author:
CALOGERO, Justice.
     WATSON, J., LEMMON, J.,

text:
    LOUISIANA STATE BAR ASSOCIATION v. W.D. ATKINS, Jr.
    No. 82-B-0739.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Rehearing Denied Nov. 18, 1983.
    Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Pee, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Jr., Natchitoches, for applicant.
    Jacob J. Amato, Jr., Gretna, for respondent.
   DISCIPLINARY PROCEEDING

CALOGERO, Justice.

The Louisiana State Bar Association, appearing through its Committee on Professional Responsibility, instituted this disbarment proceeding against W.D. Atkins, Jr. by Petition filed on January 18, 1977. The Commissioner appointed by this Court to receive the evidence concluded that two of the charges of misconduct were supported by the record. The Committee concurred in the Commissioner’s findings as well as his recommendation for a retroactive disbarment and immediate eligibility for reinstatement. A careful review of the record convinces us that the Commissioner was correct in finding that two of the specifications of misconduct are supported by the evidence.

The more serious of the two charges of misconduct came to the attention of the Bar Association when in February of 1975 an attorney in Lafayette forwarded to the Louisiana State Bar Association a letter in which he indicated that Ms. Pamela Gray, a former client of respondent Atkins, was having problems collecting from Atkins her share of the proceeds of a tort settlement. Atkins had represented Ms. Gray and her minor son in a wrongful death claim arising out of the accidental death of her husband. This claim had been settled and a draft in the amount of $82,500.00 payable to Ms. Gray and Atkins had been deposited into one of respondent’s several bank accounts on February 3, 1975. Three checks total-ling $6,600.00 were drawn on this account and given to Ms. Gray between February 4, 1975, and February 18, 1975. Convinced that respondent was wrongfully withholding the remainder of the settlement proceeds due her, Ms. Gray sought the advice of another attorney.

On March 5,1975, the new attorney filed a lawsuit on behalf of Ms. Gray and her minor son in which they sought payment of money owed from the settlement. The trial judge rendered a judgment in the amount of $75,500.00 against Atkins. That judgment was affirmed by the Court of Appeal. Gray v. Atkins, 331 So.2d 157 (La.App. 3rd Cir.1976), cert. denied, 334 So.2d 433 (La.1976).

On July 17, 1975, the Lafayette Parish Grand Jury indicted Atkins for theft of $20,373.40 in connection with the Pamela Gray matter. As a result of various complaints against Atkins, the Committee on Professional Responsibility held a formal investigatory hearing on July 30, 1976. At that time charges of misconduct relating to the Pamela Gray incident were not considered since they were the subject of the ongoing criminal prosecution. On January 18,1977, the Committee, in accordance with its findings at the July 30, 1976, hearing,, filed a Petition for Disciplinary Action against respondent. Subsequently, in March of 1977, a Lafayette Parish petit jury convicted Atkins for theft of money belonging to Pamela Gray. Based on the conviction, this Court suspended Atkins from the practice of law on November 11, 1977. At that time Atkins and the Committee agreed that additional proceedings against him would be held in abeyance pending finality of the conviction. On September 2,1980, the conviction of Atkins was reversed by the United States Fifth Circuit Court of Appeal. Atkins v. Listi, 625 F.2d 525 (5th Cir.1980). After this reversal of the conviction, respondent’s suspension was lifted and he was reinstated to the practice of law by this Court on February 19, 1981. He was not retried in the state district court on the theft charge.

At the time of his reinstatement, respondent was advised by the Committee that proceedings initiated prior to the criminal conviction and suspension would be resumed. In addition, the Committee drafted three supplemental charges, each of them relating to Pamela Gray, charges which had been deleted at the time of the July 30, 1976, hearing. Eventually a Commissioner appointed by this Court held hearings on February 22, and March 17,1983, in connection with the specifications of misconduct. The two counts which were found to be supported by the evidence each involved instances of commingling clients’ funds in violation of Code of Professional Responsibility Disciplinary Rule 9-102.

Specification Number One of the Supplemental and Amended Petition relates to the Pamela Gray incident. The respondent is charged with having received $82,500.00 on behalf of Ms. Gray and in settlement of her claims. It is alleged that, after making a partial disbursement of $6,600.00, Atkins commingled and converted to his own use the remaining portion of the funds due Ms. Gray.

It is clear from the evidence that respondent was in receipt of funds belonging to Ms. Gray which money was not deposited into a separate client trust account. Instead, the proceeds were deposited into the respondent’s own account from which he eventually withdrew all but $6,600.00 for his own use.

Specification Number Five involves the net proceeds of a settlement owed to a Mr. James D. Comeaux. That client’s claim had been settled for $11,000.00, and in March of 1975, respondent issued a check to Mr. Co-meaux in the amount of $6,719.90. Upon presentation of the check to the bank on which it was drawn, Mr. Comeaux was advised that there were insufficient funds for payment. The client was eventually paid by respondent’s father after the complaint was filed with the Bar Association.

We are convinced by the record that there was sufficient evidence to support both of these charges of commingling.

An attorney is obligated to take due precautions to protect and preserve the funds of his clients. The Code of Professional Responsibility, under Disciplinary Rule 9-102, sets forth the following guidelines for the maintenance of client funds:

(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(B) A lawyer shall:
(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive. (LSA Vol. 37, Article XVI, Canon 9, Articles of Incorporation of Louisiana State Bar Association).

This Court has recognized that the misuse of a client’s funds by an attorney represents one of the gravest forms of professional misconduct. Louisiana State Bar Association v. Selenberg, 270 So.2d 848 (La.1972). In Louisiana State Bar Association v. Van Buskirk, 249 La. 781, 191 So.2d 497 (La.1966), we stated:

Because of their professional status, attorneys must adhere to a high standard of conduct in relations with their clients. The conversion of a client’s funds is one of the most serious violations of an attorney’s obligations.

This Court has repeatedly held that disbarment is the appropriate penalty for the misuse of a client’s funds. Louisiana State Bar Association v. Armagnac, 424 So.2d 996 (La.1982) (Attorney received and deposited into his bank account succession funds belonging to certain clients. Final payments were made nearly two years after the attorney’s receipt of the funds, while disciplinary proceedings were pending, and then only after some of the unpaid heirs had filed theft charges against him); Louisiana State Bar Association v. Philips, 363 So.2d 667 (La.1978) (Attorney disbarred after conviction for felony-theft based on a series of spurious settlements and commingling of client’s funds); Louisiana State Bar Association v. Weysham, 307 So.3d 336 (La.1975) (Several instances of misconduct relating to the attorney’s failure to handle properly and to account for his client’s funds, and of commingling client’s funds with his own. Restitution was not made until just before a formal investigatory hearing by the Committee); Louisiana State Bar Association v. Selenberg, supra, (Attorney failed to account to clients for $21,500.00 collected in connection with a succession proceeding, and commingled this money with his own funds); Louisiana State Bar Association v. Haylon, 198 So.2d 391 (La.1967) (Attorney collected proceeds from the sale of property. That portion due the client, $2,742.00, was used by the attorney for his own personal obligations).

Respondent contends, however, that there are mitigating circumstances in the instant proceeding which tend to offset the gravity of his misconduct. In connection with the Pamela Gray matter, respondent entered into a compromise and paid $50,-000.00 in settlement of the $75,500.00 judgment. $20,000.00 was paid in cash and a promissory note in the amount of $30,000.00 was satisfied on November 14,1979. Restitution is a mitigating factor, but restitution does not always obviate the need for disciplinary action. Weysham, 307 So.2d at 338; Louisiana State Bar Association v. Klein, 253 La. 603, 218 So.3d 610 (La.1969). Respondent eventually paid Ms. Gray more than what he contends was owed to her from the settlement proceeds. However, this was not done until several years after the settlement proceeds were received and then only after disciplinary proceedings were instituted and judgment in a civil suit taken against him, and following a conviction for theft of the funds due Ms. Gray.

Respondent testified that a variety of personal problems resulted in alcohol abuse for which he eventually sought professional help. There was evidence presented at the hearing which proved that respondent was receiving treatment in 1978 for an impaired emotional state. However, the record does not support a finding that respondent’s mental disorder or drinking problem were connected to the misconduct which occurred in the early part of 1975.

Respondent contends that mitigating circumstances and attestations concerning his present fidelity should preclude imposition of disbarment. We disagree. Constrained by the severity of the offenses and the precedents of this Court, we have determined that the appropriate discipline which should be imposed is disbarment effective on the date of this decree. We note, of course, that the respondent Atkins has already been suspended from the practice of law for a total of thirty-nine months based upon conviction for the theft of the Gray settlement proceeds, a conviction which we earlier noted was reversed by the United States Fifth Circuit Court of Appeal. Because of this thirty-nine month suspension, we determine that respondent will be eligible to seek reinstatement twenty-one months hence rather than being required to wait five years as provided in Article 15, Section 12(a) of the Articles of Incorporation of the Louisiana State Bar Association.

Decree

For the reasons assigned, it is ordered, adjudged and decreed that the name of W.D. Atkins, Jr. be stricken from the roll of attorneys and his license to practice law in Louisiana is cancelled. Respondent may apply for reinstatement twenty-one months from this date.

WATSON, J.,

concurs in the Commissioner’s findings but would order a lengthy suspension instead of disbarment under the circumstances.

LEMMON, J.,

dissents in part and would adopt Commissioner’s recommendation, in which the Bar Association Committee concurred.

BLANCHE, J., dissents for reasons assigned by LEMMON, J.

       Julian Bailes, Justice ad hoc sitting for Associate Justice Walter F. Marcus, Jr.

      . As will be more fully explained hereinafter, this Court suspended respondent from the practice of law on November 11, 1977, and reinstated him on February 19, 1981. Thus, he has already been denied the right to practice law for approximately three years and three months. The Commissioner noted that respondent has not practiced law since the time of his reinstatement. Article 15, Section 12(a) of the Articles of Incorporation of the Louisiana State Bar Association requires that a minimum of five years must elapse following disbarment before an attorney can apply for reinstatement. The Commissioner apparently felt that under the circumstances of this case a disbarment retroactive to the date of respondent’s suspension would be more appropriate than a disbarment effective as of the present time.

      . Ms. Gray’s claim had been settled for a total of $89,517.73. According to Atkins’ calculations he was entitled to one-half as attorney’s fees and was entitled to withhold the additional sum of $24,386.46 as reimbursement for advances made and expenses incurred in connection with the case. This left a net balance of $20,373.40 due Ms. Gray, according to Atkins.

      . Respondent had been convicted by a nonuna-nimous six-person jury. In Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), the United States Supreme Court held unconstitutional those provisions of the Louisiana Constitution and Code of Criminal Procedure which had permitted conviction by a non-unanimous six-person jury for nonpetty offenses.

      . Respondent testified at various times that he never intended to deprive Ms. Gray of her money and that he had sufficient assets available to pay her in full. The record reveals conflicting evidence in regard to this claim by Atkins. In a deposition taken in connection with the civil litigation instituted by Ms. Gray against Atkins, he stated that $20,373.40 due Ms. Gray had been placed in a safety deposit box at the Rayne Bank & Trust Company. There was no evidence, documentary or otherwise, to support this alleged action. During a formal investigatory hearing held on December 15, 1981, Atkins testified that he had had approximately $40,-000.00 in cash which money was available to pay Ms. Gray. Atkins stated that most of this money had been given to his father to hold. At the March 17, 1983, hearing conducted by the Commissioner, Atkins’ father testified that sometime in July or August of 1975, Atkins gave him $20,000.00 to hold. This money, according to Atkins’ father, was eventually used as the cash portion of the $50,000.00 settlement between Ms. Gray and Atkins. The source of this $20,000.00 could not be traced to the settlement proceeds owed Ms. Gray in connection with the wrongful death litigation in which Atkins represented her. Assuming Atkins’ contention to be true, i.e., that he maintained sufficient assets with which to pay Ms. Gray, this factor would not aid his defense to the charge of commingling client funds. As we noted earlier the fact that he commingled and converted to his own use settlement proceeds due Ms. Gray is clearly established by the record which reveals that the funds from which Ms. Gray was to be paid were deposited into a general account from which Atkins eventually withdrew all but $6,600.00 for business and personal expenses.

      . As indicated at the outset of this opinion, the Commissioner appointed by this Court with whom the Committee concurred recommended retroactive disbarment and immediate eligibility for reinstatement.

      . On the basis of the previously mentioned evidence of a drinking problem and mental disorder, the Commissioner recommended that respondent’s reinstatement be granted only upon a clear showing that he is emotionally stable and able to resume the practice of law. At this time it is unnecessary for us to pass on the question of whether his emotional and drinking problems have been resolved; and/or whether respondent will be reinstated if and when he applies.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. John SHILLING.
    No. 82-KA-1820.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Rehearing Denied Nov. 18, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, William C. Credo, III, Patrick Leitz, Asst. Dist. Attys., for plaintiff-appellee.
    Martha E. Sassone, Staff Appeals Counsel, Gretna, for defendant-appellant.
   CALOGERO, Justice.

The Jefferson Parish Grand Jury indicted defendant John Shilling, along with one Herman Billiot, for the first degree murder of James Stache, a violation of La.R.S. 14:30. After trial by jury, Shilling was found guilty as charged and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. Shilling appeals his conviction urging three assignments of error. For the reasons which follow we find no merit to the defendant’s arguments, and, accordingly, affirm the conviction and sentence.

The facts involved in this case were previously reported in State v. Billiot, 421 So.2d 864, 866 (La.1982).

.. . Through the testimony of two female eyewitnesses it was proven that Billiot, Shilling and another unidentified male were out on the town visiting various Gretna and Marrero, Louisiana, night spots. Late in the evening they met with Pamela LeBlanc at one of these nightspots and still later met with Stephanie (Penny) Plaisance at another night spot. This group went to yet another bar where Ms. LeBlanc met the victim, James Stache. After they had all consumed some unknown quantity of beer, the party of six left in Shilling’s automobile travelling towards Láfitte, Louisiana. The unidentified male passed out in the car and remained unconscious for the remainder of the night. On the way to Lafitte, in the early pre-dawn hours, Shilling stopped his automobile twice, presumably so he and the others could answer the call of nature. The first place he stopped was too well lit and there were too many people nearby watching another car on fire. Shilling then drove down the road a little further and stopped a second time. Billiot, Shilling and the victim, with the help of the defendants got out of the car and walked about ten (10) feet from the side of the vehicle. Billiot and Shilling then began to beat and kick the victim, both pulling knives to cut and stab him. The defendants beat the victim senseless and robbed him of $30.00. Billiot and Shilling then returned to the others and drove away to Shilling’s residence in Lafitte, leaving the victim for dead on the side of the road. Soon after arriving at his residence, Shilling and Billiot left the two women and returned to the scene of the initial attack to find Shilling’s lost knife. When they arrived, they found the missing knife and the victim, still alive, trying to hitchhike.
The defendants put the victim into their automobile and drove a little farther down the road to a more secluded spot. They dragged the victim from the back seat out to the edge of a bayou; each of them punching the victim in the throat, Billiot first, then Shilling; whereupon Shilling then slit the victim’s throat with his knife, pushed his head under water and stood on him until the victim eventually drowned. The defendants returned to Shilling’s residence to pick up the two women and take them home, telling them how they had finished off the victim. Shilling also threatened the women with death if they told anyone about the killing.

ASSIGNMENT OF ERROR NO. 1

Shilling contends that the trial judge committed reversible error when he refused to grant a motion to quash the first degree murder indictment.

Defendant was indicted for first degree murder under La.R.S. 14:30(1) which reads in pertinent part:

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 ... armed robbery. .. .

In essence defendant argues that he was not engaged in the perpetration of an armed robbery at the time the murder was committed. Defendant contends that the armed robbery and murder were two distinct acts. In support of this theory defendant emphasizes the fact that the victim was abandoned after the initial assault and robbery when the defendant and his companions drove away to the defendant’s trailer.

In two recent decisions of this Court we have considered this very question: whether an underlying felony had been completed before commission of a homicide. State v. West, 408 So.2d 1302 (La.1982); State v. Anthony, 427 So.2d 1155 (La.1983).

In State v. West, the defendant was indicted for second degree murder. At that time second degree murder was defined in part as “The killing of a human being when the offender is engaged in the perpetration or attempted perpetration of ... armed robbery ... even though he had no intent to kill.” The defendant in West argued that the homicide did not occur in the course of an armed robbery because the robbery occurred several blocks away from the scene of the killing and had been completed before the killing. In rejecting that argument we stated at 408 So.2d 1302:

The armed robbery and the shooting which followed constituted essentially a single criminal incident. The offenders never left the victim; instead they escorted her from the scene of the armed robbery to the location where the shooting took place. Under these circumstances it is apparent that the killing occurred as part of the armed robbery.

In State v. Anthony, we analyzed the issue of whether a killing which took place after commission of a felony was committed in the perpetration of the felony. We observed that courts in other jurisdictions, in deciding the question, have held that the homicide is committed during the course of the felony if it is within the “res gestae” of the underlying felony. In noting that the res gestae doctrine is principally an evidentiary tool which has never been used in Louisiana to define the parameters of the first degree murder statute, we stated at 427 So.2d 1158:

When “res gestae” has been used to determine whether the homicide was committed in the perpetration of a certain felony, it seems to have been a short way of saying that the underlying felony and the homicide form part of one continuous transaction which occurred without a significant break in the chain of events.

Applying the above reasoning, as well as the “continuous transaction” analysis of State v. West, we held that a homicide which occurred during the defendant’s flight from the scene of an aggravated burglary could be found by the trier of fact to be first degree murder under La.R.S. 14:30(1), a homicide committed during the course of an aggravated burglary.

Defendant here attempts to distinguish his case from West because in West the offenders were never separated from the victim during commission of the armed robbery and the murder. Defendant argues that since the defendants in this case had abandoned the victim for a short period of time after the initial assault, the sequence of events does not constitute a continuous transaction within the ambit of the first degree murder statute. We are not persuaded by this argument.

Although the passage of time and/or the fact that the perpetrator leaves the scene of the robbery may place a later killing of the robbery victim outside the scope of the first degree murder statute, these factors must be considered in light of other circumstances involved in the case in question. The circumstances in the case before us were established by two witnesses who testified that after the first brutal attack and the victim’s being left for dead, the assailants drove immediately to defendant Shilling’s trailer. Once inside Shilling and his companions proceeded to rinse off the blood which had gotten on Shilling’s hand and Billiot’s knife. Realizing that they had lost Shilling’s knife, the two men returned to the scene of the crime to retrieve the knife. Upon their arrival they discovered the victim, covered with • blood and attempting to hitchhike. After putting the victim inside their automobile, they drove to a more secluded area where they finished him off. It is reasonable to view the armed robbery as not being concluded until defendant and his companion, to avoid detection, or simply to reclaim the knife for future use, made off with the knife they used to murder and rob the victim.

Under these circumstances the jury did reasonably find that the entire incident, from the time the victim Stache was assaulted and robbed on the side of the road beside the car until he was drowned in the bayou shortly thereafter, constituted commission of first degree murder, i.e., a specific intent killing during perpetration of an armed robbery. Therefore, the trial judge did not commit reversible error when he refused to grant the motion to quash the indictment.

Accordingly, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment defendant challenges the refusal of the trial judge to accept a special requested jury charge concerning the requirements of first degree murder. The special requested charge reads as follows:

“If you jurors are not convinced beyond a reasonable doubt that the death of the victim occurred at the time and during the robbery and not at a time subsequent to the actual robbery, then you should not consider 1st degree murder as to the defendant’s guilt to that charge.”
R.S. 14:30
“is engaged in the perpetration or attempted perpetration of armed robbery.”

It is the duty of the trial judge to give a requested charge, which does not require qualification, limitation, or explanation and is not included in the general charge or in another special charge to be given, if it is wholly correct and pertinent to the case. La.C.Cr.P. art. 807. The record reflects that the trial judge instructed the jury on the law applicable to both first degree murder and second degree murder. The requested charge was sufficiently included in the substance of the trial judge’s general charges.

Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment defendant contends that the trial court committed reversible error by refusing to grant defendant’s motion for severance.

A pretrial motion filed by Shilling urged the trial court to sever the trial of the defendants because of the possibility that Billiot would be called as a witness for or against Shilling. The record indicates that a hearing was not held on this motion. Apparently defendant Shilling’s pretrial motion was based on the possibility that Billiot’s confession might be used and that Billiot would testify against Shilling as part of a plea bargain agreement. The prosecutor, however, decided not to use the confession and Billiot declined the plea bargain offer. The motion for severance was not reurged by Shilling prior to trial and the trial court was never informed that antagonistic defenses would be offered. The next time the question arose was prior to closing arguments. At that time counsel for Shilling advised the trial court that he would request a mistrial if Billiot’s attorney attempted to shift the blame to Shilling during closing arguments.

In his closing argument counsel for Billiot mentioned certain facts surrounding the murder which indicated that Shilling was the more culpable of the two in that it was Shilling who actually inflicted the stab wounds and held the victim’s head under water to ensure his death. During this portion of closing argument by Billiot’s attorney, counsel for Shilling requested a mistrial because he thought the co-defendant’s attorney was trying to shift the entire blame to 'Shilling. Defendant seems to contend that the closing argument on behalf of Billiot amounted to an antagonistic defense. We disagree.

At trial neither Billiot or Shilling testified. Shilling relied on the testimony of two witnesses to establish an.alibi for his whereabouts on the night of the murder. Billiot did not present any witnesses on his own behalf. During the presentation of evidence there was no attempt by either defendant to shift the blame to the other. The testimony at trial clearly implicated both defendants as principals. Facts recited by Billiot’s attorney, which indicated that the extent of participation varied to some degree, had already been established at trial by the state’s chief witnesses who were with the defendants on the night of the murder. In State v. Simmons, 381 So.2d 803 (La.1980), a first degree murder case, one of the defendants requested a severance based on‘the fact that his co-defendant had made a confession against his interest thus creating an antagonistic defense. Confessions of both defendants purported to shift the blame for the shooting to the other. This Court upheld the trial court’s denial of the motion for severance. In so doing we stated that “The degree of blame each seeks to cast upon the other does not suffice to warrant severance.” id. at 806. Likewise, in this case we conclude that statements made by Billiot’s attorney, which indicated that Shilling was the more culpable of the two, do not amount to an antagonistic defense.

Accordingly, this assignment of error lacks merit.

Decree

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

AFFIRMED.

LEMMON, J., concurs.

       Julian Bailes, Justice ad hoc sitting for Associate Justice Walter F. Marcus, Jr.

      . Billiot was convicted of second degree murder and sentenced to life imprisonment. His conviction and sentence were affirmed by this Court. State v. Billiot, 421 So.2d 864 (La.1982).

      . Res gestae is defined by La.R.S. 15:448 which reads: “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

      . As noted in the recitation of facts, after the defendants returned, Shilling slit the victim’s throat and held his head under water until he drowned. At trial the coroner who examined the victim’s body testified that the immediate cause of death was drowning. The coroner also stated that one of the stab wounds to the right portion of the victim’s back had caused bleeding into the chest cavity. The coroner thought that this particular wound could have resulted in death if the bleeding had continued unabated with no medical attention. It appears from the evidence that this wound was inflicted during the initial attack on the victim.


author: LEMMON, Justice. DENNIS, Justice, DIXON, Chief Justice WATSON, Justice,

text:
    STATE of Louisiana v. Tina L. WALTERS and Janice Chatman.
    No. 82-KA-1422.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Rehearing Denied Nov. 18, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Jack Pee-bles, Asst. Dist. Attys., for plaintiff-appel-lee.
    Ronald Rakosky, New Orleans, Burton W. Sandler, Counsel for defendant-appellant.
   LEMMON, Justice.

This is an appeal by two codefendants who were convicted of attempted obscenity. Principal issues involve the lack of a pre-ar-rest adversary hearing, the joinder of the defendants, the constitutionality of the statute, the sufficiency of the evidence, -and the excessiveness of the sentence. Facts

Two police officers, dressed in casual attire so as not to reveal their identity as policemen, went to the Ellwest Stereo The-atre, located on Bourbon Street in the New Orleans French Quarter, to investigate reports of “nude dancing”. They purchased tokens from a cashier and were directed to separate booths within the establishment. Each booth had a glass window, which was covered by a screen that could be raised to allow the occupant to view a woman behind the glass.

The first officer entered the booth and deposited a token. The screen rose, permitting the officer to see a young woman (later identified as Tina Walters) clad in a black negligee. When the woman told the officer that she would take off the “top” if he would “tip” her one dollar, he inserted a dollar bill through a small hole in the glass (pointed out by the woman). After removing the top and moving about slightly, the woman suggested that she would remove the negligee panties if the officer would give her an additional dollar. He did — and she did. She then moved closer to the glass and prominently displayed her pubic hair and vagina next to the glass by moving her pelvis in an undulating motion. There was no musical accompaniment to any of her movements.

Shortly thereafter, the screen lowered, signalling the “end of the show”. The woman told the officer that he could see a “better show” if he would move to a larger booth at the end of the row. The officer went to the designated booth and inserted four tokens (worth one dollar). When the screen raised, the officer saw the same woman behind a body-length glass window, again dressed in the black negligee. At her suggestion, the officer gave her five dollars by inserting the money through a hole in the glass. She then removed her garments, lay on her back, placed her legs against the glass window and began to thrust her pelvis in an up-and-down and back-and-forth motion, giving her “patron” a close and unobstructed view of her vagina and pubic hair. There was no musical accompaniment to this motion, which continued for a few minutes until the screen lowered.

In the meantime, the second officer had gone through a very similar experience in a different booth with another young woman (later identified as Janice Chatman). The two officers met and discussed their similar observations, and they then arrested the cashier and the two young women.

The prosecutor filed a single bill of information charging Chatman and Walters with obscenity in violation of La.R.S. 14:106A(1) by exposing their genitals in a public place with intent to arouse sexual desire. After trial by jury, both defendants were found guilty of attempted obscenity. Each was fined $1,000 and given a suspended one-year jail term, with two years of probation. Each was also ordered to pay $74 in court costs.

Pre-Arrest Adversary Hearing

Defendants contend that the trial court erred in denying their pretrial motion to quash, in which they argued that La.R.S. 14:106 F required the state to provoke an adversary hearing to have their conduct declared obscene before they could be arrested or prosecuted for engaging in that conduct.

After a substantial amount of First Amendment litigation of “prior restraint” issues, the Louisiana Legislature enacted the prior adversary hearing section of the obscenity statute in a laudable effort to provide “sensitive tools” to avoid the problems. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); State v. Eros Cinema, 262 La. 706, 264 So.2d 615 (1972); Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980); Parish of Jefferson v. Bayou Landing, 350 So.2d 158 (La.1977). The statute provides for a judicial determination that certain “motion pictures, printed materials, and photographic materials” are obscene before an exhibitor or distributor can be arrested and prosecuted for displaying or selling those materials.

Thus, the prior adversary hearing requirement for all but the most obvious pornography is only applicable to printed matter, photographs and films. This conclusion not only is apparent from the language of the statute, but also is logical from an analysis of the nature of the protection sought to be provided. A film, photograph or item of printed material is “fixed” and can readily be examined by a court at an adversary hearing for the purpose of determining its obscenity. A “live” performance is an entirely different sort of thing and is much less susceptible of being recaptured or recast in the courtroom context of the adversary hearing. Moreover, since an adversary hearing is not constitutionally required before criminal liability may attach and prosecution may be instituted, the Legislature could properly restrict the added protection only to “non-hard core” printed matter, photographs and films. See Delta Book v. Cronvich, 304 F.Supp. 662 (E.D.La.1969), Rubin, J. dissenting; Milky Way Prod., Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y.1969), aff’d per curiam sub nom., New York Feed Co. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970); United States v. Young, 465 F.2d 1096 (9th Cir.1972).

The trial judge correctly ruled that the prosecution was properly instituted, despite the lack of a prior judicial determination that the charged conduct was obscene.

The Joinder of Defendants

Defendants contend that they were mis-joined as defendants over their objections, arguing that the conduct charged to be criminal consisted of separate acts and that neither participated in any manner in the other’s acts.

Although the separate conduct of each defendant singularly constituted the offense charged against each, the evidence nevertheless clearly demonstrated a common, ongoing, commercial, criminal enterprise, in which these two young women and others not charged in this indictment were engaged. The striking similarity of the defendants’ methods of operation, the display of their lewd conduct in the same commercial establishment (which had as its obvious purpose the promotion of such pornography), and the temporal proximity of the similar conduct are all factors which support the state’s theory of joinder of defendants.

Defendants were obviously aware of their joint purpose and of their individual participation as part of one overall scheme. The uniformity of their lewd displays indicated a design as part of a single criminal plan. They were “so interconnected in time, place, manner as to constitute a common scheme or plan”. United States v. Santoni, 585 F.2d 667, 673 (4th Cir.1978).

Furthermore, there is absolutely no showing of any possible prejudice which could have ensued from their joint trial. See United States v. Martin, 567 F.2d 849 (9th Cir.1977); La.C.Cr.P. Art. 921. The similarity of the evidence against each and the essentially uncontested nature of the facts make it difficult to envision any benefit which either could have derived from a separate trial, other than some speculative benefit which could have been derived from the fact that trying the case twice might have been more difficult for the state and would have consumed more judicial time of the trial court.

The trial court did not commit reversible error in refusing to quash the indictment and in trying the two defendants in a single trial.

Sufficiency of the Evidence

Defendants first contend that the trial judge erred in denying their motion for a new trial, arguing that their conduct did not constitute a violation of La.R.S. 14:106A(1), which, at the time of the offense, proscribed the “intentional .. . [ejxposure of the genitals, pubic hair, ... vulva, ... in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive”. (Emphasis supplied) See note 4, above. Defendants argue that the charged conduct did not occur in a public place, inasmuch as their “performances” were observable by only the single patron in the booth.

Section 106A(1) was amended in 1979. The former statute prohibited intentional exposure “in any location or place open to the view of the public or people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom .... ” This court interpreted that phrase in State v. Muller, 365 So.2d 464 (La.1978), a case involving a defendant who intentionally exposed his penis in a supermarket. The Muller decision did not turn on whether defendant acted “with intent to arouse sexual desire” or whether he intentionally exposed himself, but on whether a supermarket was a place open to public view, as contemplated by the statute. In giving a narrow construction to the term, this court determined that the Legislature had intended to include only places like parks, sidewalks, parking lots, roads and the like, and not to include buildings and other commercial establishments open to the public, such as supermarkets and department stores.

The legislative intent of Act 252 of 1979, which adopted the present broader language, was made very clear in the Act’s title, which states that the purpose of the amendment was “to include within the scope of the statute obscenity which takes place in any enclosed or unenclosed area operated to receive or accommodate the public or people at large”. (Emphasis supplied) Given this clearly announced purpose of the amendment, we conclude that the Ellwest Stereo Theatre was a “public place” within the contemplation of the newly defined and expanded scope of the crime.

No special credentials were required to enter and to view defendants other than simple payment of the prescribed fees. The mere fact that the charged conduct of each defendant took place in an area where no member of the public other than the patron in the booth could see the defendant does not remove the conduct from the reach of the section of the statute under which they were charged. See Ridgeway v. State, 553 P.2d 511 (Okl.Cr.App.1976). Compare State v. Brooks, 275 Or. 171, 550 P.2d 440 (1976). The conduct clearly took place in an enclosed area operated to receive the public at large.

Furthermore, there is no question (nor is it contested) that a rational juror could have found beyond a reasonable doubt from the evidence that defendants exposed their genitals, pubic hair and vulva, and that such exposure was done with intent to appeal to the prurient interest of and to arouse the sexual desire of the lone male viewer closeted in the booth on the other side of the glass partition. Therefore, the evidence was clearly sufficient under the statute to support a conviction of the offense of obscenity or of the lesser verdict of attempted obscenity, a responsive verdict on which the trial court instructed the jury without objection. See State v. Thomas, 424 So.2d 254 (La.1982); State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982). See also La.R.S. 14:27.

Defendants finally argue that the verdict of attempted obscenity was irrational, since Section 106A(1) is itself an “attempt-like statute”. They argue that the jury, in using the general attempt statute (on which instructions were given without objection), convicted them of an “attempt to attempt” an illegal act.

Obscenity under Section 106A(1) is not an inchoate offense, since it requires the act of “exposure”. Thus, defendants’ argument that there can be no attempt to commit this offense, because the completed offense is itself in the nature of an attempt, has no merit. Moreover, La.R.S. 14:27 (the attempt statute) expressly provides that it is no defense to an attempt charge that the offense was actually completed.

Constitutionality of the Statute’

Defendants’ first contention is that the trial court erred in denying their motion to quash, which challenged the constitutionality of Section 106A(1) as vague, overbroad and impermissibly restrictive of freedom of expression.

The vagueness argument relates to the degree of clarity with which the offense is defined, and defendants only challenge the phrase “with the intent of arousing sexual desire”.

The statute requires the state to prove that the offender acted with a specific intent to arouse sexual desire, either of the actor or of the viewer. The requirement of a state of mind indicating an active desire to arouse sexual appetite could not be more clearly defined. See La.R.S. 14:10. Virtually the same words are used in La.R.S. 14:81 to define indecent behavior with juveniles, and its constitutionality has never effectively been challenged. See State v. Milford, 225 La. 611, 73 So.2d 778 (1954); State v. Saibold, 213 La. 415, 34 So.2d 909 (1948). The phrase “arousing sexual desire” is certainly one which gives an ordinary person of reasonable intelligence fair notice of the proscribed conduct. See State v. Jackson, 404 So.2d 952 (La.1981).

Defendants next contend that Section 106A(1) was intended to apply to indecent exposure (such as by “flashers”) and that charging defendants under Section 106A(1) improperly expands the statute’s scope to invade areas of conduct and expression protected by the First Amendment. Defendants argue that they have a First Amendment right to be prosecuted only under a statute which contains the standards for obscenity announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and that the Legislature intended Section 106A(2), which contains the Miller standards, to regulate live sexual conduct.

The Miller case involved a prosecution for mailing unsolicited brochures containing explicit photographs of sexual activities. The Court held that state statutes regulating “works which depict or describe sexual conduct” must specifically define the conduct prohibited by state law, as written or authoritatively construed. (Emphasis supplied) However, the Miller decision did not limit prosecutions for “live” lewd exhibitions of the genitals in an offensive and “unartistic” manner only to statutes which incorporate the Miller standards. In footnote 8 in Miller, the Court stated:

“Although we are not presented here with the problem of regulating lewd public conduct itself, the -States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior.” (Emphasis supplied) 413 U.S. at 26, 93 S.Ct. at 2616.

Under the defendants’ argument, the state could only prosecute cases involving public “indecent exposure” with intent to arouse sexual desire under a statute containing the Miller standards. Clearly, the Miller decision itself imposed no such limitation, because that case only dealt with printed materials and photographs. However, we need not decide major constitutional questions regarding the state’s right to regulate all forms of live conduct, including legitimate dance by naked persons. See Miller v. California, above, at 26, footnote 8, 93 S.Ct., at 2616, footnote 8; California v. Larue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Doran v. Salem Inn, 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). We simply hold that live lewd conduct (either by a “flasher” or by a paid exhibitionist), in order .to be éntitled to First Amendment pro- ' tection, must be more than the vulgar display of sex organs for the purpose of arousing sexual desire.

Here, the evidence clearly por-, trayed behavior which is beyond the scope of any arguable First Amendment protection that may apply to other types of live conduct. For conduct to come under arguable First Amendment protection of expression, there must be some element of communication or some indication of intention to express an idea. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). One searches in vain in the present case to find any element of communication or indication of intention to express an idea. Defendants’ conduct consisted almost entirely of gross sexuality and not at all of communication or expression. See California v. LaRue, above. The “performances” bore no semblance to legitimate theatre or dance. Moreover, the Miller decision permits the state to regulate “hard core” sexual conduct, such as the “lewd exhibition of the genitals”, when (as here) there is no serious literary, artistic, political, or scientific value.

We therefore conclude that prosecution of defendants’ conduct under La.R.S. 14:106A(1) did not impermissibly restrict their freedom of expression.

That the state could have chosen to prosecute defendants under La.R.S. 14:106A(2) is also of no moment. The fact that a defendant’s conduct falls within the purview of two criminal statutes is not unusual, and a statutory scheme which gives the prosecutor the option to choose between two properly defined offenses does not violate any constitutional rights of an accused. See United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); State v. Valasquez, 376 So.2d 129 (La.1979). See also La.R.S. 14:4.

Excessiveness of Sentence

The $1,000 fines, plus costs, and the suspended jail terms are amply supported by the record. State v. Day, 391 So.2d 1147 (La.1980). The fines are reasonable in light of the obvious commercial purpose of the lewd exhibitions involved. Neither defendant contends that her financial situation will make the payment of the fine either impossible or exceedingly difficult. In addition, a two-year period of supervised probation, with a relatively severe sentence to be served (one year) in the event of noncompliance with the reasonable probationary conditions, is a sound deterrent to any possible temptation to engage again in commercial obscenity. The fact that other corporate or individual offenders may have also shared the responsibility for encouraging these women to engage in degrading behavior does not lessen defendants’ blameworthiness for allowing themselves to be exploited.

Further, although the trial court apparently did not comply with La.C.Cr.P. Art. 894.1 (and no presentence report was filed with the record on appeal), the sentences are not apparently severe. Defense counsel does not point to any factors in the circumstances of this offense or in the background of either young woman which would warrant a remand for compliance with Article 894.1. The sentences imposed appear to reflect a reasonable exercise of the trial court’s discretion.

Defendants’ convictions and sentences are affirmed.

CALOGERO, J., concurs.

DENNIS, J., concurs with reasons.

DIXON, C.J., and WATSON, J., dissent and assign reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

Unless the statute affects some aspect of speech, the state’s power to regulate is not subject to First Amendment factors. For example, issues involving massage parlors and the regulation thereof are not speech cases, and should not be so analyzed. But as to the less obvious situations, there seems little possibility of avoiding a case by case determination of whether or not the particular activity has sufficient speech components to call into play a First Amendment analysis or whether the activity is so clearly conduct as to be outside the ambit of First Amendment protection. Such an inquiry, although not based on the Roth-Miller test for obscenity, may involve many similar elements, such as communicative intent as opposed to appeal to prurient interest, literary or artistic value, and the like. F.F. Schauer, The Law of Obscenity (1976). If it is determined that the activity has so few communicative elements as to be primarily conduct, then a state regulation of that conduct is valid as long as any incidental restriction on the speech elements is by the “least restrictive alternative.” Miller, 413 U.S. 15, 26, 93 S.Ct. 2607, 2616, 37 L.Ed.2d 419; U.S. v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672; California v. LeRoux, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342.

The conduct involved in this case does not have a significant speech component, literary or artistic value, and it does appeal to the prurient interest. Moreover, there does not appear to be any lesser restrictive alternative state regulation available. Consequently, the strict obscenity standards should not be applied and it should not be required that all of the elements of the Miller test be satisfied before the conduct in question may be regulated.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The closets in this case were about as private as two people can get. They were not public places nor places open to the public view. Therefore, there was no violation of R.S. 14:106 A(l).

There was, however, a violation of R.S. 14:106 A(2)(b), an offense with which the defendants were not charged.

WATSON, Justice,

dissenting.

The majority finds no error in the state’s failure to provoke the prior adversary hearing required by LSA-R.S. 14:106 F, concluding that this requirement only applies when the alleged obscenity takes the form of “printed matter, photographs and films”. This construction disregards the specific phrasing of LSA-R.S. 14:106 F(l), which' states that

“[N]° person, firm or corporation shall be arrested, charged or indicted for any violations of a provision of this Section until such time as the material involved has first been the subject of an adversary hearing under provisions of this Section ... and, after such material is declared by the court to be obscene, such person, firm or corporation continues to engage in the conduct prohibited by this Section." (Emphasis added)

The use of the word “any” clearly subjects all obscenity allegations to the requirement of an adversary hearing. There is no ambiguity. The legislature did not distinguish among the possible statutory violations when it mandated a prior adversary hearing.

The majority concludes that the Ellwest Stereo Theatre is a “public place” within the scope of the newly defined and expanded scope of the crime of obscenity, despite the absence of any definition of the phrase “any public place or place open to the public view.” Generally, streets, sidewalks and parks are considered to be public places open to the public view. See United States v. Grace, — U.S. -, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). Thus, the phrase “public place” would not necessarily include an enclosed privately owned structure open to public patronage. Therefore, the phrase is not sufficiently self-definitive to establish with certainty exactly where the conduct is prohibited.

“Every man should be able to know with certainty when he is committing a crime.... It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could rightfully be detained and who should be set at large.” U.S. v. Reese, 92 U.S. 214 at 221, 23 L.Ed. 563 at 566 (1875).

The majority finds that there is “no question” that the actions of the defendants were undertaken with an “intent to appeal to the prurient interest of and to arouse the sexual desire of the lone male viewer in the booth.” The charge under LSA-R.S. 14:106 A(l) was that defendants willfully exposed certain parts of their bodies with the intent of arousing sexual desire. Under the statute, the state could also have charged that the defendants appealed to prurient interests or were patently offensive. Instead, the state assumed the burden of proving that defendants intended to arouse sexual desire.

The jury returned a verdict of guilty of attempted obscenity. Attempted obscenity under LSA-R.S. 14:27 is a specific intent crime. LSA-R.S. 14:10 defines specific criminal intent as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

Evidence of specific criminal intent is lacking here. Both arresting officers testified that they were not sexually aroused by the conduct of the defendants. Defendants limited their conversation with the officers to requests for additional money for various aspects of their performances. The state has not proven that defendants’ specific intention was anything but mercenary.

The majority finds the defendants’ conduct criminally obscene because of the commercial gain realized. LSA-R.S. 14:106 (A)(2) makes certain conduct criminal when motivated by “ensuing commercial gain”, but these defendants were not found guilty of violating LSA-R.S. 14:106 (A)(2).

I respectfully dissent.

      . The defendants’ complaint that the state refused to supply them with NCIC information regarding prospective jurors is without merit. State v. Harvey, 358 So.2d 1224 (La.1978).

      . There were 24 booths, of which 18 were for viewing movies and six were for viewing “nude dancing”.

      . After the officer entered the booth and inserted a coin, the screen raised and revealed a woman' dressed in a black leotard outfit. When the officer upon her request gave her a two dollar “tip” to expose her pubic area, the woman unsnapped the bottom of her outfit and lifted it to her waist, displaying her pubic hair and vagina. After the screen lowered, the woman offered her patron an opportunity to move to the larger booth to see a more elaborate display. He raised the screen by inserting four tokens and then paid her five dollars through a hole in the full length glass window. The woman performed the same type of display, lying on her back and placing her legs against the glass, and then moving her pelvis up and down and back and forth, vividly revealing her vagina and pubic region to the officer.

      . La.R.S. 14:106 A(l) provides:
      “A. The crime of obscenity is the intentional:
      “(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipple in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.”

      . La.R.S. 14:106F(1) provides:
      “Except for those motion pictures, printed materials, and photographic materials showing actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, closeup depicture of human genital organs so as to give the appearance of the consummation of ultimate sexual acts, no person, firm, or corporation shall be arrested, charged, or indicted for any violations of a provision of this Section until such time as the material involved has first been the subject of an adversary hearing under the provisions of this Section, wherein such person, firm, or corporation is made a defendant and, after such material is declared by the court to be obscene, such person, firm, or corporation continues to engage in the conduct prohibited by this Section. The sole issue at the hearing shall be whether the material is obscene.”

      . Even in the case of films or printed materials, there is an exception for obvious “hard core pornography”, about which there should be no legitimate question as to its prohibited nature.

      . After the motion to quash was denied, defendants did not move to sever for separate trials based on a showing of prejudicial joinder.

      . In State v. Dyer, 388 So.2d 374 (La.1980), this court held that the concept of “concealment”, as used in the illegal carrying of weapon statute, included the endeavor to conceal and therefore that the Legislature must not have intended to proscribe the “attempt” to commit such offense — because the completed offense was itself in the nature of an attempt. See also State v. Eames, 365 So.2d 1361 (La.1979), in which this court found that the Legislature in defining “inciting to riot” did not intend for the general attempt statute to apply to such offense, because the “incitement” was itself in the nature of an attempt.

      . La.R.S. 14:106 A(2) provides:
      “A. The crime of obscenity is the intentional:

      “(2) Participation or engagement in, or management, production, presentation, performance, promotion, exhibition, advertisement, sponsorship, or display of, hard core sexual conduct when the trier of fact determines that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary artistic, political, or scientific value.
      “Hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain of:
      “(a) Ultimate sexual acts, normal or perverted, actual, simulated or animated, whether between human beings, animals, or an animal and a human being; or
      “(b) Masturbation, excretory functions or lewd exhibition, actual, simulated or animated, of the genitals, pubic hair, anus, vulva or female breast nipples; or
      “(c) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation, or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or in the condition of being fettered, bound, or otherwise physically restrained, on the part of one so clothed; or
      “(d) Actual, simulated, or animated touching, caressing, or fondling of, or other similar physical contact with a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals, or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
      “(e) Actual, simulated, or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured, or marketed for such purpose.”

      . When the state decided to prosecute defendants under Section 106 A(l), defense counsel attempted to protect defendants from prosecution under an improper statute by filing a motion to quash, and the trial court correctly determined that the described conduct was not entitled to arguable First Amendment protection. The availability of the motion to quash is adequate protection for a defendant who is charged under an improper statute.

      . The range of sentence for a first offender is a fine of not less than $1,000 or more than $2,500, or imprisonment for not less than six months or more than three years, or both.


author:
BAILES, Justice Pro Tem.
     LEMMON, Justice,

text:
    LOUISIANA STATE BAR ASSOCIATION v. Ronald L. CAUSEY.
    No. 82-B-2024.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Rehearing Denied Nov. 18, 1983.
    Thomas 0. Collins, Richard A. Deas, New Orleans, La. State Bar Ass’n., for relator.
    Ronald L. Causey, Philip J. Shaheen, New Orleans, for respondent.
   DISCIPLINARY PROCEEDINGS

BAILES, Justice Pro Tem.

Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disciplinary proceeding against Ronald L. Causey, a member of said association. Two separate specifications of misconduct have been alleged. Specification No. 2 provides:

That in 1979, you did represent Joseph Dominick, Heather Dominick and Diana Efferson (Dominick), for personal injuries and damages arising from an accident that occurred on May 1, 1978. And that, prior to your representation of the aforesaid clients, they were represented by Attorney Ronald Macaluso until April 10, 1979.
Further, your clients agreed, and you guaranteed, that Ronald Macaluso was to receive of any attorneys fees, plus the sum of $123.00 for costs. And that on December 4, 1979, the case involving the aforesaid clients was settled for the sum of $17,500.00 resulting in an attorneys fee of approximately $5,800.00.
Further, despite repeated demands from your clients and Mr. Macaluso, you have failed, refused and neglected to pay the guaranteed fee to Mr. Macaluso, rendering your clients liable for said sums. And that you attempted to deceive Mr. Maca-luso as to the full amount of settlement and that you have converted to your own use the fees in question all in violation of Disciplinary Rules 1-102 and 9-102.

As provided by article 15, section 3(b) of the articles of incorporation of the Association, a formal investigatory hearing was held by the Committee on July 9, 1981. Although Mr. Causey had been notified by letter dated May 20, 1981 of the hearing and the specification of alleged misconduct, he neither appeared nor was represented by counsel.

Based on the evidence adduced at the formal investigatory hearing, the Committee, by a majority vote, was of the opinion that Mr. Causey was guilty of a violation of the laws of this state relating to the professional conduct of lawyers and to the practice of law of sufficient gravity as to evidence a lack of fitness for the practice of law; that, specifically, Mr. Causey was guilty of the misconduct set forth in Specification No. 2. On August 6, 1982, the Committee filed a petition in this court for disciplinary action against Mr. Causey under the provisions of article 15, section 4(c) of the articles of incorporation. Mr. Cau-sey’s answer to the petition, which was not filed until January 4, 1983, denied any wrongdoing. On motion by the Committee, we appointed Paul Marks, Jr. commissioner to take evidence and to report to this court his findings of fact and conclusions of law. Louisiana State Bar Association Articles of Incorporation, art. 15, § 6(b) and (d).

A hearing before the commissioner was conducted on January 4, 1983. Mr. Causey appeared at this hearing and testified in his own behalf. The Committee introduced in evidence, without objection, the entire record of the Committee’s formal investigatory hearing. Upon termination of the hearing, the commissioner filed with this court his written report wherein he stated his findings of fact and conclusions of law and recommended suspension as the appropriate disciplinary action. The Committee filed its concurrence in the commissioner’s findings of fact and conclusions of law and submitted the matter for this court’s determination. In its brief, the Committee recommended a suspension of one year. After oral argument before this court, the matter was submitted for our determination on the record before the commissioner.

The bar association has the burden of establishing by clear and convincing evidence that Mr. Causey was guilty of the specification of alleged misconduct. Louisiana State Bar Association v. Mitchell, 375 So.2d 1350 (La.1979). We hold that this burden has not been met.

The allegation of misconduct stems from the representation of clients in an action for personal injuries resulting from an automobile accident. After suit was filed but prior to settlement negotiations, Mr. Causey was contacted by the clients to replace Mr. Ma-ealuso, the original attorney of record. Mr. Causey agreed to take the case and subsequently entered into a written agreement with Mr. Maealuso whereby each attorney would receive one-half of the one-third contingency fee plus Mr. Maealuso would be reimbursed $123 for costs. This fee-splitting arrangement was approved by the clients.

In September or October of 1979, Mr. Causey contacted Mr. Maealuso by telephone to discuss their fee agreement. The testimony as to what was said during this conversation is conflicting. According to Mr. Maealuso, Mr. Causey wanted him to reduce his fee because Mr. Causey wanted to reduce the one-third contingency so that the clients would receive from the settlement what he felt was appropriate. Mr. Maealuso agreed to accept $500 as a fee plus $123 as costs. Mr. Maealuso also testified that at the time he agreed to reduce his fee, Mr. Causey indicated that the approximate value of the settlement was $5,000 to $7,000. Mr. Causey’s account of the conversation is very different. He testified that he did not mention a settlement figure; according to Mr. Causey, no figures had been discussed with the opposing party at the time of his conversation with Mr. Maea-luso. He maintains that he asked Mr. Ma-ealuso to reduce his fee because he felt that his office had done the bulk of the work. Whether Mr. Causey mentioned an approximate settlement figure, it is clear that an oral agreement was reached in which Mr. Maealuso would receive $500 as a fee plus $123 for costs.

In December of 1979, a settlement was reached whereby the clients would be paid $17,500. The insurance company drafts were issued to the clients and Mr. Maealuso as joint payees. Mr. Macaluso’s name was erroneously placed on the drafts because he had been the original attorney and his name was still in the insurance company’s file. Mr. Causey turned down an offer from the counsel for the insurance company to have the drafts reissued to the clients and Mr. Causey as joint payees because, as Mr. Cau-sey testified, he and Mr. Maealuso had an agreement on splitting fees and he could easily obtain Mr. Macaluso’s endorsement on the draft. Mr. Maealuso testified that he was surprised when he saw the $17,500 drafts because he had anticipated a settlement of $5,000 to $7,000. He stated that he nevertheless endorsed the drafts and left word with Mr. Causey’s secretary for Mr. Causey to contact him concerning this matter. Contrary to this version, Mr. Causey’s associate, Mr. McGinsey, testified that Mr. Maealuso endorsed the drafts in a matter of fact manner and then merely asked when is Mr. Causey “going to send me my $500?”

The drafts were deposited by Mr. Causey into a separate clients’ account. Approximately two weeks later, in mid-December 1979 when the drafts cleared, Mr. Causey paid the clients their two-thirds share of the settlement. Mr. Causey testified that he did not tender a check to Mr. Maealuso at that time because he did not consider it an urgent matter and because it was the holiday season. He stated that he attempted to call Mr. Maealuso about delivering the check in person but was unable to make contact.

Approximately one month after the drafts cleared, Mr. Causey received a letter from Mr. Maealuso in which Mr. Maealuso expressed his dismay about the delay in payment. He stated that the oral agreement was cancelled and demanded fifty percent of the contingency fee as per their written agreement. Mr. Causey testified that no payments were made after the receipt of this letter because he believed that he owed Mr. Maealuso only $623 and not almost $3,000 as demanded. In a letter to the Committee dated January 18, 1982, and in his testimony at the commissioner’s hearing, Mr. Causey acknowledged that he owes Mr. Maealuso $623 and stated that he is “ready, willing and will pay him on any day that he is willing to accept that amount.”

Mr. Macaluso testified that Mr. Causey has made no tender of any amount. He stated that he has attempted to contact Mr. Causey by letter and by telephone on numerous occasions, to no avail. On April 1, 1980, Mr. Macaluso informed the clients in a terse note that since he had not yet received his share of the settlement from Mr. Cau-sey, the clients had two alternatives: file a complaint with the bar association or Mr. Macaluso would file suit against them for the fee. This communication incited the clients to file a complaint with the association.

Based on the evidence as summarized above, there has been no violation of a disciplinary rule. Initially, it should be noted that there is no evidence that Mr. Causey commingled or converted clients’ funds. In fact, the clients were paid promptly. The dispute is between two attorneys, neither one of whom was a client of the other. The major complaint is that Mr. Causey was dilatory in paying his debt to Mr. Macaluso. Mr. Causey had approximately one month from the time the drafts cleared until the receipt of the January 24, 1980 letter from Mr. Macaluso in which Mr. Causey easily could have settled his debt with Mr. Maca-luso. Mr. Causey’s explanation that due to the holiday season and his belief that immediate payment was not required is not a sufficient justification for his failure to pay prior to January 24, 1980. Therefore, Mr. Causey was clearly wrong in not paying Mr. Macaluso before the receipt of this letter. But, the situation after this date is markedly different. The January 24 letter from Mr. Macaluso to Mr. Causey apparently attempted to abrogate the oral modification of the written fee agreement. After this letter, there was a bona fide dispute between the two attorneys over whether Mr. Macaluso was entitled to a $500 fee or approximately $3,000 as his one-half share of the one-third contingency fee. Mr. Cau-sey has always acknowledged that he owes Mr. Macaluso $500 plus $123 for costs; Mr. Macaluso maintains that he is entitled to approximately $3,000 plus $123 for costs.

A bar association disciplinary proceeding is an inappropriate action to enforce a civil liability. This proceeding is intended to ascertain whether there has been a willful violation of a disciplinary rule reflecting upon the attorney’s moral fitness to practice law. An attorney’s inexcusable failure to discharge a civil liability for one month does not constitute such a violation. In fact, in response to a question at oral argument before this court, counsel for the Committee was unable to specify exactly which disciplinary rule was violated. While we do not condone dilatory payment of a just debt, we find that a willful violation of a disciplinary rule reflecting upon Mr. Causey’s moral fitness to practice law has not been proven by clear and convincing evidence.

DECREE

Accordingly, this disciplinary proceeding against respondent, Ronald L. Causey, is dismissed.

DIXON, C.J., concurs.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Respondent’s violation of his professional responsibility occurred when, at the time of disbursing the settlement proceeds, he failed to protect his clients from their liability on their written promise to pay their former attorney one-half of the fee, thereby exposing his clients to a potential claim. Respondent should not have treated the retained one-third portion of the settlement proceeds as his own funds until all contingent liabilities were settled. When the dispute arose over' division of the fee, he should have protected his clients by depositing the disputed portion into the registry of the court or by some other method (such as agreeing to hold the clients harmless and placing the disputed funds in an escrow account), until the dispute was settled.

Nevertheless, when the former attorney gave the clients the option to file a complaint, he effectively waived his claim against them. Therefore, at the time the clients filed a complaint, the matter had become a dispute between two attorneys over a fee, a matter with which the bar association should not be concerned. Since the clients were never truly exposed to liability, I concur in the result.

       Bailes, J., sitting for Justice Marcus.

      . Specification No. 1 has not been pursued.

      . DR 1-102 Misconduct.
      (A) A lawyer shall not:
      (1) Violate a Disciplinary Rule.
      (2) Circumvent a Disciplinary Rule through actions of another.
      (3) Engage in illegal conduct involving moral turpitude.
      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
      (5) Engage in conduct that is prejudicial to the administration of justice.
      (6) Engage in any other conduct that adversely reflects on his fitness to practice law. DR 9-102 Preserving Identity of Funds and Property of a Client.
      (A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      (1)Funds reasonably sufficient to pay bank charges may be deposited therein.
      (2)Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
      (B) A lawyer shall:
      (1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
      (4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

      . Due to the conflicting testimony, we are unable to find that Mr. Causey misrepresented the amount of the settlement at the time of the oral modification of the fee agreement. In fact, the refusal by Mr. Causey to have the drafts reissued in his name instead of in Mr. Macaluso’s name militates against a finding of misrepresentation.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Ramus J. BENOIT, Jr.
    No. 82-KA-1114.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Rehearing Denied Nov. 18, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Larry Regan, Asst. Dist. Atty., for plaintiff-appellee.
    D. Michael Mooney, Lake Charles, C. Thomas Tolbert, Sulphur, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Ramus J. Benoit, Jr. was convicted of first degree murder and sentenced to life imprisonment. Defendant has appealed, arguing four of eight assignments of error.

In the early morning hours of October 8, 1981 defendant, his younger brother Larry Benoit, and Vaughn Howard called for a taxi. They instructed the driver to take them to a remote area outside Lake Charles where the driver was shot and robbed. The body was left at the side of the road and the three abandoned the taxi about three miles away near defendant’s aunt’s house. The guns and some bloodstained clothing were hidden in a culvert pipe. The three then went to the aunt’s house where they washed their clothing and slept.

That afternoon the defendant, Larry and Vaughn were questioned by the police and gave statements implicating themselves in the killing. Defendant’s statement indicated the purpose for calling a taxi was to rob the driver, since they believed taxi drivers always carried money. At trial defendant claimed that story was a fabrication the three had agreed upon; the real purpose was to purchase drugs from a driver that they knew and, when the driver pulled a gun to rob them of their drug money, he was shot in self-defense.

Assignment of Error No. 1

Defendant cites as error the trial judge’s denial of the motion to suppress the confession on the basis that the defendant did not intelligently waive his constitutional rights.

Defendant was seventeen years old at the time of the offense. At the hearing on the motion to suppress, defendant’s expert witness in psychiatry testified that Benoit had an IQ of 85 to 87 and was operating at the level of an eight to ten year old. She also testified that the defendant told her he had been on drugs for three days prior to the crime, which would reduce his mental abilities even further.

Before the state may introduce a confession into evidence, it must be affirmatively shown that it was freely and voluntarily given. R.S. 15:451. Whether such a showing has been made is analyzed on a case by case basis with regard to the facts and circumstances of each case. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); State v. Lindsey, 404 So.2d 466 (La.1981); State v. Williams, 383 So.2d 369 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981); State v. Alexander, 339 So.2d 818 (La.1976). Where the accused is in custody, a prerequisite to admissibility of a confession is the advising of the accused of his constitutional rights and his intelligent waiver of those rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court’s determination that a statement was free and voluntary is entitled to great weight and will not be disturbed unless it is not supported by the evidence. State v. Lindsey, supra; State v. Williams, supra; State v. Trudell, 350 So.2d 658 (La.1977).

With regard to the relationship between diminished mental or intellectual capacity and involuntariness, this court has noted that such a condition does not of itself vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Lindsey, supra; State v. Anderson, 379 So.2d 735 (La.1980); State v. Collins, 370 So.2d 533 (La.1979); State v. Neal, 321 So.2d 497 (La.1975); State v. Nicholas, 319 So.2d 361 (La.1975); State v. Edwards, 257 La. 707, 243 So.2d 806 (1971). The critical factor is whether the defendant was able to understand the rights explained to him and voluntarily gave a statement. State v. Lindsey, supra; State v. Anderson, supra; State v. Trudell, supra.

At the hearing on the motion to suppress and at trial, the state presented evidence concerning the circumstances surrounding the making of defendant’s statement. Defendant Ramus Benoit, Larry Be-noit and Vaughn Howard were contacted by the police at their residence about 2:30 in the afternoon, and asked where they were the night before and whether they had seen anything. The three answered that they had been home. Since this answer conflicted with information received earlier from the aunt, the three were asked to come to the station for questioning. Defendant’s interrogation began around 4:25 p.m., after the police had finished questioning Vaughn Howard. The officers testified the defendant’s rights were explained to him with the use of a “rights form” and that defendant responded that he understood his rights as they were being explained. The officers further testified the defendant’s physical condition was stable, his speech was coherent, and he did not appear to be intoxicated or on drugs. Defendant refused to answer questions concerning the participation of the others, saying that he would only tell what he had done and that the others should tell of their own participation. Defendant declared he did not want a lawyer present at that time.

Defendant initially gave an oral statement in which he indicated where the guns had been hidden. As it was approaching dark, defendant and the officers went to retrieve the guns, and defendant was brought back to the station. He was informed of his rights a second time, and signed a second waiver. He then gave a written statement to the police.

The evidence indicates the defendant and the others planned the robbery of the cab driver and called the cab company. The driver was directed to a remote area and shot many times. He was then dragged to the roadside ditch. Defendant reloaded his gun and shot the driver again to make sure he didn’t live. Twenty-four dollars was taken from the driver. The cab was then driven three miles away and abandoned and the guns and bloodstained clothing were hidden in a culvert pipe. The three then went to the aunt’s house where their clothes were washed and they slept. After arriving home, the three slept until the early afternoon when they went to play video games with the money they had taken. According to the defendant, a false account of the shooting was agreed to and given to the police. This record substantiates the trial court’s conclusion that all of the circumstances indicate the defendant had sufficient intelligence and awareness to knowingly waive his constitutional rights.

This assignment of error lacks merit.

Assignment oí Error No. 2

By this assignment of error, defendant contends the trial court committed reversible error in failing to limit cross-examination by the state of the codefendants called to testify by the defense. Without a ruling from the bench that cross-examination would be limited to the issue of voluntariness, the witnesses (the severed codefend-ants) refused to answer any questions by invoking their privilege against self incrimination.

Defendant sought to call Larry Benoit and Vaughn Howard to testify concerning the drugs that defendant had taken in the three days prior to the crime, in support of his contention that his already limited mental capacity was further reduced to the point where he could not understand his constitutional rights sufficiently to waive them.

A defendant may testify at a hearing on a motion to suppress without being subject to cross-examination on other matters. C.Cr.P. 703. A witness who is not the accused may, under certain circumstances, take the stand and testify as to some matters and invoke the Fifth Amendment as to others. State v. Bolen, 338 So.2d 97, 99 (La.1976). In State ex rel. Doran v. Doran, 215 La. 151, 39 So.2d 894 (1949), this court adopted the prevailing federal rule that where a witness voluntarily takes the stand for the purpose of testifying as to one issue only, he cannot, under cross-examination, be made to testify against his will concerning matters that are totally unrelated to that issue. At the hearing on defendant’s motion to suppress, the sole issue before the court was the voluntariness of defendant’s statement; other matters would have been irrelevant. The trial judge erred in ruling that the witness defendant sought to call could be cross-examined on the whole case.

The state contends, however, that any error on the judge’s part was harmless, in that the testimony sought from these witnesses would only have been cumulative. Defendant’s statement indicated that he had taken two quaaludes prior to calling for a cab, and the psychiatrist testified that she learned from both the defendant and his brother that defendant had taken drugs for several days prior to the night of the crime.

It appears from the trial judge’s reasons for denying the motion to suppress that he did not consider the defendant as having proved that he was not functioning at his full 85% intelligence level. The testimony of the psychiatrist indicated that if the defendant had been using drugs he would not be functioning at his highest obtainable level. This was accepted by the trial judge; however, the judge concluded that there was insufficient proof the defendant was under the influence of drugs at the time the statement was given, since the information came from the defendant himself. The testimony of the severed codefendants might have required the trial judge to conclude that the defendant was functioning at less than his 85% level.

Such a conclusion, however, would not have required the trial court to grant the motion to suppress the defendant’s confession. Whether intoxication exists and whether it is of a degree sufficient to vitiate the voluntariness of a confession are questions of fact. State v. Narcisse, 426 So. 118, 126 (La.1983). The trial judge had before him the testimony of the officers who interrogated the defendant and all stated that he did not appear intoxicated and appeared to have normal intelligence. The defendant had slept for several hours between the commission of the crime and his confessing his involvement to the police, and it had been at least twelve hours since any drugs were taken. There is sufficient proof that the defendant was able to intelligently waive his constitutional rights.

This assignment lacks merit.

Assignment of Error No. 3

The trial court’s denial of the defendant’s request for a continuance on the morning of trial is alleged as Assignment of Error No. 3. Defendant contends there was insufficient time to prepare for trial and that important evidence, particularly the autopsy report, was not available prior to the beginning of trial.

C.Cr.P. 712 provides:

“A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.”

A denial of a motion for a continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice. State v. Haarala, 398 So.2d 1093 (La.1981); State v. Johnson, 343 So.2d 155 (La.1977).

A copy of the autopsy report was made available to the defense counsel during trial shortly after a copy was provided to the state. The report was not introduced into evidence by either side, the state providing the live testimony of the pathologist to show the cause of death from multiple gunshot wounds. The trial judge indicated in his per curiam to this assignment of error that the autopsy report did not provide any facts not already known. The defendant admitted at trial that he shot the victim in self-defense.

Defendant failed to show specific prejudice at trial and has not proved to this court any specific prejudice. The trial judge did not abuse his discretion in denying the motion for a continuance.

This assignment of error lacks merit.

Assignment of Error No. 5

In this assignment of error, the defendant contends the trial court erred in not excusing for cause two prospective jurors. Both indicated during voir dire that the defendant had some obligation or duty to testify on his own behalf in order to “clear himself.” However, in response to questions from the trial judge, both indicated that they would apply the law as given by the court.

The trial court is vested with broad discretion in ruling on challenges for cause and such rulings will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Eastin, 419 So.2d 933 (La.1982). We have reviewed the voir dire of these two prospective jurors and find no abuse of discretion on the part of the trial court. Although these prospective jurors came into the court with preconceived ideas and expressed the natural desire to hear the defendant’s side of the story, they both understood and accepted their duty as jurors to apply the law as given by the judge to the evidence presented in court.

This assignment of error lacks merit.

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

LEMMON, J., concurs in the result.

      . Defendant testified on direct examination that they figured it would be worse if the police knew drugs were involved than if the police thought it was a robbery.

      . In determining the correctness of a trial court’s ruling on a motion to suppress, we consider the evidence presented both at the hearing on the motion and at trial. State v. Lindsey, 404 So.2d 466, 472 n. 3 (La.1981); State v. Fischer, 380 So.2d 1340, 1342 n. 1 (La.1980).

      . Defendant’s aunt, after dropping the boys off at their home, was approached by sheriff’s deputies at a stop sign near the crime scene. She was asked if she had seen or heard anything between midnight and 6:00 o’clock that morning. She responded that she had not, and drove on. She then realized that the boys had been out and might have seen something. After talking to her husband, she called the police and told them that the boys had been in the area at the time and might have some helpful information.