author: DIXON, Chief Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Gerald C. NUCCIO.
    No. 82-KA-1905.
    Supreme Court of Louisiana.
    June 25, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John F. Row-ley, Dist. Atty., Paul J. Katz, Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-ap-pellee.
    Richard A. Tonry, James W. Brodtmann, Tonry & Brodtmann, Chalmette, for defendant-appellant.
   DIXON, Chief Justice.

Defendant, Gerald Nuccio, was indicted and convicted for armed robbery (R.S. 14:64). He was sentenced as a multiple offender to serve fifty years in the custody of the Department of Corrections, without benefit of probation, parole or suspension of sentence, to run concurrently with an earlier conviction, with credit for time served. From that conviction and sentence, defendant appeals. We affirm.

During the early morning of March 26, 1979, around 6:30 a.m., two men entered the small food store which was operated by Dennis Acosta. One of the men wore a reddish bandanna, and one was tall and had blondish hair; he was identified later as Paul Krolowitz. The second man was shorter and had dark hair and a mustache. The taller man requested some matches from Acosta, and as Acosta was serving him, Krolowitz began beating the man with a .357 magnum revolver. Krolowitz shot the man in the knee, and then ordered the second man to take the cash drawer. The two robbers departed, leaving Acosta in a pool of blood.

Shortly thereafter, Mr. Kristoff, a frequent customer of the store, entered the store. Not seeing Acosta, he leaned over the counter and saw the old man beaten and bloodied. He immediately called his work place and told them to call the police and an ambulance. He also notified the man’s family. Mr. Kristoff then asked the victim what had happened. He testified:

“... he told me that two guys that came into the store; one a tall sandy blonde colored haired guy and the other one was shorter with darker hair and a mustache, and he told me they came in and ordered something from the store, a book of matches, and when he went to open the cash register to serve them the tall guy jumped over the counter and hit him in the head with a pistol and the other guy took the money. He told me that he also believed they had broken his leg or something because he couldn’t move his leg.”

Detective Stohlman, one of the first law enforcement officers to arrive at the scene, also spoke with the victim, and recounted a story similar to that recited by Mr. Kris-,toff.

Mr. Acosta was rushed to the hospital where he received medical treatment. As part of that treatment, surgery was performed during which a part of a bullet was removed from his knee. It was only then that anybody realized that he had been shot, and that the assailants had not just broken his leg, as the victim had told the witnesses. Less than two weeks after the armed robbery, the victim died in the hospital.

On the night of the robbery, Nuccio was arrested for an unrelated charge of possession of marijuana. At his booking for that charge, a reddish bandanna and a large quantity of coins were taken from Nuccio during the booking inventory search. These items were “seized” by the sheriff’s office, and were not returned to Nuccio upon his release from jail.

On the evening of May 3,1979, six weeks after the armed robbery, the St. Bernard Parish sheriff’s office received several calls that there had been a shooting incident at a Meraux trailer park. In response to the calls, numerous officers went to the scene, including Deputies Bonura, Stohlman, Hernandez and Carreras. One of those arrested from the shooting incident was Juanita Tyson. Officer Stohlman, who earlier had responded to the Acosta robbery, overheard Ms. Tyson tell Officer Carerras that the gun from the shooting could be found in a certain trailer. Based on this information, that an instrumentality of a crime was located in the trailer, coupled with information in the possession of Deputy Bonura, a search warrant was issued; Deputies Stohl-man and Bonura were the affiants on the warrant.

By authority of the warrant, the officers went into the trailer, later discovered to be Krolowitz’s, and conducted a search of the premises. They found, hidden behind a heater, a .357 magnum revolver. They also found a reddish bandanna.

As a result of the shooting incident, Paul Krolowitz was arrested. Early the next morning Krolowitz made a statement to the sheriff’s office in which he indicated that Gerald Nuccio had committed the Acosta robbery by himself and of his own volition. Krolowitz stated that he merely followed Nuccio’s request to stop his car so that Nuccio could get some cigarettes and a soft drink, and that he, Krolowitz, was innocent of any intent to rob or injure anyone. Based on this statement, the sheriff’s deputies went to Nuccio’s father’s trailer and, with guns drawn, awoke and arrested Nuc-cio. Before he had a chance to dress fully, he was taken to the parish jail. Within a short time after his arrival, Nuccio made a recorded statement in which he exculpated himself and inculpated Krolowitz.

Nuccio was indicted for the armed robbery. Prior to trial, numerous motions were filed on Nuccio’s behalf; among them were motions to suppress tangible evidence and to suppress the recorded statement. After hearings, the trial judge denied the motions, and allowed the evidence to be admitted. Writs were taken on these rulings, which were denied by this court. State v. Nuccio, 406 So.2d 597 (La.1981). At the trial, the defense again raised the issue of the admissibility of the taped confession. The defendant took the stand on his own behalf, primarily on the issue of whether or not he had freely and voluntarily made the confession. He testified that he had been beaten by two of the officers, and that he had been instructed by them as to what facts to recite in the recorded statement. The jury convicted Nuccio. A multiple offender bill was filed by the district attorney and, after a sentencing hearing, defendant was sentenced to fifty years at hard labor, without benefit of probation, parole or suspension of sentence. Defendant specified twenty-four errors, nine of which have been abandoned on appeal by failure to brief.

Argument No. 1

Defendant sought to suppress the evidence seized during the warranted' search of Paul Krolowitz’s trailer. During the investigation of the trailer park shooting incident, two of the deputies received information which they believed supported the issuance of a search warrant to search Krolowitz’s trailer. They completed an affidavit, and the search warrant was issued. Pursuant to the search, the officers found the gun which was used in the shooting incident, and which later was shown to have been the gun used in the Acosta armed robbery. Defendant alleges that the search warrant was invalid because the affidavit failed to establish that there was probable cause that the gun was located in the trailer. This identical issue, involving the same affidavit and search warrant, was raised in State v. Krolowitz, 407 So.2d 1175, 1177-79 (La.1981). In that case this court purged the affidavit of inaccurate statements (which the court found to be unintentional), and found that the affidavit, as modified, supported a finding of probable cause that the gun was in the trailer. For the reasons set forth in the Krolowitz opinion, we again uphold the validity of the search warrant and the introduction into evidence of the materials seized pursuant thereto.

Assignment of Error No. 1 is without merit.

Argument No. 2

Defendant sought to suppress the introduction of the coins and bandanna which were taken from him during his March 26 booking for possession of marijuana. Defendant argues that the items should have been returned to him upon his release from jail, two days after his arrest, and that the. items, while being held during his detention, should have been treated not as evidence seized without probable cause, but only as personal effects taken in the booking.

On the evening of the Acosta armed robbery, defendant was arrested for possession of marijuana. Officer Carreras, one of the arresting officers, made it known at the marijuana booking that he wanted to keep the large quantity of coins and the bandanna which were taken from Nuccio. He stated that he wanted to keep the items as possible evidence in the Acosta robbery. Carreras also testified that the sheriff’s office did not consider Nuccio to be a suspect in the robbery, nor did they have probable cause for his arrest in connection with that crime; it was only after Krolowitz made his statement in early May that the police had such probable cause.

The right of the police to conduct a personal effects inventory search at the time of an arrested person’s booking is a recognized exception to the search warrant requirement. C.Cr.P. 228; United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); State v. Duplantis, 388 So.2d 751 (La.1980). Furthermore, this court has recognized the right of the police to seize items of evidence which become exposed during a booking inventory search. State v. Bryant, 325 So.2d 255, 257-59 (La.1976). In Bryant we held that once a person has been “lawfully deprived of the possession of ... [his. property], and the custody and control of ... [the] object[s] was legitimately under the dominion of the police, it was not an unreasonable search and seizure for the police to use it as evidence of another crime.”

The police may not, however, seize any item that they choose. The item seized must be contraband, an instrumentality of the crime, C.Cr.P. 161(2), a fruit of the crime, C.Cr.P. 161(1), or, since Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), evidence of a crime. See also C.Cr.P. 161(3); State v. Cardinale, 251 La. 827, 206 So.2d 510 (1968). The propriety of the seizure of the coins and bandanna, then, can be upheld if they constitute “evidence” of the armed robbery or some other crime.

In order for the seizure of a thing to be upheld as constitutional, there must be a showing of probable cause that the thing seized is somehow related to a particular crime. The United States Supreme Court in Warden, Maryland Penitentiary v. Hayden, supra, 387 U.S., at 307, 87 S.Ct. at 1650, stated that:

“... there must, of course, be a nexus— automatically provided in the case of fruits, instrumentalities or contraband— between the item to be seized and criminal behavior. Thus in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.”

The seizure of property, in light of Hayden, must be supported by a finding that the thing probably will lead to an arrest or conviction of a person for a particular crime.

Both “mere evidence,” the bandanna, and alleged fruits of the crime, the large quantity of coins, were seized from Nuccio at his marijuana booking. At the time of the booking, the police already had a version of what had happened at the Acosta grocery: a man wearing a reddish bandanna stole some money, which probably contained a large amount of loose change. It was reasonable for the police officer to conclude that, while he could not be certain that Nuccio was one of the armed robbers, there was a possibility that the bandanna and the unusually large quantity of coins would, eventually, lead to an apprehension or conviction of some person. The evidence alone was too circumstantial to support a finding of probable cause to arrest Nuccio, but, under the Hayden test, there was probable cause for the police to believe that the items eventually would lead to an arrest or conviction. The coins and the bandanna were not seized and retained unlawfully.

Defendant, however, maintains that their introduction into evidence was improper. This claim is based on alleged defects in the chain of custody or proof that the coins were the actual ones taken during the robbery.

In order for the evidence to be admitted, the state needs to show that the evidence is, more likely than not, related to the case. State v. Drew, 360 So.2d 500, 518-19 (La.1978). "... Lack of positive identification goes to the weight of the evidence rather than to its admissibility....” In the present case the state proved that the items taken from the defendant on the night of the armed robbery were, more likely than not, connected to the armed robbery. The introduction of the seized items was proper, and the weight to be given to that evidence was a matter properly for the jury.

Assignments of Error Nos. 2 and 15 are without merit.

Argument No. 3

Defendant sought to suppress his confession, alleging that it was obtained through force or coercion, or was otherwise involuntary. He claimed that he was threatened and beaten by two sheriffs deputies, that he did not waive his rights, and that his request to have an attorney was ignored.

Shortly after Krolowitz gave his statement, the officers went to Nuccio’s residence and arrested him. At 9:00 a.m., May 3, Nuccio gave his statement in which he stated that Krolowitz was the trigger man, and that he, Nuccio, merely took the cash drawer from Acosta’s cash register in response to Krolowitz’s commands. The state sought to introduce the confession, and the judge, after a hearing on a motion to suppress, allowed the introduction of the confession.

Whenever the state seeks to admit a confession, the state must prove that it was freely and voluntarily given, and that no threats or promises were made to induce the defendant into giving the statement. R.S. 15:451. The state must prove this beyond a reasonable doubt. State v. Davis, 380 So.2d 607, 609 (La.1980). Whenever the defendant makes specific allegations of coercion or abuse, the state must affirmatively rebut each of those allegations. Id. at 610. In Davis, this court quoted and applied the test established in State v. Honeycutt, 216 La. 610, 616, 44 So.2d 313, 315 (1950):

"... it [is] incumbent upon the State to call other witnesses to corroborate the testimony of the deputy who took the confession and to rebut defendant’s own testimony with reference to his mistreatment. The State [should call] for this purpose some or all of the ... other officers who were with the deputy and the prisoner ...”

When the defendant makes specific allegations of abuse, it is not enough for the state to call only the deputy who is alleged to have committed the acts against the defendant, but the state must call enough other witnesses to overcome, beyond a reasonable doubt, the defendant’s claims. The determination of admissibility, however, is a matter for the trial judge and his conclusions will not be disturbed unless they are not supported by the evidence as a whole. State v. Burkhalter, 428 So.2d 449, 454-55 (La.1983).

The state rebutted, beyond a reasonable doubt, each of defendant’s allegations of impediments to a finding that the confession was freely and voluntarily made. The state has shown that the statement was obtained properly, and that none of the defendant’s rights were violated. Since the judge’s rulings were supported by the evidence as a whole, his decision will not be overturned. State v. Burkhalter, supra.

The confession was obtained lawfully, defendant’s constitutional rights were upheld, and the confession’s .admission into evidence was proper.

Assignments of Error Nos. 3, 4 and 5 are without merit.

Argument No. 4

Defendant contends that the trial court erroneously denied his motion in limine on the admissibility of evidence concerning the death of the robbery victim, and motions for mistrials made on the basis of remarks made both by Major Reichert under examination, and by the prosecutor during his closing argument, on the issue of defendant’s arrest for murder.

Defendant filed a motion in limine which requested that there be a ruling as to the admissibility of any evidence relating to the death of the victim. It was argued that any such evidence was irrelevant, or, if relevant, its probative value was outweighed by its prejudicial effect. There is no indication in the record as to how the trial judge ruled on the motion, but according to defendant’s brief, the ruling was adverse to him.

Evidence of the death of an armed robbery victim is always relevant to show that there had been the use of force. See State v. Matthews, 354 So.2d 552, 557 (La.1978). There has been no showing of an abuse by the trial judge of his broad discretion in finding the death of the victim to be relevant and evidence of the death to be admissible. The trial court’s ruling on defendant’s motion in limine, insofar as one was made, will not be overruled by this court.

Two motions for mistrials were made by defense counsel, relying on C.Cr.P. 770(2). Article 770 of the Code of Criminal Procedure provides:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. ...”

Major Reichert testified that defendant had been arrested for armed robbery and for murder. Defense counsel objected to the reference to murder, and moved for a mistrial. The trial court denied the motion, but admonished the jury to disregard Reic-hert’s comments on the murder. The witness compounded the problem, but the trial court again admonished the jury to disregard the witness’ comment. Defendant maintains that the comment by the police officer was a comment made by an officer of the court, and was a comment reprobat-ed by C.Cr.P. 770(2), which requires a mandatory mistrial.

This court has held that a police officer’s unsolicited, unresponsive reference to another crime alleged to have been committed by a defendant is not the comment of a court official under C.Cr.P. 770(2), but such an officer will be held to the same standard if his answers show a pattern of unresponsiveness or improper intent. State v. Harris, 383 So.2d 1, 9 (La.1980); State v. Schwartz, 354 So.2d 1332, 1333 n. 2 (La.1978); see also State v. Perry, 420 So.2d 139, 146 (La.1982) (“... neither a state witness nor a deputy sheriff is a ‘court official’; therefore, [C.Cr.P.] art. 770 does not apply. ... ”).

In the present case, there has been no showing that the remarks of Major Reic-hert were intentionally unresponsive or were otherwise intended to present improper evidence to the jury. Since Major Reic-hert’s statements were not malicious or otherwise improperly intended, he will not be held to the same standard as other “court officials.” Consequently, article 770(2) does not apply to his comments; a mandatory mistrial is not due.

The comment of a police officer, though, will be viewed with considerable concern as to its effect on the fairness of the trial, but the decision is initially within the sound discretion of the trial judge. State v. Douglas, 389 So.2d 1263, 1266 (La.1980). Absent a clear showing of abuse of the trial court’s discretion, this court will not upset a trial court’s ruling on the matter.

There has been no showing of abuse by the trial court of his broad discretion. The court was correct in admonishing the jury, and was within its discretion in denying the first motion for a mistrial based on the comments of Major Reichert. This issue is without merit.

Defendant’s second motion for a mistrial on this subject was made during the district attorney’s closing argument. During argument, the prosecutor made the following remarks:

“Now, what did Nuccio indicate that he was-really afraid of? What did he indicate that he was really afraid of? He didn’t say that Officer Carreras told him that if he didn’t testify a particular way in that statement that Officer Carreras was going to beat him some more. He didn’t say that. He didn’t say that if he didn’t testify in a particular way that Officer Papania was going to find out about it and beat him some more. He said that he thought that Officer Carrer-as was going to charge him with murder if didn’t make that statement. Officer Carreras testified that he was eventually charged with murder. He made that statement anyway. He was charged with murder.”

At that point, defense counsel objected. The trial judge admonished the jury to disregard the comments on the murder charge, and reserved defendant’s right to make a motion for a mistrial at the conclusion of the argument. At that time the motion was made, and denied.

The denial of a mistrial upon the motion of a defendant, when the motion is based properly on one of the grounds listed in article 770, is “per se a substantial violation of a statutory right.” State v. Green, 315 So.2d 763, 765 (La.1975). See also State v. Brown, 428 So.2d 438, 443 (La.1983); State v. Perry, supra.

The objection was based on the statement of the prosecutor concerning the defendant’s being charged with murder. The comment was within the hearing of the jury, during argument, and referred directly to another crime alleged to have been committed by the defendant. The comment concerning the murder charge comes within the scope of C.Cr.P. 770(2), and will constitute reversible error if the evidence of the murder charge was inadmissible.

The evidence of the beating and the shooting of the victim was admissible as part of the res gestae of the offense. As already stated, evidence of the death of the victim was determined to be relevant by the trial judge, and so the evidence of the death of the victim was admissible.

In cases where severe acts of violence have been perpetrated against the victim of an armed robbery, it is, as a practical matter, impossible for any court, prosecutor, defense counsel or witness to exclude entirely some references to occurrences which form an integral part of the history of the offense. Due to the tight intertwining of all of the facts, it is not impermissible to admit some references to an allegation of another crime which arises out of the same factual transaction as the one for which a defendant is being tried. The references, however, must be relevant to some element of the case, and cannot unduly prejudice the defendant. When there has been but one factual basis upon which action by the police or the district attorney is supported, it will not be considered unduly prejudicial when comments are made referring to other charges arising from the same facts.

Whenever a confession is sought to be introduced, it is quite relevant to determine the state of mind of both the defendant—and the police officers—at the time of the giving of the statement. This goes to the heart of whether or not the defendant was, or believed himself to have been, coerced, threatened, or induced to make the statement.

In the present case the assistant district attorney referred to the testimony of one of the witnesses. He repeated before the jury, during closing argument, that defendant had been charged by the police for the murder of the armed robbery victim. While this is a reference to a different statutory crime, for which different evidence is required in order to sustain a conviction, it was part of the circumstances surrounding the armed robbery, the apprehension of the suspected perpetrator, and his confession to the crime. It might explain why the defendant made his statement: he thought that he might go to the electric chair, and believed that he was exculpating himself from the possible murder of the victim, by admitting to be an “accessory” to the armed robbery. This evidence could assist the jury to determine the subjective voluntariness of the defendant’s statement, and weigh the confession accordingly.

Considering the connexity between the actions of the defendant and the murder charge, and the practical inability to completely segregate comments on one during the trial of the other, it was not impermissible to admit evidence of the defendant’s arrest for murder.

Because the evidence was admissible, even though the evidence was not allowed into the record by the trial judge, the comments by the district attorney during closing argument do not come within the scope of the mandatory mistrial provisions of C.Cr.P. 770(2). Instead, they come within the scope of C.Cr.P. 771, and the trial judge was within his discretion in admonishing the jury to disregard the comments, and denying the motion for mistrial.

Assignments of Error Nos. 7, 8 and 9 are without merit.

Argument No. 5

Defendant contends that it was improper for the state to use his earlier guilty plea as a basis for the multiple offender bill. He argues that his earlier plea was made without having been “boykinized” properly, and that Boykin should require the trial judge to inform a defendant of the possible use of the guilty plea conviction in future multiple offender cases.

In 1977 defendant, after being charged with simple burglary, pleaded guilty to the lesser charge of accessory after the fact to simple burglary. R.S. 14:25, 14:62. At the time of the entry of his plea, the judge “boykinized” defendant. The trial judge was satisfied that the plea was knowingly and intelligently entered, and was free and voluntary. Later, after defendant was arrested for possession of marijuana (on the night of the armed robbery of Dennis Acosta), defendant moved to withdraw his earlier guilty plea. The motion came up for hearing after defendant’s armed robbery trial had ended. At the conclusion of the hearing, the judge found that the earlier plea was accepted properly by the first trial judge. Defendant sought writs from this court, arguing that he was not “boykin-ized” properly, which application was denied. State v. Nuccio, 420 So.2d 163 (La.1982). At the hearing in the present case, on defendant’s motion to dismiss the multiple offender bill, the trial judge again found that the defendant’s Boykin rights had been respected.

A guilty plea will not be considered valid unless the plea was a free and voluntary choice on the part of the defendant. Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not’ be considered to be free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. There also must be an express and knowing waiver of those rights, State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), and the waiver must be on the record, which must unequivocally show that the waiver was free and voluntary. State v. Halsell, 403 So.2d 688, 690 (La.1981). While a colloquy between the judge and defendant is the preferred method of proof of a free and voluntary waiver, the colloquy is not indis-pensible when the record contains some other affirmative showing of proper waiver. Id.

Boykin, furthermore, only requires that a defendant be informed of the three rights enumerated above. Its scope has not been expanded to include advising the defendant of any other rights which he may have, nor of the possible consequences of his actions. Our jurisprudence has never required that a defendant be informed that his guilty plea — his conviction — may be used as a basis for the filing of a future multiple offender bill. For the most part, our application of Boykin has been with very few exceptions or expansions. Only in the extraordinary case where a plea bargain is entered, in which the prosecutor specifies a recommended sentence, will the state be barred from using the guilty plea as an enhancement predicate when the bargained plea is the one which constitutes the second offense which the prosecutor seeks to enhance, and the defendant was not informed that the district attorney could or would multiple bill him. See State v. Hayes, 423 So.2d 1111, 1114 (La.1982).

At the time defendant Nuccio made his Boykin statement to the judge, he was represented by counsel, and, according to the record, apparently entered into some sort of plea bargain in which he was promised only that a presentence investigation would be conducted. Nonetheless, the trial judge informed defendant of his Boy-kin rights to “be tried by a jury, examined (sic) the people who said you did this, that you could testify if you wanted to or you could remain silent, and that you have the right to be tried by a jury and if found guilty, you could appeal the case.” Nuccio acknowledged his understanding of those rights. Since all of the constitutional requirements have been met, it was proper for the trial judge to rule as he did and accept the earlier guilty plea as a predicate for a multiple offender bill.

Assignments of Error Nos. 13, 20 and 21 are without merit.

Argument No. 6

Defendant contends that the trial court erred in denying a special jury instruction. The requested instruction dealt with the disposition of the confession. Defendant requested that the jury be informed that the state had to prove to it, beyond a reasonable doubt, that the confession was obtained freely and voluntarily, and that the jury “accept it or reject it accordingly.” The effect of the requested charge was to tell the jury it must decide the admissibility of the confession.

A trial judge must give a requested jury instruction when it “does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.” C.Cr.P. 807. If the requested charge does not conform to the statutory requirements, it need not be given by the judge.

The issue of admissibility of a confession is a question for the trial judge. The task of the jury is to determine the weight to be given to the confession after it has been admitted into evidence. State v. Ross, 343 So.2d 722 (La.1977). The requested charge in the present case would have required clarification or explanation, and was not wholly correct. The trial judge properly denied the requested charge.

Assignment of Error No. 16 is without merit.

Argument No. 7

Defendant contends that the trial judge erred in denying his request for a special jury instruction to the effect that a conviction for armed robbery carried a mandatory minimum sentence of five years at hard labor without benefit of probation, parole or suspension of sentence.

State v. Blackwell, 298 So.2d 798 (La.1974), decided the specific issue in this assignment, adversely to the defendant.

Assignment of Error No. 17 is without merit.

Supplemental Argument

Defendant contends that it was error for the trial judge to deny his request to call Officer Lauga for limited cross-examination. Officer Lauaga testified at the hearing on the motion to suppress the confession, and stated that he was the only officer who was with defendant from the time of his arrest until the time the three other officers began interrogating Nuccio for his statement. At the trial on the merits, the state decided not to call Officer Lauga, but, instead, to call other officers to lay the foundation for the confession. Defense counsel, not expecting any contradictory statements to be made by the other officers, also decided not to call Lauga. Lauga thus was excused from the witness sequestration order. As the trial progressed, and the other officers gave versions quite different than the one given by Lauga, defense counsel wanted to present the testimony of Lauga under limited cross-examination for impeachment purposes. The trial court ruled, after a state objection, that the defendant could call Lauga, but that he would be called as a defense witness, subject to all of the limitations inherent in direct examination, including the inability to impeach him. Because of this restriction, Lauga was not called.

The trial judge was within his broad discretion in requiring defendant to call Lauga under direct examination. There is no provision allowing the defendant to call witnesses under cross-examination. Defendant made no effort to show that Lauga was hostile. See R.S. 15:277, 487.

Assignment of Error No. 6 is without merit.

Since none of defendant’s briefed and argued assigned errors have merit, the conviction and sentence of the defendant are affirmed.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The critical issue at the trial on the merits in this case was the weight to be given by the jury to defendant’s statement, which defendant contends was beaten out of him by the police.

At the motion to suppress, Officer Lauga testified he was the only officer who was in the room for the entire interrogation. The trial judge expressly relied on Lauga’s testimony as the basis for denying the motion.

At trial, Officer Ferrand testified that he was in the room “the whole time” and that Lauga was not there “while I was in there”. Officer Hernandez testified that Lauga “might have come in at one time during the proceedings”. The prosecutor did not call Lauga to testify at trial.

The trial testimony of Officers Ferrand and Hernandez was thus inconsistent with the testimony given by Officer Lauga at the motion to suppress. When defense counsel called Officer Lauga (who had not been called by the prosecutor) at trial for the purpose of challenging the important testimony of the other two officers, the trial judge erred in requiring counsel to vouch for Lauga’s credibility and to ask only non-leading questions. The court’s requirement that defendant vouch for Lau-ga’s credibility effectively prevented him from presenting evidence which contradicted the trial testimony of the other policemen and deprived defendant of his constitutional right to present a fair defense.

      . Paul Krolowitz was convicted of the armed robbery of Dennis Acosta, and was sentenced to fifty years at hard labor, without benefit of probation, parole or suspension of sentence. That conviction and sentence have been affirmed by this court. State v. Krolowitz, 407 So.2d 1175 (La.1982).

      . Both witnesses, Kristoff and Stohlman, gave their same stories in the Krolowitz case.

      . Defendant Nuccio originally was arrested for both armed robbery and murder. He was indicted for both crimes also, but was tried only for the armed robbery indictment.

      . “BY MR. KATZ [the prosecutor]:
      Q Officer, did anything happen prior to the statement given by Mr. Nuccio?
      A Prior to the statement given by Mr. Nuccio, yes, sir. He was arrested from his residence.
      Q And did anything else happen just prior to the statement that he gave?
      A Prior to the statement?
      Q Yes.
      A Yes, sir. I had arrested another subject involved in the armed robbery and murder.
      Q I direct your attention to anything that happened concerning the defendant, Gerald Nuccio just prior to he giving you a statement?
      A I didn’t hear you, sir.
      Q I’m referring to the defendant, Gerald Nuc-cio. I want to know if anything happened that you are aware of prior to him giving you a statement that had to do with him, Gerald Nuc-cio.
      A We had arrested him from his house. Yes, sir. We advised him of his rights before we took the statement from him, sir.
      Q And what rights did you advise him of?
      A We advised him on the regular form that you have. The right to remain silent. The right to an attorney. We could stop questioning him anytime he wanted. We’d stop questioning him and the charges that he was charged with, armed robbery and murder.
      Q I’m sorry, officer. I was thinking about something else. What rights did you advise him of now?
      A Armed robbery and murder.
      Q You told him that he was—
      A I didn't advise him. I was a witness to — Mr. Gerald Nuccio was advised from a form. I did tell him after he was read his rights, I advised him again and in the statement he received where I advised him several times of his rights.
      Q Do you remember what rights he was advised of?
      A Yes, sir.
      Q What rights was he advised of?
      STATEMENT BY MS. BAYER [defense counsel]:
      May we approach the bench?"
      (At this point, defense counsel objected, and, in chambers, moved for a mistrial, which was denied).

      "STATEMENT BY THE COURT: The jury will disregard the remarks of the witness. The statement that (sic) the witness when he stated that the defendant was arrested for armed robbery and murder. This is an armed robbery trial. The defendant is not on trial for murder. The witness will refrain from making any reference to any such thing as murder.
      STATEMENT BY THE WITNESS:
      I did not say he was arrested for murder, your Honor.
      STATEMENT BY THE COURT:
      Lets not compound it. The jury is requested and instructed to disregard the testimony of the witness insofar as any other crime other than the crime of armed robbery is concerned.
      BY MR. KATZ:
      Q Officer, to try to get back into the continuity, Officer, what rights did you hear Officer Ferrand give the defendant?
      A Well, he read him the rights of what he was being charged on, armed robbery and what I am not supposed to say.
      STATEMENT BY MS. BAYER:
      Objection, your Honor.
      STATEMENT BY THE COURT:
      Objection is sustained.
      STATEMENT BY MS. HOWELL:
      Your Honor, we would also renew our motion.
      STATEMENT BY THE COURT:
      The motion is denied. The jury will disregard the remark of the witness on what I am not supposed to say. The witness cannot say indirectly what he cannot say directly.”

      . "BY THE COURT:
      Q. Mr. Nuccio how old are you, son?
      A. 19.
      Q. Had Mr. Drake gone over everything with you, son?
      A. Yes, sir.
      Q. Do you understand what is happening here in Court today?
      A. Yes, sir.
      Q. You were charged with Simple Burglary with Brechtell and Warner. The State, after having your lawyer explain to him what you what you said you did, has charged you with accessory after the fact, that is getting some of the money from it; do you understand that?
      A. Yes, sir.
      Q. Are you guilty of that?
      A. Yes, sir.
      Q. Now, you understand that you have the right if you wanted to plead not guilty, be tried by a jury, examined (sic) the people who said you did this, that you could testify if you wanted to or you could remain silent, that you would have the right to be tried by a jury and if found guilty, you could appeal the case; do you understand that?
      A. Yes.
      Q. Do you understand when you plead guilty, right now you have given up all of that?
      A. Right.
      Q. Do you also understand, by pleading guilty, give up what we call your constitutional rights such as illegal arrest, illegal search and seizure, illegal confession and illegal lineup?
      A. Yes, sir.
      Q. Now, son, you got some of the money, is that correct from this robbery.
      A. Well, I was with them, but they had the money.
      Q. Who had the money?
      A. Bernard Warner.
      Q. You received what out of the money?
      A. Some of the drinks. They gave me a couple of dollars because I was driving them around.
      Q. Has anybody told you, you have to plead guilty to this?
      A. No, sir.
      Q. Is this your own decision?
      A. Yes, sir. Q. Has anybody promised you anything other than what Mr. Drake told you that this will be sent for what we call a presentence investigation?
      A. No.
      Q. He tells me you have been in trouble once before, is that correct?
      A. Yes, sir.
      Q. How long ago was that?
      A. About 17 years old, right before I got married.
      Q. How old are you now?
      A. 19.
      Q. Son that's two (2) years ago?
      A. Yes, sir.
      Q. Were you placed on probation for that?
      A. Yes, six (6) months unsupervised.
      The Court:
      The Court is going to refer this matter to the Department of Correction for a presentence investigation, after which time the Court will notify you of the date of the sentencing. The Court finds the plea of guilty is voluntary, free from persuasion and compulsion.”


source: Caselaw Access Project

author: DENNIS, Justice. MARCUS, Justice

license: Public Domain

text:
    Orman J. WALTERS, Jr. v. The DEPARTMENT OF POLICE OF the CITY OF NEW ORLEANS.
    No. 83-C-1396.
    Supreme Court of Louisiana.
    June 25, 1984.

      Salvador Anzelmo, City Atty., Bernette J. Johnson, Deputy City Atty., Charles J. Willoughby, Asst. City Atty., for applicant.
    Sidney M. Bach, Gerald Wasserman, Bach & Wasserman, New Orleans, for respondent.
   DENNIS, Justice.

We granted certiorari in this civil service disciplinary case to review the court of appeal’s judgment reversing a civil service commission order which upheld the dismissal of a police officer by the New Orleans Police Department. Walters v. Department of Police, 430 So.2d 1032 (La.App. 4th Cir.1983). Police Officer Orman J. Walters, Jr. was dismissed following an incident during a 1981 Mardi Gras parade in which he accidently discharged his handgun and injured two persons. The civil service commission upheld the dismissal. The court of appeal reversed the civil service commission’s decision because of manifestly erroneous findings of fact and reduced Walters’ punishment from dismissal to sixty (60) days suspension, without pay, but without loss of rank or privileges. We agree that the commission’s decision, which is based on errors of both fact and law prejudicial to Walter’s substantial rights, must be reversed. Because of the discretion vested by the constitution in the commission to determine legal cause for discipline and punishment commensurate therewith, however, the court of appeal erred in substituting its de novo findings for the commission’s. Accordingly, the court of appeal judgment will be amended to simply reverse the commission’s decision and remand the case to it for further proceedings consistent with this opinion.

I. Background Facts

On March 1, 1981, Orman J. Walters, Jr., a New Orleans police officer assigned to the Family Services Division, was instructed to station himself at a comer of Canal and Tchoupitoulas Streets during the Bacchus parade for the purpose of tending to lost children and apprehending juvenile offenders. Upon taking custody of a child, it was Walters’ duty to take him to a Family Services van three blocks away at the corner of Canal and Royal Streets for processing and transfer to other officers. Family Service Division officers, such as Walters, were required to wear plainclothes to facilitate their work with children. Walters and one other officer requested permission on the day in question to wear uniforms clearly identifying them as police officers to parade spectators. The department denied their request.

Before the parade reached Walters’ location, he and his partner, Officer Oubre, received a lost juvenile and took him to the van at Canal and Royal. Walters decided to stay at the van during the parade because he thought he was needed at this location. He notified his base station by radio of his arrival at the van but did not call back to notify anyone of his decision to stay during the parade.

Within minutes of Walters’ arrival at the police van a light rain began to fall. Walters removed his jacket because the rain had begun to cause it to discolor. In so doing, Walters acted in violation of the department’s regulation which requires an officer dressed in plainclothes to wear a coat over his firearm. At the time of the altercation, Walters’ holstered revolver was visible.

As the Bacchus parade passed, Walters observed that a St. Augustine High School Band chaperone had become involved in a physical conflict with a spectator. Walters rushed into the street and proceeded to pull the chaperone away from the spectator. Numerous band members and spectators attempted to restrain the officer. During the course of this struggle, Walters’ revolver came partially out of its holster. The officer removed it completely and pointed it skyward to avoid its being taken by the crowd. As the scuffle continued, Walters accidently pulled the trigger, causing the firearm to discharge once. Two persons, a band member and a spectator, were injured.

Following an internal police department investigation, Walters was dismissed effective April 22, 1981. The department notified him of his discharge by a letter dated April 21, 1981 which stated that it had found he violated departmental rules and committed acts prejudicial to the police department by: (1) removal of his jacket in violation of the dress code; (2) failure to report to his assigned location; (3) failure to register his service revolver; (4) failure to adhere to the laws of the state by committing negligent injuring in violation of R.S. 14:39.

II. The Civil Service Commission’s Opinion

As an employee with permanent status, Walters appealed to the Civil Service Commission. After considering the evidence taken at a hearing conducted by a hearing examiner, the commission upheld Walters’ dismissal.

The following factual summation by the Civil Service Commission contains its findings of facts relevant to the question of whether legal cause existed for disciplinary action against the appellant:

“Basically, this ease arises out of an incident that occurred the night of the Bacchus parade in the vicinity of Canal and Royal Streets. An altercation took place between Mr. Glen Jasper, a chaperone with the St. Augustine Band, and the appellant. At some point during the altercation, the appellant fired one shot injuring two bystanders.

⅝ sfc * ‡ * ¡fc

“For the sake of clarity, we will consider each charged violation separately:

“One, Rule J, paragraph 2., relative to instruction from an authoritative source. The City presented Sergeant Christopher F. Johnston, who testified that he issued written instructions to appellant relative to where he was assigned on March 1, 1981. The written instructions read, in part ‘... and then go to the Bacchus parade route and remain stationary at Canal and Tchoupitoulas until completion of the Bacchus parade.’ According to Sergeant Johnston, appellant’s duties were ‘arrest of juveniles or lost children brought to him at that location.’ He further testified that if there was a change in assignment, appellant was required to notify the platoon commander on duty by radio or telephone, and get further instructions.

“According to appellant, at the end of the day parade, he and his partner went to their assigned location, but everything was quiet, so they rode around the French Quarter. At some point during their cruising, a lost child was brought to them. They took the child to the Family Services Division Van at Canal and Royal Streets. After processing the child, there was still time (approximately 30 to 45 minutes) to get to their assigned location approximately three blocks away.

“According to appellant and Agent Edward Lambert, the person who conducted the investigation, appellant made the decision to remain at Canal and Royal Streets. He reasoned that there was a greater need for his services at Canal and Royal rather than Canal and Tchoupitoulas. Therefore, appellant did not intend to go to his assigned location. However, within one hour the density of the crowd would have prevented him from going to his assigned location. His partner, Officer Oubre, the driver of their car, testified that by this time he was afraid to leave for fear that someone would be injured by their unmarked police car.

“Appellant did not have a radio (his was being repaired) but he borrowed his partner’s radio to lodge a report on the missing child, but did not report that he was changing locations and was remaining stationary at Canal and Royal. In fact, appellant first testified that T had notified my office that I had changed locations.’ Later he admitted ‘I told him (Recruit Wood) that we were now at Canal and Royal with a lost juvenile.’ Furthermore, he did not tell anyone that he and his partner did not intend to go to their assigned location. Lieutenant Arthur Perrot, Jr., Assistant Commander of the Juvenile Bureau, testified that officers are given a lot of discretion and appellant could have left his assigned location but should have notified the ranking officer to inform him of the change in location. Appellant failed to do this. His partner must work thirty (30) of his off-days for the specific violation.

“Two, ASOP 118.0, paragraph 1., relative to Uniform — plainclothes personnel. According to Officer Edward Lambert, appellant was in violation of the dress code for this assignment. His attire should have consisted of coat/jacket, slacks and tie. Appellant admitted that he was not dressed properly. He said that he removed his leather jacket because it started raining and his jacket was beginning to spot. One other officer removed his jacket and was disciplined for this infraction. The two remaining officers in the van area kept their jackets on. Testimony does reveal that it rained intermittently throughout the evening in question. However, Officer Lambert testified that all officers should have prepared for inclement weather during the Mardi Gras season.

“According to Sergeant Christopher Johnston, the purpose of wearing a coat is two-fold: One, the policeman’s weapon is concealed to make it inaccessible to members of the general public. And two, so people, especially children, would not be alarmed to see somebody carrying a weapon. Officer Lambert testified that if appellant had had his jacket on, his weapon would not have been exposed, and maybe would not have been drawn at all. Captain Kenneth J. Dupaquier additionally testified that the reason members of the Family Services Division were wearing plainclothes is because it is better in the handling of children. After all, the handling of children is one of their prime police functions.

“We might also point out that identification for policemen in plainclothes is awkward. It is not visible, such as a badge, but is a wallet-like folder which, when opened, shows the officer’s identification. It is usually kept in the pocket of an officer’s coat or jacket. It is also a fact that appellant along with Officer Ford had requested permission of Captain Dupaquier to wear their uniforms, so that they might be recognized as policemen. Permission was denied. Captain Dupaquier stated, in his testimony, that next year (1982) all Family Services Division officers would be in uniform. This decision was apparently reached in the aftermath of the case before us.

“Three, ASOP 97.0, paragraph 10., relative to registering of handguns used on duty. Appellant admits that he did not register his service revolver with the New Orleans Police Department Pawnshop as is required by all Police Officers. He testified that he purchased it on Saturday, February 21, 1981 and T completely forgot to register the gun.’ The weapon was a Smith and Wesson .45 caliber six-inch revolver, Serial # N803863.

“There is no contradiction regarding the three aforementioned violations. In actuality, there is an admission by appellant and verification of the violations by several witnesses. The fundamental question is: To what extent do these seemingly minor infractions of departmental rules and procedures initiate and aggravate the situation leading up to two innocent bystanders being injured? We examine this question next.

“Four, Rule 2., paragraph 1., relative to adherence of law. This rule is the crux of the matter before us. There was much discussion at the beginning of the hearing regarding its admissability (sic) as a part of the record. In fact, a Civil Service employee may not be disciplined solely because of an indictment. An independent investigation must be made. In this instance, a Police Internal Affairs Investigation was conducted. Thus, the Commission will also examine this alleged violation.

“Three major officers involved in the investigation of the incident, in which appellant was a participant, testified. To some degree their testimonies differ in regard to the gravity and severity of the penalty for the violation. Agent Lambert stated that appellant’s dismissal was based not on the indictment, but on evidence uncovered during investigation. He stated that his investigation was based upon violation of two State Statutes: R.S. 14:12 Criminal Negligence and R.S. 14:39 Negligent Injuring. They read as follows:

“R.S. 14:12 Criminal Negligence
Criminal Negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.
“R.S. 14:39 Negligent Injuring
Negligent injuring is the inflicting of any injury upon the person of another by criminal negligence. Further, Agent Lambert testified that departmental procedures declare that — ‘Neither ignorance of the law, its interpretations, nor failure to be physically arrested and charged, shall be regarded as a valid defense against the requirement of this rule.’

“In reality, he continued, the indictment was based on facts deduced and evaluated from thirty (30) witnesses as part of his investigation. Also, the charges were reduced from ‘use of force’ to criminal negligence and negligent injuring because appellant ‘did not intentionally fire his weapon’, said Agent Lambert. Sergeant John E. McKenzie, the Platoon Commander, stated that from his investigation, the conflict in testimony among the thirty (30) or more witnesses was so gross that they should not have formed a basis for appellant’s indictment.

“Agent Edgar M. Morgan, Jr., Commander of the Internal Affairs Division, testified that he recommended to Chief Morris ‘heavy discipline’ in the case of appellant. He stated, ‘heavy discipline to me is anything from a thirty-day suspension up to and including dismissal’.

“We can not speak to the indictment charge which is a judicial matter, however, Chief Morris apparently made the decision, upon facts at his disposal, regarding suspension and dismissal of appellant.

“As far as we are able to determine, with certain noted contradiction, appellant while in the vicinity of Canal and Royal Streets began to engage in crowd control during the passing of the St. Augustine band. The band was part of the Bacchus parade. More specifically, according to appellant, he went to break up a scuffle between a male, described as a St. Augustine chaperone, and an unidentified male spectator. The scene then shifts to a scuffle between appellant and the St. Augustine chaperone. Both claimed to be punched by the other. Both deny throwing any punches. No witness testified to having seen punches thrown by the appellant, the St. Augustine chaperone, or an unknown spectator. The only eyewitness to the initial scuffle between the chaperone and the spectator reported that appellant attempted to separate the two (Jenkins testimony). All eyewitnesses report only pushing and shoving by appellant, chaperone, and unidentified spectator.

“Both appellant and chaperone agree that appellant grabbed the chaperone from behind by his left arm or shoulder region. Without noticeable identification as a policeman, the chaperone apparently increased his struggles to get away from the unknown person (appellant). Appellant then stated that in a quick succession, he told the chaperone that he was a policeman. At some point, the chaperone heard him over the noise of the crowd. The chaperone stated that he then raised his arms up. Appellant denies this. At about this time, appellant became conscious of the fact that he was surrounded by several persons whom he described as St. Augustine band members.

“The following seem relevant to the ultimate shooting: The appellant became cognizant of the reality that he was in the middle of a concerned, perhaps unfriendly, crowd. The noise was loud; at points, both from the band and the spectators. The appellant was in plainclothes, without visible identity, and with an exposed gun. The band members did not know who the appellant was and reacted with anxiety. However, there is no evidence that appellant was attacked by an onlooker to the scuffle between appellant and the chaperone. Although tension was obviously high, appellant does not state that he felt threatened by anyone, prior to the firing of his weapon.

“As the pushing and shoving continued, appellant grabbed his exposed gun which was becoming unattached from the broken hinge of his shoulder holster, raised the weapon, ‘pulled Jasper to myself, and in an upward fashion ‘points but does not aim’ his weapon. Appellant reasoned that with the pushing and scuffling, he felt it best to hold onto his weapon in the interest of safety and to prevent someone from taking his weapon from him.

“Appellant recalls making his weapon ready for firing, but admits he does not know how or why he pressed the trigger and fired the weapon. He has no conscious memory of pulling the trigger. He assumes that the firing of the weapon occurred during the scuffle or ‘maybe someone struck me. I don’t remember, but something caused mé to pull the trigger’. Fortunately, the St. Augustine chaperone was in a crouched position or the results might have been a great deal more deadly. As it turned out, two persons in the crowd were injured by a single shot fired by appellant.

“The situation seems to have escalated very rapidly and quickly got out of control. Most witnesses testified that the entire incident took a few seconds to less than a minute. Other officers converged upon the scene immediately because they had already been called on an unrelated matter. A group of spectators were destroying floats in the area. The protagonists were removed from the scene and gave their statements within the next few hours.

“The appellant’s attorney introduces into the transcript the possible state of intoxication of appellant. Since intoxication was not a listed violation in appellant’s letter of dismissal, we decline to consider it as part of this case.

“In the maze of testimony, there are some undisputed facts:

1. Appellant had been on the New Orleans Police force for more than ten years without previous disciplinary action.
2. Appellant was at an unauthorized location during the 1981 Bacchus parade.
3. Appellant was not wearing assigned, official clothing for on-duty activities.
4. Appellant did have his service revolver exposed to public view.
5. Appellant had not registered his service revolver with the New Orleans Police Department Pawnshop.
6. Appellant was not wearing any visible identification as a Police Officer.
7. Appellant had access to a radio, but did not use it to request or inform his Platoon Commander of his change in location.
8. Appellant did fire one shot into a crowd injuring two bystanders.

“The Commission cannot help but call attention to the following: If appellant had not been in an unauthorized location, in unauthorized clothing, doing what he was not assigned to do, this unfortunate incident may not have happened. Put another way, if appellant had followed his instructions from an authorized source, this particular incident could have been averted. Thus, non-compliance to administrative departmental regulations may have precipitated and contributed to the situation to such an extent that appellant cannot be considered blameless. Taken together, the several seemingly minor infractions of police regulations escalated into a major incident.

“It is the opinion of the Commission that appellant used poor judgment in what we believe to be an ‘avoidable accident’. In summary, several factors lead to this conclusion:

1. Appellant was not where he was assigned on the evening of March 1, 1981.
2. Appellant decided to remove his jacket exposing his large weapon to public view.
3. Appellant did not elect to wear his gun under his shirt. This would have been a wise procedure (Johnston testimony).
4. Appellant did not immediately identify himself before the fracas as a Police Officer, although he knew he was not wearing any visible identification as a Police Officer.
5. Appellant decided to grab the identifiable St. Augustine chaperone instead of assisting him in obtaining crowd control of an unidentified male spectator.
6. Appellant did not temporarily release the chaperone to secure his weapon. This could have been done because the two were encircled. Also, the chaperone was identifiable, and could not leave the scene.

“Appellant admits removing his gun from his holster and pointing it. However, appellant explained why he did it. There is no evidence that appellant intentionally fired his gun. Nevertheless, under Louisiana Statute R.S. 14:12, ‘intent’ need not be present in order for a person to be in violation of a said Statute.”

III. Court of Appeal Decision

From the Commission’s order upholding his dismissal, Walters appealed to the court of appeal. After hearing oral arguments, the court of appeal reversed, concluding that the record does not support the commission’s determination that Walters’ actions were of such a criminal nature as to require his dismissal. The court ordered the department to restore Walters to his position and to impose alternative punishment of suspension for sixty days. 430 So.2d at 1032. We granted writs to determine whether the reversal of the commission’s decision was justified.

IV. Legal Precepts

The Louisiana Constitution of 1974 establishes a city civil service including all persons holding offices and positions of trust or employment in the employ of the City of New Orleans. Because the electors of New Orleans failed to exclude its paid firemen and municipal policemen therefrom by an election called within one year after the effective date of the constitution, these employees are included in the classified city civil service. La. Const, art. X, §§ 1(B), 2.

The Louisiana Constitution of 1974 establishes a city civil service commission and a department of city civil service in each city having a population exceeding four hundred thousand. La. Const, art. X, §§ 4, 6. An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. He may appeal from such disciplinary action to the City Civil Service Commission, and the burden of proof on appeal, as to the facts, is on the appointing authority. La. Const, art. X, § 8.

The Civil Service Commission has the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The Commission’s decision is subject to review on any question of law or fact upon appeal to the court of appeal. La. Const, art. X, § 12(B).

This court has formulated jurisprudential precepts to guide the Commission and the courts of appeal in applying these constitutional principles. “Cause” for the dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962); Brickman v. New Orleans Aviation Board, 236 La. 143, 107 So.2d 422 (1958); Jais v. Department of Finance, 228 La. 399, 82 So.2d 689 (1955); Gervais v. New Orleans Department of Police, 226 La. 782, 77 So.2d 393 (1955). The Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. See Brickman v. New Orleans Aviation Board, supra 107 So.2d at 434 (1958) (McCaleb, J., dissenting). A reviewing court should not reverse a commission conclusion as to the existence or absence of cause for dismissal unless the decision is arbitrary, capricious or an abuse of the commission’s discretion. Jones v. Louisiana Department of Highways, 259 La.329, 250 So.2d 356 (1971); Konen v. New Orleans Police Department, 226 La. 739, 77 So.2d 24 (1954). On the other hand, the judicial review function is not so limited with respect to the commission’s decisions as to jurisdiction, procedure, and interpretation of laws and regulations. Konen v. NOPD, supra.

The standard to be applied by a court in reviewing the commission’s factual findings has changed over the years. Under the previous constitution, which provided that the commission’s findings of fact were final, La. Const, art. XIY § 15(0)(1) (1921), this court held in a variety of decisions that the agency’s factual findings would not be disturbed if there is of record “any evidence,” Leggett v. Northwestern State College, supra; “substantial evidence,” Konen v. New Orleans Police Department, supra; “some evidence,” Gervais v. New Orleans Police Department, supra or “probative evidence,” Mayerhafer v. New Orleans Police Department, 235 La. 437, 104 So.2d 163 (1958), to support them. See H.F. Sockrider, Dismissal of Louisiana State Civil Service Employees, 23 La.L.Rev. 121 (1962). These standards of review of factual determinations, however, have been superseded by the new constitutional rule that the commission’s decision is subject to review on any question of law or fact. La. Const, art. 10 § 12. Accordingly, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review in deciding whether to affirm the commission’s factual findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973). See, Sanders v. Department of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir.1980); writ denied, 399 So.2d 602 (La.1981); Herbert v. Department of Police, 362 So.2d 1190 (La.App. 4th Cir.1978); Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir.1976); writ denied, 343 So.2d 1078 (La.1977).

Thus a multifaceted review function is committed to the court in civil service disciplinary cases. In reviewing the commission’s procedural decisions and interpretations of law the court performs its traditional plenary functions of insuring procedural rectitude and reviewing questions of law. Due concern both for the intention of the constitution and for the boundaries between the functions of the commission and of the court, however, demands that a reviewing court exercise other aspects of its review function with more circumspection. In reviewing the commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion. Cf. La.R.S. 49:964; Save Ourselves, Inc. v. The Louisiana Environmental Control Commission, 452 So.2d 1152 (La.1984); Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir.1978); K. Davis, Administrative Law (1982 Supp.) at 536 et seq.

V. Application of Legal Precepts

Applying these precepts to the evidence of record, we conclude that the commission committed manifest error in its factual findings in several crucial respects: (a) The commission was clearly wrong in finding that “there is no evidence that appellant was attacked by an onlooker to the scuffle between appellant and the chaperone.” A second band chaperone testified that he joined in the fight between Walters and his chaperone colleague. Two other witnesses testified that the band members and chaperones surrounding Walters pushed and pulled the officer and grabbed at his arm and gun. No witness directly contradicted this testimony although two of the witnesses who stated that they had been in a position to see the entire episode testified that they were uncertain whether band members and chaperones interceded in the scuffle between Walters and Jasper. In sum, there was clear and convincing evidence that the crowd surrounding Walters and the chaperone pulled and tugged at the officer during the altercation, (b) The evidence does not support the commission’s factual finding that Walters “recalls making his gun ready for firing.” Walters testified that he removed his revolver from its holster solely to prevent it from being taken or tampered with by someone in the crowd. There is no suggestion in his testimony that he ever prepared or intended to fire the weapon, (c) If, by finding that Walters “admitted removing his gun and pointing it,” the commission determined that he intentionally pointed it at someone, this finding is clearly wrong. Walters testified that he acted exclusively in the interest of safety by removing the handgun and pointing it skyward, (d) On the other hand, the commission should have found as a fact that the police department’s policy requires each officer to carry his weapon at all times and apprehend lawbreakers even when not engaged in his primarily assigned duties. The existence of this policy is clearly supported by the evidence and is essential to understanding the true nature of Walters’ actions. Moreover, the police department’s actions and the commission’s opinion tacitly acknowledge that a plainclothes officer is expected to break up street altercations, engage in crowd control and wear his revolver in parade crowds. Otherwise, Walters would have been charged and disciplined on these grounds rather than for dress code, gun registration and unassigned location violations.

In other instances, the commission made findings of fact but failed to appreciate fully their implications made manifest by the record: (a) The police department helped to create the situation from which the accident in this case arose by exposing armed plainclothes officers to crowd control duties. This danger is obvious and was pointed up by Walters’ futile request to wear a uniform on the day in question and by the department’s change of policy after the accident by requiring Family Services officers to wear uniforms during subsequent Mardi Gras parades, (b) As the commission noted, identification for a policeman in plainclothes is awkward, because his badge consists of a wallet-like folder kept in the officer’s pocket which he must remove and unfold for display. Thus, by removing his coat and revealing his large service revolver Walters actually made himself more, rather than less, readily identifiable as a policeman, (c) Walters’ failure either to return to his assigned location or to notify his office of his intention to remain at the van during the Bacchus parade was not a major transgression. As the commission noted, one witness testified without contradiction that Walters had the discretion to change his location during the parade but should have notified his ranking officer. Moreover, there is no indication in the record that Walters’ compliance with this duty would have protected him from the overall risk created by the department in exposing plainclothes officers to the exigencies of crowd control, (d) Walters testified without contradiction that he purchased his Smith and Wesson .45 caliber six inch revolver one week before the incident and simply forgot to register it. Walters’ one week delay in registering his new revolver has little or no relevance to the serious issues in this case. The record and the commission’s reasons fail to suggest any connection between the lack of registration and the accident in this case.

Considering the facts validly found by the commission, but also taking into account the manifest errors in its findings, we conclude that the commission fell into an error of law by concluding that Walters’ actions constituted negligent injuring.

Negligent injuring is the inflicting of any injury upon the person of another by criminal negligence. La.R.S. 14:39. Criminal negligence exists when “there is such disregard for the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” La.R.S. 14:12.

Criminal negligence corresponds to the concept of “gross negligence” in tort law. See Reporter’s Comment, La.R.S. 14:12. Its meaning is similar to the terms “gross negligence or recklessness” which have been used often in criminal statutes. The ordinary negligence sufficient to support a civil action is not enough. See Reporter’s Comment, La.R.S. 14:12. Accordingly, in a civil service disciplinary proceeding based on a charge of negligent injuring, the appointing authority is required to prove more than ordinary negligence on the part of the employee. It must prove gross negligence or a gross deviation from the standard of ordinary care. See State v. Jones, 298 So.2d 774 (La.1974).

The evidence produced by the police department does not reasonably support the conclusion that Walters was guilty of criminal negligence. Walters’ failure to return to his assigned station at Canal and Tchoupitoulas did not constitute even civil negligence causing the accident, since Walters would have been obliged to break up an -altercation at that location also. His removal of his jacket, his failure to identify himself as a police officer before entering the fracas, his failure to grab the spectator instead of the chaperone, and his failure to release the chaperone temporarily to secure his weapon, as found by the commission, are at most only acts of ordinary negligence. None of these facts constitute a basis for a reasonable inference of gross negligence or gross deviation below the reasonable standard of care. The commission reasonably found from the evidence that Walters did not intentionally fire the revolver, and the record does not reasonably support a finding that he aimed, pointed, or prepared to fire the weapon. Although his activation of the trigger may have constituted a high degree of ordinary negligence, under the circumstances it cannot be construed reasonably as disregard of the interest of others so substantially greater than ordinary negligence, as to amount to gross negligence.

Accordingly, for the reasons assigned, the court of appeal judgment is amended to reverse the commission’s decision and remand the case to the commission for further proceedings consistent with this opinion. Out of respect for the discretion vested in the commission by the constitution to determine whether there is legal cause for discipline and to mete out appropriate punishment when warranted, we will not substitute our judgment for the commission’s on what new determinations should be made after the errors we have pointed out have been eliminated. It appears that reasonable minds might reach more than one conclusion in this case. Accordingly, the commission’s decision is simply reversed and the case is remanded to it for further proceedings consistent herewith. The court of appeal judgment is amended to conform with this judgment.

AMENDED AND REMANDED.

DIXON, C.J., concurs in the result.

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

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the majority opinion except for remanding the case to the commission for determination of an appropriate punishment. Considering the court of appeal’s duty under La. Const, art. 10, § 12 to review the commission’s decision on any question of law or fact, the existence of a complete record on appeal, and, in the interest of judicial economy, it is better policy to allow the court of appeal to set the punishment it finds warranted by the circumstances. I consider the sixty-day suspension, without pay, but without loss of rank or privileges fixed by the court of appeal, to be appropriate in this case. Accordingly, I concur in part and dissent in part.


author: WATSON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Joseph JACKSON.
    No. 83-KA-0718.
    Supreme Court of Louisiana.
    June 25, 1984.
    Rehearing Denied Sept. 14, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William Campbell, Julie LeBlanc, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Dwight Doskey, Robert Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant, Joseph Jackson, was convicted of first degree murder in violation of LSA-R.S. 14:30 and sentenced, on the jury’s recommendation, to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant has appealed his conviction and sentence, arguing that a mistrial should have been granted because the prosecutor indirectly commented on his failure to testify. LSA-C. Cr.P. art. 770.

FACTS

The murder victim, Alfred Williams, was shot twice, once in the back of the head; and once in the neck. The body was found in a wooded area wrapped in a multicolored sheet and covered with the hood of an abandoned car. The murder weapon was recovered from one Bernice Jones when she emerged from a motel room where defendant was staying. The shooting took place at defendant’s home in Orleans Parish on March 24,1979. A number of people were present, including: Monica Walton Armstead, defendant’s girlfriend; Gladys and Anthony Porea; Irvin “Snake” Anderson; Bernard “Chatty” Henderson; and Keith Armstead, Monica’s brother. Of the many available witnesses, all but Bernard Henderson testified for the state. Their testimony leaves no doubt about what happened.

Defendant borrowed Tony Porea’s pistol about an hour before the shooting. Bernard Henderson and Alfred Williams arrived at the residence separately. Jackson apparently believed that Henderson and Williams had come to kill him. Henderson had some guns which he put on the kitchen table. Irvin Anderson and Keith Armstead saw defendant shoot Williams about fifteen or twenty minutes after Williams arrived at the house; Monica Armstead heard the shot from an adjoining room. Williams fell to the floor. It was then apparent that he had a derringer in his waistband. After Jackson shot Williams, he chased Henderson out of the house. Henderson departed in a truck. Jackson returned to the house and shot Williams a second time in the presence of Irvin Anderson and Monica Armstead. Defendant Jackson, Irvin Anderson, and possibly Anthony Porea took away the body in Porea’s car.

During closing argument, the prosecutor stated:

“the defense did not put on any witnesses, and they don’t have to, as we stated earlier. They don’t have to say anything —.” (Tr., State’s Closing Argument, p. 13)

After an off the record discussion, the prosecutor reiterated:

“the defense does not have to put any witnesses on, they don’t have to say anything. In this case they chose to do that. They chose not to put any witnesses on, ...” (Tr., State’s Closing Argument, p. 13)

It is argued that the prosecutor’s remarks deliberately focused the jury’s attention on defendant’s failure to take the witness stand.

CONCLUSION

LSA-C.Cr.P. art. 770 prohibits both direct and indirect references to defendant’s failure to testify. However, when the allusion is indirect, it constitutes reversible error only when the prosecutor intended to emphasize defendant’s failure to testify. State v. Smith, 327 So.2d 355 (La., 1976); State v. Burkhalter, 428 So.2d 449 (La., 1983).

A statement that the state’s evidence is uncontradicted is not necessarily a prohibited comment on defendant’s failure to testify. State v. Cryer, 262 La. 575, 263 So.2d 895 (1972); State v. Reed, 284 So.2d 574 (La., 1973). Compare State v. Robinson, 112 La. 939, 36 So. 811 (1904). However, when defendant is the only person who can dispute the state’s evidence, a reference to testimony as uncontroverted constitutes reversible error. State v. Perkins, 374 So.2d 1234 (La., 1979). Similarly, a reference to something “only the defendant knows” is a prohibited reference to defendant’s failure to testify. State v. Carney, 334 So.2d 415 at 419 (La., 1976). However, when there are other possible witnesses, an argument that the state’s case is unrebutted does not focus the jury’s attention on defendant’s failure to testify. State v. Smith, 433 So.2d 688 (La., 1983); State v. Latin, 412 So.2d 1357 (La., 1982). Here, there were numerous witnesses who could have testified for defendant. Therefore, the prosecutor’s remarks did not focus the jury’s attention on defendant’s failure to testify. State v. Smith, 433 So.2d 688 (La., 1983); State v. Latin, supra. It cannot be inferred that the prosecutor intended to emphasize defendant’s failure to testify. State v. Smith, 327 So.2d 355 (La., 1976); State v. Burkhalter, supra. Even if such an inference were justified, the evidence of guilt is overwhelming, and any error was harmless. United States v. Hastings, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).

Since defendant’s only argument is without merit, his conviction and sentence are affirmed.

AFFIRMED.

CALOGERO, J., concurs.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

The statements complained of do not isolate or refer to defendant’s failure to testify since there were numerous witnesses, other than the defendant, who could have testified and to whom the prosecutor’s remarks easily could have referred. Therefore, I agree that the allegedly improper remark did not focus jury attention on defendant’s failure to testify.

However, I disagree with the majority’s conclusion that, even if the prosecutorial remark constituted a reference to the defendant’s failure to take the stand, the error would have been harmless. The federal harmless error rule, as stated and applied in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), is the standard most compatible with this Court’s view of its own criminal appellate jurisdiction. Whether there is a reasonable possibility that the constitutional error complained of might have contributed to the conviction is a question of law to which our appellate jurisdiction extends. Although the standard requires a reviewing court to consider the evidence in order to determine if there is a reasonable possibility that the error had prejudicial effect, it does not permit a court to substitute for the verdict its judgment of what the jury would or should have decided in the absence of error. State v. Gibson, 391 So.2d 421, 427 (La.1980).

An appellate court should not find harmless error merely because it believes that the other evidence is overwhelming. The question is not whether the jury arrived at the correct verdict, regardless of the error or its effect upon the jury. The proper query is what effect the error had or reasonably may be taken to have had upon the jury’s decision. “The crucial thing is the impact of the thing done on the minds of other men, not on one’s own, in the total setting.” Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), Justice Stevens concurring.

      . LSA-C.Cr.P. art. 770 provides in pertinent part:
      "Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

      "(3) The failure of the defendant to testify in his own defense; ...”

      . An unidentified defense witness apparently came from California for the trial but did not testify. Anthony Porea, when testifying for the state, said he was currently living in Oakland, California and was too drunk at the time of the shooting to remember anything. Gladys Porea also did not remember seeing or hearing anything.

      . Defense counsel did not request that the jury be instructed not to draw an adverse inference from defendant’s failure to testify. See Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981) and James v. Kentucky, — U.S.—, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984).