text:
    Joshua CLEVELAND, a/k/a Cleveland Joshua, Appellant, v. STATE of Florida, Appellee.
    No. 81-1293.
    District Court of Appeal of Florida, Fourth District.
    March 17, 1982.

      Richard L. Jorandby, Public Defender, Charles D. Peters, Asst. Public Defender, and Johnny McCray, Jr., Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Joshua Cleveland’s probation was revoked because a shotgun was discovered in the trunk of his car as a result of an inventory search. The trial court denied Joshua’s motion to suppress the physical evidence discovered during the inventory search and this appeal ensued.

Joshua was stopped by police for driving his car without a current inspection sticker or license plate; neither did he have a driver’s license or registration certificate. Ownership of the vehicle was not confirmed through a VIN number inquiry. A routine records check reflected two outstanding warrants, so Joshua was arrested. Joshua’s uncle appeared at the scene and both Joshua and his uncle requested that the uncle be allowed to drive the car home. The police refused; the car was impounded and during an inventory search the shotgun was found.

In order for the police to impound an automobile, there must be an actual need for impoundment. Reasonable and necessary impoundments include:

(1) an unattended car illegally parked or otherwise illegally obstructing traffic, an illustration of which is the factual situation in the Opperman case [South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)]; (2) an unattended car at the scene of an accident where the driver is physically or mentally incapable of deciding what steps to take to deal with his vehicle such as might occur when the driver is seriously injured, mentally incapacitated, or severely intoxicated; (3) an abandoned vehicle; (4) a mechanically defective vehicle which, if driven, could menace others on the public highway; (5) a vehicle identified as stolen. There may be other circumstances; this list is not all-inclusive. Miller v. State, 403 So.2d 1307, 1313 (Fla.1981).

The State has the burden of proof to show that the impoundment was lawful, reasonable, and necessary under the circumstances of the particular case. Miller, supra. Absent a proper impoundment the propriety of the inventory search need not be reached.

In Miller, supra, the Supreme Court of Florida discussed decisions involving the im-poundment of vehicles and inventory searches and resolved the conflict that has existed among the District Courts of Appeal regarding the necessity of advising a vehicle owner or possessor of his alternatives to impoundment. Among other things, it approved Judge Scheb’s statement in Altman v. State, 335 So.2d 626 (Fla. 2d DCA 1976), to the effect that, if the vehicle driver has a reliable friend present who can and will remove the vehicle for the driver or the driver prefers to have the vehicle towed away to a particular destination, these alternatives should preclude any im-poundment and inventory of the car.

In the case at bar none of the usual grounds for impoundment existed. Furthermore, even if any of the grounds 1 through 4 were present, impoundment would still have been improper because Joshua's uncle was there and requested permission to drive the car home to save Joshua the expenses of towing. Of course, if the police had identified the vehicle as stolen there would be no reasonable alternative to impoundment.

In view of the foregoing, we reverse the judgment appealed from and remand the cause with directions to grant appellant’s motion to suppress.

REVERSED AND REMANDED, with directions.

DELL, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Mark Anthony WILLIAMS, Appellee.
    No. 82-164.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The appellee has confessed error. Accordingly, the trial court’s order granting the defendant’s motion pursuant to Fla.R. Crim.P. 3.190(c)(4) is reversed and this cause remanded to the trial court for further proceedings. Ensor v. State, 403 So.2d 349 (Fla.1981); State v. Davis, 234 So.2d 587 (Fla.1971); State v. Bryant, 373 So.2d 708 (Fla. 3d DCA 1979).

Reversed and remanded.


author:
DENNIS, Justice.
     LEMMON, Justice, BLANCHE, Justice

text:
    STATE of Louisiana v. Michael HERNANDEZ.
    No. 81-KA-2044.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., Abbott J. Reeves, Ralph Tureau, Asst. Dist. Attys., for plaintiff-ap-pellee.

      Michael J. Matthews, Gonzales, for defendant-appellant.
   DENNIS, Justice.

As he alighted from his car parked in the driveway of his house, defendant, Michael Hernandez, was arrested for DWI and reckless operation of a motor vehicle by two police officers. The arresting officers had given chase after noticing defendant’s reckless operation and dangerous speed through the city of Gonzales. A third officer, Sam Pasqua, who had been summoned by radio, arrived just as his two colleagues were departing with the defendant in their patrol car. Defendant’s parting words to Pasqua were that he did not want anyone to drive his car. Nevertheless, in accordance with what the officers said was their policy, a wrecker was ordered by radio to tow the car away. While he was waiting for the tow truck Pasqua went back onto the private property upon which the car was parked and inspected its interior, including the glove compartment. He discovered in open view two marijuana cigarettes and surgical forceps on the console between the two front seats and another marijuana cigarette on the left floorboard. Pasqua seized these items as evidence.

Before trial defendant moved unsuccessfully to suppress the marijuana seized from his car. After a judge trial on multiple charges, defendant, Michael Hernandez, was convicted of reckless operation of a vehicle, La.R.S. 14:99, driving while intoxicated, La.R.S. 14:98, and possession of marijuana, La.R.S. 40:966. He was sentenced to fines amounting to a total of $750, and subjected to a total of nine and one-half months in jail in default of payment. Defendant appealed and assigns as error the trial court’s refusal to grant his motion to suppress.

1.

A search and seizure conducted without a warrant is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1974); State v. Banks, 363 So.2d 491 (La.1978); State v. Fearn, 345 So.2d 468 (La.1977). Once a defendant makes an initial showing that a warrantless search occurred, the burden of proof shifts to the state to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Banks, supra; State v. Franklin, 353 So.2d 1315 (La.1978).

It is undisputed that the search was not authorized by a warrant. The state contends, however, that the officer’s conduct was justified and came within the “plain view” exception. In order for a war-rantless seizure to come under the plain view rule, three conditions must be satisfied: (1) there must be a prior justification for an intrusion into a protected area; (2) in the course of which evidence is inadvertently discovered; and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. Gibson, 391 So.2d 421 (La.1980). State v. Banks, supra; State v. Parker, 355 So.2d 900 (La.1978).

The state clearly failed to carry its burden of proving that the officer who conducted the search had a prior justification for his intrusion into a protected area. There was no showing that officer Pasqua had justification for entering defendant’s private property and approaching defendant’s car after defendant’s full custodial arrest and removal from the scene. The record indicates that defendant parked and exited from his vehicle in a driveway on private property before the police arrived. Immediately thereafter, the officers drove up, arrested the defendant, searched him, and removed him from the scene in handcuffs. Well after his fellow officers had departed with defendant in custody, Pasqua reentered the property and conducted a search of the automobile. Consequently, when Pasqua seized the items of evidence from the automobile he lacked one of the essential underpinnings for a plain view seizure, namely, justification for an intrusion into a protected area, State v. Banks, supra.

Nevertheless, the state contends that Officer Pasqua was justified in reentering the property and inspecting the car in preparation for towing it to the station-house. There is nothing in the record, however, which indicates that it was necessary to impound the vehicle. The defendant informed the officers that the vehicle was parked in front of his residence, and instructed them not to drive it. The vehicle was not on a public highway and posed no danger of either obstructing traffic or causing accidents. If a person is arrested in or at his place of residence and his car is parked in the garage or lot or other place where that person ordinarily leaves his car, then the police cannot justify seizure of the car on the ground that such action is needed for the protection of the vehicle and its contents. See People v. Siegel, 95 Mich. App. 594, 291 N.W.2d 134 (1980); State v. Simpson, 95 Wash.2d 170, 622 P.2d 1199 (1980); United States v. Squires, 456 F.2d 967 (2d Cir. 1972); State v. McCranie, 137 Ga.App. 369, 223 S.E.2d 765 (1976); W. LaFave, Search and Seizure, § 7.3 at n. 51 (1978 and Supp.). Accordingly, Officer Pas-qua’s re-entry upon defendant’s private property cannot be justified on the basis of preparing the vehicle for impoundment. State v. Banks, supra; State v. Jewell, 338 So.2d 633 (La.1976).

In the recent case of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 LEd.2d 768 (1981), the United States Supreme Court held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile, including the contents of any containers from within the passenger compartment. A bare majority of the closely divided (5-4) court reasoned that: “the protection of the Fourth and Fourteenth Amendments ‘can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement,’ ” 101 S.Ct. at 2863; “no straighforward rule has emerged from the cases respecting the question involved here,” 101 S.Ct. at 2863, which has caused the courts difficulty and placed appellate cases in disarray; former cases suggest “that articles within the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary item,’ ” 101 S.Ct. at 2864; and thus the workable rule required by this category of cases is best achieved by holding that a policeman may, as a contemporaneous incident of a lawful custodial arrest of an occupant of an automobile, search the passenger compartment of the automobile and the contents of any containers found within the passenger compartment. See W. LaFave, supra, § 7.1 p. 133 (1982 Supp.)

Belton is inapposite to the present case. Officer Pasqua did not search the automobile “as a contemporaneous incident of [defendant’s] arrest.” Pasqua did not commence his search until well after the defendant had been arrested, handcuffed and taken to the police station. Although Belton was justified by a majority of the high court on the proposition that it is often advantageous to both privacy interests and law enforcement interests if rules of police conduct are stated in terms of easily understood standardized procedures which may be routinely followed, it is clear that the holding must bear some reasonable relation to Fourth Amendment principles if it is to survive. The only rational basis for the Belton rule seems to be the notion that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might search in order to grab a weapon or evidentiary item. Thus, the Bel-ton rule can have no application after an arrestee has been handcuffed and removed from the scene, foreclosing even the slightest possibility that he could reach for an article within the vehicle.

Furthermore, the search of the defendant’s automobile, without probable cause, and in the absence of any of the circumstances which have been recognized by this court as justifying a narrow exception to the warrant requirement, plainly constituted an unreasonable search, seizure or invasion of privacy in violation of Article 1, § 5 of the 1974 Louisiana Constitution. Although the Belton case is distinguishable and therefore inapplicable here, it should be noted that we do not consider it to be a correct rule of police conduct under our state constitution. We, of course, give careful consideration to the United States Supreme Court interpretations of relevant provisions of the federal constitution, but we cannot and should not allow those decisions to replace our independent judgment in construing the constitution adopted by the people of Louisiana. See La.Const. of 1974, Preamble; Art. 1, § 1. Our state constitution’s declaration of the right to privacy contains an affirmative establishment of a right of privacy, explicit protections against unreasonable searches, seizures or invasions of property and communications, as well as houses, papers and effects, and gives standing to any person adversely affected by a violation of these safeguards to raise the illegality in the courts. La.Const. 1974, Art. 1, § 5. This constitutional declaration of right is not a duplicate of the Fourth Amendment or merely coextensive with it; it is one of the most conspicuous instances in which our citizens have chosen a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution. See State v. Abram, 353 So.2d 1019 (La.1978); State v. Hutchinson, 349 So.2d 1252 (La.1977); State v. Overton, 337 So.2d 1201 (La.1976); Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1 (1974); Jenkins, The Declaration of Rights, 21 Loy.L.Rev. 27 (1975). For these reasons we adhere to our well-settled rule in construing our state constitution: when a custodial arrest is made, because of the danger that the person arrested may seek to use a weapon or that evidence may be concealed or destroyed, the arresting officer may, to safeguard himself and others and to prevent the loss of evidence, conduct a prompt, war-rantless search of the arrestee’s person and the area within his control — construing that phrase to mean the area from within which he could gain possession of a weapon or destructible evidence. State v. Williams, 398 So.2d 1112 (La.1981); State v. Frisch, 393 So.2d 1220 (La.1981); State v. Tomasetti, 381 So.2d 420 (La.1980); State v. Blanchard, 374 So.2d 1248 (La.1979); State v. Marrero, 363 So.2d 494 (La.1978); State v. Doucet, 359 So.2d 1239 (La.1978).

The warrantless seizure of evidence from defendant’s car violated his rights under the Fourth Amendment and those afforded by Article 1, § 5 of the Louisiana Constitution of 1974. The defendant’s conviction and sentence for possession of marijuana must be reversed.

2.

We have reviewed defendant’s assignments of error relating to his convictions of DWI and reckless operation of a motor vehicle. Finding no reversible error, those convictions are affirmed.

Assignment of Error Number 3, by which defendant contends that the trial court erred in admitting into evidence the results of the photoelectric intoximeter test, is without merit. Defendant made no contemporaneous objection to the admissibility of the test results; therefore, any error cannot be availed of after verdict. La.C. Cr.P. art. 841. Moreover, the record does not reflect that the test was conducted improperly or that the machine was improperly purged. Assignment of error number 4, objecting to the amendment of the affidavit to reflect the date of the DWI offense, is without merit. The date of the offense is not essential to the offense of DWI in this case. Therefore, an incorrect statement of the date of the offense in the affidavit shall not invalidate the affidavit, La.C.Cr.P. art. 468, and comments (b), (e), and is a defect of form which may be amended at any time. La.C.Cr.P. art. 487; State v. Dye, 384 So.2d 420 (La.1980). Moreover, defendant made no motion for a recess, nor does he contend that he was either surprised or prejudiced by the error or amendment. Assignment of error number 5, complaining that the introduction into evidence of a computer printout form from the Louisiana Department of Public Safety showing the registration and ownership of defendant’s vehicle was error because it was hearsay, is also without merit. Even if erroneous, the introduction of registration and ownership of the vehicle was not in any way prejudicial to a defense to the charges of DWI or reckless operation of a motor vehicle in this case.

Defendant’s possession of marijuana conviction and sentence are reversed. His DWI and reckless driving convictions and sentences are affirmed. The case is remanded.

REVERSED IN PART; AFFIRMED IN PART; REMANDED.

CARTER, J. Ad Hoc, dissents.

LEMMON and BLANCHE, JJ., dissent and assign reasons.

LEMMON, Justice,

dissenting.

I disagree that the warrantless seizure of the marijuana observed inadvertently in defendant’s car and the subsequent search and seizure of other marijuana was unreasonable under the circumstances of this case.

When Officers Tullier and Wolfe approached a traffic light, they saw defendant pull off at a high rate of speed and drive in an erratic manner characteristic of alcohol or drug intoxication. They pursued him through the City of Gonzales in a high speed chase, during which defendant ran into the ditch on several occasions. Finally, defendant turned off the street into a driveway and stopped his car. When the officers pulled into the driveway, defendant was still in his car. The officers approached defendant as he exited the car, arrested him, and searched him for weapons. While the officers were in the process of arresting defendant, Officer Pasqua also came onto the scene.

Defendant’s car was partially on and partially off the driveway, which led to a building characterized by the police as a “duplex housing project”. There were several other cars parked in the back alongside the building. Although defendant claimed to live in the building, his driver’s license showed an Alabama address. Since defendant had acted suspiciously at the initial appearance of the police car, and since the officers did not know defendant and did not know who resided in the building, the officers decided to take the automobile to the police station. When defendant refused to let any of the officers drive the car, Officer Tullier called a wrecker. He and Officer Wolfe took defendant to the station, while Officer Pasqua waited for the wrecker.

After the other officers left with defendant, Officer Pasqua walked up to defendant’s car to check the inspection sticker and to determine if the ignition key was in the vehicle. As he approached the car, he noted that the domelight was on, because the door had been left open, and on the console of the car he observed (without the use of his flashlight) a pair of surgical forceps pinching a handrolled cigarette. He immediately recognized this as a marijuana cigarette, and he pulled his flashlight and searched the remainder of the car for additional contraband, finding two additional cigarettes.

Under the circumstances presented, I cannot say that the trial judge abused his discretion in determining that the officers’ decision to impound the car was reasonable. See State v. Jewell, 338 So.2d 633 (La.1976). Having observed defendant take off at a high rate of speed when their police car initially approached him, and having seen him attempt to elude their pursuit, they were justifiably suspicious of his actions. Furthermore, defendant’s driver’s license listed an Alabama address, and the area was one of apartment rental to transients. The officers acted reasonably, not only to protect the automobile itself (if it belonged to defendant), but also to assure that the automobile was not stolen.

Once the officers reasonably decided to impound the automobile and called a wrecker for that purpose, Officer Pasqua was in a position where he had a right to be, attending the automobile until the wrecker came. In this position he inadvertently observed what was immediately recognizable as contraband, and he seized the marijuana cigarette and forceps. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1977). His decision to proceed then to search the remainder of the automobile compartment and to seize the other marijuana cigarettes was also reasonable. The automobile was parked in a location accessible to the public, and probable cause existed to believe other contraband could be found. Therefore, an immediate search without a warrant was no greater intrusion than seizing and holding the car until probable cause was presented to a magistrate. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Lewis, 378 So.2d 396 (La.1979).

The evidence was validly obtained, and the conviction should have been affirmed.

BLANCHE, Justice

(dissenting).

I respectfully dissent for reasons assigned by Lemmon, J., and further dissent from the discussion of Belton in the majority opinion as the same is purely dicta. It was neither briefed nor argued in connection with the warrantless search of the defendant’s vehicle. Whether the Louisiana Constitution is broader than the United States Constitution relative to Fourth Amendment principles is a question that this writer has not considered, as that issue is also non-existent in this case. However, if the Louisiana is, in fact, broader than the United States Constitution on that issue, this writer feels that the Constitution is due for an amendatory change in the opposite direction.

      The Honorables Melvin A. Shortess, Felix H. Savoie, Jr. and Burrell J. Carter of the Court of Appeal, First Circuit, participated in this decision as Associate Justice pro tempore, joined by Associate Justices Dennis, Blanche, Watson and Lemmon.

      . Although not raised by the state, this is not a case in which the “automobile exception” to the warrant requirement is applicable. Probable cause to search the auto or to seize it as evidence did not exist before Officer Pasqua made his unlawful intrusion onto the property and began to search the automobile. Moreover, even if probable cause had existed there were no circumstances which justified the officer’s failure to obtain a search warrant. The automobile was parked on private property in a driveway in front of the defendant’s house. As in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1974), only an unlikely stretch of the legal imagination could make this case into one where it was not practicable to secure a warrant. See State v. Lewis, 378 So.2d 396 (La.1979).

      . The Belton rule has been incisively criticized as creating the risk that police will make custodial arrests which they otherwise would not make as a cover for a search which the Fourth Amendment otherwise prohibits. Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) (Stevens, J., dissenting). W. LaFave, supra, p. 140 (1982 Supp). Professor LaFave suggests that Belton will be short-lived:
      “On balance, then, there is good reason to be critical of the Court’s work in Belton. How long it will survive, and in what form, remains to be seen. The author of Belton has retired, and the continuing members of the Court are equally divided on the question discussed here. Perhaps more important, however, is the fact that the Court in Belton appears to have been influenced by other, related problems as to which it could not reach a consensus in the companion case of Robbins v. [California, supra], Should those problems later be resolved, the search incident to arrest situation will look quite different than it appeared to the Belton majority, in which event the rule of that case may well be abandoned.”

      . The officers at this point clearly could have searched the passenger compartment of defendant’s automobile for weapons or contraband. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). However, because the evidence was seized validly on other grounds, it is not necessary to decide whether there is a “handcuffed and removed” exception to the “bright line” rule announced in Belton.


author:
SAVOIE, Justice Ad Hoc.
     LEMMON, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Larry ROSS.
    No. 81-KA-1524.
    Supreme Court of Louisiana.
    March 1, 1982.
    Dissenting Opinion April 1, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., E. Rudolph McIntyre, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Donnie L. Ellerman, Winnsboro, for defendant-appellant.
   SAVOIE, Justice Ad Hoc.

This appeal by Larry Ross from his Armed Robbery Conviction is before this court on two issues:

1. Did the trial court err in failing to recognize a conflict of interest that existed through the appointment of one attorney to represent defendant and his co-defendant?
2. Did the trial court err in imposing an excessive sentence without pre-sentence hearing or investigation report?

Larry Ross contends that his attorney who represented his co-defendant, Andrew Powell, on an armed robbery arising out of the same circumstances was inhibited by this multiple representation from giving effective assistance to Larry Ross during the proceedings against him.

The facts are, as follows:

A grocery store-service station located on Highway No. 4 in Ward 3 of Franklin Parish, operated by one, John Parker, was robbed on September 4, 1973. Mrs. Lottie Mae Walker was managing Parker’s store on September 4, 1975, when two men, subsequently identified as the defendant and Andrew Powell, entered about noontime. Ross and Powell browsed the store until the only other customer left. As soon as this customer left the store, one of the two men grabbed Mrs. Walker from behind, putting his hand over her mouth to prevent her from screaming and pushed her to the floor. An electrical cord was placed around her throat, but she was able to escape further injury by feigning unconsciousness. She was hit over the head with a hard object on two different occasions. Believing her to be unconscious, one of the men pulled out the telephone and either one or the other opened the cash register and removed the money. Mrs. Walker glanced up and noticed one of the men taking cartons of Kool cigarettes. The robbers then fled. Mrs. Walker had previously noticed a vehicle which they were driving and which she identified as an old model green Chrysler automobile. Unable to use the telephone, Mrs. Walker ran outside, stopped a passerby and relayed a description of the robbers and their vehicle and asked the passerby to notify the Sheriff’s office.

Deputy Joe Powell noticed an old model green Chrysler fitting the relay description and began to follow it. When the driver spotted Deputy Powell, he took off at high speed. A chase ensued into Winnsboro, where the robbers lost control of their vehicle and attempted to flee on foot. Both were apprehended. Andrew Powell and Larry Ross were charged with armed robbery by way of separate bills of information. Both filed affidavits of indigency and, apparently, Sonny N. Stephens (now Judge) was appointed to represent both defendants. A jury trial was scheduled for both Andrew Powell and Larry Ross on the 17th day of November, 1975. On the morning that Andrew Powell was scheduled to go to trial, he pleaded guilty as charged to the offense. On the same day that Andrew Powell pleaded guilty, the jury for Ross’ trial was empaneled and on the next day the trial began.

Andrew Powell testified that it was Ross who initiated the armed robbery. It was Ross who struck Mrs. Walker twice, pulled the cord around her neck, ripped out the telephone, robbed the cash register, stole the cartons of Kool cigarettes. Cross examination by the defense counsel was not extensive. The question of conflict of interest was not raised either by the trial counsel or by the court, itself. There was no waiver of the attorney-client privilege by the witness, Andrew Powell. At the post conviction proceeding, which was held on April 15, 1981, the defendant testified that the defense counsel, Stephens, advised him not to testify and that Powell’s testimony would free him. Defense counsel testified that he had some recollection of representing both the defendant and Andrew Powell. He seemed to recall representing Powell at the time he made his guilty plea. However, he did not recall any plea-bargaining being reached in connection with this case. Defense counsel further recalls that he only became aware of Powell’s plea of guilty on the day of the trial.

The defendant was found guilty and sentenced to hard labor for a period of thirty-five years without benefit of probation, parole or suspension of sentence. It should also be noted that Andrew Powell pled guilty on the morning of trial and was sentenced to five years for his participation in the armed robbery.

ASSIGNMENT OF ERROR NO. 1

The trial court erred in failing to recognize a conflict of interest that existed through the appointment of one attorney to represent defendant and his co-defendant.

The right of every criminal defendant to have the assistance of an attorney during the proceedings against him is a cornerstone of our legal system. Amendment 6, U. S. Constitution; Article 1, Section 13, Louisiana Constitution (1974). To be more than just a hollow right, our law requires that assistance of counsel be effective. As a general rule, courts have held that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant he is representing. The issue of conflicting loyalties usually arises in the context of joint representation of co-defendants. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1976); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Johnson v. Hopper, 639 F.2d 236 (C.A.5 1981). But it has also surfaced in cases like the one at bar, where an attorney runs into a conflict because he or she is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney. United States v. Morando, 628 F.2d 535 (C.A.9, 1980); United States v. Partin, 601 F.2d 1000 (C.A.9 1979). Although the issue can arise in different contexts, the legal principles are the same.

Multiple representation is not per se illegal and does not violate the Sixth Amendment to the U. S. Constitution (or Article 1, Section 13 of the Louisiana Constitution) unless it gives rise to a conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway, supra. The mere possibility of conflict is insufficient to reverse a criminal conviction. However, if a defendant establishes that an actual conflict of interest adversely affected his lawyer’s performance, he has demonstrated a violation of his Sixth Amendment rights under the U. S. Constitution and his Article 1, Section 13 rights under the Louisiana Constitution of 1974. Cuyler, supra. If an actual conflict exists, there is no need for a defendant to prove that he was also prejudiced thereby. Showing of an actual conflict mandates reversal.

State v. Franklin, 400 So.2d 616, 1981 Supreme Court.

In the present case, Defense Counsel did not call to the court’s attention the possibility of a conflict. Additionally, the trial court took no steps to ascertain whether an actual rather than a remote conflict of interest existed. There was no express waiver by Andrew Powell of the attorney-client privilege. The lack of extensive cross-examination by defense counsel coupled with the disparity between the sentence of defendant and the sentence of Andrew Powell indicates to this court that joint representation of both of these clients adversely affected defense counsel’s performance as such.

Justice ad hoc, Lottinger, stated in State v. Franklin, supra:

“Perhaps the only way to prevent the issue from continuously cropping on appeal is to prevent joint representation altogether, or to painstakingly ascertain from all defendants who are being jointly represented that they understand the risk involved and that they knowingly waive the right to a totally independent attorney.”

We do not suggest that joint representation in itself is unconstitutional, but rather, we acknowledge that joint representation, when allowed, and where a conviction is obtained, will invariably surface on appeal.

The present case raises many questions involving the effective assistance of counsel. The record reflects that these questions remain either unanswered or answered in the negative.

Powell’s testimony at Ross’ trial as a government witness does raise the serious question of whether Ross’ Sixth Amendment right to the effective assistance of counsel was abridged. That right includes the right to be represented by counsel whose loyalties are undivided. United States v. Partin, 601 F.2d 1000 (1979).

But here, unlike the Partin case, the defendant did not waive this right because he was never advised of it.

Therefore, for the above reasons, the conviction is reversed, and the case is remanded to the District Court for a new trial.

Because of the foregoing opinion, the second assignment of error is moot.

REVERSED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

CARTER, J. ad hoc, dissents.

DENNIS, J., dissents with reasons.

LEMMON, Justice,

concurring.

Usually I am philosophically opposed to per se rules. However, when an actual conflict of interest presents itself, a reversal will be required unless some officer of the court (the trial judge, the district attorney or the defense attorney) faces the problem.

If the witness in this case (defense counsel’s former client) was willing to waive the attorney-client privilege, the waiver should have been stated on the record. See United States v. Partin, above; State v. Franklin, above. If the witness was unwilling to do so, defense counsel could not effectively cross-examine the witness, and other counsel should have been appointed, no matter how overwhelming the evidence of guilt.

DENNIS, Justice,

dissenting.

I respectfully dissent.

In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). This standard is to be distinguished from that applied when a defendant, before trial, calls the court’s attention to a possible conflict of interest. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). I do not believe that the record in this case demonstrates that an actual conflict of interest adversely affected the defense lawyer’s performance. Since the defendant raised no objection at trial, his complaint in this court is insufficient to justify a reversal of his conviction.

       Judges Shortess, Carter and Savoie of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Justices Dennis, Blanche, Watson and Lem-mon.

      . There was an actual conflict of interest in this case. Defense counsel had been appointed to represent two co-defendants, one of whom pleaded guilty on the morning of trial and became a witness against the remaining defendant.

      . The only question seriously in dispute in this case was which robber was the aggressor, which is primarily a sentencing issue. However, because defendant asserts he was advised not to testify (an assertion not disputed by the defense attorney), because the former co-defendant’s testimony was the only evidence as to the identity of the aggressor, and because defendant received a much more severe sentence than the former co-defendant, there was significant need for undivided loyalty in the course of the cross-examination.


text:
    Edward C. LAMB v. Janet F. LAMB.
    No. 82-C-0075.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
    J. Minos Simon, Simon & Dauterive, Lafayette, for plaintiff-applicant.
    Thomas Robert Shelton, Philip C. Kobetz, Shelton & Legendre, Lafayette, for defendant-respondent.
   PER CURIAM.

GRANTED. The ruling of the court of appeal is reversed, the husband’s suit for divorce is reinstated, and exception of lis pendens is overruled.

The wife’s suit for divorce (based on adultery) and the husband’s suit for divorce (based on living apart for one year) are suits between the same parties and have the same object (the same “thing demanded”), but are not suits on the same cause of action. C.C.P. Art. 531. Cause in C.C. Art. 2286 (mistranslated from the French as “cause of action”) is the juridical or material fact which is the basis of the right claimed or the defense pleaded, and for the purpose of res judicata (or lis pendens) cause of action essentially refers to the grounds upon which the demand is based. Mitchell v. Bertolla, 340 So.2d 287 (La.1976).

Because the two actions for divorce are based on different causes of action, C.C.P. Art. 531 does not apply, and the court of appeal erred in maintaining the exception.

The case is remanded to the court of appeal to consider the other assignments of error in the wife’s application for supervisory writs, including the denial of the motion to consolidate and the granting of the motion to sever the reconventional demand for alimony from the principal demand for divorce.

      . If the wife had litigated her suit for divorce based on adultery and had lost, she could have immediately filed a suit for divorce grounded on a separation of one year, and the judgment in the adultery suit clearly would not constitute a res judicata bar to the second suit (even if the one-year cause of action had accrued before the judgment). Similarly, the wife’s adultery suit does not bar the filing by the other party of a divorce suit based on another cause of action (other grounds).
      The wife’s recourse, after the husband filed a no fault divorce suit, was not to retard that suit by the filing of an exception of lis pendens (particularly on the last day of an extended period for filing responsive pleadings), but to seek consolidation or to reconvene for alimony based on her freedom from fault. (The wife ultimately filed both pleadings, and the trial court denied the motion to consolidate and subsequently granted the husband’s ex parte motion to sever the wife’s reconventional demand for alimony from the husband’s principal demand for divorce. The wife complained of both rulings in her application for supervisory writs to the court of appeal, but that court did not reach those issues because of the peremptory order maintaining the exception of lis pen-dens.)


author:
SAVOIE , Justice ad hoc.
      CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Ernest DAVIS.
    No. 81-KA-0994.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, John H. Craft, David J. Cortes, Asst. Dist. Attys., for plaintiff-appellee.
    Clyde D. Merritt of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   SAVOIE , Justice ad hoc.

An Orleans Parish Grand Jury returned a true bill of indictment against Ernest Davis, the defendant herein, for the second degree murder of Kathryn Sewell, on January 9, 1980, in violation of La.R.S. 14:30.1. The defendant stood mute to the charge and the trial court entered a plea of not guilty thereto. Defense counsel then stated that the defendant would exercise his right to a jury trial. On September 29,1980, the defendant was tried before a jury and found guilty by a vote of eleven to one. On October 6, 1980, the defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant appeals his conviction, making four arguments on five assignments of error. The assignments of error are, as follows:

ASSIGNMENTS OF ERROR:
1. The trial court erred in excusing a juror for cause sua sponte.
2. The court erred in allowing evidence of prior offenses, and in denying mistrials based on that evidence.
3. The court erred in denying a mistrial after non-responsive answers from a state witness made it impossible to obtain a fair trial.
4. The court erred in not allowing the defendant to testify on direct examination as to his prior record.
5. The court erred in its charge on the presumptions surrounding specific intent.

STATEMENT OF FACT

Kathryn Sewell, the victim herein, died on January 9,1980, as the result of injuries she previously sustained to her head and face. Dr. Paul McGarry, who examined the corpse and was accepted as an expert in neuropathology, concluded that a subdural hematoma to the head was the cause of death, and the result of injuries inflicted on or about December 31, 1979. The bruises, abrasions and other injuries sustained to the victim’s face, ears and head were concluded to be consistent with injuries arising out of a beating with a bare fist but inconsistent with the victim falling and striking her head on the floor.

Fannie Skinner, the victim’s mother, went to visit her daughter in the early afternoon of December 31, 1979, at an apartment her daughter shared with the defendant. The apartment was located at Third and Danneel Streets in New Orleans, above the Alice Inn (a lounge/ballroom operated by Clarence Simmons.) Mr. Simmons allowed Ms. Skinner and her husband inside and brought the defendant downstairs. As they proceeded upstairs the defendant told them that he could not awaken Kathryn Sewell. Ms. Skinner noticed blood was coming out of her daughter’s nose and there was a little bruise on her face. Kathryn Sewell lay unconscious on the bed. The defendant told Ms. Skinner that her daughter was drunk, had smoked some marijuana and had fallen down several times. The victim could not be awakened at this time. Ms. Skinner left and called her granddaughter, Fannie Sewell, to come and pick up the victim.

At approximately 2:00 p. m. on December 31, 1979, Fannie Sewell and her husband came to the apartment to pick up her mother. They heard moans and groans coming from the apartment as they proceeded upstairs. The front door to the apartment was ajar and they saw the defendant hitting the victim in the face and saying “What’s the matter with you? You can’t talk. You’re not talking to me.” Fannie Sewell then pushed the defendant away and her husband carried the victim away. Fannie Sewell said there was blood all over the bed and the apartment at the time. They first took the victim to Fannie Skinner’s house, not realizing how seriously she was hurt, and then proceeded to work. At approximately 1:30 A. M., the victim was brought to Charity Hospital because she was bleeding badly and had not regained consciousness. The admitting clerk at Charity Hospital was told that the victim was injured when she fell to the floor and that she had this kind of problem before. Kathryn Sewell died on January 9, 1980.

It appears that both the defendant and the victim had drinking problems. Testimony for the state was to the effect that the defendant had beaten the victim on three previous occasions. The first was in June of 1979 when the victim was hospitalized for a black eye and a broken hand. The second was in September of 1979 when the victim was hospitalized with an injury to the left ear and the third was in October of 1979 for another beating. Testimony for the state was also to the effect that on each of the three occasions, the defendant had admitted the beatings and apologized. Defendant’s testimony was to the effect that there was only a single instance of his beating the victim.

The defendant testified that he did not beat the victim on December 31, 1979. He claims the victim was drunk and smoked some marijuana which her son had given to her and she fell off the bed several times, hitting her face on the bed and the floor. Clarence Simmons testified that he saw the victim’s son and another person upstairs whipping the defendant and the victim. In rebuttal, the victim’s son, Atkins Washington, testified that he never did beat his mother and never gave her marijuana. Assignment of Error No. 1

By this assignment, defense counsel argues that the trial court erred in excusing a juror sua sponte. Defense counsel submits that excusal without grounds for a challenge for cause constitutes reversible error.

The following transpired during defense counsel’s voir dire examination:

MR. MERRITT: Mr. Becker, you indicated that your prior experience—
A JUROR: I haven’t served this month but many times before that.
MR. MERRITT: You say you still could be an objective juror and give the state and defense a fair and impartial hearing?
A JUROR: Don’t put words in my mouth.
MR. MERRITT: I am asking you — I understood the judge to ask you that ' question and apparently you said, “yes”.
A JUROR: Like I said before, it was a very traumatic experience to sit on a murder case.
MR. MERRITT: Do you believe that would have some — you would be weighing on that rather than deliberating the evidence?
A JUROR: I feel like I would not be able to render a just decision. I have very — I just feel it would not be to the best of interest to the party that I would serve.
THE COURT: All right, Mr. Becker, you are excused. Thank you.
MR. MERRITT: Note an exception to the court’s ruling.

This prospective juror appeared antagonistic to the defense. Although questionable whether his claimed inability to render a just verdict would satisfy an excu-sal for cause, the matter lies within the sound discretion of the trial court. See e.g. State v. Chapman, 410 So.2d 689 (La.1981). In State v. St. Andre, 263 La. 48, 267 So.2d 190 (1972), this Court upheld the excusal of a prospective juror by a trial court, ex proprio motu, under the authority vested in it through La.C.Cr.P. Art. 787 (noting that this article complements .La.C.Cr.P.. Arts. 797 and 798). Moreover, since the state did not exhaust its peremptory challenges, an erroneous sua sponte excusal of a prospective juror might not afford the defendant a ground for , complaint. See La.C.Cr.P. Art. 800.

This assignment lacks merit.

Assignments of Error Nos. 2 and 3.

By these assignments, defense counsel argues that the trial court erred in allowing the state to introduce evidence of prior offenses allegedly committed by the defendant and in denying mistrials based on that evidence. Defense counsel submits that evidence of three previous alleged beatings inflicted on the victim by the defendant were too remote to be admissible into evidence.

The state submitted a Notice of Intent to Introduce Evidence of Similar Acts of Defendant to Prove Knowledge, System and Intent, and the trial court held a pretrial hearing on the matter in accordance with State v. Prieur, 277 So.2d 126 (La.1973). The state actually submitted two such notices. The first notice did not set forth any specific acts or dates. The second notice specified the dates of the alleged beatings and who would testify to corroborate these beatings. On September 24, 1980, the trial court ruled that the state would be allowed to introduce evidence of these other acts, subject to certain conditions.

The testimony at trial concerning these alleged previous beatings followed the notice submitted to the defendant. The three specific acts complained of occurred in June of 1979, September of 1979, and October of 1979. All three instances involved the victim and the defendant. All three alleged beatings resulted in injuries to the victim’s face and head. After each beating, the defendant allegedly apologized and promised not to do it again.

Evidence of these prior beatings does seem relevant. The theory of defense throughout the case appeared to be that the victim was intoxicated and was falling on her face. The three extraneous acts introduced to the jury have independent relevance to prove that the defendant did inflict the injuries sustained by the victim and are not too remote. See State v. LaFleur, 398 So.2d 1074 (La.1981); State v. Walker, 394 So.2d 1181 (La.1981); State v. Humphrey, 381 So.2d 813 (La.1980); State v. Monroe, 364 So.2d 570 (La.1978); State v. Morris, 362 So.2d 1379 (La.1978).

These assignments lack merit.

Assignment of Error No. 4

By this assignment, defense counsel argues that the trial court erred in refusing to allow the defendant to testify on direct examination concerning his prior criminal record.

The trial court interceded during the testimony of the defendant to instruct defense counsel that he could not ask the defendant if he had been previously convicted of a crime because the question bears on credibility. The following transpired during the cross-examination of the defendant:

Q How much of your life have you spent going by the name of Ernest Gramps?
THE COURT You are assuming something that hasn’t been testified to.
EXAMINATION BY MR. CORTES:
Q Isn’t it true that a while ago, like ten years ago, you used to go by the name of Ernest Gramps in Thibodaux, Louisiana?
A I have been going by that all my life. I was adopted by Ernest Davis.
Q You did change your name?
A I go by Ernest Davis.
Q I suspect you had a good reason for that.
MR. MERRITT: I object to that.
THE COURT: Disregard counsel’s statement, it’s not testimony.
(R., T.Tr., P. 136).

Defense counsel submits that the combined effect of his being precluded from questioning the defendant as to his prior criminal record and the prosecutor’s suggestion that the defendant’s use of two names was for less than legitimate reasons, prejudiced the defendant’s rights.

The defendant was able to explain that his adoption led to the use of these two names. Furthermore, because Defendant’s credibility was never impeached with evidence of prior convictions, the inability of the defense to bring these convictions out on direct examination in no way undermined the accused’s reputation. La.C.Cr.P. Art. 921.

This assignment lacks merit.

Assignment of Error No. 5

By this assignment, defense counsel argues that the trial court erred in charging the jury that a specific intent may be implied from the mere fact of a homicide.

Before the trial court charged the jury, defense counsel reserved the right to object after the trial court completed the charge. The trial court then gave the following charge to the jury, which the defendant subsequently objected to:

A specific intent may be implied where there are no external signs of the intent beyond the mere fact of the homicide itself or if there were no just grounds for the killing or when the killing was without provocation or upon so slight a provocation as not to justify the killing.

After the trial court delivered this charge, defense counsel contended that this instruction amounted to presumption. The trial court rejected this contention on the basis that it was merely a permissible inference as opposed to a presumption.

In the case of State v. Motton, 395 So.2d 1337 (La.1981), Specific Intent was defined, as follows:

“La.R.S. 14:10(1) defines specific intent as follows:
Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
La.R.S. 15:445 reads in part, as follows:
In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.
In State v. Williams, 383 So.2d 369, 373 (La.1980) this Court said:
Specific intent is a state of mind and as such, it need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. Thus, charging the victim in a threatening manner and trying to get at him with a knife over a bar as (has) been found to be evidence of specific intent to kill. State v. Garner, 241 La. 275, 128 So.2d 655 (1961). Likewise, the pointing of a gun at the victim as it was fired has been ruled evidence of a specific intent to kill. State v. Procell, 365 So.2d 484 (La.1978).”

It would have been better to charge the jury that an intent to kill or to inflict great bodily harm may be inferred from the facts and circumstances of a homicide rather than from the homicide itself. The jury should not be permitted to believe that just because someone is killed, the law regards it as a reasonable inference that someone intended to harm him. But in the circumstances of this case, the charge could not do harm. Where it has been shown beyond a reasonable doubt that the defendant beat the victim with his fists so that she died, the intent to commit great bodily harm is inescapable.

This assignment lacks merit.

The conviction is affirmed.

AFFIRMED.

CALOGERO and DENNIS, JJ., dissent with reasons.

CALOGERO, Justice,

dissenting.

i The jury charge was not a proper state\ment of the law. There is no implication or presumption under the law, mandatory permissive or otherwise, such as was charged this jury. Specific intent (to kill or cause great bodily harm) may not be implied, or presumed, because of the mere fact of occurrence of a homicide.

DENNIS, Justice,

dissenting.

I respectfully dissent. The introduction of the other crimes evidence cannot be justified on the grounds stated by the majority. The jury instruction on specific intent was so misleading it could have wrongfully contributed to defendant’s conviction.

       Judges Shortess, Carter and Savoie of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon, joined by Associate Justices Calogero, Marcus and Dennis.


author: SHORTESS, Justice Ad Hoc .

text:
    STATE of Louisiana v. Carlos A. DELGADO. STATE of Louisiana v. Ruben MARICHAL.
    Nos. 81-KA-1735, 81-KA-1736.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Frank Klein, Gilbert V. Andry, III, Asst. Dist. Attys., for plaintiff-appellee.
    Richard Menin, Louis B. Merhige, C. Michael Winters, New Orleans, for defendant-appellant.
   SHORTESS, Justice Ad Hoc .

Carlos A. Delgado and Rubin Marichal (defendants) were charged by separate bills of information with knowingly and intentionally possessing marijuana with the intent to distribute, a violation of La.R.S. 40:967(A)(1). Defendants filed motions to suppress, and evidentiary hearings were held and completed on January 19, 1981. The trial judge denied the motions. On March 31, 1981, defendants withdrew their pleas of not guilty and pled guilty, reserving their rights to appeal on the suppression issue. State v. Crosby, 338 So.2d 586 (La.1976). Each was sentenced to pay a fine of $15,000.00 plus costs, and to serve ten years in custody of the Louisiana Department of Corrections. They have both appealed. FACTS

On January 14, 1980, between 9:30 and 10:00 p. m., Deputy Roy Fontaine of the Plaquemines Parish Sheriff’s Office received a call from someone who told him there was a trawl boat on the west bank of the Mississippi River in the Triumph area which was probably loaded with marijuana. Fontaine and his supervisor, Inspector George Martinez proceeded to the area to investigate. They noticed a large shrimp boat apparently tied up close to the west bank by some willow trees. They kept the vessel under surveillance for a couple of hours from the parking lot of Mothe’s Funeral Home. While watching, they observed a suspicious black pick-up truck and several people who were going to and from the boat and truck, apparently unloading it.

Around 11:00 p. m., Martinez decided to call the U.S. Customs Service, Treasury Department, for advice. An agent named Steve came to the surveillance area next to Mothe’s. After watching for a short while, Steve decided to get Coast Guard assistance. He, Fontaine, and several Customs agents went to Venice where a Coast Guard vessel was waiting. During this time, it was learned that the shrimp boat was registered as M/V AQUARIAN SEA. They proceeded up the river and as they neared the AQUARIAN SEA one of the Coast Guard officers signaled to it with a bullhorn with words similar to, “AQUARIAN SEA— stand by for Coast Guard search.” With that warning, two men jumped overboard. One man moved toward the pilot house. All this movement took place notwithstanding additional Coast Guard instructions to stay where they could be seen. Two Customs agents, two Coast Guard investigators, and Deputy Fontaine boarded the vessel armed with shotguns and pistols. While boarding they detected a very strong odor of marijuana, which prompted a search of the vessel’s ice hold. Ultimately, these authorities recovered 1,072 bales of marijuana which weighed approximately 64,000 pounds.

Appellants present two issues for review:

1. Did the warrantless search of this vessel violate Article 1, Section 5, of the Constitution of the State of Louisiana of 1974 and the Fourth Amendment of the U.S. Constitution?

2. Can the search of the vessel be upheld because of the participation of Customs agents and Coast Guard officers?

ISSUE NO. 1

The Fourth Amendment of the U.S. Constitution gives protection against unreasonable searches and seizures. Warrantless searches are per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In order to clothe this search with constitutional color, it became the State’s burden to establish some exception to the Fourth Amendment’s warrant requirement.

Appellants argue that the only information to establish that there was contraband on the vessel was obtained by Deputy Fon-taine from an informer who said there was “probably” marijuana on the vessel. The State concedes that there was no showing made that the informer was credible or that his information could be considered reliable. Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Richards, 357 So.2d 1128 (La.1978). Here, the information given by the informer only resulted in the surveillance of the AQUARIAN SEA. During that surveillance a suspicious black truck and three men were sighted conducting some sort of unloading operation on the levee near the vessel late at night. As the Coast Guard vessel approached the AQUARIAN SEA and after the warning of imminent boarding was made, two men jumped into the river . A third person sought refuge in the pilot house. At this point, had Deputy Fontaine been armed with sufficient facts to justify his warrantless search under the exigent circumstance guidelines as set forth in Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and its progeny?

Late-night unloading and an unusual unloading site certainly created sufficient suspicion to permit Fontaine to approach the vessel for a closer look. These factors, together with the response of the vessel’s occupants when advised of the boarding, and the overwhelming odor of marijuana detected when the vessel was boarded, we feel gave Fontaine probable cause to search without a warrant.

ISSUE NO. 2—Participation of Customs and Coast Guard Officials

A. Customs Agents

The suspicions of the Plaquemines deputies resulted in Customs participation. A Customs agent came to the surveillance site near Mothe’s Funeral Home, and after viewing the vessel felt that a document search was in order. Authority for documentation searches is found at 19 U.S.C. 1581(a), which seems to grant Customs unlimited powers, but it has been held that searches and seizures made pursuant to this statute must meet the general standard of reasonableness imposed by the Fourth Amendment. U. S. v. Freeman, 579 F.2d 942 (11th Cir. 1978). Appellate counsel in oral argument before us strenuously argued that the border search exception was inapplicable here. Almeida-Sanchez v. U. S., 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). We concur. The record does not justify its application because we do not know where this vessel came from, and we will not speculate as to whether it came from international waters. In U. S. v. Villamonte-Marquez, 652 F.2d 481 (1981), the U.S. Fifth Circuit discussed application of the “reasonable suspicion” standard mandated by the Fourth Amendment before searching a vessel in inland waters. It restated the test it had earlier formulated in U. S. v. D’Antignac, 628 F.2d 428 (11th Cir. 1980) as follows:

The constitutionality of the boarding [of a vessel in inland waters under Section 1581(a) ] turns ... on one of the following two principles: (1) a border search; or (2) a limited investigatory stop based upon a reasonable suspicion of law violation. 628 F.2d at 433.

Did Customs authorities have a reasonable suspicion of a law violation so as to justify the initial boarding of the vessel? These facts are relevant to this inquiry: (1) a surveillance indicated unloading operations late at night during January; (2) the vessel was moored with a stationary anchor light near some willow trees with no apparent ship-to-shore unloading equipment; and (3) as the vessel was approached and prior to boarding, two men jumped overboard into dark, cold water, and a third man scurried toward the pilot house after the Coast Guard boarding announcement. We find these facts created a reasonable suspicion which justified the initial investigatory boarding of the vessel. After the vessel was boarded, the Customs agents immediately smelled marijuana and at that time had probable cause to conduct the warrant-less search. U. S. v. Serrano, 607 F.2d 1148 (11th Cir.); U. S. v. Kleinschmidt, 596 F.2d 133 (5th Cir. 1959); U. S. v. Erwin, 602 F.2d 1183 (5th Cir.).

B. Coast Guard Participation

Coast Guard authority comes from 14 U.S.C. § 89(a). The U.S. Fifth Circuit, en banc, in U. S. v. Warren, 578 F.2d 1058 (1978), upheld the constitutionality of this statute; and there can be no argument over the fact that the Coast Guard has plenary authority to board a vessel beyond the twelve-mile limit without probable cause or any particular suspicion.

CONCLUSION

Under the facts, we hold that the Plaque-mines Parish deputies and the Customs agents, independently or in concert, had probable cause to conduct this warrantless search of the AQUARIAN SEA. The search was reasonable under the facts, beginning with the surveillance near Mothe’s Funeral Home, and ending with the detection of marijuana odor when the vessel was boarded. The Coast Guard needed no probable cause to board the ship for a document search. The motions to suppress were properly denied, and the defendants’ convictions and sentences are affirmed.

AFFIRMED.

LEMMON, J., concurs.

       Judges Melvin A. Shortess, Burrell J. Carter, and Felix H. Savoie, Jr., of the First Circuit Court of Appeal participated in this decision as associate justices ad hoc, joined by Associate Justices Dennis, Blanche, Watson, and Lem-mon.

      . This same constitutional right is found in Louisiana trader Article 1, Section 5, of the Louisiana Constitution.

      . The time frame is between 12:00 and 1:00 a. m. during the month of January.

      . “Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.”

      . It is well settled that detection of marijuana odor furnished probable cause for a warrant-less search of a vessel on inland waters or on the high seas subject to United States jurisdiction.

      . “The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty, such vessel or such merchandise, or both, shall be seized.”


author: SAVOIE, Justice Ad Hoc.

text:
    STATE of Louisiana v. John J. FEEBACK, Jr.
    No. 81-KA-1794.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Lavalle B. Salomon, Vicki L. Green, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Thomas W. Davenport, of Davenport, Files, Kelly & Marsh, Monroe, for defendant-appellant.
   SAVOIE, Justice Ad Hoc.

The defendant in this matter, John J. Feeback, Jr., was charged by bill of information with the crime of receiving stolen things, a violation of La.R.S. 14:69. Initially, defendant pleaded not guilty; but after a motion to suppress the search warrant and evidence was filed and denied, he withdrew his former plea and pleaded guilty as charged, reserving the right to appeal from the adverse ruling on his motion. The defendant was sentenced to six years at hard labor which was suspended and he was placed on supervised probation for a period of five years. Additionally, the defendant was sentenced to six months in the Ouachi-ta Parish Jail, and to pay a fine of Fifteen hundred dollars, plus costs. On appeal, he contends that the denial of his motion to suppress was erroneous and the sentence imposed excessive.

On July 1, 1980, Larry Laborde, Chief of the West Monroe Police Department, executed a search warrant at defendant’s residence, 202 Woodrow Street. Eight window air-conditioning units were seized and identified as stolen property. The legality of the search warrant is at issue herein.

There were two affiants to the warrant, Chief Laborde and Major Don Hill of the Monroe Police Department. Chief Laborde stated that he had received information from a reliable confidential informant on June 30, 1980, that stolen goods would be delivered to defendant’s residence. A surveillance was placed on the residence that evening, which produced no information since it was called off for another investigation. The next morning, Chief Laborde learned from his informant that the stolen air-conditioners were concealed behind a false wall in the carport at Defendant’s residence. Chief Laborde had no information on file regarding the stolen air-conditioners and, therefore, checked with other local agencies. He found that Major Hill, with the Monroe Police Department, had a report of air-conditioners stolen on June 30, 1980, at 11:28 P.M. Major Hill, who supplied the information regarding the theft, was the second affiant. He informed La-borde that the Monroe Police Department had surprised burglars while the theft was in progress. They fled the scene, abandoning a truck whose ownership was traced to John Feeback, Sr., defendant’s father. Both police departments ran surveillances on the defendant’s residence during the day of July 1, 1980. The search warrant was obtained and executed on the night of July 1.The air-conditioners were found covered by a child’s plastic swimming pool and sheet behind paneling that had been nailed to the garage rafters as a false wall at the rear of the garage. Defendant herein was arrested on the basis of possession of the stolen air-conditioners.

ASSIGNMENT OF ERROR NO. 1

The trial court erred in denying defendant’s motion to suppress.

Defendant argues that the trial court erred in denying defendant’s motion to suppress the search warrant since the warrant was invalid, having been issued on information that was obtained by an illegal entry and search of the defendant’s premises and not from an informant. Defendant’s claim is based on the following allegations:

1. When he returned home from work on July 1,1980, he found the paneling at the back of his garage separated and the sheet removed from the crates containing the air-conditioners.
2. Defendant’s neighbor claimed he had seen two men getting out of a car near defendant’s garage.
3. Defendant’s sister saw what she thought was an unmarked police car in defendant’s driveway that day.
4. The lapse of time between the informant’s contacting Chief Laborde, before noon, and the issuance of the search warrant, 10:45 P.M., has no reasonable explanation except that the police gathered additional information through an illegal search of defendant’s premises.

The state argues that, since the search was made pursuant to a warrant, it is the defendant’s burden to prove the warrant invalid and, in the instant case, the defendant did not meet that burden.

The facts establishing probable cause for a search warrant must be contained within the four corners of the affidavit. La.C.Cr.P. Art. 162; State v. Poree, 406 So.2d 546, 547 (La.1981). Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. State v. Mena, 399 So.2d 149 (La.1981). When attacking the affidavit, the credibility of the affiant himself may be traversed on a proper showing of “a genuine issue on the affiant’s veracity supported by convincing allegations of fact which, if proven, would establish the falsity of the affidavit”. State v. Morstein, 404 So.2d 916 (La.1981). Minor inaccuracies in the affidavit may not affect the validity of the search warrant if, when the court excises the inaccurate statements, there are enough facts left to support a finding of probable cause. State v. Rey, 351 So.2d 489 (La.1977).

In the instant case, the defendant claims that the facts in the affidavit were results of unconstitutional police searches and not from a confidential informer as stated. There was no showing by the defendant at the motion to suppress that any of the reported vehicles that were seen at defendant’s house on July 1, 1980 were, in fact, police vehicles. None of the witnesses made inquiries of the persons allegedly seen on the premises. Thus, the testimony regarding illegal police investigation was conjecture by the witnesses as to the identity of those persons. Since the defendant offered no proof that traversed the credibility of the affiants, the trial judge’s determination on the motion to suppress was correct. State v. Klar, 400 So.2d 610 (La.1981).

ASSIGNMENT OF ERROR NO. 2

The sentence of the court was excessive.

Defendant argues that he was a first felony offender with a record of employment, thus a suspended six year sentence plus a Fifteen hundred dollar fine is disproportionate to the crime committed and defendant’s personal history. In addition, the defendant argues that the six month jail sentence as a condition of probation was excessive and, since imposed without benefit of probation, parole, or suspension, had the effect of a sentence of eighteen months with good time.

At the sentencing hearing, the trial court noted defendant’s prior convictions for contempt of court, disturbing the peace, and drawing and displaying a dangerous weapon. The judge decided that probation was a good risk for this defendant since the offense was non-violent and defendant was employed in a job with a responsible position. Thus, he suspended the six years at hard labor and placed defendant on probation for five years. The judge added, however, that he felt the defendant needed a taste of jail and sentenced him to six months in the parish prison in addition to a Fifteen hundred dollar fine. The judge individualized the sentence to the defendant under guidelines of La.C.Cr.P. Art. 894.1. This sentence is within the statutory limits of the offense. Given the defendant’s record of minor offenses, an imposition of six years suspended is not excessive or grossly disproportionate to the offense. State v. Bonanno, 384 So.2d 355 (La.1980).

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

AFFIRMED.

       Judges Shortess, Carter and Savoie of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Dennis, Blanche, Watson and Lemmon.


text:
    STATE of Louisiana v. Ronald CAMINITA.
    No. 81-KA-1940.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Thomas Chester, John H. Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Servando Garcia, Frank J. Uddo, Basile J. Uddo, New Orleans, for defendant-appellant.
   SAVOIE, Justice Ad Hoc.

On October 26, 1979, defendant was charged by bill of information with the armed robbery of a Ground Pati Restaurant employee in New Orleans. Subsequently, defendant entered a plea of not guilty to that charge. Two motions to suppress were filed prior to trial by defendant’s counsel. A motion to suppress the evidence was denied by the trial court on January 25, 1980. The motion to suppress defendant’s confession was taken under advisement and granted on January 29, 1980.

Pursuant to an alleged plea-bargain, defendant appeared before the court on March 6, 1980, withdrew his former plea of not guilty and tendered a plea of guilty to simple robbery. The State objected to this plea as unacceptable. Immediately thereafter, defendant filed a motion to quash the bill of information based on the state’s alleged non-compliance with their previous plea-bargain agreement. The trial court denied this motion despite defendant’s objection. Defense counsel notified the trial judge of his intention to take writs to this Court. A thirty-minute delay was given to defendant to attempt this application for writs and a stay order. The application was denied by this Court. The trial judge continued the trial date and set it for March 11, 1980. Trial began on that date and resulted in a jury verdict of guilty as charged. Subsequently, defendant filed a motion for a new trial which was denied by the trial court on June 13, 1980. On that same date, the trial court sentenced defendant to a term of five (5) years imprisonment at hard labor.

The facts of this case show that on October 23,1979, at approximately 2:30 A.M., an employee of the Ground Pati Restaurant opened the locked rear door of the building to take out the trash. As he was walking back to the building, he heard noises in the hedges. When he looked in that direction, two boys armed with a knife and a gun rushed at him and ordered him to open the door. Since the door was locked from the inside, the employee had to knock on the door to get the manager, Jerry Roszezynial-ski, to open it. When Mr. Roszezynialski opened the door, all three persons entered the restaurant. The two armed robbers put the employee, Mr. Minor, in the cooler. Holding a gun on Mr. Roszezynialski, they ordered him to open the safe. After the safe was opened, one boy grabbed a female employee’s purse and stuffed the money into it. With this accomplished, the robbers placed Mr. Roszezynialski in the cooler and fled.

While all of this was happening, a young female employee of the restaurant ran out the front door and across the street to the Tastee Donut Shop where two policemen were sitting in their unit. She informed them that “Ronnie was robbing the Ground Pati”. When the officers arrived on the scene, the perpetrators had fled. On the ground in the rear of the building they found two stocking masks worn by the robbers and several coins taken from the restaurant.

The perpetrators were described by the witnesses as one black youth and one white youth, both wearing stocking masks. The young white man was described as 5'7" or 5'8", stocky build, wearing white bluejean pants and a yellow shirt. Katheryn Aider-man, the female employee who notified the police officers, testified that she recognized the white youth as defendant, Ronald Cami-nita, an ex-employee of the restaurant. Another employee, Peggy Austin, also recognized defendant as one of the perpetrators.

Subsequently, defendant was arrested and charged with armed robbery.

The defendant appeals his conviction on two assignments of error:

1. The trial court erred in failing to grant the defense’s motion to quash on the grounds that the State had failed to honor a plea-bargain agreement.
2. The verdict was contrary to the law and the evidence.

ASSIGNMENT OF ERROR NO. 1

The trial court erred in failing to grant the defense’s motion to quash on the grounds that the State had failed to honor a plea-bargain agreement.

Soon after learning of the arrest of Cami-nita on a charge of armed robbery, and after being retained by the family as defense counsel, attorney Frank Uddo began making energetic efforts to persuade the Orleans Parish District Attorney’s office to permit his client to enter a plea of guilty in return for concessions on the eventual sentence. He spoke to at least three attorneys employed by the District Attorney’s office, including District Attorney Harry Connick. The parties here give radically inconsistent accounts of these conversations. Mr. Uddo says that a conversation between himself and Chief of Trials, Joseph Meyer, which took place during a chance meeting in a restaurant, ended with a handshake between the two, confirming Meyer’s promise to accept a guilty plea to simple (rather than “armed”) robbery, which would carry a relatively short jail sentence, that could be served locally rather than at the State Penitentiary. Uddo says that in his earlier conversation with Mr. Connick, Connick had said that he would make no deal on the case since it was not his direct responsibility, but that he would support whatever decision was made by his subordinates. Connick maintains that he told Uddo no deal was possible at all.

Chief of Trials, Meyer, denies promising to reduce the charge against Caminita and complains, too, that Mr. Uddo deceived him by saying that such a deal would be acceptable to District Attorney, Connick.

At any rate, during a telephone conversation next morning between Meyer and Uddo, Uddo was apprised that Meyer would not reduce the charges against Caminita. Uddo asserted Caminita’s right to specific performance of the plea-bargain before the trial court, but, after hearing evidence, the trial judge held that whether or not the elements of a binding contract, under the civil law, were present, the District Attorney’s office was free to withdraw its promise so long as the defendant had not suffered prejudice to his substantial rights by reliance on the promise. Finding no detrimental reliance, the court refused to compel adherence to the alleged agreement. We think the ruling was correct.

This is not the first time that this court has been presented with an insistence by a criminal defendant on the right to specific performance of a plea bargain agreement. In State v. Nall, 379 So.2d 731 (La.1980), the prosecuting attorney promised to reduce the charges against an accused in return for the accused’s testimony against his co-defendant. However, the statement given by the accused in fulfillment of his part of the bargain was completely different from what the prosecutor had been led to expect, so the prosecutor refused to be bound by his promise. Justice Blanche, writing for the majority of this court, analyzed the case under principles of the civil law of obligations, finding the plea-bargain agreement void for lack of cause on account of the defendant’s misrepresentation of what his testimony would be. Justice Dennis, concurring, stated that the case turned on the constitutional guarantee of fundamental fairness contained in the Due Process Clause of the 14th amendment, and warned against excessive attention to the niceties of contract law in this context, citing Cooper v. United States, 594 F.2d 12 (4th Cir. 1979).

We do not read Nall as revealing any real difference of opinion among the members of this court on this point. Justice Dennis’ concurrence merely points up what is implicit in the majority opinion, that the traditional law of contracts guides educated expectations of fairness in any negotiation and can be useful by analogy in weighing claims of denial of due process in plea negotiations. Certainly, if we confined ourselves to contract principles in this case, we might deny enforcement of the alleged agreement on the grounds that a plea bargain is a type of “Transaction and Compromise” which our Civil Code requires to be in writing; CC art. 3071.

But the real question is whether Ronald Caminita has been dealt with in a manner so fundamentally unfair that it “shocks the (judicial) conscience”. For purposes of this analysis, we take the defendant’s version of the facts as true, since the trial judge made no fact-findings but rather found as a matter of law that the defense was not entitled to enforce the agreement even on the supposition that a promise was made.

The United States Fourth Circuit Court of Appeals has held on very similar facts, in the Cooper case, cited above, that the government cannot withdraw its consent to a plea-bargain, once made, when a higher-up in the prosecutor’s office disagrees with the judgment of the attorney who struck the deal. Cooper is the only case in any jurisdiction to so hold and we reject its rationale. Absent any showing of detrimental reliance prejudicial to the substantial rights of the accused, or evidence of devious practice by the government such as bad-faith negotiation designed to psychologically probe the defense or gain some other improper advantage, the government remains free to withdraw from a plea agreement up to the time the plea is entered. The only detriment claimed by the defense here is that Mr. Caminita’s hopes were raised when he was informed of the unsuccessful plea negotiation, then dashed when he was informed that the District Attorney had allegedly over-ruled his subordinate and repudiated the deal.

This is not enough to render the proceedings unconstitutionally unfair. We approve the reasoning of Judge Everett in U. S. v. Kazena, 11 M.J. 28 (C.M.A.1081):

“When an accused has demonstrated detrimental reliance on a plea-bargain, for example, by failure to call witnesses as to guilt or innocence who might otherwise have been available, I would enforce the plea-bargain. Virgin Islands v. Scotland, (cite). Conceivably, some other situations will reveal such ‘unfairness’ on the part of the convening authority in connection with a plea-bargain that performance by the Government should also be compelled. Cf. Cooper v. United States, (cite) In the case at bar, there is no indication of detrimental reliance by the appellant, nor of unfairness on the convening authority’s part. Therefore, despite the absence from the pretrial agreement of any provision purporting to allow the convening authority to withdraw from the agreement, he was free to do so until the plea of guilty had been accepted.”

ASSIGNMENT OF ERROR NO. 2

The verdict was contrary to the law and the evidence.

Caminita was convicted of holding up a restaurant at which he had previously been employed. He wore a nylon stocking over his head during the commission of the crime but two waitresses who had been employed along with him testified positively that they recognized him instantly and had no doubt at all that he was the robber.

From the record, it is apparent that the State presented adequate evidence by which the jury could find the defendant guilty beyond a reasonable doubt.

This Court’s review of a trial court’s denial of a new trial motion based on the assertion that the verdict is contrary to the law and the evidence is limited to the question of whether the trial judge has properly exercised his wide discretion. La.C.Cr.P. Art. 851; State v. Turner, 365 So.2d 1352, 1355 (La.1978). It does not appear that the trial judge in this case violated that discretion.

For the above and foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

       Judges Shortess, Carter and Savoie of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon, joined by Associate Justices Calogero, Marcus and Dennis.