author: CALOGERO, Justice. DIXON, Chief Justice,

text:
    STATE of Louisiana v. Colin CLARK.
    No. 83-KK-1607.
    Supreme Court of Louisiana.
    Nov. 28, 1983.

      Lewis 0. Unglesby, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-respondent.
   CALOGERO, Justice.

We granted defendant’s writ application to examine the serious contention that he is entitled to a change of venue for his retrial on the charge of first degree murder, a charge for which he was once convicted and sentenced to death in Baton Rouge, Louisiana. Upon review, we conclude that the venue should be changed, and therefore remand the case to the district court for appropriate action in that regard.

Colin Clark’s retrial on the charge of first degree murder which resulted from the 1978 killing of a Baton Rouge restaurant manager came about as a result of the following events.

The grand jury of East Baton Rouge Parish indicted defendant Colin Clark for first degree murder, in violation of La.R.S. 14:30. Following trial, the twelve member jury returned a unanimous verdict of guilty as charged and then recommended the death penalty. This Court affirmed defendant’s conviction and sentence. State v. Clark, 387 So.2d 1124 (La.1980), cert. denied 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 830; rehearing denied 450 U.S. 989, 101 S.Ct. 1530, 67 L.Ed.2d 825 (1981). This Court also denied Clark post-conviction relief. Clark then filed a post-conviction application with the federal courts. Throughout these legal processes, however, Clark remained steadfast in expressing a preference for execution rather than life imprisonment, which posture afforded him massive media coverage. At one point when he was still scheduled for execution, Clark held a press conference during which he admitted his part in the armed robbery which had resulted in the restaurant manager’s death; he apologized to the victim’s family.

Shortly thereafter, however, a stay of execution was granted by the United States Fifth Circuit Court of Appeals to review Clark’s conviction and sentence. That Court ultimately reversed his conviction and ordered a new trial. Clark v. Louisiana State Penitentiary, 694 F.2d 75 (1982). Clark then filed a motion for a change of venue in the East Baton Rouge District Court. After a delay of three months, the trial judge denied the motion. The First Circuit Court of Appeal denied defendant’s application for review. Defendant argued to this Court that the trial court erred in not granting a change of venue. We granted his application to consider that question. 435 So.2d 469 (La.1983).

Clark’s motion in the trial court for a change of venue after the U.S. Fifth Circuit reversed defendant’s conviction referred to several specific items of media coverage and alleged that these, along with the remaining extensive coverage, would make it impossible for defendant to receive a fair trial in East Baton Rouge Parish. The trial judge conducted a hearing on the motion, at which hearing a “dry run” voir dire took place and Dr. Zimmerman, a psychologist qualified as an expert in public opinion polls, testified concerning the publicity’s impact on the community. At the hearing defendant introduced into evidence several television scripts, numerous newspaper articles and four video-tapes: two marked WBRZ-TV; one marked WDSU, special, 8-18-82; and one marked Colin Clark Press Conference.

In denying the change of venue, the trial judge reviewed the recent jurisprudence of this Court in the area and concluded that, given the nature of the publicity and the degree of its circulation in the community, and given the fact that the publicity was promoted by the defendant himself (with particular reference to the news conference) the jurors could set aside what they had heard about the case and be unaffected by any prejudice or pressure from outside influences.

The grounds for a change of venue are set forth in La.C.Cr.P. art. 622 which provides:

A change of venue shall be granted when the applicant proves 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.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

In deciding whether to grant defendant’s motion for a change of venue, therefore, the trial judge must consider if prejudice, undue influence, or any other reason will deny the defendant a fair trial in the parish in which the prosecution is pending. The judge must also decide if such prejudice or influence will affect either the answers of the jurors on the voir dire examination or the testimony of the witnesses at trial. La.C.Cr.P. art. 622; State v. Goodson, 412 So.2d 1077 (La.1982); State v. Rodrigue, 409 So.2d 566 (La.1982); State v. Felde, 382 So.2d 1384 (La.1980); State v. Bell, 315 So.2d 307 (La.1975). The burden of proof is on the defendant to show that such prejudice exists in the collective mind of the community that a fair trial is impossible. State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Adams, 394 So.2d 1204 (La.1981); State v. Williams, 385 So.2d 214 (La.1980), cert. denied 449 U.S. 1017, 101 S.Ct. 580, 66 L.Ed.2d 478 (1980); Felde, supra. Upon review, we find that the defendant has sustained his burden in that regard in this case, and we disagree with the trial judge that Clark’s calling his press conference and causing attending publicity should preclude his being granted a change of venue.

The newspaper clippings, television scripts and video-tapes extensively document the widespread publicity surrounding Colin Clark from the time of the armed robbery and murder to the present. Additionally the testimony of news professionals at the hearing on the motion for change of venue support Clark’s contention.

John Spain, News Director of Channel 2, WBRZ Baton Rouge, testified that his station had 60% of the audience for the 6 and 10 p.m. news, 70% at 5 p.m. and approximately 90% for the morning news. Station viewing area to the south is to Morgan City and the Gulf; to the west as far as Crowley; to Bougalusa on the east and to McComb on the north. The station also goes, via cable, into Oakdale and Alexandria. Mr. Spain played two of the video tapes included as exhibits. One of these aired as a two-part series on consecutive nights (Nov. 3 and 4 of 1982). He said that all the stories were “top blockers” which he explained meant that they played in the top five minutes of the program. He characterized the news coverage of Colin Clark as “significant” and said that the number of cases falling into the same category you “could probably count on one hand.” When asked whether he anticipated that the coverage would continue, he replied that the story was being covered the day of the hearing.

Chris McDaniel, Assistant News Director of WAFB, Channel 9 Baton Rouge, agreed with Spain that the coverage of Colin Clark has been substantial, and he, too, anticipated that it would continue. McDaniel played a video tape from February 14, 1983, containing a statement by Ossie Brown and showing his picture. McDaniel estimated that his station was received in 105,000 homes for the 6 p.m. news and a few thousand less at 10 p.m. His station’s coverage area included Point Coupee, St. Helena, St. Mary, West Baton Rouge, Iber-ville and Assumption Parishes, as well as East Baton Rouge Parish. The station goes into Alexandria and Lafayette on cable. Although he had no record of it, he was sure that stories of Colin Clark were provided to other stations in the state, such as those in Shreveport. His station last ran a story on Clark on April 1, 1983, and was covering the hearing on the change of venue.

Bob Nesse, Assignments Editor of WRBT, Channel 33 Baton Rouge, played a tape of the press conference with Clark when his execution was scheduled — October, 1981. The tape also had 23 stories dealing with the death penalty, but his file did not go back to the time of the trial or include the crime. To his knowledge the last coverage on his station occurred on February 17, 1983, “talking about Mr. District Attorney, Ossie Brown, seeking the death penalty when Colin Clark gets a new trial.” He stated his opinion that the fact that Clark’s execution “was going to be the first execution in twenty years ... made it a very significant news story.” Discussing Clark’s press conference, he said that Channels 2 and 9 from Baton Rouge were present as well as public television, three New Orleans channels, N.B.C. (and he thought C.B.S.). In fact, N.B.C. coordinated it with his channel and played it on national news in addition to furnishing the tape to its local affiliates. All three wire services were also represented at the conference. Although his station has only a 50 mile signal radius, Neese said that it goes on cable to Bogalusa, Lafayette, Morgan City and into Mississippi.

Yvonne Foreman, the reporter for the Baton Rouge Morning Advocate assigned to cover the Nineteenth Judicial District Court, stated that in her seven years with the paper she could not recall the paper providing so much coverage for a criminal trial as it did for Colin Clark. She termed the case a very significant one. The prosecutor stipulated that the State-Times and Morning Advocate, the two major papers in Baton Rouge, reach over 200,000 homes.

On the “dry run” voir dire which the trial judge conducted thereafter, thirty eight potential jurors were questioned. Two were questioned individually. Then three consecutive groups of twelve were interviewed. Of the first fourteen, only one juror did not recall anything in particular about the Colin Clark case. That juror was excusable on Witherspoon grounds, because of his opposition to the death penalty. Of the remaining thirteen, six recalled all of the details of the case to that point: the murder, trial, conviction, death sentence, twenty-four hour reprieve and reversal. Of the remaining jurors, each recalled scattered events in the prior history of the ease.

All of the next group of twelve were familiar with some, if not all, of the events leading up to Clark’s retrial for second degree murder. Only three of this group unequivocally indicated that, in their opinion, their knowledge to date of the Colin Clark case would not affect their decision as a juror in his federally ordered retrial. In like manner, all of the last group of twelve had heard of the Colin Clark murder case. Of this group, it was again only three who were convinced that they would be able to separate their judgment in this case from their knowledge of what had preceded it.

In State v. Goodson, 412 So.2d 1077 at 1081 (La.1982) we said:

A prospective juror who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge for cause without regard to the prospective juror’s testimony as to state of mind.

We find in this case that the majority of those jurors questioned on the mock voir dire were exposed to and remembered “highly significant information ... inadmissible in evidence, or substantial amounts of inflammatory material” which would make them “subject to a challenge for cause without regard to the prospective juror’s testimony as to state of mind." 412 So .2d 1081.

Additionally we find that a change of venue is warranted in this case even apart from the Goodson standards relative to juror’s challenges for cause.

Comment (b) of La.C.Cr.P. art. 622 states in pertinent part:

A change of venue ought to be available even though individually, each juror is not susceptible to a valid challenge for cause, if the defendant can show that ... he still cannot get a fair trial. The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly.

Likewise, this Court has stressed that there is a difference between answers which would sustain a challenge for cause and those which indicate the need for a change in venue. State v. Bennett, 341 So.2d 847 (La.1976); State v. Rudolph, 332 So.2d 806 (La.1976) cert. denied, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976); State v. Berry, 329 So.2d 728 (La.1976); State v. Bell, supra.

Thus, while qualified jurors need not be totally ignorant of the facts and issues involved, so too the juror’s assurances that he is equal to the task cannot be dispositive of the accused’s rights. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) and cases cited thereafter in Note 4 supra.

If the defendant can demonstrate that actual prejudice, influence, or other reasons exist which will affect the answers of the jurors on the voir dire examination or the testimony of the witnesses at trial, the court must take this into consideration in deciding whether to grant a change of venue. La.C.Cr.P. art. 622, State v. Kahey, 436 So.2d 475 (La.1983); State v. Morris, 429 So.2d 111 (La.1983); Goodson, supra; Rodrigue, supra.

Moreover, although extensive knowledge in the community of either the crimes or the accused and his prior crimes is not in itself sufficient to render a trial constitutionally unfair, unfairness of a constitutional magnitude may be presumed so as to require a change of venue if the “trial atmosphere” has been “utterly corrupted by press coverage.” Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida, supra; Kahey, supra; Morris, supra; Goodson, supra.

Defendant’s televised interview as the time for his scheduled execution neared, admittedly done at his initiation, seems to put this case in a posture similar to Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). The impact of Clark’s interview, with defendant stating that he wished to die rather than serve a life sentence, coupled with the impact of the interviews with the parents of the victim would fall within the Supreme Court’s classification as a spectacle. The Rideau Court held, “without pausing to examine a particularized transcript of the voir dire examination of the members of the jury, that due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau’s televised ‘interview.’ ” 373 U.S. at 727, 83 S.Ct. at 1419, 1420. In the ease at bar, it may not be possible to find a community which meets the Rideau criteria that the people have not seen and heard the television interviews, but the people in a community other than Baton Rouge are less likely to have been tainted by these interviews. In assessing the potential for prejudice to defendant on retrial in East Baton Rouge Parish, it is important to note here that the jury will determine sentence as well as the issue of guilt or innocence. The possibility of death penalty (again) in this case requires an exacting concern for reliability in the sentencing determination.

We now turn to the question of whether Clark played such a part in generating the publicity he received as to bar his being granted a change of venue in this his retrial for second degree murder.

Defendant can hardly be charged with stimulating publicity for the purpose of securing a venue change at a possible later retrial, an eventuality which at the time of his forthcoming execution was rather remote. The press conference was initiated at a time when Clark was preparing to die and when he was apparently embracing execution willingly. Since his stay of execution and reversal of the death penalty, Clark has not initiated media contact. The United States Supreme Court in recognizing the impact of television in Rideau noted that who initiated the televised interview was “a basically irrelevant detail.” 373 U.S. at 726, 83 S.Ct. at 1419. Also, some of the news stories, although about defendant, were part of a series dealing with several men who had received the death sentence. While most of the articles appear to be factual reports about defendant and the crime of which he was convicted, the “human interest” nature of such articles given the defendant’s on-again, off-again attitude toward his impending execution and appeals taken on his behalf make his case more likely to be remembered in the minds of potential jurors.

Finally, this case is distinguishable from Morris, supra. In Morris at 429 So.2d 118, this Court said: “The record before us demonstrates convincingly that by the time of the final voir dire, public and media attention were no longer focused on the case.” In the case at bar, the media attention has continued to focus upon defendant, and there seems to be little reasonable expectation that it will not continue to do so.

Decree

For the foregoing reasons, we conclude that the defendant’s motion for a change of venue should have been granted by the trial judge in this matter. We therefore reverse the lower court in that regard and remand the case to the district court for further proceedings.

REVERSED AND REMANDED.

DIXON, Chief Justice,

dissenting.

Although there is widespread knowledge of this case and this defendant, there has been no “circus atmosphere”, no evidence of public clamor nor hatred, no evidence of any kind of pressure that might corrupt a voir dire, no distortion of facts or abuse by the news media. It has not been proved that defendant is not likely to get a fair trial in East Baton Rouge Parish.

      . The Fifth Circuit reversed defendant’s conviction on the grounds that the trial court’s general charge to the jury, when read as a whole, conveyed the impression "... that they could find evidence of [defendant’s specific intent to kill, an essential element of the offense] in acts of butchery — by Glover [the co-defendant] — if the two of them had combined to commit the crime of armed robbery;” and, that this jury instruction "to deem Glover's acts to be intended by Clark relieved the prosecution of its burden [to prove that Clark had the requisite specific intent to kill] in violation of Mullaney v. Wilbur, 421 U.S. 684 [95 S.Ct. 1881, 44 L.Ed.2d 508] (1975) and cast the burden of disproving that intent upon Clark in violation of Sandstrom v. Montana, 442 U.S. 510, [99 S.Ct. 2450, 61 L.Ed.2d 39].’’ 694 F.2d at 77.

      . Initially after a contradictory hearing which included the conducting of a mock voir dire, the trial judge deferred ruling on the change of venue motion until after jury selection. The First Circuit Court of Appeal denied the defendant’s writ application noting that ”[i]t is within a trial judge’s discretion to defer ruling on a change of venue motion until actual voir dire, a preferable practice. See e.g., State v. Goodson, 412 So.2d 1077 (La.1982); State v. Rodrigue, 409 So.2d 556 (La.1982).”
      On application to this Court following the Court of Appeal’s denial, we ordered the trial judge to rule on the change of venue motion. This case was distinguishable from both Good-son and Rodrigue wherein the trial judges had denied the change of venue and the appellate courts were reviewing the wisdom of that denial. Our order to the trial court in this case read in full as follows:
      The trial judge is ordered to rule forthwith on defendant’s change of venue motion. A motion for change of venue shall be filed before the first witness is sworn at the trial of the merits and decided after a contradictory hearing. La.C.Cr.P. art. 621. Upon reviewing a refusal to change venue, an appellate court may, when serious questions of possible prejudice have been raised, vacate the ruling and instruct the trial court to defer its ruling on the motion until completion of voir dire in the case. State v. Goodson, 412 So.2d 1077 (La.1982); State v. Rodrigue, 409 So.2d 556 (La.1982). However, the trial court upon completion of the contradictory hearing must decide whether to grant or deny a change of venue. La.C.Cr.P. arts. 621, 622. Of course, in denying a change of venue, nothing prevents the trial court from providing that the denial shall be without prejudice to renewal at the completion of the voir dire examination. State v. Clark, 434 So.2d 404 (La.1983).

      .In so doing the First Circuit found ”[n]o error shown in the ruling complained of; reserving however to defendant the right to reurge a change of venue motion at the completion of the voir dire examination only before the first witness is sworn.”

      . To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); State v. Kahey, 436 So.2d 475 (La.1983); State v. Harper, 430 So.2d 627 (La.1983); State v. Morris, 429 So.2d 111 (La.1983); State v. David, 425 So.2d 1241 (La.1983); State v. Goodson, 412 So.2d 1077 (La.1982).


source: Caselaw Access Project

author: BLANCHE, Justice. DENNIS, Justice,

license: Public Domain

text:
    Robert SAWYER v. STATE of Louisiana.
    No. 81-KA-1566.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Jan. 6, 1984.
    Certiorari Denied April 2, 1984.
    See 104 S.Ct. 1719.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William C. Credo, III, Phillip J. Reeves, Louise Korns, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Elizabeth W. Cole, New Orleans, Tulane Law School Clinic, for defendant-appellant.
   BLANCHE, Justice.

Defendant was convicted of first degree murder and subsequently sentenced to death. The conviction and sentence were affirmed in State v. Sawyer, 422 So.2d 95 (La.1982). Defendant applied for a writ of certiorari to the United States Supreme Court, on the ground that evidence of another crime not considered a statutory aggravating circumstance was admitted at the sentencing, thereby injecting an arbitrary factor into the jury’s decision making process. The Supreme Court, — U.S. -, 103 S.Ct. 3567, 77 L.Ed.2d 1407 remanded the case to this court for consideration in light of the holding in Zant v. Stephens, — U.S. -, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

FACTS

The gruesome and depraved facts surrounding this case were given a thorough treatment in the court’s previous opinion. See Sawyer, 422 So.2d 95 (La.1983). Therefore, we give only a brief recitation of the circumstances leading to defendant’s conviction. On September 29, 1979, Fran Arwood was at the residence of defendant, where she was helping to care for the young children of defendant’s live-in girlfriend. Defendant and a friend, Charles Lane, attacked Ms. Arwood, striking her repeatedly in the face. Thereafter, the two men proceeded to torture the victim by first dunking her body into scalding water, then beating her and ultimately, setting fire to the victim’s genitalia with lighter fluid. The testimony of Ms. Shano at trial also indicated that, at some stage, the victim was raped. After this savage attack, defendant and Lane left the mortally wounded victim on the floor of the house until relatives of Ms. Shano arrived later in the day.

Both defendant and Lane were indicted for first degree murder. Lane was tried separately and sentenced to life imprisonment. State v. Lane, 414 So.2d 1223 (La.1982). Defendant was convicted by a unanimous jury, which then proceeded to sentence defendant to death.

At the sentencing hearing, the State reoffered evidence presented in its case in chief to establish that defendant had murdered the victim while in the perpetration of aggravated arson and aggravated rape, and that defendant had murdered the victim in an unusually cruel manner. Additionally, the State called a deputy prosecutor from Arkansas, who introduced documentary evidence that defendant had pled guilty to involuntary manslaughter of a four-year old child, and had served one year in prison as a result. Afterwards, defendant testified about the guilty plea and his version of the event leading to the child’s death. Both defendant and his sister offered mitigating testimony as to defendant’s brutal childhood and one time institutionalization at a state mental health facility.

Upon hearing all the evidence, the jury announced its finding of three statutory aggravating circumstances: (1) that defendant was engaged in the perpetration of aggravated arson; (2) that the offense was committed in an especially heinous, atrocious and cruel manner; (3) that defendant was previously convicted of an unrelated murder and sentenced defendant to death. On. appeal, this court found that the last aggravating circumstance was not supported by the evidence, 422 So.2d at 101, but correctly observed that only one aggravating circumstance need be found in order to place defendant in the category of offenders capable of receiving the death penalty. Defendant, however, argued that introduction of testimony relating to the manslaughter plea was improper, since it was neither admissible as an aggravating circumstance in the guilt phase of the trial, nor as other crimes evidence in the sentencing phase where defendant had not previously placed his character at issue. In upholding the admission of the testimony, this court found that Louisiana C.Cr.P. art. 905.2 allowed the evidence to be considered to show defendant’s bad character, reasoning that defendant’s character is put at issue by the nature of the proceeding, regardless of whether he takes the witness stand on his own behalf and places his character at issue.

ISSUE

On remand, we are asked to consider our previous holding in light of Zant v. Stephens, — U.S. -, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). In that case, the U.S. Supreme Court affirmed the constitutionality of a Georgia sentencing statute, finding that the invalidity of several aggravating circumstances found by the jury did not impair the death sentence in the case. Based upon our reading of Zant, we frame the following issues for resolution: (1) Under the Louisiana statutory scheme, does the finding of an additional aggravating circumstance that is later found invalid have any affect on the jury’s sentence determination, where evidence of the invalid circumstance was otherwise admissible? (2) Was evidence of the invalid aggravating circumstance admissible in the instant case to show defendant’s character, where defendant had not first placed his character at issue? (3) If inadmissible, was the evidence so consequential that it injected an arbitrary factor in the jury’s decision to sentence defendant to death?

THE STATUTORY SCHEME

Louisiana’s capital sentencing procedure, La.C.Cr.P. arts. 905-905.9, is similar in many respects to the Georgia procedure examined in Zant. As in Georgia, the trial of an individual charged with first degree murder is bifurcated; consisting of a guilt phase and a penalty phase. During the guilt phase of the trial, the jury must make the initial determination whether the defendant belongs in the class of offenders who may be exposed to the death penalty. La.R.S. 14:30 provides that in addition to specific intent to kill a human being, the offense must include one of four aggravating circumstances. Once the defendant has been found guilty, the jury must then determine whether defendant will be given the death sentence.

The process of sentencing is explained in Code of Criminal Procedure Art. 905.3, which states:

A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists, and, after consideration of any mitigating circumstances, recommends that the sentence of death be imposed.

Clearly, then, the sentencing phase is itself broken down into two aspects. Initially, the jury must find the existence of at least one statutory aggravating circumstances before an offender can be sentenced to death. Because the aggravating circumstances listed in Article 905.4 include most of the aggravating circumstances listed in R.S. 14:30, the jury will usually have already found at least one aggravating circumstance before it reaches the penalty phase of the trial. Louisiana's scheme differs from Georgia’s in this respect, for the class of offenders in Louisiana eligible for the death penalty is considerably narrower after the guilt phase of the trial.

Once a single aggravating circumstance is found, the jury may then consider all the evidence, both in aggravation and mitigation, in order to make the final determination that the offender should be put to death. The finding of additional aggravating circumstances are therefore unnecessary to advance the case to consideration of whether the death penalty will in fact be imposed. Nothing in the statutory scheme requires that the jury weigh two or more aggravating circumstances more heavily against the defendant than a single aggravating circumstance. Rather, the finding of statutory aggravating circumstances is simply a preliminary step before any balancing process can be undertaken.

ADMISSIBILITY OF THE EVIDENCE

While the failure of an aggravating circumstance may not of itself impair the sentence, the introduction of otherwise inadmissible evidence in support of the circumstance could inject an arbitrary factor in the sentencing process. Defendant maintains in the instant case that inadmissible evidence was put before the jury in the form of testimony of the involuntary manslaughter conviction.

Defendant’s argument is based on the language of C.Cr.P. art. 905.2, which addresses the conduction of sentencing hearings. The article provides:

The sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender. The hearing shall be conducted according to the rules of evidence. Evidence relative to aggravating or mitigating circumstances shall be relevant irrespective of whether the defendant places his character at issue. Insofar as applicable, the procedure shall be the same as that provided for trial in the Code of Criminal Procedure. The jury may consider any evidence offered at the trial on the issue of guilt. The defendant may testify in his own behalf. In the event of retrial the defendant’s testimony shall not be admissible except for purposes of impeachment.

Defendant contends that the second sentence of 905.2 precludes the introduction of other crimes evidence unless offered to show defendant’s bad character, or to support a valid aggravating circumstance. 905.4(c) limits other crimes which may be considered aggravating circumstances to convictions of unrelated murders, aggravated rape, or aggravated kidnapping, or where the offender has a significant prior history of criminal activity. It does not include guilty pleas, or for that matter, convictions of involuntary manslaughter. Accordingly, defendant argues that he has not placed his character at issue by taking the stand, evidence of the guilty plea cannot be introduced. As further support for this proposition, defendant points to the following sentence of 905.2 — which allows for other crimes evidence to be introduced regardless of whether defendant has taken the stand if it relates to the aggravating circumstances — as a limited exception to the general rules of evidence by which the hearing should be guided.

This argument was espoused by defendant when the case was originally before this court, State v. Sawyer, 422 So.2d 95 (La.1982). We rejected the argument then, and most recently, in the case of State v. Jordan, 440 So.2d 716 (La.1983). Now, after having been asked to reconsider the question, we affirm our prior holdings.

The first sentence of 905.2, which defendant ignores in his effort to expand the meaning of the second sentence, expresses the true intent of the statutory scheme. When it commands that the sentencing hearing focus on the “circumstances of the offense and the character and propensities of the offender,” 905.2 makes it clear that the character of the defendant is one of the two most relevant factors with which the sentencing hearing should be concerned. As we observed in State v. Mattheson:

The above article clearly provides that the focus of the sentencing hearing is on “the character and propensities of the offender” as well as the circumstances of the offense and that evidence of “aggravating or mitigating circumstances” are relevant irrespective of whether defendant places his character at issue.

407 So.2d 1150, 1164 (La.1981). In State v. Jordan, we stated that “it is axiomatic that the conviction per se puts the convicted offender’s character at issue” 440 So.2d 716, 720 (La.1983). At the heart of such a statement rests the underlying difference between the uses of character evidence at the guilt and sentencing phases of a trial. The rules of evidence prohibit the use of character evidence where defendant has not placed his character at issue for the simple reason that such evidence is not relevant to the issue of guilt. To the contrary, in a sentencing hearing, the jury is asked to scrutinize defendant’s character, to ascertain whether the offender and the offense fit the statutory scheme for those whom the death penalty has been designed.

We are of the opinion that the reference to the rules of evidence contained in Article 905.2 was placed there to regulate the introduction of competent versus incompetent evidence, and should not be construed to prohibit introduction of highly relevant character evidence at the sentencing hearing. Thus, we conclude that the evidence of defendant’s guilty plea to involuntary manslaughter of a four-year old child was properly admitted to show defendant’s character.

ARBITRARINESS

Although we find that the evidence was admissible under Article 905.2, and thus injected no arbitrary factor into the decision process of the jury, we think that even if the evidence had been inadmissible, no serious prejudice could have resulted to defendant. Defendant has argued strenuously in his brief that the prosecutor relied heavily on the details surrounding defendant’s guilty plea to manslaughter to convince the jury to return a death sentence. Regardless of whatever emphasis the prosecutor placed on the guilty plea, it is inconceivable, given the overwhelming evidence of the heinous nature of the principal offense already before the jury, that the additional evidence of the manslaughter plea could have seriously prejudiced defendant at that point.

DECREE

For the reasons assigned, we find that the failure of one of three statutory aggravating circumstances did not create an arbitrary factor in the sentencing of defendant by allowing inadmissible evidence to be considered by the jury. Therefore, the sentence of defendant is affirmed.

AFFIRMED.

CALOGERO, J., concurs. See the concurring portion of my concurring/dissenting opinion in State v. Jordan, 440 So.2d at 722.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I concur in the result, but I adhere to the reasoning expressed in my concurring opinion on original review. See State v. Sawyer, 422 So.2d 95, 106 (La.1982).

      . The Georgia sentencing procedure was explained in detail by the Georgia Supreme Court in response to the U.S. Supreme Court’s certified question in Zant, 250 Ga. 97, 297 S.E.2d 1 (1982). Essentially, the Georgia System is divided into three planes:
      I. Ga.Code Ann. § 26-1101 separates those homicide cases which fall into the category of murder. This is an issue of fact determined during the guilt phase of the trial.
      II. Ga.Code Ann. § 27-2534.1 provides that unless at least one aggravating circumstance is found, the death penalty may not be imposed in a given murder case.
      III. Once it is determined that the death penalty may be imposed, the fact finder determines whether it shall be imposed. This determination takes into account all relevant evidence in mitigation or aggravation, and vests absolute discretion on the fact finder.
      Superimposed on this scheme is the automatic appeal to the Georgia Supreme Court, who determines whether the penalty was imposed under the influence of passion, prejudice or other arbitrary factors.

      .La.R.S. 14:30 states:
      First degree murder is the killing of a human being:
      (1)When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery;
      (2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties;
      (3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or
      (4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing.

      .Under Ga.Code Ann., murder punishable by death is defined in the following manner:
      § 26-1101 Murder
      (a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of a human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
      (b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice.
      Clearly, then what is considered second degree murder in Louisiana would be considered murder in Georgia, subject to the death penalty.

      . Additional protection is afforded defendant by Rule 28 of the Louisiana Supreme Court, which provides for automatic review by this court to determine if the sentence is excessive. Included in this review are inquiries into whether:
      (1) the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors; and
      (2) whether the evidence supports the jury’s finding of a statutory aggravating circumstance; and
      (3) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

      . Article 905.4 provides that:
      The following shall be considered aggravating circumstances:
      (a) the offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, aggravated arson, aggravated escape, armed robbery, or simple robbery;
      (b) the victim was a fireman or peace officer engaged in his lawful duties;
      (c) the offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping or has a significant prior history of criminal activity;
      (d) the offender knowingly created a risk of death or great bodily harm to more than one person;
      (e) the offender offered or has been offered or has given or received anything of value for the commission of the offense;
      (f) the offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony;
      (g) the offense was committed in an especially heinous, atrocious, or cruel manner; or
      (h) the victim was a witness in a prosecution against the defendant, gave material assistance to the state in any investigation or prosecution of the defendant, or was an eye witness to a crime alleged to have been committed by the defendant or possessed other material evidence against the defendant.
      (i) the victim was a correctional officer or any employee of the Louisiana Department of Corrections who, in the normal course of his employment was required to come in close contact with persons incarcerated in a state prison facility, and the victim was engaged in his lawful duties at the time of the offense.

      . See State v. Antonio James, 431 So.2d 399 (La.1983) (Blanche, J., concurring in part and dissenting in part).

      . The opinion was authored by Judge Julian Bailes, sitting for Justice Marcus.

      . Emphasis added.

      . In a concurring opinion to Jordan, J. Lemmon noted the absurd result of applying the other crimes rule to a sentencing hearing:
      “It is therefore highly doubtful that the Legislature intended for the defendant to control the decision on which evidence of his character and propensities will be introduced at the penalty hearing. Yet this is exactly what the adoption of defendant's argument would permit." State v. Jordan, 440 So.2d 716, at 721 (La.1983) (Lemmon, J., concurring).


author: WATSON, Justice. DIXON, C.J., DENNIS, Judge,

text:
    STATE of Louisiana v. Sammy Joe JOHNSON.
    No. 82-KA-2017.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Jan. 6, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William E. Til-ley, Dist. Atty., for plaintiff-appellee.
    Richard V. Burnes, Alexandria, Mark Kramer, Leesville, for defendant-appellant.
   WATSON, Justice.

Defendant, Sammy Joe Johnson, was convicted of simple arson by an eleven to one jury verdict. LSA-R.S. 14:52. He was sentenced to five years at hard labor. Defendant has appealed, arguing five of the nine assignments of error reserved in the trial court.

FACTS

While investigating the fiery destruction of equipment at a Boise Southern site in Vernon Parish, two deputy sheriffs encountered Sammy Joe Johnson. Johnson drove up with black residue on his windshield and a piece of garden hose suitable for siphoning in the back of his truck. He left tire tracks similar to the tracks found near the scene. Johnson subsequently agreed to a voluntary search of his pickup. The garden hose had a diesel fuel odor. A brownish paper towel found in the truck had the same color and texture as one found at the scene of the crime.

On September 5, 1979, after Johnson was arrested, his appointed counsel obtained a reduction in .the amount of his bond. Bond was posted and Johnson resumed his employment at a papermill in Beauregard Parish. The following day, one of the arresting officers, deputy Willard Horton of the Vernon Parish sheriff’s department, contacted Johnson at his job. Horton knew Johnson had a lawyer but:

“[H]is rights were fully protected to the fact that he was advised that he could have his lawyer with him and he said he didn’t — didn’t care to have you with him.” (Tr., Preliminary Examination, p. 16)

Johnson was questioned at the Beauregard Parish sheriff’s office on September 6, 7, and 8, 1979. On September 7, Johnson drove his own truck to the sheriff’s office. After signing a written waiver of his rights, Johnson verbally admitted that he had burned the equipment at the Boise Southern site. This oral confession took place during a six hour interrogation. Johnson refused to give a recorded statement, because he wanted to talk to his wife first. After “he had talked it over with his wife,” (Tr. 259), Johnson refused on September 8 to give a written or recorded statement.

ASSIGNMENTS OF ERROR NUMBER ' ONE AND TWO

Defendant moved to suppress physical evidence and the oral confession he made on September 7, 1979. He contends the trial court erred in sustaining a state timeliness objection to a hearing on his motion.

As of the preliminary examination on September 13, 1979, counsel for defendant was aware of the evidence and oral statement in question. Defendant was arraigned on November 10, 1980. The motion to suppress was filed on January 5, 1981. Trial commenced on March 29, 1982.

LSA-C.Cr.P. arts. 521 and 703 provide that a motion to suppress must be filed within fifteen days after arraignment absent good cause or excuse for later filing. Prior to a 1981 amendment of Article 521, the time period was thirty days.

At the time of defendant’s crime, on August 31, 1979, Act No. 746 of 1978 allowed a motion to suppress to be filed either three judicial days or fourteen calendar days before trial, depending on notice. Act 431 of 1980 incorporated the thirty day limit of Article 521 into Article 703. The effective date of the Act was September 12, 1980. As a procedural change, the Act was not limited to prospective effect. Defendant had approximately three months after the effective date of the Act to file his motion. See State v. Kimbrough, 432 So.2d 833 (La., 1983). Under Act 431 of 1980, the motion was untimely. Defense counsel had been aware of the ground for the motion since the preliminary examination on September 13, 1979. Thus, the delay was not justified by ignorance of the ground for the motion, or other excuse.

Prior to introduction of the physical evidence and defendant’s oral inculpatory statement, hearings were held outside the presence of the jury and the court concluded that the state had laid a proper foundation for introduction of the evidence. On the question of the voluntariness of the oral confession, the court ruled:

“that the evidence establishes that at all times prior to giving any statement, Mr. Johnson, was adequately advised by the interviewers that he had a right to remain silent, that he had a right to have counsel present, that if he could not afford counsel, counsel would be appointed for him.... the record will reflect that counsel had been appointed to him prior to this time. That he was advised that he did not need to participate in any interview or answer any questions without the presence of counsel. And, that the interview would cease the moment he expressed a desire for counsel, which I believe is sufficient to protect his rights.
I have invited the defense to offer me any evidence to counter the evidence that has been offered to indicate that he was so advised and that he never requested the presence of counsel. And, I believe that he could elect to proceed without the presence of his counsel at that time....” (Tr. 248-249)

Since the issues which would have been considered at a hearing on the motion to suppress were decided by the trial court without the presence of the jury, any error in failing to order a hearing on the motion to suppress was harmless. State v. Ordonez, 395 So.2d 778 (La., 1981).

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends that the oral confession he made on September 7, 1979, should not have been allowed in evidence because: the state erroneously stated in the answer to motion for discovery that the statement was given on September 6 instead of September 7; the state represented in its bill of particulars that it had no statements by the defendant in its possession; and the statement was obtained in violation of defendant’s constitutional rights.

The prosecutor’s notice of intention to use the defendant’s statement referred to it as given “on or about the sixth day of September, 1979, at the Beauregard Parish Sheriff’s Office_” (Tr. 162) Defense counsel had been on notice since the preliminary examination on September 13, 1979, that the sheriff’s office had obtained an oral statement from Johnson “around” the seventh of September. (Tr. 15) Defendant has shown no prejudice from what was apparently an inadvertent error by the state.

The answer in the bill of particulars was in response to an inquiry about written or tape recorded statements. This statement was oral.

The important issue in the appeal is whether the oral statement was obtained from Johnson in violation of the right to counsel guaranteed by the Constitution of the United States and Art. 1, § 13, of the Louisiana Constitution which states in pertinent part:

“At each stage of the proceedings, every person is entitled to assistance of counsel....”

Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) held that there was a denial of right to counsel when defendant’s damaging conversation was recorded in the absence of counsel while he was free on bail. Defendant in Massiah did not know his conversation was being recorded, and could not have waived his right to counsel. However, in the instant case Johnson signed a written waiver of his right to have counsel present during the interrogation. Compare Johnson v. United States, 529 F.2d 581 (8 Cir., 1976), cert. denied 426 U.S. 909, 96 S.Ct. 2233, 48 L.Ed.2d 835 (1976) where defendant also had an appointed lawyer but refused to sign a written waiver of his rights, and the court held that the state had nonetheless carried its burden of showing a knowing and intelligent waiver of the right to remain silent. In United States v. Brown, 569 F.2d 236 (5 Cir., 1978) defendant was also out on a bond and enroute to a preliminary hearing when she was questioned by the F.B.I., and the court held that there was a valid waiver of the right to the presence of counsel.

Moore v. Wolff, 495 F.2d 35 (8 Cir., 1974) stated:

“If an accused can voluntarily, knowingly, and intelligently waive his right to counsel before one has been appointed, there seems no compelling reason to hold that he may not voluntarily, knowingly, and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed.” 495 F.2d at 37.

Although “the practice of interviewing prisoners in the absence of their attorneys” is undesirable, the right to have counsel present can be waived. State v. Siegel, 366 So.2d 1358 at 1360 (La., 1978). See United States v. Cobbs, 481 F.2d 196 (3 Cir., 1973), cert. denied 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Springer, 460 F.2d 1344 (7 Cir., 1972), cert. denied 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972); and Coughlan v. United States, 391 F.2d 371 (9 Cir., 1968), cert. denied 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968). There was no evidence that Johnson’s counsel had asked arresting officer Horton not to question his client. State v. Cotton, 341 So.2d 355 (La., 1977). Compare Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Johnson offered no testimony to rebut the state’s evidence of a knowing and voluntary waiver of the right to counsel. See United States v. Zamarripa, 544 F.2d 978 (8 Cir., 1976), cert. denied 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977).

The trial court did not err in finding a voluntary and knowing waiver by defendant of his right to the presence of counsel.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant contends that a motion for mistrial should have been granted when the prosecutor during rebuttal argument, picked up a fuel can (Exhibit S-21) and a fuel lid (Exhibit S-7) and said he would show a connection. A defense objection was sustained.

The fuel lid had been found at the scene of the crime and the prosecution had attempted to link the fuel can to defendant. It is argued that the two were completely dissimilar and disassociated and the action of the assistant district attorney was highly prejudicial.

The trial court recognized that the prosecutor’s act and statement were prejudicial but stated that the prejudice could be cured by an admonition. The jury was told to ignore “the suggestion and the action of the prosecuting attorney.” (Tr. 271)

There was no abuse of discretion in the conclusion that an admonition was sufficient to secure the defendant a fair trial. LSA-C.Cr.P. art. 771; State v. Belgard, 410 So.2d 720 (La., 1982). The dissimilarity of the two exhibits would have detracted from any prejudicial effect.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

Defendant contends that the nonunani-mous verdict is unconstitutional. This assignment lacks merit. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); State v. Jones, 381 So.2d 416 (La., 1980); State v. Langendorfer, 389 So.2d 1271 (La., 1980), State v. Belgard, 410 So.2d 720 (La., 1982); State v. Graham, 422 So.2d 123 (La., 1982).

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

CALOGERO, J., concurs.

DENNIS, J., concurs with reasons.

DIXON, C.J.,

dissents. The police, knowing defendant was represented, nevertheless initiated interrogation.

DENNIS, Judge,

concurring.

In State v. Matthews, 408 So.2d 1274 (La.1982) this court held that when, unknown to a person under arrest and subjected to interrogation, an identified attorney is actually available and seeking an opportunity to render assistance to him, and the police do not inform him of that fact, any statement or the fruits of any statement obtained cannot be rendered admissible on the theory that the person knowingly and intelligently waived counsel. See State v. Jackson, 303 So.2d 734 (La.1974). The present case is distinguishable from Matthews and Jackson, however. Defendant, Johnson was offered an opportunity to have his lawyer with him during questioning but he declined. There is no indication that his attorney tried to contact Johnson during interrogation and nothing to suggest that he could not have interrupted the questioning and sought the advice of his counsel at any point.

      . The equipment was valued at almost |400,000. (Tr. 274)

      . The tracks were left by a vehicle with “street tread” tires on the front wheels and "mud grip tires" on the rear wheels. (Tr. 213) One tire had a worn place on the side.

      . State Exhibit 28:
      “YOUR RIGHTS
      Place BPSO Ext. 14
      Date 9/7/79_
      Time 12:15 p/m
      “Before we ask you any questions, you must understand your rights.
      “You have the right to remain silent.
      “Anything you say can be used against you in court.
      “You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
      “If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
      “If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
      “I have been read my rights by Deputy Sheriff Bartlett as written above, and I fully understand what my rights are. I can X cannot_read and write the English language. I have received 9 years of formal education.
      (Witnesses) Sammy J. Johnson
      (Witnesses) Signature
      WAIVER OF RIGHTS
      “I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
      (Witness) Signed Sammy J. Johnson
      (Witness)
      Time 12:17 p/m ”

      . At that time, a trial date of January 12, 1981, had been set.

      . Defendant conceded that the motion was untimely and argues that he was not aware of the grounds for the motion until it was filed.


author: DIXON, C.J.,

text:
    In re Appeal of Merlin BRISSET (DHHR, Office of Charity Hospital of Louisiana at New Orleans). In re Department of Health and Human Resources, Office of Charity Hospital of Louisiana at New Orleans, applying for Reconsideration of Denied Writ from November 11, 1983, to the First Circuit Court of Appeal, Number 82-CA-0013; Civil Service Commission Number 2365.
    No. 83-C-2020.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   Reconsideration of 441 So.2d 749 denied. Rule IX § 6.

DIXON, C.J.,

concurs in the denial. Applicant’s complaint concerning the court of appeal’s reversal of the commission’s findings, 436 So.2d 654, is without merit. Had the issue of constitutionality been raised in an application for writs, it would have been considered by the Court.


author: GRISBAUM, Judge. BOUTALL and KLIEBERT, Judges,

text:
    STATE of Louisiana v. Virginia FOAT.
    No. 83-K-568.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 9, 1983.
    On Remand Sept. 23, 1983.

      Robert Glass, John Wilson Reed, New Orleans, for relator.
    William C. Credo, III, Asst. Dist. Atty., Gretna, for respondent.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

Alleging a violation of her speedy trial rights, defendant, Virginia Foat, seeks review under our supervisory jurisdiction (Article V, Section 10, of the Louisiana Constitution of 1974) of a pre-trial ruling denying a motion to quash her indictment for murder based upon alleged Sixth Amendment to the United States Constitution and Article 1, Section 16, of the Louisiana Constitution (1974) violations. This particular speedy trial claim can only be fairly assessed after trial on the merits; therefore, supervisory and remedial writs are denied.

The right to a speedy trial is “fundamental” and is guaranteed to the accused by the Sixth Amendment to the United States Constitution. It is imposed on the states by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972); Klopfer v. North Carolina, 386 U.S. 213, 222-223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967). Louisiana also recognizes this right in its Constitution, Article 1, Section 16 (1974) and in La.C. Cr.P. art. 701. The right attaches when an individual becomes an accused whether by a formal indictment or a bill of information or by arrest and actual restraint. Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 304, 46 L.Ed.2d 205 (1975); United States v. Marion, 404 U.S. 307, 313, 320-321, 92 S.Ct. 455, 459, 463, 30 L.Ed.2d 468 (1971); State v. Dewey, 408 So.2d 1255, 1257 (La.1982).

Barker v. Wingo set out four factors by which the speedy trial right is to be evaluated: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. As recognized by Barker v. Wingo, the right to a speedy trial is a more vague concept than other procedural rights. It is impossible to determine with precision when the right has been violated. Barker, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101. Any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case. Barker, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101.

While in Louisiana, a pre-trial denial of a motion to quash an indictment based on violation of speedy trial rights may be properly considered by supervisory writs to appellate courts, under the particular facts of this case, we find the proper evaluation of the speedy trial factors outlined above can be made only after trial on the merits.

In the first place,
“[t]he amorphous quality of the right ... leads-to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried.” Barker, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101; State v. Alfred, 337 So.2d 1049, 1057 (La.1976).

Moreover, overzealous application of this remedy would infringe “the society’s interest in trying people accused of crime rather than granting them immunization because of legal error .... ” State v. Alfred, 337 So.2d 1049, 1057 (La.1976), quoting United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966).

With the above enunciated principles in mind, our analysis of the speedy trial right in the context of the record presently before us would be speculative. While it appears the length of delay between arrest and the trial is sufficiently long (over six years) to warrant examination of the other Barker factors, the facts relevant to a balancing test in which the conduct of the prosecutor and the defendant can be weighed have not yet been developed and are best considered only after they have been developed at trial. See, United States v. MacDonald, 435 U.S. 850, 858, 98 S.Ct. 1547, 1551, 56 L.Ed.2d 18 (1978).

Moreover, with respect to its reasons for delay, the State explains that it acted within the bounds of its lawful discretion in determining whether to prosecute Virginia Foat in 1977. It explains:

“The passage of time; verbal communications that took place almost exclusively in this matter rather than any written confirmation of decisions; changes in personnel both at the Sheriff's office and the District Attorney’s office; all these factors make it extremely difficult for the State to pinpoint a specific reason or specific reasons for deciding not to move forward with prosecution in November of 1977.” Respondent State of Louisiana’s Memorandum in Opposition to Application for Supervisory and Remedial Writs, p. 11.

The trial court found that it was reasonable for the State of Louisiana in 1977 to assume that John Sidote would not testify against Virginia Foat in Louisiana since he had refused under oath to testify against her at her preliminary examination in Nevada.

Defendant Foat, on the other hand, argues that Sidote’s refusal to testify in Nevada is no excuse for Louisiana’s inaction in not bringing her to trial in 1977. She contends that confronted with a murder prosecution in Louisiana, Sidote would have agreed to testify against her as reflected in his eventual agreement to testify against her in January of 1983. She also contends even if Sidote categorically refused to testify, the state is obliged to use other techniques to obtain the testimony of a person such as Sidote, for example, conferring statutory immunity or by stripping him of his privilege against self-incrimination by first convicting him. Therefore, defendant emphatically argues Sidote cannot be likened to a missing witness, and, in fact, there has been no change in circumstances to warrant the delay in this prosecution.

In relation to defendant’s assertion of her right to a speedy trial, defendant Foat contends that in the context of this case she did all that was possible and reasonable by her counsels’ three attempts in 1977 to seek resolution of her case with the Louisi-aña District Attorney’s Office. In contrast, the State contends Virginia Foat was not, in fact, interested in obtaining her right to a speedy trial. It points to Virginia Foat’s testimony that she purposely avoided any national publicity during this period because she feared the public attention would “reactivate” the Louisiana warrant.

Finally, prejudice to defendant is a factor to be weighed in a speedy trial assessment. Barker v. Wingo noted that prejudice to the defendant must be considered in the light of interests the speedy trial right was designed to protect: “i) to prevent oppressive pre-trial incarceration; ii) to minimize anxiety and concern of the accused; iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101. According to defendant, she was incarcerated for four months on her first arrest in 1977, one day on her second arrest in 1977, and three more months on her third detainment in 1983. She claims her financial resources have been drained; she has had to curtail associations; suffer public obloquy; and her business and marriage have been destroyed. She also maintains the pendency of charges has prevented her from running for Democratic Central Committee in California and for City Council in Los Angeles and has also deterred her from running for the national presidency of the National Organization of Women. Importantly, the death of four of her witnesses, she claims has impaired her ability to defend herself.

The State, however, contends that defendant’s testimony and assertions concerning lost political positions and employment and a destroyed marriage are speculative and self-serving. Referring to the death of four defense witnesses, the trial court in its reasons for judgment stated:

“... in my view, the testimony of these witnesses, would have minimal probative value, if any at all. And, their testimony would be — have marginal relevancy in my opinion. So, the fact that these witnesses that were mentioned during yesterday’s hearing are no longer available is not crucial in my determining this speedy trial motion.” Record pp. 21, 22. Proceeding July 22, 1983.

In making an assessment of prejudice, the United States Supreme Court in MacDonald acknowledged that before trial an estimate of the degree to which a delay has impaired adequate defense tends to be speculative. It emphasized that prejudice can be better gauged after the trial. The Court explains:

"... a central interest served by the Speedy Trial Clause is the protection of the factfinding process at trial. The essence of a defendant’s Sixth Amendment claim in the usual case is that the passage of time has frustrated his ability to establish his innocence of the crime charged. Normally, it is only after the trial that that claim may fairly be assessed.” MacDonald, 435 U.S. 850, 851, 859-860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18.

Our decision to deny supervisory and remedial writs in this case is supported by the nature of the speedy trial right itself. Interpreting the Sixth Amendment speedy trial rights, the United States Supreme Court has stated:

“... the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a ‘right not to be tried’ which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial. If the facts outlined in Barker v. Wingo, supra, combine to deprive an accused of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered.” MacDonald, 435 U.S. 850, 851, 861, 98 S.Ct. 1547, 1553, 56 L.Ed.2d 18.

Under the particular facts of this case, a proper assessment of the speedy trial factors can be made only after trial; therefore, we deny supervisory and remedial writs.

ON REMAND

On remand from the Supreme Court of Louisiana, this case is before us for our review of an alleged violation of defendant Virginia Foat’s speedy trial right. After reviewing the record and hearing oral argument, this court finds her speedy trial right recognized in the Sixth Amendment to the United States Constitution, Article 1, Section 16, of the Louisiana Constitution, and Article 701 of the Louisiana Code of Criminal Procedure has not been violated.

On March 28, 1977 an arrest warrant for Virginia Foat was issued by Jefferson Parish for the murder of Moisés Chayo in 1965. Two events occurred on May 25, 1977 although the record does not indicate the sequence of these events. Foat was arrested in Los Angeles by California authorities. Her arrest report indicated she was a Louisiana fugitive. Also, on May 25, 1977, Louisiana sent a teletype message advising California that Louisiana held an arrest warrant dated March 28, 1977. On the following day, a Nevada arrest warrant for murder was issued for Foat. The Nevada arrest warrant had a “no bail” notation. She was subsequently extradited to Nevada. Foat’s Nevada arrest report dated August 25, 1977 indicates “no bail.” On August 25, 1977 a Nevada justice court set bail at $75,000. Notations on Foat’s “alpha” card, a reference card used by the Nevada Sheriff’s department, indicate a hold for Jefferson Parish, Louisiana, dated August 26, 1977. Nevada investigative officer Gary Minter’s testimony at the motion to quash hearing in the instant case indicated Foat’s bail was set in Nevada, and Foat attempted to make bail, but the Louisiana hold was an impediment. Her “alpha” card contains an entry dated September 14, 1977 — “... Gary Minter release hold for LA Foat can now bail.” Mr. Minter testified the Douglas County District Attorney’s office, authorities from Louisiana, her attorneys, and he made this decision. He testified he was positive there were communications with Louisiana concerning the decision to lift this hold. Some time between September 14, 1977 and September 22, 1977 Foat was released from custody by Nevada authorities on a $75,000 bond.

On September 22, 1977 Foat’s preliminary examination was held in Nevada. At that hearing, John Sidote, Foat’s ex-husband, refused to testify against her. Relying on hearsay evidence of Sidote’s statement, a Nevada judge found probable cause to charge Foat for murder.

On November 11,1977 the Jefferson Parish Sheriff’s Office sent a teletype message to Douglas County Sheriff’s Office in Nevada advising Nevada authorities of the outstanding arrest warrant on Foat and requesting they “detain” her for subsequent proceedings in Louisiana. On November 14, 1977 Foat, still free on bond, appeared for a habeas corpus proceeding in Nevada. Granting Foat’s writ of habeas corpus, a Nevada court ordered she be discharged from the Nevada case; however, she was arrested and held by Nevada authorities due to the Louisiana request to “detain” her. On the following day, November 15, 1977, the same court issued a supplemental order releasing and discharging Foat from “custody or restraint imposed by State of Nevada.” In an affidavit admitted at the hearing of this motion to quash, the Nevada district judge attested:

“I signed a second and Supplemental Order that Virginia Foat be released and discharged from custody or restraint imposed by the State of Nevada, in effect to release her from the Sheriff’s hold for Louisiana (Exhibit C.) Before signing that judgment I ascertained that although there had been ample time to do so, Louisiana had never sent a certified copy of an arrest warrant for Virginia Foat, that Louisiana did not appear to have taken any formal steps to perfect its warrant in the case, and that nothing more than the telephone calls and teletypes from Louisiana to Nevada had taken place during the time Foat was in custody in Nevada.”

Foat was thus released from Nevada custody. Her attorney advised her to return to California and continue life as normal, but advised it appeared the Louisiana Sheriff’s Department still had authority to arrest her if they chose to do so.

On January 11, 1983, upon request of Louisiana, California authorities arrested Virginia Foat under the outstanding 1977 Louisiana arrest warrant. Foat was subsequently extradited to Louisiana on April 26, 1983, and released April 27, 1983 on $125,-000 property bond. On July 21, 1983 a motion to quash her indictment based on an alleged violation of her speedy trial right was heard, and the motion was subsequently denied. It is from this ruling that defendant, Virginia Foat, has applied for supervisory and remedial writs to this Court. In our first decision, we denied supervisory and remedial writs (from the trial court's denial of motion to quash her indictment) deferring the question of whether her speedy trial right had been violated until after trial. Thereafter, the Louisiana Supreme Court stating that a “pre-trial application for supervisory writs, which presents, on a complete record, developed at a well-tried hearing, a serious, potentially meritorious issue that may be dispositive of the case, should be entertained on the merits,” granted defendant’s writ, and remanded this case for an opinion on the merits.

The constitutional right to a speedy trial is generically different from any other rights enshrined in the Constitution for the protection of the accused. Hence, it is impossible to determine with precision when the right has been denied. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution. Describing the right to a speedy trial as “amorphous,” the United States Supreme Court has adopted an ad hoc analysis and detailed several factors which must be weighed against each other to determine whether the defendant’s speedy trial right has been violated. Barker v. Wingo, 407 U.S. 514, 522, 580, 92 S.Ct. 2182, 2188, 2192, 33 L.Ed.2d 101 (1972). The factors are: length of delay, reasons for the delay, the defendant’s assertion of his right, and prejudice to the defendant. The test is not designed to supply simple automatic answers to complex questions, but, instead, to provide a framework for “a difficult and sensitive balancing process.” Moreover, none of the above four factors is either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial, but, rather, they are related factors and must be considered together with such other circumstances as may be relevant. Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 2193. These other circumstances have included such factors as the .number and complexity of legal and factual issues involved in a case and the availability of evidence. See, United States v. Avalos, 541 F.2d 1100, 1110 (5th Cir.1976).

LENGTH OF DELAY

The relevant time sequence in this case began May 25, 1977 when Virginia Foat was incarcerated in California on the Louisiana arrest warrant. At that point, Foat became an “accused” for the purposes of this speedy trial determination. Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 304, 46 L.Ed.2d 205 (1975); State v. Dewey, 408 So.2d 1255, 1257 (La.1982). The next significant date is January 18, 1983 when Foat was indicted for murder in Louisiana. This constitutes a period of over 67 months. We measure the delay from the time of her arrest to the time of the indictment because the delay between the indictment and her trial set for October 11, 1983 may be attributable in part to her efforts to resist extradition to Louisiana during the spring of 1983 and her filing of various pre-trial motions. Thus, the length of the delay — almost six years — is substantial, and while it is not conclusive of the speedy trial issue, it does trigger the constitutional analysis with respect to the other elements of the Barker test. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192.

REASONS FOR THE DELAY

The State attempts to justify this delay by explaining it acted within the bounds of its lawful discretion in determining whether to prosecute Virginia Foat in 1977. It further stated:

“The passage of time; verbal communications that took place almost exclusively in this matter rather than any written confirmation of decisions; changes in personnel both at the Sheriffs office and the District Attorney’s office; all these factors make it extremely difficult for the State to pinpoint a specific reason or specific reasons for deciding not to move forward with prosecution in November of 1977.” Respondent State of Louisiana’s Memorandum in Opposition to Application for Supervisory and Remedial Writs, p. 11.

The trial court found it was reasonable for the State of Louisiana in 1977 to assume that John Sidote would not testify against Virginia Foat in Louisiana since he had refused under oath to testify against her at her preliminary examination in Nevada.

However, under Barker these are not sufficient to constitute a valid reason for delay. While such reasons should weigh less heavily than a deliberate delay to impair the defense, nonetheless this delay must be counted against the State since the State has the ultimate responsibility for providing the defendant with a speedy trial. Barker v. Wingo, 407 U.S. 515, 531, 92 S.Ct. 2182, 2192.

ASSERTION OF THE RIGHT

Barker emphasized that the assertion of the right is “entitled to strong evi-dentiary weight in determining whether the right has been deprived” and that the failure to assert it will “make it difficult for a defendant to prove that he was denied a speedy trial.” Barker v. Wingo, 407 U.S. 514, 531-532, 92 S.Ct. 2182, 2192-2193. However, as noted in United States v. Macino, the weight to be given the absence of a demand in cases where the delay is between arrest and indictment is substantially less than in cases of post-indictment delay. United States v. Macino, 486 F.2d 750, 753 (7th Cir.1973).

Importantly, we cannot ignore the fact that a person who is arrested but not charged will always nourish the hope that the government will decide not to prosecute. Macino, supra. And like the court in Macino, “we are not, therefore, inclined to force a prospective criminal defendant to seek his own prosecution.” Macino, supra. However, other courts faced with post-arrest/pre-indictment delays have required some assertion of the right. See, United States v. Edwards, 577 F.2d 883, 889 (5th Cir.1978); United States v. Garza, 547 F.2d 1234, 1235 (5th Cir.1977); United States v. Palmer, 537 F.2d 1287, 1288 (5th Cir.1976).

The record reflects defendant Foat’s attorneys made three attempts in 1977 to seek resolution of the case with the Louisiana District Attorney’s Office and the Sheriff’s Office. In June of 1977, Foat’s attorneys contacted Assistant District Attorney Shirley Wimberly of Jefferson Parish to obtain resolution of the Louisiana arrest. In October of 1977 Foat’s attorneys came to Louisiana in an attempt to resolve the Louisiana charge, and on November 14, 1977, the day of a habeas corpus hearing in Nevada related to the Nevada murder arrest, Foat’s attorneys spoke to Assistant District Attorney Wimberly at his home concerning her Louisiana charge. Her attorneys understood Louisiana did not consider its case worthy of trial at that point and, in fact, Louisiana had a case weaker than the one in Nevada. The attorneys understood the District Attorney’s office was not interested in pursuing the case, but the Sheriff’s Office was interested in pursuing the murder arrest.

This court notes these communications commenced with her initial incarceration in California and ended with her final release from the Nevada charges in November 1977. Subsequent to this release in Nevada and prior to her indictment in 1983 in Louisiana, the record reflects no evidence of any communication with Louisiana authorities which could be interpreted as an assertion of her right to a speedy trial. Thus, during at least the last five years of this six-year delay, Foat was completely silent. This silence should be weighed to some degree against her.

PREJUDICE

Barker notes that prejudice to the defendant must be considered in light of the interests the speedy trial right was designed to protect: (1) To prevent oppressive pre-trial incarceration; (2) To minimize anxiety and concern of the accused; and (3) To limit the possibility that the defense will be impaired. Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193. In addressing the initial aspect, there was no evidence of oppressive pre-trial incarceration. While the speedy trial guarantee is designed to protect against “emotional stress that can be presumed to result in the ordinary person from uncertainties in the prospect of facing public trial,” Foat has made eonclu-sory allegations of stress and general anxiety which demonstrate at best only minimal prejudice of a kind normally attending any criminal indictment. United States v. Jackson, 508 F.2d 1001, 1004 (7th Cir.1975); United States v. Annerino, 495 F.2d 1159, 1163-1164 (7th Cir.1974). This prejudice alone does not result in a constitutional violation without a better showing of other factors. See, Jackson, supra. Foat attempted to show by her own testimony at the hearing that the delay caused her hardship including lost political positions and employment and a destroyed marriage. However, the connection between these events and the pendency of her case is unsubstantiated.

The final aspect of prejudice is to limit the possibility that the defense will be impaired. During the hearing, Foat’s deceased father’s letter, in the form of an affidavit, was introduced into evidence which attested that Sidote beat his daughter, threatened her life, and professed that “he would get even ... if it was the last thing he did.” Additionally, Foat testified three other witnesses had died subsequent to her arrest warrant who, she claims, would have testified similarly. Referring to the death of these four witnesses, the trial court, in its reasons for judgment, concluded: “... in my view, the testimony of these witnesses, would have minimal probative value, if at all .... ”

There is a difference between the types of witnesses (e.g. eye-witnesses, alibi witnesses, impeachment, or character witnesses) and the degree of prejudice their absence is likely to create. See, United States v. Scherer, 528 F.2d 371, 378 (7th Cir.1975). The witnesses in this case allegedly would have provided bias, interest or corruption evidence in compliance with La.R.S. 15:492. However, there is no evidence that other friends or relatives could not have provided the same type of testimony. United States v. Bisgyer, 384 F.Supp. 504, 505 (S.D.N.Y.1974). Moreover, these witnesses would be used for general impeachment of Sidote. Although perhaps helpful in a defense, they are of not the same importance as eye-witnesses or alibi witnesses. See, Scherer, supra. In addition the State takes the position that the testimony of these witnesses would not be admissible at trial because they refer to a relationship (between Foat and Sidote) in a time period subsequent to the crime she is accused of. Until the record reflects the State’s case, it is difficult, if not impossible, to determine the prejudice, if any, to the accused’s defense the absence of these witnesses will have. Although there is considerable speculation as to the State’s case, it is not reflected in the record before us.

Cognizant of Barker’s and Alfred’s admonition that “(a)n overzealous application of the unsatisfactory severe remedy of dismissal of the indictment” would infringe “the societal interest in trying people accused of crime rather than granting them immunization because of legal error,” we find Virginia Foat’s right to a speedy trial has not been violated. Barker, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188; State v. Alfred, 337 So.2d 1049, 1057 (La.1976). Without detailing the facts again, we are disturbed by the State’s delay in indicting the defendant, but this must be weighed against the minimal showing, if any, of prejudice in addition to the minimal, initial communication with Louisiana authorities and the subsequent five-year silence.

MOTION TO QUASH DENIED.

BOUTALL and KLIEBERT, Judges,

specially concurring.

We agree with the majority opinion and would add additional reasons in support of the result reached.

The issue herein is not a matter of the statutory time limitations upon institution of prosecution or upon trial, nor is it completely based on the constitutional issue of violation of speedy trial. The constitutional right to a speedy trial is generieally different from any other rights enshrined in the Constitution for the protection of the accused. As noted in the statement of facts, there are three basic time periods involved: one from the time of commission of the crime in 1965 to the warrant of arrest on March 28, 1977; the second from the issuance of and arrest under the warrant in California to the subsequent rearrest in California on January 11, 1983; and the third from that arrest to the prosecution under indictment continuing today. It is at the second of these periods that the motion to quash for violation of a speedy trial right is aimed.

That period, of course, is a period in which there were no formal prosecutions instituted in Louisiana by bill of information or indictment. There is a distinction between a Sixth Amendment violation of right to a speedy trial and the impairment or deprivation of liberty of an individual without due process of law as provided in the Fifth Amendment of the United States Constitution, upon which Louisiana Constitution of 1974, Article 1, Section 2, is based. Louisiana’s Article 1, Section 22 also provides for an adequate remedy by due process of law without unreasonable delay. In the case of United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the Supreme Court of the United States noted the distinctions between a defendant being held to await trial and a person whose life is the focal point in an ongoing investigation. The court stated at 102 S.Ct. 1502:

“[7,8]. The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.
[9] Once charges are dismissed, the speedy trial guarantee is no longer applicable.8 At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in Marion, where the defendants had been subjected to a lengthy investigation which received considerable press attention.9 But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, ‘a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.’ United States v. Marion, supra, 404 U.S. [307] at 321, 92 S.Ct. [455] at 463 [30 L.Ed.2d 468], Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.” Footnotes omitted.

We discern a great similarity between the circumstances in this case and the MacDonald Case. In MacDonald, the defendant was held under military charges which were subsequently dismissed. Thereupon several years elapsed before he was indicted and convicted of murder in the United States District Court. In the present case, a person was apparently murdered in 1965, but no evidence of the identity of the assailant or assailants was available. After becoming aware of statements made by John Sidote in 1977 as to the commission of the crime, the authorities in Jefferson Parish immediately caused one warrant of arrest to issue ordering the arrest of Sidote and another ordering the arrest of Virginia Foat whom he named as having actually committed the attack. After a habeas corpus hearing in Nevada caused her release upon Nevada charges arising out of Sidote’s statements, Jefferson Parish withdrew its detainer or hold based upon its warrant of arrest apparently upon the basis that Sidote would not testify in the Louisiana Court. The matter then lay dormant until the events of January, 1983. At the time of her release in 1977, the evidence indicates that Foat was advised by her attorney to let the matter simply sit quietly inasmuch as she was a resident of the State of California, a considerable distance away from Louisiana. Under the circumstances, we see no unfair advantage taken by the State because the posture of the situation was that unless the State could obtain some evidence upon which to base prosecution, prosecution would never occur. Delays due to difficulty in obtaining sufficient evidence to indict or even to arrest do not mandate dismissal of a later indictment.

To us, the heart of the speedy trial issue in this case lies here. The passage of time, even if it in fact be from bureaucratic negligence, standing only, is not sufficient to sustain a ruling the accused’s right to a speedy trial has been violated; no more than the accused’s failure to assert the right standing alone is sufficient to sustain a holding the accused has waived her right to a speedy trial. There is here a balance between the rights of a defendant or an accused and the right of the State to continue the development of prosecution.

Applying the reasoning of the United States Supreme Court in MacDonald, supra, to the facts involved here, there is a serious question as to whether the initial arrest in California in fact gave rise to a speedy trial issue. Although the California authorities arrested the accused because they had been informed of an outstanding Louisiana arrest warrant, her extradition was to Nevada and not to Louisiana, and she was held primarily for Nevada purposes not Louisiana purposes. This raises the question of whether the Louisiana arrest warrant has been in fact executed or can be given extraterritorial effect. We note that Foat was released from custody both of Nevada and Louisiana upon the habeas corpus decision and upon Louisiana authorities informing Nevada that she was no longer to be held, nor was she to be extradited. See Kirkland v. Preston, 385 F.2d 670 (D.C.Cir.1967); Bergen v. Carson, 417 So.2d 1080 (Fla.App.1982).

We consider these facts to be sufficient to bring this case within the principles announced in MacDonald and to form one of the bases upon which we deny the motion to quash.

      . The Sixth Amendment provides:
      "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.”

      . The Louisiana Constitution, Article 1, Section 16 reads: "Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. No person shall be compelled to give evidence against himself. An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.”

      . La.C.Cr.P. art. 701 provides in pertinent part: "The state and the defendant have the right to a speedy trial....”

      . See, e.g., State v. Nowell, 363 So.2d 523 (La.1978); State v. Neyrey, 341 So.2d 319 (La.1976); but cf. United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (holding a defendant, before trial, may not appeal under 28 U.S.C. § 1291 a federal district court’s order denying his motion to dismiss an indictment due to an alleged Sixth Amendment speedy trial violation.)

      .The guarantee of a speedy trial does not become applicable until the defendant in some way becomes an "accused,” which is often the day of arrest. Dillingham, 423 U.S. 64, 65, 96 S.Ct. 303, 304, 46 L.Ed.2d 205; Alfred, 337 So.2d 1049, 1055. Ms. Foat was arrested in California on May 25, 1977 under the Louisiana arrest warrant and held in custody by the California authorities. She was arrested under a Nevada arrest warrant on May 26, 1977 and was extradited to Nevada on August 25, 1977. While in Nevada, she was under hold for the outstanding Louisiana arrest warrant and was not released on bail until after Louisiana’s hold was withdrawn on September 14, 1977.

      . Her three-month incarceration in California on the Louisiana murder charge in 1983 is attributable to her efforts to fight extradiction to Louisiana.


author: WATKINS, Judge:

text:
    CHEVRON U.S.A., INC. v. Lorraine LORIO, et al.
    No. 82 CA 1068.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 31, 1983.
    Rehearing Denied Nov. 22, 1983.

      Arthur D. Mouton, Law Office of Wm. H. Mouton, Lafayette, and W. Richard House, Jr., Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, for plaintiff-appellant.
    Thomas H. Benton, Benton, Benton & Benton, and Timothy W. Hardy, Counsel for Secretary of Dept, of Natural Resources, Office of the Atty. Gen., Baton Rouge, for defendants-appellees.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge:

This is a concursus proceeding filed by Chevron U.S.A., Inc. (Chevron) against Miss Lorraine Lorio, et al. (the Lorios) and the State of Louisiana (the State).

Chevron contracted oil leases with the Lorios and the State on the same tract of land for different royalty interests. The lease contracted with the Lorios called for a one-eighth royalty interest while the lease contracted with the State provided for a one-sixth royalty interest.

After production resulted, Chevron invoked a concursus proceeding, deposited the royalties accruing from the affected tract into the registry of the court, and sought a determination of the rights of the Lorios and the State to those royalties. When Chevron invoked the concursus proceeding, it deposited funds based upon the one-sixth royalty, with the prayer that if the Lorios’ claim was upheld, Chevron would be refunded the difference between the one-sixth royalty deposited and the one-eighth royalty provided in the Lorio lease.

While the concursus proceeding was pending, the Lorios and the State entered into a compromise agreement dividing the royalties deposited by Chevron. The compromise divided the entire amount deposited into the registry of the court, even though Chevron would be entitled to a refund should the Lorios prevail.

The Lorios and the State moved for summary judgment alleging that, based upon the compromise, all genuine issues of material fact in dispute had been resolved. Chevron opposed the motion contending that it had reserved its right to a refund of the difference between one-sixth and one-eighth royalties in the event the Lorios prevailed and that the deposit of the funds into the registry of the court did not constitute an admission that the full sum deposited was due.

The trial court granted the motion for summary judgment. After determining that the impleaded defendants were free to compromise their claims to the deposited funds, the trial court reasoned that no issues remained unresolved because both im-pleaded parties, who have claims to the deposited funds, entered into a compromise agreement. We disagree.

LSA-C.C.P. art. 4652 provides that:

“Persons having competing or conflicting claims may be impleaded in a concur-sus proceeding even though the person against whom the claims are asserted denies liability in whole or in part to any or all of the claimants, and whether or not their claims, or the titles on which the claims depend, have a common origin, or are identical or independent of each other.
No claimant may be impleaded ⅛ a concursus proceeding whose claim has been prosecuted to judgment. No person claiming damages for wrongful death or for physical injuries may be impleaded in a concursus proceeding, except by a casualty insurer which admits liability for the full amount of the insurance coverage, and has deposited this sum into the registry of the court.” (Emphasis added)

In the case sub judice, Chevron implead-ed the Lorios and the State into a concur-sus proceeding. While Chevron acknowledges that it owes to one of the impleaded claimants under its lease obligation, Chevron denies liability to both claimants. In invoking the concursus, Chevron reserved its right to a refund from the funds deposited, in the event the Lorios, who only had a one-eighth royalty interest, were determined to be entitled to the mineral rights rather than the State, who had a one-sixth interest. In its petition, Chevron alleged that:

“9.
The funds deposited in the Registry of the Court reflecting production from both of the said units are based on the greater royalty. Chevron U.S.A. Inc. hereby reserves the right to be refunded the difference between the amount deposited and the amount due the Lorio Group, if their claim should be upheld.”

Clearly, under LSA-C.C.P. art. 4652, Chevron was entitled to invoke a concursus and to deny liability to one of the claimants.

We find it unnecessary to consider the enforceability of the compromise because the compromise does not resolve all issues of fact and law that exist. Although the compromise partially resolves the conflicting claims between the State and the Lorios, the issue of Chevron’s denial of liability to one or the other of the parties impleaded remains unresolved. The determination or resolution of the issue of liability is critical to Chevron in view of the difference in its royalty obligations.

Summary judgment should be granted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979). Because all issues of material fact have not been resolved, summary judgment was improper.

Therefore, the judgment of the trial court is reversed and the matter is remanded for further proceedings consistent with this ruling.

REVERSED AND REMANDED.

      . In the compromise which constitutes the basis of the summary judgment sought by the Lorios and the State the question of ownership of the fee and/or the mineral interest, as the case may be, is specifically left open for resolution in the future. The compromise contains the following paragraph:
      "The execution of this compromise with reference to participation in royalty production is not intended and shall not be construed as recognition of ownership, boundary or limits of any land or water bottom tract covered by the leases and by this compromise in the area of ‘conflict,’ and shall not serve as a basis of estoppel, or res judicata, or prevent either of the undersigned parties from establishing ownership, boundaries, or limits of any such tract, after which time but not retroactively to the division of interests in accordance with the ownership as so established.”
      Clearly this language leaves open the question of ownership and other matters which are subsequently to be resolved.