendant followed up on this information, the testimony of Dufrene, and probably that of her husband, Doming, would have been available at trial. Thus, this evidence does not satisfy the test of C.Cr.P. 851(4).

In conjunction with our original holding, we noted that the state violated its continuing duty to disclose, as required by C.Cr.P. 729.3, by omitting to inform the defense of Naas’ inculpatory statements to Grant. We did not reverse on this ground, however, finding that no objection to the introduction of Grant’s testimony on the ground that the prosecution ignored the mandate of C.Cr.P. 729.3 was raised at trial. By not objecting, the defense eliminated the possibility of imposition of the sanctions enumerated in C.Cr.P. 729.5 as a means to rectify any inequity created by the state’s noncompliance. We affirm our holding that defendant cannot challenge the state’s noncompliance because he failed to object. See State v. Bonanno, 373 So.2d 1284 (La.1979).

We now turn to other assignments raised by defendant in brief.

Assignment of Error No. 1

By this assignment, the defense argues that C.Cr.P. 292 is unconstitutional in that it dispenses with the necessity of a preliminary hearing where the accused has been indicted. This court has held that C.Cr.P. 292 does not violate the due process requirement of the federal Constitution. See State v. Howard, 325 So.2d 812 (La.1976). Nor is C.Cr.P. 292 violative of the Louisiana Constitution. See La.Const. art. 1 § 14 (1974).

This assignment lacks merit.

Assignment of Error No. 2

By this assignment, defendant urges that the state’s failure to fully answer a bill of particulars constitutes reversible error. The purpose of a bill of particulars is to provide an accused with sufficient information as to the nature and cause of the offense with which he is charged. State v. Atkins, 360 So.2d 1341 (La.1978), cert. denied 441 U.S. 927, reh. denied 442 U.S. 935; C.Cr.P. 484. Adequate information of the nature and cause of the accusation against defendant was supplied by the state.

This assignment lacks merit.

Assignment of Error No. 5

By this assignment, defendant asserts that the trial judge erred in denying his motion for a change of venue on the ground that widespread publicity precluded an impartial trial in Ouachita Parish. In order to be entitled to a change of venue, the defendant must prove more than a mere knowledge by the public of facts surrounding the offense. State v. Baldwin, 388 So.2d 679 (La.1980). The sole evidence offered by Naas at the hearing on this motion consisted of the testimony of a special investigator that there had been some media coverage of the murder and three newspaper clippings which reported the crime on the day of its occurrence and defendant’s arrest. In view of the sparse showing of publicity, the trial court’s ruling that defendant would not be prejudiced was not error.

This assignment lacks merit.

Assignment of Error No. 4

By this assignment, defendant urges that the trial court erred in denying his motion to produce prosecution witnesses and witnesses beneficial to a defense. Defendant argues that he informed police officers of his whereabouts on the night of the crime and gave the names of persons who could verify his whereabouts and, therefore, he was entitled to the names of state witnesses under C.Cr.P. 727(B). The trial court ruled that article 727 requires that the district attorney make written demand upon the defendant before the defendant is entitled to reciprocal discovery. The ruling is correct. No formal discovery had been initiated by the state at the time defendant volunteered information concerning his whereabouts. The police were merely investigating the murder and had not as yet zeroed in on the defendant.

This assignment lacks merit.

Assignment of Error No. 6

By this assignment, defendant asserts that the trial court erred in not holding a hearing on his motion to suppress a money clip and photographs taken of the crime scene. This assignment is without merit. The record indicates that a hearing was held- on the motion at which it was shown that the money clip was taken from defendant’s apartment pursuant to a consent to search form. The trial court’s finding that C.Cr.P. 703 only applies to the suppression of evidence obtained by an unconstitutional search (and not to challenges of relevancy or prejudicial effect) was correct. Thus, defendant’s objection to the photographs on these grounds was premature and properly raised at the trial when the state attempted to introduce them.

This assignment lacks merit.

Assignments of Error Nos. 8 and 28

Defendant argues that the state’s failure to produce physical evidence constitutes error. The record is devoid of any objection by the defense urging that the state had failed to comply with the discovery request, nor was any objection raised at the trial to the evidence. A failure to object once the evidence is offered constitutes a waiver of the objection. State v. Roussel, 381 So.2d 796 (La.1980).

These assignments lack merit.

Assignment of Error No. 7

By this assignment, defendant urges that the state’s failure to comply with his motion to produce witnesses beneficial to the defense constitutes reversible error. The defense requested the production of the name and address of a witness who heard a violent argument in the victim’s room earlier in the evening of the crime. The court ordered the state to respond to the motion within fourteen days and the defense was instructed that it could contest the response if it was not satisfactory. The state answered that it had no knowledge of a witness who heard an argument earlier in the evening, but that it did know of a witness who would testify at trial in regard to a violent argument in the victim’s room near the time of the murder. Defendant did not contest this reply. Moise Seligman testified at trial that he was staying at the Ramada Inn in the room adjoining that of the decedent on the night of the murder. He stated that he heard an argument and fighting. After the arguing ceased, he heard the shower. Much later, he awoke and found his room flooded with water and blood.

No provision in the discovery articles mandates that the state furnish the defense with the names of its witnesses, especially when their testimony does not bear directly on guilt or innocence. Further, this testimony was not exculpatory.

This assignment lacks merit.

Assignments of Error Nos. 10 and 11

By these assignments, defendant objects to the qualification of Officer Tullos as an expert in fingerprint identification on the ground that he was not properly qualified because a certificate from the F.B.I. Fingerprint School was not filed into the record. The defense stipulated that Officer Tullos could testify as an expert provided a copy of his certificate was filed into the record prior to the end of trial. It appears that a certificate was not filed. However, Officer Tullos was permitted to testify as an expert on the basis of the parties’ stipulation. Any error in this regard is harmless. The record indicates that Officer Tul-los had attended the F.B.I. Fingerprint School and was certified. He had over seven years experience and had qualified as a fingerprint expert in previous trials.

Assignment No. 11 challenges a question posed to Officer Tullos as an expert. Since we find that defendant’s objection to Officer Tullos’ qualification as an expert is unfounded, this question was not beyond the scope of his expertise.

These assignments lack merit.

Assignment of Error No. 12

By this assignment, defendant contends that pictures of the body of the victim which were introduced at trial were inflammatory and of no evidentiary nor probative value. There is no merit to this assignment. The photographs were introduced by the state to show the scene of the offense and to prove the corpus delicti. They may well be described as gruesome, but are relevant. Defendant has not demonstrated that the nature of the pictures prejudiced his case.

Assignments of Error Nos. IS and 14

Defendant objects to the introduction of a drawing of the motel room where the homicide occurred on the ground that Officer Tullos was not qualified to testify about the drawing because he had not prepared it and a proper foundation was not laid. We agree with the trial court’s decision to allow admission of the drawing as the best representation of the murder scene.

These assignments lack merit.

Assignment of Error No. 15

Defendant contends that certain questions posed to Dr. Thomas F. Gilchrist, an expert in pathology who performed an autopsy on the victim, were improper. Dr. Gilchrist testified about the cause of death and was then asked whether the multiple injuries sustained by the deceased were normally associated with any particular type of case. The doctor replied that in his experience, the patterns presented in this case “have usually been associated with some sort of sexual conflict or some sort of sexual motive.” Defendant argues that this testimony goes beyond the scope of a pathologist’s expertise and is improper opinion testimony.

R.S. 15:464 provides:

“On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.”

Dr. Gilchrist testified what his experience had been as to the usual motive in cases of this sort. Thus, due to his experience, he was qualified to answer the questions.

This assignment lacks merit.

Assignments of Error Nos. 16, 17, 18, 19, 36A

By these assignments, defendant contends that certain tangible items introduced into evidence were not mentioned by the state in its opening statement, that a proper foundation was not laid, and that testimony about these items was improper. Officer Hickey was questioned by the state regarding the identity of items seized from the motel room. We find no abuse of discretion in the trial court’s ruling that the state need not specifically mention each and every piece of physical evidence during the opening statement. See C.Cr.P. 766. Further, the questions asked of Officer Hickey, Shirley Mirambell and Jan Mir-ambell prior to the actual introduction of the items into evidence were necessary to establish a foundation.

Defendant also objects to the trial court’s rulings that restricted re-cross to the scope of direct examination and permitted Officer Hickey to answer questions considered leading by the defense. We find no abuse of discretion.

These assignments lack merit.

Assignment of Error No. 31

By this assignment, defendant contends that the trial court erred in refusing to grant his motion for a mistrial. The motion was based on the revelation by a juror that she had been making notes regarding the case at home each evening. The juror insisted that the notes had not been brought to the courtroom or shown to anyone. We do not find that the notes composed by the juror in this case caused prejudice to the right of the accused to obtain a fair trial. See State v. Ledet, 298 So.2d 761 (La.1974).

This assignment lacks merit.

Assignments of Error Nos. 20, 21, 22, 23, 24, 25, 27

By these assignments, defendant argues that the trial court erred in admitting the alleged hearsay testimony of five witnesses. The state called five witnesses who testified that they had received telephone calls a few days before the crime was committed from an unknown male caller who sought to ascertain the victim’s whereabouts. The state offered the testimony to show that the conversations had in fact occurred and not for the truth of the matter asserted in the calls. Evidence is non-hearsay when offered not to show the truth of the matter asserted, but to prove that the utterance occurred or that a conversation had taken place. State v. Toomer, 395 So.2d 1320 (La.1981); State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Ford, 368 So.2d 1074 (La.1979).

Mona Draper, the roommate of Amanda Keller, testified that she received a phone call inquiring as to the whereabouts of Ms. Keller. Defendant objects to Ms. Draper’s observation that the call sounded like it was being made long distance. The court instructed the jury to disregard the comment; this admonishment was sufficient to cure any error. We find no reversible error in this testimony.

These assignments lack merit.

Assignments of Error Nos. 26, 29 and 40A

By these assignments, defendant asserts that there was error in the introduction of testimony regarding a pretrial photographic line-up and an in-court identification. At no time during the trial did defendant object to the admission of the identification evidence or testimony nor was a motion to suppress the identification filed. Thus, defendant has waived his right to assert this assignment. C.Cr.P. 841.

Assignments of Error Nos. 30, 45 and 46

By these assignments, defendant urges that the trial court committed error in restricting his examination of three witnesses. These assignments are without merit. During trial, the defense asked State Police Trooper Lott whether he knew if the money clip was identified after police had seized it. The state’s objection on the ground of hearsay was sustained. The trial court’s ruling was probably incorrect, but harmless.

During the hearing on the motion for a new trial, the defense repeated questions on re-direct already asked of Sylvester Grant by the defense on direct examination. The trial court sustained the state’s objection that the questioning was repetitious. Defendant also called Marvin Johnston, supervisor of the records division of the Monroe Police Department, at the hearing in an effort to prove a deal existed between Grant and the police. The records of Grant’s arrests and convictions were introduced into evidence. The state objected to Johnston reading the contents of the records out loud on the ground that the records were the best evidence and self-explanatory. The trial judge is vested with sound discretion to stop unnecessary examination and his ruling will not be disturbed unless an abuse of discretion is shown. R.S. 15:275; State v. Murray, 375 So.2d 80 (La.1979). No abuse has been shown.

These assignments lack merit.

Assignment of Error No. 49

Defendant insists that testimony during the questioning of Detective Joe Cummings at the hearing of the motion for a new trial constitutes hearsay. In support of his motion, defendant argues that the state had failed to reveal the existence of an interview between the police and a defense witness, Gene Jurgens. Jurgens testified at the hearing. Then the state called Detective Cummings to give his version of the interview. Cummings testified that Jurgens was “nervous,” “upset” and “evasive with his answers.” Despite the defendant’s objection, the court allowed Cummings to testify as to what Jurgens had told him during the interview. The testimony was not offered for the truth of the matter asserted; rather, it was offered to prove that the conversation had occurred and that certain statements had in fact been made by Jurgens contrary to his earlier testimony. Thus, the testimony was admissible. See State v. Launey, 335 So.2d 435 (La.1976).

This assignment lacks merit.

Assignments of Error Nos. 47 and 48

By these assignments, defendant asserts that the state’s proffer of the results of a psychological stress evaluator test conducted on Sylvester Grant constitutes error. After argument by counsel, the trial court ruled the test results inadmissible because it was not satisfied with the reliability of the test. Defendant has failed to demonstrate how this favorable ruling prejudiced him.

These assignments lack merit.

Assignment of Error No. 43

By this assignment, defendant submits that the trial court erred in denying his motion for a new trial on the ground that there is no evidence that the defendant committed the crime. See C.Cr.P. 851(1). To the contrary, the record contains substantial and convincing evidence pointing to defendant as the perpetrator of the murder.

This assignment lacks merit.

Finding no merit in the assignments, the defendant’s conviction and sentence are affirmed.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion and would grant defendant a new trial for the reasons expressed in the majority opinion on original hearing.

The majority determination on rehearing that defendant is not entitled to a new trial, notwithstanding his newly discovered evidence, emphasized the “questionable nature of ‘jailbird’ testimony” (reference to Walker and Jackson who testified that Grant had confessed to them that he committed the crime). The majority concluded that defendant’s new evidence was insufficient to support a finding that its admission would result in a different verdict. Their reliance on the fact that “jailbird” testimony is of a “questionable nature” serves to further emphasize the extreme prejudice to defendant when the state failed to notify him until trial of the inculpatory statement attributed to him by its key witness, Grant, himself a “jailbird”. Such failure on the part of the state, to notify defendant of his alleged confession (information the state had in its possession for some eight months prior to trial), as was required under La.C. Cr.P. art. 716B, prevented defendant from investigating the circumstances surrounding Grant’s damning testimony.

For technical reasons expressed in the original opinion concerning defendant’s failure to object to the late notification of Grant’s testimony, we did not rely on the prejudicial effect of its admission at trial in our original determination to grant a new trial. However, it did in part influence our original determination (considering the patent unfairness involved) and ought at least to affect the present majority’s reliance on the fact that defendant’s witnesses on motion for new trial were “jailbirds”.

      . Mary Kelly’s identification of defendant is questionable in light of a photographic show-up to which Ms. Kelly was initially exposed. In defendant’s assignment of error No. 26, which we do not reach, the identification is challenged as a product of the unduly suggestive show-up. As evidence of suggestiveness, defendant cites that a single photo was shown to the witness, instead of a group of photos from which the witness would be allowed to pick one recognizable to her, and that the sole photo was further highlighted by its depicting defendant’s black eye.

      . Among the items of evidence offered by the state at trial was that money clip taken from the possession of the defendant some days after the homicide, along with the testimony of several witnesses that the clip was very similar to one which they had known the victim to carry.

      . This evidence tends to discount the testimony of the state’s witness, Mary Kelly, the waitress who stated at trial that she served the defendant in the Kokomo Restaurant in Monroe on the evening of the murder. Kelly claims that the man she served was clean-shaven. Scor-iels’ testimony, coupled with the photographs of the defendant taken by police several days after the crime clearly showing the defendant to have a mustache, casts doubt on Kelly’s identification.

      . Since the homicide took place in the very early morning hours of Wednesday, March 8, 1978, Ms. Dufrene’s testimony casts doubt on whether defendant could have been in Monroe in time to commit the crime.

      .Defendant’s pre-trial Brady motion for exculpatory evidence was answered by the state without reference to this particular aspect of the statement of Gene Jurgens (referring to Jurgens’ identification of the money clip as one similar to one belonging to the defendant). See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, the record reveals that the statement of Trudy Dufrene establishing defendant’s alibi was noted by the state in paragraph 9-10 of its Answer to Motion for Bill of Particulars, filed April 26, 1978.

      . The record also indicated that Sylvester Grant had been previously convicted of Forgery in an Arkansas court, and that pending against him at the time of trial were three counts of Forgery and one count each of Theft and Bond Jumping. Further, there is evidence that all charges against Grant were dismissed in the state court after defendant Naas’ conviction. Prosecution was taken up in the Monroe City Court where Grant drew a total of forty days imprisonment for all of the above mentioned charges.

      . This first of defendant’s arguments deals with assignments of error numbers 2A, 3, 8, 32, 33, 34, 35, 36, 37, 38, 39, 41, 52, and 53.

      . C.Cr.P. art. 716B reads:
      “Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.”

      . In the transcript furnished to the defense, defendant made numerous statements denying his involvement in the murder.

      . The second of Grant’s statements was ruled inadmissible at trial.

      . C.Cr.P. art. 768 reads:
      “If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

      . The reasoning of State v. Bonanno, 373 So.2d 1284 (La.1979), is applicable to the instant case. In Bonanno, a petitioner who had failed to object at trial to the state’s non-compliance with the discovery statutes was es-topped from complaining on appeal because petitioner by his silence had deprived the trial judge of the chance to rectify the inequity by application of the sanctions of C.Cr.P. art. 729.-5, which provides in pertinent part:
      A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order stich party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate. * * * (Emphasis provided)
      In the instant case, the defendant’s timely objection on appropriate grounds would have afforded the court the opportunity to have excluded the introduction of Grant’s testimony at trial.

      . The evidence is that the District Attorney was aware of the testimony of Sylvester Grant no later than June of 1978. Defendant was first noticed of this testimony on the first day of trial, February 5, 1979.

      . Because of this finding, it is unnecessary for us to rule on the state’s motion to supplement the record with testimony given by Walker and Jackson in a bribery prosecution brought against Naas for payments allegedly made to these witnesses and others in exchange for their favorable testimony at the hearing on the motion for a new trial.
      We do not consider other testimony offered at the hearing of sufficient weight to meet the standard set forth in C.Cr.P. 851(3). The testimony of Connie Naas and Paul Scoriels that the money clip found in Naas’ apartment resembled one owned by Naas rather than the decedent was inconclusive and not overly persuasive. If viewed in light of the test of C.Cr.P. 851(4), the state’s failure to disclose the arguably beneficial statements does not amount to prejudicial error.
      Also, defendant’s contention that Grant’s testimony at the trial was colored by a deal between him and the police was not borne out at the hearing. Neither the police officers who interviewed Grant nor Grant himself alluded to any promises or deals struck between them. Grant’s testimony at the hearing paralleled his earlier trial testimony.

      . The defense also argues that Grant’s testimony which consisted of statements made by defendant to Grant is inadmissible hearsay. See Assignments of Error NoS. 32 and 36. The court properly admitted the testimony under the declaration against interest exception. Neither do we find that the state’s questioning of Grant was impermissibly leading. See Assignment of Error No. 35.
      Defendant also argues that the earlier statements were inadmissible because no Miranda warnings were given to defendant before he talked to Grant. This argument lacks merit. Although the defendant was in prison at the time the confessions were made to Grant, and therefore in custody, there was no interrogation by any figure of authority and no intimidating atmosphere so as to require the safeguards set forth in Miranda for custodial interrogation. See State v. McDonald, 387 So.2d 1116 (La.1980), cert. denied 449 U.S. 957, 101 S.Ct. 366, 66 L.Ed.2d 222 (1980). Defendant simply misplaced confidential information with one whom he believed to be trustworthy.

      . Defendant also argues that the trial court committed reversible error in restricting his cross-examination of Officers Calhoun and Cummings with whom Grant had dealt. See Assignment of Error No. 33. The court ruled that defendant’s questions regarding when Grant’s statement was transcribed were irrelevant. Its relevance has not been shown.

      . The evidence complained of consists of a rope, coins, grips, two coffee cups, a glove, water glass, money clip, motel bill, an unmarked copy of a police transfer receipt on the evidence, a group of photographs, clothing of the victim, a container of blood obtained from Mulheam Funeral Home, a gun with five rounds of ammunition and a projectile taken from the victim’s body, and the bottom sheet of the victim’s motel bed.

      . The witnesses were Ms. Shirley Mirambell, mother of the victim; Jan Margaret Mirambell, sister of the victim; Katherine Elizabeth Smith, the victim’s receptionist; Mona Katherine Draper, the roommate of the victim’s girlfriend; and Amanda Keller, the victim’s girlfriend.


source: Caselaw Access Project

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

license: Public Domain

text:
    T. J. IVY, Sr. v. AMERICAN ROAD INSURANCE COMPANY.
    No. 81-C-1092.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Feb. 19, 1982.
    Dissenting Opinion March 12, 1982.
    See 410 So.2d 1127.

      Kenneth N. Simmons of Davis & Simmons, Many, for plaintiff-applicant.
    William P. Polk, Alexandria, for defendant-respondent.
   DENNIS, Justice.

Plaintiff, T. J. Ivy, Sr., instituted suit against American Road Insurance Company seeking to recover the sum of $15,000.00 together with statutory penalties and $10,-000.00 attorney's fees, as compensation for the loss of a log hog tractor or a log skidder which was destroyed by fire on April 9, 1980. The defendant’s answer acknowledged existence of an insurance policy covering the skidder, but denied coverage due to alleged expiration of the policy on April 8, 1980.

After a judge trial, the trial court ruled that the American policy was in effect at the time of the loss and awarded $9,000.00 plus attorney’s fees. American appealed suspensively from the judgment; plaintiff answered the appeal seeking an increase in the award, an increase in attorney’s fees and damages for a frivolous appeal. The Court of Appeal reversed the trial court and rendered judgment dismissing the plaintiff’s suit. T. J. Ivy, Sr. v. American Road Insurance Co., 398 So.2d 165 (La.App.3d Cir. 1977). We granted certiorari to determine whether the policy had expired by its own terms on April 8, 1980.

The facts are not disputed. Plaintiff purchased the skidder on April 9, 1977. An installment note and chattel mortgage was executed that same day in favor of Ford Motor Credit Company to finance the purchase price. The installments were payable at the rate of $242.12 per month for thirty-six months with the final installment being due on April 17, 1980. In connection with this financing agreement, American insured the equipment under a physical damage policy. The policy contained a provision that the coverage would terminate “... as of the time the installment sales contract is fully paid and discharged.” The policy was issued to and held by Ford Motor Credit. Plaintiff was not given a copy, but instead was provided with a brochure describing the coverage generally. The brochure stated that the insurance would be in effect “. . . so long as the retail installment contract or lease covering it is in effect and held by Ford Credit.” Another portion of the brochure provided that “. .. the equipment involved will be insured from the time you made your purchase or lease until your indebtedness is discharged or lease terminated, the equipment is repossessed, or the insurance is terminated.”

On April 3, 1980, plaintiff issued a check for the final installment and mailed it to Ford Motor Credit at its Houston, Texas office. On April 7, 1980, the Federal Reserve Bank in Dallas, Texas endorsed the check on behalf of Ford Motor Credit. On April 10, 1980, the check, which was drawn on the City Bank and Trust Company of Natchitoches, Louisiana, was received and honored by that bank.

The skidder was destroyed by fire on April 9, 1980; after endorsement of the check on behalf of Ford Motor Credit on April 7, 1980, but before the check was received and honored by the drawee bank on April 10, 1980. Thus, resolution of the issue of coverage depends on whether the obligation was discharged on endorsement of the check or on receipt and honor of the check by the drawee bank.

Plaintiff argues that the debt was not paid until the check was accepted by the drawee bank. In support of this argument, he cites provisions of Louisiana’s commercial laws embodied in La.R.S. 10:3-409, 10:3-410 and lO^tf. The Court of Appeal analyzed sections 10:3-409 and 10:3-410 and correctly determined that they pertain to the liability of a drawee bank for payment of a check. Section 10:3-409 provides that the drawee bank is not liable for payment of a check until it “accepts” same. La.R.S. 10:3-410 defines “acceptance.” Section 10:4-213 relates to the circumstances under which a check is deemed to have been paid by the drawee bank. We agree with the court of appeal that these provisions are not applicable to determine the effect of payment on an underlying obligation.

Our commercial laws were adopted from the Uniform Commercial Code, which contains a section governing the effect of an instrument on the underlying obligation for which it is given. Section 3-802 provides that the obligation is suspended until the instrument is due or if payable on demand until its presentment. This section was specifically deleted from the Louisiana Code. According to the explanatory comment, section 3-802 was deleted because it “tends to conflict with Louisiana law.”

According to early civilian authorities, when a creditor accepts payment by check, the debtor is not discharged until the check is cashed. 2 M. Planiol, Traite elementare de droit civil n. 422A (11th ed. 1939); 1 C. Aubrey et C. Rau, Droit civil francais n. 319 (6th ed. 1946). This rule was later supplemented in the case of Langridge v. Dauenhauer, 120 La. 450, 45 So. 387 (1908), which held that a check is a conditional payment, and upon presentation, if honored, the payment relates back to the time the check was delivered to the payee. A fuller statement, of this rule is found in The American and English Encyclopedia of Law, the treatise relied upon by the court in Langridge v. Dauenhauer, supra, which provided:

“It is a well settled and universally recognized rule that when a debtor has given his check for the amount of his indebtedness, the prima facie presumption arises that the check was taken merely as conditional, not absolute, payment, and in case the check is not honored upon due presentation the original indebtedness for which it was given continues to exist, and recovery may be had by the creditor without resorting to the debtor’s liability on the check .... Of course, the creditor may, by express agreement, accept a check as absolute payment, and where such is the case the right of action on non-payment of the check is upon the check, and not upon the original indebtedness, .... Where the check is in fact paid upon presentation, the payment relates back, so far as regards the extinguishment of the indebtedness, to the time when the check was given.” 22 Am. & Eng. Enc. of Law (2d ed.) p. 569, par. 13.

In order to determine whether the doctrine of Langridge v. Dauenhauer, supra, is applicable to the facts of this case, it is necessary to understand the underlying reason for the rule. Observing the everyday dealings of businessmen, the courts found it necessary to consider payment by check to be a “conditional payment” until the check was honored and, once honored, payment was said to relate back to the time of the creditor’s receipt of the check. The rule is designed to protect the debtor who tenders payment by check timely, but cannot be certain the creditor will present the check for actual payment before the debt becomes past due. Were it not for the “conditional payment” rule, the timeliness of payment would depend upon the actions of the creditor. Thus, the rule has been applied in cases where the creditor accepted a check, only to argue later, to the detriment of the debtor, that payment was not made on the date the creditor received the check. See, Grimes, Austin and Stark Inc. v. Stark Inc., 347 So.2d 908 (La.App. 3d Cir. 1977) (rent payment held to be timely where check was received by plaintiff-lessor before rent was past due); Ryan v. W. S. Bellows Construction Corp., 151 So.2d 508 (La.App. 4th Cir. 1963) (workmen’s compensation judgment held extinguished when judgment-creditor received last payment check); Seliga v. American Mutual Liability Ins. Co., 174 So.2d 878 (La.App. 4th Cir. 1965) (if check given as workmen’s compensation payment was cashed, time of making last payment, for purposes of determining limitation period of claim, was date of actual receipt of check); Wright v. Aetna Life and Casualty Co., 360 So.2d 235 (La.App. 1st Cir. 1978) (following rule of Seliga v. American Mutual Liability Ins. Co., supra, in determining workmen’s compensation limitation period); cf. Ray v. Canal Bank and Trust Co., 186 La. 547, 173 So. 101 (1937) (receipt of check as conditional payment did not operate to discharge debtor as of date of receipt where check was not honored); Langridge v. Dauenhauer, 120 La. 450, 45 So. 387 (1908) (candidate for public office who paid fees assessed against him by check within the legal delay held to have paid timely even though the check was not cashed until after legal delay had run).

The “conditional payment” rule a.p-pears to be an equitable precept which constructively alters the date of payment by a debtor when he timely tenders a check which is later honored in order to protect him from unfair treatment by the creditor or anyone who claims he did not pay timely. The question here is whether the rule may be applied against a debtor in order to defeat his claim under an insurance policy which extends coverage until his indebtedness is discharged. Considering its origin and purpose, the rule cannot be asserted against the debtor to defeat his rights. Moreover, even if the rule were applied against him and it were held that his payment related back, his right against the insurer vested upon the occurrence of the loss and could not be unvested by later events. Wharton v. Louisiana Hospital Service Inc., 183 So.2d 133 (La.App. 1st Cir. 1966) cert. denied 184 So.2d 734 (1966); Olinde Hardware and Supply Co., Inc. v. Rogers, 185 So.2d 626 (La.App. 1st Cir. 1966) cert. denied 249 La. 475, 187 So.2d 447 (1966).

For the foregoing reasons, the judgment of the Court of Appeal is reversed and the judgment of the trial court is affirmed.

MARCUS, J., concurs and assigns reasons.

WATSON, J., concurs in the result.

MARCUS, Justice

(concurring).

Since plaintiff’s indebtedness was not “discharged” until his check was received and honored by the drawee bank on April 10,1980 (or, alternatively, at the passage of the drawee bank’s midnight deadline), I consider that the equipment was insured by defendant at the time of the fire loss (April 9,1980). Accordingly, I respectfully concur.

AMENDMENT OF DECREE UPON APPLICATION FOR REHEARING

PER CURIAM.

In its application for a rehearing, the defendant, American Road Insurance Company, has called our attention to errors committed by the trial court which were not mentioned in the court of appeal opinion because of its complete reversal of the lower court judgment. A rehearing is denied, but our decree is amended for the following reasons.

Although the trial court found that the value of the equipment destroyed by fire was $9,000, it failed to give the insurer credit for the $500 deductible amount provided by its policy. The trial court stated in its opinion that the parties stipulated that statutory penalties and attorney fees would be proper if the court found that the plaintiff’s tractor was insured at the time of the loss. The record reflects, however, that the parties only stipulated that, if the trial court should decide that penalties and attorneys’ fees are in order, it could assess them without the necessity of an expert witness as to attorneys’ fees. After reviewing the record- again, we conclude that the award of penalties and attorneys’ fees was justified in this case. As we explained in our original opinion and as Justice Marcus noted in his concurring opinion the fire loss occurred before the debt was “discharged,” at a time when the equipment was insured, and the subsequent discharge of the debt cannot serve to divest the insured of his rights under the policy. The jurisprudential “conditional payment” rule was developed to protect persons who pay by check, not their creditors. The insurer’s failure to make payment in reliance on this rule was “without probable cause [and] shall subject the insurer to a penalty.” La.R.S. 22:658.

Accordingly, the court of appeal judgment is reversed and the first decretal paragraph of the trial court judgment is amended as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, T. J. Ivy, and against the defendant, American Road Insurance Company, in the full sum of $8,500, together with legal interest thereon from date of judicial demand until paid, penalties in the full sum of $2,125.00, and 25% upon the total amount due as attorney fees.

As amended, the trial court judgment is affirmed.

COURT OF APPEAL JUDGMENT REVERSED; TRIAL COURT JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

MARCUS and LEMMON, JJ., would grant a rehearing on the issue of penalties and attorneys’ fees.

LEMMON, J., to assign reasons.

On Application for Rehearing

BLANCHE, Justice.

I would grant a rehearing. According to our holding, the sword does not cut in both directions. Although the indebtedness to Ford was effectively discharged upon its receipt of plaintiff’s check on April 7, 1980, the insurance coverage continued and was extended through the date of payment of said check at the drawee bank even though the coverage provision of the policy provided that coverage would terminate “.. . as of the time the installment contract is fully paid and discharged.” Our decision impairs the contractual right of the defendants/insurers under its contract with the insured because it extends coverage beyond the date that the installment contract was paid.

      . § 3-409: Draft not an assignment.
      (1) A check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.
      (2) Nothing in this Section shall affect any liability in contract, tort or otherwise arising from any letter of credit or other obligation or representation which is not an acceptance. Added by Acts 1974, No. 92 § 1, eff. Jan. 1, 1975. § 3-410: Definition and operation of acceptance.
      (1) Acceptance is the drawee’s signed engagement to honor the draft as presented. It must be written on the- draft, and may consist of his signature alone. It becomes operative when completed by delivery or notification.
      (2) A draft may be accepted although it has not been signed by the drawer or is otherwise incomplete or is overdue or has been dishonored.
      (3) Where the draft is payable at a fixed period after sight and the acceptor fails to date his acceptance the holder may complete it by supplying a date in good faith. Added by Acts 1974, No. 92 § 1, eff. Jan. 1, 1975.
      § 4-213: Final payment of item by payor bank; when provisional debits and credits become final; when certain credits become available for withdrawal.
      (1) An item is finally paid by a payor bank when the bank has done any of the following, which ever happens first:
      (a) paid the item in cash; or
      (b) settled for the item without reserving a right to revoke the settlement and without having such right under statute, clearing house rule or agreement; or
      (2)(c) completed the .process of posting the item to the indicated account of the drawer, maker or other person to be charged therewith; or
      (d) made a provisional settlement for the item and failed to revoke the settlement in the time and manner permitted by statute, clearing house rule or agreement.
      Upon a final payment under subparagraphs (b), (c) or (d) the payor bank shall be accountable for the amount of the item... .

      . (1) Unless otherwise agreed where an instrument is taken for an underlying obligation
      (a) the obligation is pro tanto discharged if a bank is a drawer, maker or acceptor of the instrument and there is no recourse on the instrument against the underlying obligor; or
      (3)(b) in any other case the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored action may be maintained on either the instrument or the obligation; discharge of the underlying obligor on the instrument also discharges him on the obligation.
      (2) The taking in good faith of a check which is not postdated does not of itself so extend the time on the original obligation as to discharge a surety.


author: PER CURIAM.

text:
    STATE of Louisiana v. Harold G. RANDOLPH and Clarence Randolph.
    No. 81-KA-1176.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
    On Rehearing Feb. 5, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Judith Lom-bardino, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Milton P. Masinter, William J. O’Hare, III, Michael S. Gallagher, Perry St. Raymond, for defendants-appellants.
   PER CURIAM.

Defendants were charged together by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury on November 6,1979, they were both found guilty as charged. Thereafter, the state filed an information against Clarence Randolph under the multiple offender provisions of La.R.S. 15:529.1. On the same day, November 16,1979, counsel for Harold Randolph filed a motion for a new trial urging several grounds for setting aside the jury’s verdict with respect to his client. On January 30, 1980, the defendants then came before the trial court for sentencing. The court sentenced Clarence Randolph as a second offender to twenty-four (24) years’ imprisonment at hard labor and his brother Harold to twelve (12) years’ imprisonment, also at hard labor. Defendants have now appealed their convictions and sentences to this Court, requesting a review of the record for errors patent.

We have reviewed the pleadings and proceedings in this case, and find no error with regard to the conviction and sentence of Clarence Randolph. However, counsel for Harold Randolph has called our attention to an error in his defendant’s sentencing. The minutes do not reflect that the trial court ruled on the application for a new trial before the hearing on January 30, 1980. La.C.Cr.P. Art. 853 provides in this regard that “[a] motion for a new trial must be filed and disposed of before sentence.” [emphasis supplied] Counsel has alleged no specific prejudice arising out of the apparent failure of the trial court to rule on the motion. See, State v. White, 404 So.2d 1202 (La.1981). Nevertheless, it is preferred, and Art. 853 requires, that the trial judge rule on the merits of an application for a new trial before imposing sentence on defendant. Therefore, while we affirm Clarence Randolph’s conviction and sentence, we vacate the sentence of Harold Randolph and remand his case to the trial court for consideration of the new trial motion. In the event of an unfavorable ruling on the motion, and resentencing, we reserve to defendant his right to appeal his conviction and sentence once more to this Court.

CONVICTION AND SENTENCE OF CLARENCE RANDOLPH AFFIRMED.

SENTENCE OF HAROLD RANDOLPH VACATED AND CASE REMANDED.

ON APPLICATION FOR REHEARING BY DEFENDANT CLARENCE RANDOLPH

Defendant Clarence Randolph along with his brother Harold was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury on November 6, 1979, they were both found guilty as charged. Thereafter, the state filed an information against Clarence Randolph under the multiple offender provision of La.R.S. 15:529.1. That same day November 16, 1979, both defendants Harold and Clarence Randolph filed motions for a new trial. On January 30,1980, both defendants came before the trial judge for sentencing. The court sentenced Clarence Randolph as a second offender to twenty-four (24) years’ imprisonment, at hard labor and his brother Harold to twelve (12) years’ imprisonment, also at hard labor. Both defendants appealed their convictions and sentences to this Court, requesting a review of the record for errors patent.

We affirmed the conviction and sentence of Clarence Randolph. However we noted in the opinion that because the minutes did not reflect that the trial court ruled on Harold Randolph’s application for a new trial before the sentencing hearing on January 30, 1980, we vacated the sentence of Harold Randolph and remanded his case to the trial court for consideration of the new trial motion, with reservation, in the event of an unfavorable ruling, of his right to appeal once more to this Court. In this application for rehearing, Clarence Randolph argues that his sentence likewise should have been vacated and we agree.

Clarence as well as Harold filed a motion for a new trial on November 16, 1979 and the minutes of the trial court do not reflect that the court ruled on Clarence Randolph’s application for a new trial before the January 30,1980 sentencing hearing just as was the case as regards to Harold. La.C.Cr.P. art. 853 provides that “[a] motion for a new trial must be filed and disposed of before sentence.” (emphasis supplied) Therefore, La.C.Cr.P. art. 853 requires that the trial judge consider the merits of an application for a new trial before imposing sentence on a defendant, if necessary, and before consigning him to direct review of his conviction in this Court.

Therefore defendant’s application for rehearing is granted. We vacate our prior judgment as it concerns Clarence Randolph. His case just as we did on original hearing as regards to his brother Harold is remanded to the trial court for a ruling on the motion for a new trial and resentencing, if necessary. In the event of an unfavorable ruling on the motion and resentencing, we reserve to defendant his right to appeal his conviction and his sentence once more to this Court.

AFFIRMANCE OF CONVICTION AND SENTENCE OF CLARENCE RANDOLPH VACATED; SENTENCE OF CLARENCE RANDOLPH VACATED AND CASE REMANDED.


text:
    STATE of Louisiana v. Steven HUNTSBERRY.
    No. 81-KA-0868.
    Supreme Court of Louisiana.
    Jan. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Louis G.. Garrott, Asst. Dist. Atty., for plaintiff-appellee.
    Patricia A. Thomas, Abbeville, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury beginning on November 19, 1980, he was found guilty as charged. Thereafter, the trial court sentenced him to fifty (50) years’ imprisonment at hard labor. Defendant has now appealed his conviction and sentence to this Court urging the four assignments of error filed below. We have reviewed the assignments as they relate to the jury’s verdict in the case and find that they lack merit. Accordingly, we affirm defendant’s conviction. However, we agree with counsel that in imposing an apparently severe sentence, the trial court failed to comply with the sentencing guidelines in La.C.Cr.P. Art. 894.1. The record of sentencing on January 16, 1981, indicates that after reviewing briefly the facts of the case, the trial court read through the guidelines in Art. 894.1, finding every aggravating circumstance and discounting the presence of each mitigating factor. Nevertheless, we have held that a broad restatement of these sentencing considerations does not satisfy the requirement of Art. 894.1(C) that the trial court state the factual basis for its findings, or the purpose of the statute to individualize the sentence to the particular offender. State v. Jones, 386 So.2d 85 (La.1980); State v. Franks, 373 So.2d 1307 (La.1979).

In the absence of adequate compliance with Art. 894.1, we are unable to review fully counsel’s assertion that the fifty year sentence imposed in this case is excessive for a first offender. State v. Dunns, 404 So.2d 1235 (La.1981), State v. Cox, 369 So.2d 118 (La.1979). Therefore, while we affirm defendant’s conviction, we vacate the sentence imposed and remand the case to the trial court for resentencing under Art. 894.1 in accord with the views expressed herein.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.


author: DENNIS, Justice. MARCUS, Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Robert J. RODRIGUE.
    No. 81-K-1206.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      Joseph R. Raggio, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-respondent.
   DENNIS, Justice.

Defendant, Robert J. Rodrigue, has been charged with the second degree murder and attempted aggravated rape of a 51-year-old woman who disappeared from the streets of Houma, Louisiana, on October 24, 1979. We granted writs in this case to determine whether the trial court correctly denied his motions for change of venue and to suppress inculpatory statements.

On the evening of October 24, 1979, the victim in this case, a 51-year-old accountant, dropped her children off at a football game while on her way shopping. Later that night her abandoned car and purse were found. Her disappearance became the leading story in the local newspaper and on radio for the next ten days. On November 3, 1979, her partially decomposed body was found in a bayou a few miles from Houma. An autopsy revealed that the cause of her death was strangulation. In the wake of this seemingly random slaying, alarm swept the community inciting public officials and citizens to establish a reward fund and to bring in psychics to track down the killer. On November 17, 1979, the sheriff, accompanied by a newspaper publisher and one of his reporters, arrested the defendant outside his residence in Houma during a highly publicized encounter. On December 7, 1979, the defendant was indicted for these and other unrelated sex crimes which allegedly occurred in September, 1979.

Defendant filed motions to change venue and to suppress inculpatory statements. Hearings were held on the venue motion on April 7, 1980, and November 18, 1980, the latter consisting of a “dry-run” voir dire of thirty prospective jurors. At its conclusion the trial court denied the change of venue. After a hearing, the court also denied the defendant’s motion to suppress on November 12, 1980. This court granted writs on September 9, 1981.

THE MOTION TO CHANGE VENUE

(ASSIGNMENT OF ERROR NO. 1)

In rejecting the motion for a change of venue, the trial court in brief oral comments noted that the question was close, but he apparently concluded that the defendant failed to carry his burden of proof “that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.” La.C.Cr.P. art. 622. See, State v. Bell, 315 So.2d 307 (La.1975). Although the trial court possesses a broad range of discretion in this area, see, e.g., State v. Adams, 394 So.2d 1204 (La.1981); State v. Felde, 382 So.2d 1384 (La.1980); State v. Sonnier, 379 So.2d 1336 (La.1980); we are required to make an independent evaluation of the circumstances to determine whether the accused can receive a fair trial in the parish, unfettered by outside influence. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

In our review, we have the benefit of the record in a well tried venue change hearing, including a “dry-run” voir dire of thirty prospective jurors. The instant record demonstrates that counsel for the defendant conducted a painstaking, meticulous voir dire of the prospective jurors. Twenty-six of the prospective jurors had read newspaper accounts or had heard radio reports of the crime. Nevertheless, only nine of the veniremen said that they had formed an opinion as to the defendant’s guilt. We believe that had this been an actual voir dire, and not a “dry-run,” 12 jurors could have been selected having a juror’s minimum qualification of being able to “lay aside his impressions or opinions and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

In deciding whether to grant a change of venue, however, the court must consider whether the prejudice, influence, or other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at trial. La.C.Cr.P. art. 622. Our review convinces us that despite relatively intense publicity about a fearsome, random murder in the small community, a large part of which was unnecessarily engendered by the sheriff, the answers of the jurors on voir dire examination were not affected. The bulk of the publicity consisted of straight news reporting, by radio and newspaper only, which occurred nearly one year before the “dry-run” voir dire.

The most objectionable aspect of this case is the conduct of the sheriff in arranging for a publisher-photographer and reporter to be present at the defendant’s arrest. Coming on the heels of the victim’s disappearance, the discovery of her body, and the suspenseful manhunt, the front page photograph of defendant in handcuffs and the feature coverage of his squad car ride to the court house raised his identity factor to a near maximum level. If the “dry-run” voir dire hearing had been held shortly after these events we could not have found with any confidence that prejudice, influence or other factors had not affected the answers of the jurors. The experimental voir dire was conducted over a year after the defendant’s arrest, however, and our independent review of the record convinces us that the jurors’ answers were not affected by the publicity surrounding the crime and arrest.

Additionally, we are influenced in our decision by the fact that by the time our judgment is final over two years will have elapsed since the crime and the period of intense publicity following it. In all probability, the force of the publicity will have been spent before the time the case is set for trial. Cf. United States v. Carper, 13 F.R.D. 483 (D.D.C.1953). Nevertheless, in case we have misjudged the situation in our independent review of the facts, or in the event of further unnecessary release of publicity, the ruling denying the motion for change of venue is vacated, and the trial court is instructed to defer ruling thereon until after the voir dire in case difficulty is encountered in obtaining an unbiased jury. Cf. United States v. Wilkerson, 548 F.2d 970 (D.C.Cir.1976).

THE MOTION TO SUPPRESS

(ASSIGNMENT OF ERROR NO. 2)

The defendant moved to suppress his in-culpatory statements and admissions made following his arrest on the ground that they resulted from in-custody interrogation conducted after he had invoked his right to counsel and that his statements were not free and voluntary but were made under the influence of amphetamines. After a hearing, the trial court found that, upon the defendant’s arrest, he was fully advised of his constitutional rights and placed in the sheriff’s automobile; that he made statements to the sheriff which may have been self-incriminating while they were enroute to the courthouse; that after making the statements the defendant requested the presence of an attorney; that the sheriff did not question the defendant further after this request; that the defendant was questioned while in custody by two of the sheriff’s officers after he reached the courthouse; and, that defendant was capable of making a voluntary confession despite the effects of the amphetamines he had taken that day. These findings were in conflict with portions of the defendant’s testimony in which he said he requested an attorney almost immediately after his arrest. Nevertheless, from our review of the record, we find that the trial court’s findings of fact are adequately supported by the testimony of the sheriff and other witnesses.

The United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), set forth procedures to insure that an individual subject to custodial police interrogation is accorded his privilege under the Fifth Amendment not to be compelled to incriminate himself. These included the following: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Unless other fully effective measures are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be informed that he has a right to remain silent, that any statement he does make may be used in evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. “If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” Id. 384 U.S. at 444, 86 S.Ct. at 1612. At another point in the opinion, the court declared, “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U.S. at 474, 86 S.Ct. at 1627.

Article I § 13 of the 1974 Louisiana Constitution requires that any person arrested or detained in connection with the investigation or commission of any offense must be advised fully of the reasons for his arrest or detention, his right to remain silent, his right against self-incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. By the adoption of this provision, Louisiana enhanced and incorporated the prophylactic rules of Miranda v. Arizona. In re Dino, 359 So.2d 586 (La.1978).

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the high court made clear that when an accused has invoked his right under Miranda to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. Ibid.

Six months before the decision in Edwards v. Arizona, this court, in State v. Thucos, 390 So.2d 1281, (La.1980), reached a similar conclusion. In that case we held that after an accused invoked his right to have counsel present during custodial interrogation, the police failed in their duty to scrupulously honor his right when they initiated further questioning shortly after his request for counsel. The accused did not have an attorney present although he had not withdrawn his request for one.

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

Applying these precepts to the facts found by the trial court, we conclude that any inculpatory statements made by the defendant to the sheriff in the automobile enroute to the courthouse occurred after defendant had been advised of his constitutional rights and had voluntarily, knowingly, and intelligently waived them in compliance with Miranda, but before he had invoked his right under Miranda to have counsel present during custodial interrogation. From our review of the record we conclude that the trial judge did not err in finding that the State had sustained its burden of proving beyond a reasonable doubt that the defendant’s inculpatory statements were free and voluntary. Accordingly, the statements defendant made to the sheriff in the automobile are not inadmissible because of lack of voluntariness or due.to defendant’s later invocation of his right to counsel. Since the evidence shows that the defendant did not initiate the further communications, exchanges or conversations with the police at the courthouse, however, the statements defendant made at the courthouse are inadmissible because the State failed to establish a valid waiver of defendant’s right to have counsel present during custodial interrogation as he had requested. See, Edwards v. Arizona, supra; State v. Thucos, supra.

By way of supplemental brief in this court, the defendant asserts that all of the inculpatory statements should be suppressed because they resulted from an arrest for which probable cause did not exist. This allegation was made by defendant in his “Motion to Suppress Oral Confession” but was never addressed by the trial court.

In State v. Scott, 355 So.2d 231 (La.1977), this court stated:

“When the defendant challenges the admissibility of a confession on the ground that it was the result of an arrest made without probable cause, ‘the burden of showing admissibility rests ... on the prosecution.’ Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). This affirmative showing must be made by establishing that probable cause existed to arrest the defendant, or, if the arrest was unlawful, by showing that the causal connection between it and the subsequently obtained confession was so attenuated that the confession could not properly be considered as a fruit of the illegal arrest. Wong Sun v. United States [371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441], supra. See, State v. Jenkins, 340 So.2d 157 (La.1976).”

On this record, we cannot conclude that the state met the requirement that it prove either probable cause for the defendant’s arrest or a break in causal connexity between the arrest and the confession. Rather than decide those matters for the first time at this level, we think it preferable to allow the trial court to reconsider the motion to suppress under the guidelines expressed in State v. Scott, supra.

Decree

For the reasons assigned, the ruling of the trial court on the motion for change of venue is vacated, with instructions to defer ruling thereon until after voir dire. The ruling on the motion to suppress inculpato-ry statements is vacated and remanded for further proceedings in accordance with this opinion.

RULINGS ON MOTIONS VACATED; REMANDED.

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

MARCUS, Justice

(concurring).

On the facts of this case, I concur in the suppression of the statements made by defendant at the courthouse. A valid waiver of the previously-invoked right to counsel cannot be established by showing only that the accused responded to further police-initiated custodial interrogation after being readvised of his rights. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Accordingly, the state did not carry its burden of proof.

LEMMON, Justice,

concurring.

Although I believe that Edwards v. Arizona, above, should not be applied retroactively, I agree that defendant’s request for counsel was not “scrupulously honored”. See Michigan v. Moseley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Therefore, any statements after this request for counsel must be excluded.

      . A number of factors must be considered in determining whether to change venue. As this court noted in State v. Bell,

      Some relevant factors in determining whether to change venue are (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. See, generally, Annotation, 33 A.L.R.3d 17 (1970).
      Other factors we have indicated are relevant to this inquiry include:
      “ * * * The degree to which the publicity has circulated in areas to which venue could be changed, the care exercised and the ease encountered in the selection of the jury, the familiarity with the publicity complained of and its resultant effect, if any, upon the prospective jurors or the trial jurors, and the peremptory challenges for cause exercised by the defendant in the selection of a jury. See, generally, Annotation, 33 A.L.R.3d 17 (1970).”

        State v. Bell, 346 So.2d 1090 (La.1977); State v. Berry, 329 So.2d 728 (La.1976).

      . By custodial interrogation the Supreme Court meant questioning initiated by law enforcement officials after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612; State v. Menne, 380 So.2d 14 (La.1980).

      . Edwards was decided on May 18, 1981. The trial of the case before us has not yet commenced. We need not decide, therefore, whether Edwards v. Arizona should be given retroactive application. Cf., Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) held to apply only to cases where the trials have commenced after the decisions were announced).