author:
LEMMON, Justice.

      CALOGERO, J., DIXON, Chief Justice DENNIS, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. James Craig MOORE.
    No. 82-KA-1788.
    Supreme Court of Louisiana.
    Oct. 19, 1983.
    Rehearing Denied Nov. 18, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Don Landry, Asst. Dist. Atty., for plaintiff-appellee.
    Thomas E. Guilbeau, Lafayette, for defendant-appellant.
   LEMMON, Justice.

In this appeal by defendant of his convictions for the attempted forcible rape and attempted second degree murder of a young woman, the principal issue involves the state’s introduction of evidence of two unrelated attacks by defendant on other young women. Since the defense raised was clearly that of “mistaken identity”, we must decide whether the evidence’s relevance and probative value (the tendency to prove identity) was outweighed by the prejudicial effect (the tendency merely to prove “bad character”). See State v. Davis, 389 So.2d 71 (La.1980).

The victim’s encounter with defendant occurred as she walked toward her home in Lafayette during the early morning hours of New Year’s Day, 1981. She had been with her boyfriend (who at the time of trial was her husband) at a social gathering, but they became engaged in an argument, and she decided to walk home. She selected a well lighted route, walking through the area of Girouard Park near the university campus.

A rust colored Buick Riviera passed her and came to a stop. When the driver got out of the car and started to approach her, she announced that she did not want a ride. The man (whom she later identified in a lineup and at trial as defendant) moved quickly toward her, grabbed her, and smashed her on the head several times with a tire tool. The victim had the presence of mind to gasp and feign unconsciousness, and defendant discontinued the beating. He then pulled her off into some bushes adjacent to the roadway.

As the victim lay helplessly on the ground praying that someone would come upon the scene, defendant placed his hand between her legs and began to unbutton her skirt. She noticed that he had unzipped his trousers and had exposed his penis. She described defendant as “grunting like an animal” while he crouched over her with his penis exposed, touching her perineal area and unbuttoning her dress.

Suddenly an automobile approached and slowed up, whereupon the victim sprang to her feet and ran toward the car, screaming for help. As a matter of fact, the driver had noticed her lying on the ground and had stopped to determine whether she needed assistance. Defendant ran to his car and drove off quickly. The victim asked her rescuer to follow defendant and attempt to determine the license number, but they were unsuccessful. The victim was then taken to the hospital, where she was treated in the emergency room and was interviewed by police.

The investigation eventually focused on defendant, and the police arrested him and searched his house pursuant to warrants. Although the police discovered a burgundy colored Buick Riviera (which had its tire tool missing and a small smudge of blood on the roof) and a white Ford Granada (the type of car used in another recent sexual attack in Girouard Park) at defendant’s home, they did not find any other physical evidence linking defendant to the instant offense. Thus, the state’s case rested almost entirely on the strength of the victim’s identification.

At defendant’s trial, defense counsel directed his efforts toward challenging and undermining her positive and unequivocal identification of defendant as her attacker. He focused his cross-examination of the victim on the lighting conditions at the scene and on her opportunity to view her assailant. He even concluded his closing argument by telling the jury that the “true culprit for [the victim’s attack] is still somewhere outside. It is not Mr. Moore [defendant]”.

It was in this context that the trial judge had to decide whether to permit the state to call two other young women who were assaulted in the early morning hours in the area of Girouard Park by a man whom they would positively identify as the defendant.

Before permitting the state to offer the testimony of the witnesses, the judge conducted a hearing out of the presence of the jury and received evidence of the other incidents. Despite some differences, the other two attacks were essentially similar in most significant aspects. Both of the other attacks were made within a month of the present crime on pretty, young white women in the Girouard Park area in the early morning hours (between 2:00 and 5:00 a.m.). All three incidents displayed a pattern in which defendant prowled about in an automobile during the early morning hours in an area where one might expect to find pretty young “coed types”. All three incidents involved the same bizarre behavior, in that defendant exposed his penis during the use of physical violence upon the female victim. All three involved a fondling of the intended victim’s legs or thighs.

After deciding to permit the state to offer the testimony of the other two young women, the judge carefully instructed the jury as to the limited purpose of the evidence (to prove identity of defendant as the victim’s assailant) before allowing the jury to hear the witnesses. Again, when the prosecutor in closing argument mentioned the other incidents, the judge gave the limiting instruction. The judge again repeated the instruction in charging the jury.

Evidence of other crimes is inadmissible when the only purpose of the evidence is to show the defendant’s propensity to violate criminal laws, since the relevancy of such evidence for the purpose of showing that the defendant was the perpetrator is so marginal that its probative value is heavily outweighed by its prejudicial effect. The underlying purpose of a rule excluding such evidence (such as Fed.R.Evid. § 404[b]) is to protect the defendant from undue prejudice resulting from the use of evidence which has only marginal relevance to disputed issues. However, there are exceptions to the general rule of inadmissibility.

The decision in State v. Hatcher, 372 So.2d 1024 (La.1979), sets forth guidelines for determining the admissibility of evidence of other crimes. First, there must be clear and convincing evidence that the defendant committed the other crimes. Second, the other crimes evidence must be substantially relevant for some other purpose than to show the defendant’s general criminal character. Third, the other crimes evidence must tend to prove a material fact genuinely at issue. Fourth, the method of commission of both the charged and the uncharged crime must be so distinctively similar that one may logically infer that the same person committed both crimes. Fifth, the probative value of the other crimes evidence must outweigh its prejudicial effect.

In the present case, there was clear and convincing evidence that defendant committed the other crimes. Moreover, the identity of the perpetrator was genuinely at issue, and the other crimes evidence had substantial independent relevance for the purpose of showing the probability that defendant was the perpetrator of the charged crime. Virtually the entire case was based on the victim’s identification. The generally unsatisfactory nature of eyewitness identification uncorroborated by physical evidence and the intensity of defense counsel’s challenge to the victim’s identification revealed plainly that the proffered evidence was introduced for purposes of establishing identity, which was a genuine issue in this case, rather than to show merely that defendant had a “bad character”. See State v. Hatcher, above; State v. Ledet, 345 So.2d 474 (La.1977).

The critical areas for determination are the comparison of the distinctive similarities between the crimes and the weighing of the probative value of the proffered evidence against the inherent prejudice. These determinations, which are closely related, must be made on a case by case basis.

Evidence of other crimes may be admitted when the prior crime by the particular defendant is so distinctively similar to the charged crime (especially in terms of time, place and manner of commission) that one may reasonably infer that the same person was the perpetrator. The determination of this standard is essentially a balancing process. The greater the degree of similarity of the offenses, the more the evidence enhances the probability that the same person was the perpetrator, and hence the greater the evidence’s probative value, which is to be ultimately weighed against its prejudicial effect.

Thus, the positive identification of a defendant as the perpetrator of a distinctively similar previous crime is often permitted to enhance the otherwise uncorroborated identification of that person as the perpetrator of the charged crime. In such cases, the evidence of the uncharged crime has much higher relevance and far greater probative value than evidence which merely indicates that the defendant has a propensity to engage in all kinds of criminal activity.

The court in determining admissibility must also weigh the incremental probity of the evidence against its inherent prejudice. When “other crimes”, evidence has only marginal relevance and therefore only slight probative value, the prejudicial effect is enormously disproportionate.

In this case, the other sexual assaults had significantly similar salient features which gave them the degree of distinctive similarity necessary to enhance the probability that defendant was the perpetrator of all three offenses. All three offenses involved a sex offender’s December, 1980 prowling in an automobile in Girouard Park during the early morning hours in search of young white women and his attacking them violently with his penis exposed. The similarities in the method of commission and in the time, place and other circumstances of the crimes are so distinctive that the positive identification of defendant by the victims of the first two crimes greatly enhanced the uncorroborated identification by the victim of the charged crime, thereby giving the evidence extremely high probative value on the only disputed issue in the case. Moreover, the trial judge lessened the prejudicial effect and guarded against jury misuse of the evidence by giving cautionary instructions contemporaneously with the evidence and the closing argument, as well as in his jury charges.

Thus, we conclude that the trial judge did not err in admitting the evidence on the basis that the crime had sufficient distinctive similarities and that the probative value of the challenged evidence’s tendency to establish identity outweighed its tendency only to prove “bad character”. See State v. Frederick, 340 So.2d 1353 (La.1976).

Therefore, defendant’s convictions and sentences are affirmed.

DIXON, C.J., and DENNIS, J., dissent with reasons.

CALOGERO, J.,

dissents, believing there is merit in Assignment of Errors 2, 3, & 4, all relative to inadmissible other crimes evidence; and will assign reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Whatever the similarities in these three offenses and not mentioned in the majority opinion (all three offenses were by white men; defendant had access to the two different kinds of cars used; that the offender grunted and seemed to masturbate during the attack) there are so many similarities in sexual offenses of this kind that differences in such offenses escape notice. Genuinely identifying peculiarities are rare.

Regardless of whether the offender in this attempted rape fits the pattern of the other would-be rapist, it was almost a foregone conclusion that the jury would not allow this untried, unpunished would-be rapist of other young women to go free in this trial, regardless of the strength of his defense.

This, I think, is what is meant by “weighing the probative value (of the other crimes evidence) against its prejudicial effect.” Cases like this one make it difficult to understand the rule against the use of other-crimes evidence. The more emotional, the more sensational the evidence of the other crimes, the more likely it is to be admitted and approved, regardless of its overwhelming prejudicial impact.

DENNIS, Justice,

dissenting.

The prohibition against other crimes evidence takes two forms in the United States. Under the “exclusionary” rule prevailing in Louisiana and the majority of other jurisdictions, all other crimes evidence is excluded unless it is relevant to specified facts and propositions, such as identity, motive, common scheme or plan and knowledge. State v. Kahey, 436 So.2d 475 (La., 1983); State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Ledet 345 So.2d 474 (La.1977). Our approach is to be distinguished from the so called “inclusionary” rule of FRE 404(b) which admits all evidence of other crimes relevant to an issue in a trial, except that which tends to prove only criminal disposition. Weinstein and Berger, Weinstein’s Evidence v. 2, Section 404(08). Although it may be argued that the decisions are not always affected by the form of the rule, some of the federal circuits apparently view the inclusionary form of Rule 404(b) as mandating a greater emphasis on admitting other crimes evidence than heretofore. In numerous instances, the federal courts simply recite the lists of permissible uses specified in the rule and admit without any analysis of the proffered evidence. Id. n. 13, 14. Although I disagree with the majority opinion’s particular application of the established exclusionary approach in this case, I applaud its adherence to our well settled other crimes evidence rules.

In keeping with our general rule of excluding other crimes evidence, except for certain limited purposes, this court has held to be admissible proof of other crimes exhibiting almost the identical modus operan-di or system, committed in close proximity in time and place. State v. Jackson, 352 So.2d 195 (La.1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Price, 325 So.2d 780 (La.1976); State v. Vince, 305 So.2d 916 (La.1974); State v. Lawrence, 294 So.2d 476 (La.1974).

In order to be admissible the extraneous offense must meet several tests: (1) there must be clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith; State v. Prieur, 277 So.2d 126 (La.1973); see also, State v. Gaines, 340 So.2d 1294, 1298 (La.1977) (concurring opinion); McCormick on Evidence, § 190, pp. 451-52 (2d ed. 1972); (2) the modus operandi employed by the defendant in both the charged and the uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person; State v. Jackson, 352 So.2d 195 (La.1977); State v. Lee, 340 So.2d 1339, 1345 (La.1977) (concurring opinion); (3) the other crimes evidence must be substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. State v. Frederick, 340 So.2d 1353 (La.1976); (4) the other crimes evidence must tend to prove a material fact genuinely at issue; State v. Ledet, 345 So.2d 474 (La.1977); (5) the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977). State v. Hatcher, 372 So.2d 1024 (La.1979).

In the present case the extraneous offenses evidence clearly does not meet all of the tests and, therefore, should have been excluded. The modus operandi employed by the defendant in both the charged and extraneous offenses were not so peculiarly distinctive that one must logically say they are the work of the same person. Different types of automobiles were used, a weapon was used in only one case, and the exposure of an assailant’s sexual organ during a sexual attack does not appear to be peculiarly distinctive of one offender.

Consequently, the other crimes evidence also is not substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of bad character; and the probative value of the extraneous crimes does not outweigh its prejudicial effect. This is because proof of a defendant’s other crimes which do not exhibit almost the identical modus operandi as the charged offense are inevitably more probative of defendant’s bad character than that the defendant committed the charged offense because it was carried out in a manner peculiarly distinctive to his previous offenses.

I respectfully dissent.

CALOGERO, Justice,

dissenting.

I agree with the reasons assigned by Chief Justice Dixon and Justice Dennis respectively, and therefore dissent. I submit additionally the following observations concerning footnote 11 of the majority opinion.

If the author in the majority opinion has found that the charged crime in this case would have been admissible under our jurisprudence in the trial of each of the other two' offenses as “other crimes evidence,” and assuming that the majority is correct in finding the two other offenses “Prieur admissible” in this trial of the charged crime; then it would be correct to state that it would have been permissible to join the three offenses in a single trial. If reciprocally admissible as other crimes evidence in the event of separate trials, offenses may be joined together in a single trial. State v. Carter, 352 So.2d 607 (La.1977). Footnote 11 of the majority opinion states, however: “It would perhaps have been preferable for the offenses to be joined for a single trial, ...” (Emphasis provided.) While I agree that it would have been permissible to join the offenses for trial under the majority’s hypothesis, I am not so sure that such join-der would necessarily have been preferable.

In joining two or more independent offenses for trial because they are allegedly each admissible in the trial of the other or others under Prieur and its progeny, the prosecutor obviously gains an advantage. [It is much more likely that he will get one or more convictions of a defendant against whom there has been presented to the jury some evidence of his having committed two or more serious crimes.] On the other hand he also runs a risk, namely, that if the jury convicts on one (or two) charges and acquits on another the appeals court may find itself forced to reverse the conviction. On appeal from the conviction, the appellate court would be required to reverse if that court were to determine that the defendant’s connection with the crime of which he was acquitted was not clearly and convincingly proven, a requirement for its admissibility as an “other crime,” and correspondingly a requirement if defendant is properly to be tried at one and the same time for two or more distinct and separate offenses.

       Bailes, J. sitting for Marcus, Justice.

      .Defendant also challenges the competency of trial counsel, citing counsel’s failure to raise the “other crimes” issue by pretrial motion. This complaint is plainly without merit. The issue was properly raised at trial and was properly preserved for review on appeal.
      Defendant does not challenge the sufficiency of evidence. La.C.Cr.P. Art. 821. He was sentenced to a total of 70 years imprisonment at hard labor. Defendant has four prior convictions and does not challenge the severity of his sentence.

      . The injury was so severe as to require stitches and reconstructive surgery.

      . The victim was a recent college graduate, majoring in psychology. She was in her early 20’s at the time of the attack.

      . Neither the rescuer nor his passenger saw the attacker well enough to identify him.

      . During the defense case, an investigator was called to testify concerning the lighting conditions in the area in an effort to show that the light was poor and that the victim’s opportunity to view her assailant was very limited.

      . Prior to trial, the prosecutor provided defendant a “Prieur notice”, alerting the defense of its intent to offer “other crimes evidence” and setting forth the purpose of offering such evidence. See State v. Prieur, 277 So.2d 126 (La.1973). Defendant does not challenge the sufficiency of the notice.

      . There were some dissimilarities. The degree of force used against the victim of the charged offenses was greater than that used in the two earlier incidents. The other victims were handled violently, but defendant did not resort to armed violence.
      In the first incident (December 6), defendant grabbed the sleeping victim from a parked car and was grabbing her thighs when her male companion (who had also been asleep) pulled defendant off, allowing her to run away. Defendant stole the female’s purse as he fled in a white Ford Granada. (Other evidence showed that type of car at defendant’s home.)
      In the second incident (December 28), defendant got out of a red colored Riviera, grabbed the victim by the hair and arm, and pulled her down. He removed her underwear and attempted to have intercourse before she convinced him that her parents were home and would be checking on her. Upon her promise to meet him later, he fled, leaving her alone. (She had been trained at a rape seminar not to struggle with potential rapists and to talk to them in an effort to dissuade them from persisting in their attack.)

      . In Louisiana, La.R.S. 15:481’s prohibition against the use of evidence of the defendant’s bad character effectively excludes the use of evidence of other crimes except as proof of some independently relevant and material issue other than the defendant’s general criminal propensity. State v. Humphrey, 412 So.2d 507 (La.1982).

      .It has been suggested that the nature of the crime may affect the court’s weighing process in determining the requisite relationship between the proffered evidence and a non-propensity issue (such as intent or identity) See 2 J. Weinstein, Evidence § 404[11] (1982). The suggested tendency is that courts admit other crimes more freely in narcotics and sex cases. That tendency in Louisiana in child abuse cases has also been noted. See State v. Germain, 433 So.2d 110 (La.1983).
      Nevertheless, we agree with the court’s statements in U.S. v. Woods, 484 F.2d 127 (4th Cir.1973), that “[s]imply fitting evidence of this nature into an exception heretofore recognized is, to our minds, too mechanistic an approach” and that “evidence of other offenses may be received, if relevant, for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime, provided that the trial judge may exclude the evidence if its probative value is outweighed by the risk that its admission will create a substantial danger of undue prejudice to the accused.” See State v. Humphrey, above.

      . Another significant consideration in determining the degree of probative value (or the relevance based on similarity of the incidents) is the fact that the perpetrator in all three crimes used either a burgundy colored Buick Riviera or a white Ford Granada, both of which were found at defendant’s home.

      . It would perhaps have been preferable for the offenses to be joined for a single trial, rather than being offered as unjoined “other crimes evidence” to prove identity, in order to prevent the danger that the jury may convict the defendant of the offense charged merely because the jury is convinced that the defendant committed the uncharged crimes, without being convinced beyond a reasonable doubt of his guilt of the charged offense. There is also a danger in some cases that the jury may convict a defendant to prevent his escaping punishment for the uncharged crimes. In this case, however, the trial judge’s careful instructions eliminated any significant risk that the jury might misuse the “other crimes evidence” in that fashion.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. Leonard CRESSY.
    No. 82-KA-0895.
    Supreme Court of Louisiana.
    Oct. 28, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John Craft, Lance M. Af-rick, Asst. Dist. Attys., for plaintiff-appel-lee.
    Calvin Johnson, Loyola Law School Clinic, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Leonard Cressy was charged by bill of information with armed robbery. (R.S. 14:64). On July 27, 1978 he was tried by a jury of twelve persons and was found guilty as charged. He was then adjudicated a third felony offender and sentenced to seventy years at hard labor. (R.S. 15:529.1). Defendant now appeals his conviction and sentence on the basis of five assignments of error, which he has consolidated into three arguments.

On June 14, 1977, at approximately 9:30 a.m., Ricardo Vita, the banker at Soulie’s Incorporated, a wholesale tobacco company, was robbed at gunpoint of $22,000 in checks and $3,000 in cash. Mr. Vita described the weapon used as an Army blue steel .45 automatic. On August 9, 1977 the police received information through a confidential informant of the identification of the armed robber. On August 10, 1977, following this information, there was a photographic lineup at the victim’s residence of eight photographs, including defendant’s photograph. Mr. Vita identified defendant’s photograph as the man who robbed him on June 14, 1977. The victim dated and signed the picture he identified. On January 28, 1978 there was another photographic lineup where James Sharpe, a sales representative for American Tobacco Company, identified defendant as the man he observed outside Soulie’s several minutes before the armed robbery. Mr. Sharpe also signed and dated the picture he identified.

Detective Anthony Radosti, who was investigating the armed robbery, executed a search warrant for defendant’s residence on August 15, 1977. As a result of the search,Detective Radosti seized a United States Army forty-five caliber gun holster.

Argument No. I (Assignments of Error Nos. I and II)

Defendant argues that the trial court erred in denying his motion to suppress the gun holster seized ás a result of the search warrant. Specifically, defendant contends that no search warrant existed, and, therefore, the burden was on the state to prove that the evidence (gun holster) was legally seized. State v. Keller, 403 So.2d 693 (La.1981).

At the hearing on the motion to suppress the gun holster, on July 11, 1978, the trial court made an explicit reference to the search warrant in denying the motion. The minute entry also reflects that “both sides submitted the matter on the search warrant.” Defense counsel made no objection at this time regarding the existence of the search warrant. Further, defense counsel made no objection at trial when Detective Radosti testified that he executed a search warrant for defendant’s residence and as a result confiscated the gun holster. Therefore, the existence of the search warrant was not an issue until this appeal.

Defendant cannot now complain on appeal about the nonexistence of a search warrant which he previously admitted existed and the existence of which he never contested below. A new ground for objection cannot be presented for the first time on appeal. C.Cr.P. 841; State v. Simmons, 422 So.2d 138 (La.1982); State v. Harris, 414 So.2d 325 (La.1982); State v. Davis, 357 So.2d 1125 (La.1978).

These assignments of error lack merit.

Argument No. II (Assignment of Error No. Ill)

Defendant argues further that the trial court erred in permitting the use of improperly Boykinized pleas for enhancement purposes. On March 9,1970 defendant pleaded guilty in state court to possession of stolen property, in violation of R.S. 14:69. On February 22, 1972 he pleaded guilty in federal court to distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). On the basis of these convictions, the trial court found that the defendant was a third offender.

Generally, a trial court has a duty to make sure that guilty pleas are made knowingly and voluntarily. In particular, a trial court should inform a defendant of three constitutional rights which a defendant waives when he enters a guilty plea: the privilege against self-incrimination; the right to trial by jury; and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). Subsequent to December 8,1971 all pleas of guilty in Louisiana state courts would not be considered as knowingly and voluntarily made unless the defendant was informed of the three rights listed above. State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).

In State v. Holden, 375 So.2d 1372, 1376 (La.1979), however, this court held that a different standard applied to convictions occurring prior to December 9, 1971, as well as to those occurring in federal and non-Louisiana courts:

“However, Lewis is overruled insofar as it announced a similar rule for Louisiana state convictions prior to December 8, 1971, and insofar as it implied a similar rule for federal and non-Louisiana convictions. As to these convictions not governed by our own decisions in Jackson and LeBlanc, we find that the basis in federal constitutional law upon which we relied in Jackson has been modified by United States v. Timmreck [441] U.S. [780], 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). Accordingly, as to these convictions not governed by Jackson and LeBlanc, the state is required only to prove the conviction by a plea of guilty with representation by counsel. The defendant has the burden of proving that he did not waive his constitutional rights in making the plea, if the plea was taken subsequent to Boykin’s requirement in this regard. Unless the colloquy at the time of the plea of guilty affirmatively shows substantial defect in this regard, the defendant will not be permitted to make any other collateral attack beyond the colloquy upon these otherwise-valid guilty pleas in the enhanced-punishment proceedings.”

This standard, therefore, applies to the convictions at issue here, the first occurring prior to December 8, 1971, and the second occurring in federal court. See also State v. Berndt, 416 So.2d 56, 57-8 (La. 1982).

With regard to the first conviction, the minute entry does not affirmatively state that counsel was present; however, the post-sentence statement formerly required by C.Cr.P. 892, stating the nature of the charge, the action taken, the facts, and the sentence given, is also a part of the record. It indicates that counsel was present at sentencing. Since the minute entry clearly indicates that sentencing occurred immediately after the entering of the guilty plea (March 9, 1970), it appears that counsel was present on that date.

With regard to the second conviction in federal court, the transcript of the colloquy does show that counsel was present and that he actively participated in the defendant’s decision to enter a guilty plea. The colloquy also reveals, however, that the federal district judge failed to inform defendant of his privilege against self-incrimination. Since the plea occurred after Boykin and since the record establishes that one of the Boykin requirements for a knowing and voluntary waiver was not mentioned, defendant has carried his burden of proof under State v. Holden, supra. Accordingly, this conviction was improperly used to adjudicate defendant as a third offender, and cannot be used as an enhancing conviction when defendant is resentenced.

Argument No. Ill (Assignment of Error No. IV)

Defendant argues that the seventy year sentence imposed by the trial judge is unconstitutionally excessive and that the trial judge did not comply with the requirements of C.Cr.P. 894.1 when sentencing defendant. Specifically, he contends that the trial judge did not take into account any mitigating circumstances. (Defendant argues that neither of his previous crimes were crimes of violence, and that he was a heroin addict).

In light of our holding above that the federal conviction was invalidly used for enhancement purposes by the trial court, resentencing is necessary. Moreover, seventy years, standing alone, is an “apparently severe” sentence. State v. Jones, 381 So.2d 416 (La.1980). Furthermore, the sentencing transcript in this case is not available, apparently due to a malfunction in the court reporter’s tape recorder; thus, the record before us does not show compliance with C.Cr.P. 894.1. Therefore, upon remand for resentencing the trial judge should comply with C.Cr.P. 894.1.

Accordingly, defendant’s conviction is affirmed, and his sentence is set aside; the case is remanded for resentencing in accordance with the views herein expressed.

WATSON, J., dissents and assigns reasons.

LEMMON, J.,

dissents from the remand for resentencing, believing that the record supports the sentence. State v. Day, 391 So.2d 1147 (La.1980).

WATSON, Justice,

dissenting.

While I recognize the applicability of Holden, relied on by the majority, I do not agree with the rule and would not allow such a belated and collateral attack on an eleven year old counseled guilty plea. In my view, defendant is a third offender.

The defendant’s conviction and sentence should be affirmed without the necessity of a .remand. When the minimum sentence which could have been imposed upon defendant was forty-nine and one-half years and when his prior offenses include distribution of heroin (which is undoubtedly one of the most severe drug-related crimes), a sentence of seventy years resulting from an egregious armed robbery offense is not apparently excessive. Society is entitled to have this third-offender put in prison and kept there.

Therefore, I respectfully dissent.

      . Defendant’s fifth assignment of error, that R.S. 15:529.1 constitutes cruel and unusual punishment, was neither briefed nor argued; hence, it is considered abandoned. State v. Perry, 420 So.2d 139 (La.1982).

      . Cf. State v. Cusher, 400 So.2d 601 (La., 1981) and State v. Warren, 402 So.2d 662 (La., 1981).


author: DIXON, C.J.,

text:
    STATE of Louisiana v. Charles BRUMMETT.
    No. 83-KK-1945.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In Re: Charles Brummett, applying for Writ of Certiorari and Stay Order, to the Thirty-Fifth Judicial District Court, Parish of Grant, Number 43849.

Granted. The sentence is set aside, and the case is remanded for resentencing in accordance with law. See La.C.Cr.P. Art. 880.

DIXON, C.J.,

agrees with the ruling of this Court. In addition, it is noted that 5 months is an apparently severe sentence for the crime charged for a 26-year old man with an apparently good record, except for a problem with alcohol. Even so, what the relator did was serious, and the apparent consequences were disastrous.


author: CALOGERO, J.,

text:
    Lola Mae STUCKEY v. J. Robert STUCKEY.
    No. 83-C-1890.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In Re: J. Robert Stuckey applying for Writ of Certiorari or Review to the Court of Appeal, Second Circuit, No. 15,439-CA, 434 So.2d 513; 2nd Judicial District Court, Parish of Jackson, No. 19,366.

Denied.

CALOGERO, J.,

would grant this application because of a conflict between this case out of the 2nd Circuit, Court of Appeal and the ease Hirsch v. Hirsch, 378 So.2d 539 (1979), out of the 4th Circuit, Court of Appeal.


author: DIXON, C.J., and LEMMON, J.,

text:
    Renna McCARTER, et al. v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 83-C-1891.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In Re: Renna McCarter, applying for Supervisory writ of Certiorari, Mandamus and Review to the Fourth Circuit Court of Appeal, Number CA-0699; Civil District Court Parish of Orleans, Number 80-15695.

Deniedi The regult ⅛ correct

DENNIS, J., would grant the writ.

DIXON, C.J., and LEMMON, J.,

agree that the writ should be denied. The Court of Appeal, 436 So.2d 726, was probably in error on the jury question, but relator makes no showing that the Court of Appeal was wrong on the merits.


text:
    Audrey M. CAULFIELD v. SIDNEY N. COLLIER MEMORIAL VOCATIONAL-TECHNICAL SCHOOL and the Louisiana Board of Elementary and Secondary Education.
    No. 83-CC-1961.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re: Audrey M. Caulfield applying for Supervisory Writs and Writs of Certiorari or Review; Court of Appeal First Circuit, No. 83-CW 1034; State of Louisiana Civil Service Commission, No. 2963.

Denied.

DIXON, C.J.,

would grant and remand. There is no judication that defendant’s application (filed September 12, 1983) was considered when the stay was granted.


text:
    TITLE RESEARCH CORPORATION, et al. v. Lucy Reid RAUSCH, Clerk of Court, St. Tammany Parish.
    No. 83-C-1683.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Title Research Corporation and Karl F. Heeter, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Twenty-Second Judicial District Court, Parish of St. Tammany. Nos. 68414 and 67642. 433 So.2d 1105.

Granted.


text:
    STATE of Louisiana, ex rel., Clarence HOLMES, Jr. v. John T. KING Dept. of Corrections Ross Maggio, Jr. Warden Louisiana State Penitentiary Criminal District Court Judge Frank A. Marullo, Jr.
    No. 82-KH-2959.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Clarence Holmes, Jr., applying for writ of mandamus. Parish of Orleans. No. 252-813.

Denied. Relator has been discharged. The application is moot.


text:
    STATE of Louisiana v. Clarence RANDOLPH.
    No. 83-KH-0791.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Clarence Randolph, applying for writ of habeas corpus and prohibition. Parish of Orleans. No. 267-145 B.

Denied. Appeal pending.


text:
    STATE of Louisiana v. Oliver ELIZEY.
    No. 83-KH-0840.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Oliver Elizey, applying for remedial writ. Parish of Orleans, Criminal District Court. Section “J”, No. 279-657.

Denied.


text:
    STATE of Louisiana v. Robert C. PAGE.
    No. 83-KH-0986.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Robert C. Page, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 284-031, Section “I”.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Clarence P. HUBBARD v. STATE of Louisiana, et al.
    No. 83-KH-1006.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Clarence P. Hubbard, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 270-915, Section “F”.

Denied.


text:
    STATE of Louisiana ex rel., Thomas PHILLIPS v. Frank J. SHEA, Judge Criminal District Court, Section G, Parish of Orleans.
    No. 83-KH-1058.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Thomas Phillips, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 264-481.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Kevin J. JOHNSTON v. Honorable Frank J. SHEA, Judge Section “G” Criminal District Court Parish of Orleans New Orleans, Louisiana.
    No. 83-KH-1223.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Kevin J. Johnston, applying for remedial writs. Parish of Orleans. No. 269-603.

Denied. Moot.


text:
    STATE ex rel. Willie L. JACKSON v. STATE of Louisiana.
    No. 83-KH-1230.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Willie L. Jackson, applying for remedial writ. Second Judicial District Court, Parish of Jackson. No. 19471.

Denied. Moot.


text:
    STATE of Louisiana v. Gregory MITCHELL.
    No. 83-KH-1575.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Gregory Mitchell, applying for writ of certiorari and mandamus. Criminal District Court, Parish of Orleans. No. 291-620.

Denied.

DIXON, C.J., would grant the writ.


text:
    STATE of Louisiana v. Bennie C. BREWER.
    No. 83-K-1608.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Bennie C. Brewer, applying for certiorari, or writ of review. Court of Appeal, Third Circuit, Parish of LaSalle. Twenty-Eighth Judicial District Court. No. 23,759. 436 So.2d 631.

Denied.


text:
    Ernest Ray BARNES and Charles R. McFarlin v. William K. WILHITE.
    No. 83-C-1620.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Ernest Ray Barnes and Charles R. McFarlin, applying for certiorari, or writ of review. Court of Appeal, Third Circuit, Parish of Calcasieu. Fourteenth Judicial District Court. No. 79-2822. 434 So.2d 638.

Denied.


text:
    Joyce OSHINSKI v. CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA, United Cabs, Inc., and Elmer’s Fine Foods, Inc.
    No. 83-C-1622.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re American Mutual Liability Insurance Company, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Civil District Court. No. 77-18811. 432 So.2d 929.

Denied.


text:
    Alfred B. CHRISMAN v. Shirley Martin CHRISMAN.
    No. 83-C-1624.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Alfred B. Chrisman, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Civil District Court. No. 76-12107. 432 So.2d 882.

Denied.


text:
    Michael DOOLING, d/b/a Golden Gate Venture v. LOUISIANA CRUDE OIL AND GAS COMPANY, INC. and Jack E. Koch.
    No. 83-C-1625.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Louisiana Crude Oil and Gas Company, Inc. and Jack E. Koch, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Civil District Court. No. 81-2338. 432 So.2d 884.

Denied.


text:
    Jean HUNERJAGER, et al. v. DIXIE ELECTRIC MEMBERSHIP CORPORATION.
    No. 83-C-1628.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Jean Hunerjager, et al, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of East Baton Rouge. Nineteenth Judicial District Court. No. 263076. 434 So.2d 590.

Denied.


text:
    Laney HUNTER, et al. v. Righard JOHNSON, et al.
    No. 83-C-1631.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Richard Johnson and Bessie R. Johnson, third-party (Intervenors), applying for writ of certiorari and review. Third Circuit Court of Appeal. Ninth Judicial District Court, Parish of Rapides. No. 118998. 434 So.2d 646.

Denied.


text:
    Pamela Ann DUVERNAY, Individually and as Tutrix of the Minors Dustin Michael Duvernay and Amber Michelle Duvernay v. The STATE of Louisiana Through the DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE, and the Department of Transportation and Development: Clarence J. Ernest, Jr., State Farm Mutual Automobile Insurance Company; Harold L. Tridico Sheriff of Ascension Parish, and the North River Insurance Company.
    No. 83-C-1641.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Pamela Ann Duvernay, et al, applying for writ of certiorari and review. First Circuit Court of Appeal. Twenty-third Judicial District Court, Parish of Ascension. No. 27812. 433 So.2d 254.

Denied.


text:
    Dorothy Ellen BAGBY v. John Hugh DILLON.
    No. 83-C-1642.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Dorothy Ellen Bagby, applying for writ of review. Third Circuit Court of Appeal. Parish of Lafayette, Fifteenth Judicial District Court. No. 70399-1. 434 So.2d 654.

Denied.

DENNIS and BLANCHE, JJ., would grant the writ.


text:
    Leonard J. GREENE v. Edith Johnson GREENE.
    No. 83-C-1655.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Edith Johnson Greene, applying for writ of certiorari and/or review. Court of Appeal, First Circuit. Family Court. No. 54129. Parish of East Baton Rouge. 433 So.2d 265.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Earnest Felton GRAY.
    No. 83-K-1658.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Earnest Felton Gray, applying for certiorari, or writ of review. Court of Appeal, Third Circuit. Thirty-fifth Judicial District Court, Parish of Grant. No. 40416. 436 So.2d 639.

Denied.


text:
    William L. BOWMAN v. Victor E. COURSEY, Jr., Lake Sherwood Acres, Inc. and V E C Corporation.
    No. 83-C-1659.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   in re Victor E. Coursey, Jr. and V E C Corporation, applying for writ of certiorari or review. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 222818. Div. B. 433 So.2d 251.

Denied.


text:
    Willie R. COTTEN v. UNION TANK CAR COMPANY and Royal Globe Insurance Company.
    No. 83-C-1663.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Union Tank Car Company and Royal Globe Insurance Company, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Nineteenth Judicial District Court. No. 247-129. East Baton Rouge Parish. 434 So.2d 1219.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana In the Interest of Reese RACINE.
    No. 83-CK-1664.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Reese Racine, applying for certiora-ri, or writ of review. Court of Appeal, First Circuit. City Court of Houma, Parish of Terrebonne. No. J-48-82. 433 So.2d 243.

Denied.


text:
    DEER SLAYERS, INC., formerly, Mayer Realty Hunting Club, Inc. v. LOUISIANA MOTEL AND INVESTMENT CORPORATION.
    No. 83-C-1665.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Louisiana Motel and Investment Corporation, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of Pointe Coupee. Eighteenth Judicial District Court. No. 17,410-A. 434 So.2d 1183.

Denied.


text:
    Hayes O. HUFFMAN, et ux. v. HARTFORD CASUALTY INSURANCE COMPANY.
    No. 83-C-1673.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Hartford Casualty Insurance Company, applying for certiorari, or writ of review. Court of Appeal, Third Circuit. Ninth Judicial District Court, Parish of Rapides. No. 118029. 434 So.2d 1296.

Denied.

DENNIS and BLANCHE, JJ., would grant the writ.


text:
    C.R. CLARK, et al. v. STATE of Louisiana et al.
    No. 83-C-1679.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re C.R. Clark, et al, applying for writ of certiorari or writ of review. Court of Appeal, First Circuit. Parish of East Baton Rouge, Nineteenth Judicial District Court. No. 241360. 434 So.2d 1276.

Denied.


text:
    Dr. & Mrs. Santo E. TAORMINA v. Mr. and Mrs. Edmond B. STORY, Jr.
    No. 83-C-1680.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Dr. and Mrs. Santo E. Taormina, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit. Parish of Jefferson, Twenty-fourth Judicial District Court. No. 267598. 435 So.2d 522.

Denied.


author: CIACCIO, Judge.

text:
    STATE of Louisiana v. Stanley CATCHINGS.
    No. KA-0548.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.
    Rehearing Denied Nov. 22, 1983.

      Noland & Boasso, Lawrence J. Boasso, New Orleans, for appellant.
    Harry F. Connick, Dist. Atty., John H. Craft, Asst. Dist. Atty., New Orleans, for the State.
    Before GULOTTA, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

Stanley Catchings was charged, by bill of information, with being a convicted felon in possession of a firearm. R.S. 14:95.1. After a jury trial, the defendant was found guilty as charged and was sentenced to serve nine (9) years and eleven (11) months imprisonment at hard labor; was fined three thousand ($3,000) dollars and, in lieu of payment of this fine, was ordered to serve an additional thirty (30) days in jail. The defendant has appealed his conviction and sentence relying upon six (6) assignments of error.

On May 24, 1982 Officer Jimmy Slack of the New Orleans Police Department was in the vicinity of Conti and Treme Streets in New Orleans when he observed a subject shout from a second story balcony. He watched people running from a courtyard to the side of a truck. He then saw a grey 1974 Dodge Coronet automobile driving off from the far end of Conti Street and proceeding unto Basin Street. Officer Slack radioed for assistance and proceeded to stop the grey vehicle in the 400 block of Basin Street. The vehicle was occupied by the defendant, Stanley Catchings, and a black female companion. The vehicle belonged to Delphia Walker, the mother of a child of the defendant. She had loaned the car to the defendant on the previous day because she was going on a trip and the defendant was to use the vehicle to bring her to the airport.

The defendant was arrested by Officer Slack and charged with attempted murder.

Officer John Laper assisted in the shooting investigation. After receiving an emergency radio broadcast and talking to Officer Slack, Officer Laper went to the 1200 block of Conti Street. There he recovered two spent bullets: one from inside the residence at 1312 Conti Street and one from the sidewalk outside that residence. He also recovered two live rounds of ammunition from the bottom of the steps inside the first floor of the residence. He left the residence and proceeded to the scene of the arrest. Officer Laper was given permission, by the defendant, to search the vehicle. He found a .38 five-shot revolver, containing three live rounds of ammunition, wedged to the top of the dashboard about 6 to 8 inches from the glove compartment. A check of the registration of the gun failed to reveal a registrant. No fingerprints were on the gun. According to Officer Slack two live rounds of ammunition were also recovered from the defendant’s right front pocket.

Assignment of Error No. 1.

Defendant objects and assigns error to the actions of the trial court in restricting voir dire examination by defense counsel.

The defendant first complains that the trial court erred in refusing to allow an inquiry as to whether any of the potential jurors supported gun control legislation.

The purpose of voir dire examination is set forth in the Louisiana Supreme Court decision of State v. Perry, 420 So.2d 139 at 144 (La.,1982):

We have recognized that the purpose of voir dire examination is to determine qualifications of prospective jurors by testing their competency and impartiality. It is designed to discover bas[e]s for challenges for cause and to secure information for an intelligent exercise of peremptory challenges.

The Louisiana Constitution guarantees the accused the right to full voir dire examination of prospective jurors. La. Const. Art. 1 § 17. The scope of voir dire examination, however, is within the sound discretion of the trial judge and such rulings will not be disturbed absent an abuse of discretion. C.Cr.P. Art 786. State v. Perry, supra.

The defense counsel asked whether any juror was actively involved in legislation for gun control or were proponents for gun control legislation. The court sustained the State’s objection to this inquiry. The court stated:

“Objection sustained. That has nothing to do with this charge at all.
Ask them if they’ve got prejudice against people who carry guns. That’s all. Don’t go into something like this.”

Therefore, it is clear that the trial judge evaluated the defense’s inquiry and found it to be irrelevant. We find no abuse of discretion in this ruling. Furthermore, no prejudice could have resulted from this ruling because the trial judge afforded the defense counsel the opportunity to make a relevant inquiry on the subject and he even suggested the proper form of the question. Defense counsel did not avail himself of the opportunity afforded him to make a relevant inquiry. For these reasons we find that the trial court did not err in this ruling.

The defendant next complains that the trial court erred when it denied defense counsel the right to traverse a juror challenged by the State for cause.

The State questioned whether any potential juror, because of a problem with any member of the New Orleans Police Department, felt that he could not be fair and impartial in judging a police officer’s testimony. One juror related a recent bad encounter with a member of the local police department. This juror was asked whether he would equate that police officer with all police officers and he responded that he would. The State challenged the juror for cause and the court accepted the challenge. The defense stated that it would like a chance to traverse and the court responded by saying that it was not necessary and added “If you think you could rehabilitate a juror like that”: The defendant excepted to the court’s ruling.

The State or defendant may challenge a juror for cause on the grounds, that the juror is not impartial, whatever the cause of his partiality. C.Cr.P. Art. 797(2). “When a defense attorney is precluded from voir dire examination of a prospective juror which may have demonstrated the juror’s ability to render an impartial verdict, the granting of a prosecution challenge for cause by the trial court deprives an accused of his right to full voir dire examination.” State v. Claiborne, 397 So.2d 486 at 487. (La.,1981).

In this case the trial judge was satisfied that the potential juror was not impartial. The juror gave no indication that he may have been rehabilitated as he responded unequivocally that he would equate all police officers with the one involved in his bad experience. Accordingly, we find no abuse of discretion by the trial court’s ruling.

Moreover, it is worthy of note that even if the allowance of the State’s challenge for cause had been erroneous, the defendant would have no grounds for complaint in this case as the State had exercised a total of only six peremptory challenges throughout the trial. C.Cr.P. Art. 800. State v. Edwards, 406 So.2d 1331 (La.,1981).

Assignment of Error No. 1 lacks merit. Assignments of Error Nos. 2 and 8.

The defendant, by these assignments of error, complains that irrelevant and prejudicial evidence of “other crimes” was admitted at the trial of this case, without prior notice of the State’s intention to use such evidence. He further alleges that the trial court erred in refusing to grant a mistrial due to the erroneous introduction of this evidence.

The defendant avers that under R.S. 14:95.1 the State needed to prove only that the defendant was in possession of a firearm and that he had been convicted of one of the enumerated felonies listed in the statute. See: State v. Mose, 412 So.2d 584 (La.,1982). Accordingly, he reasoned that the introduction of evidence of other crimes was irrelevant.

The trial judge has wide discretion in controlling the scope and extent of questioning and his ruling will not be disturbed absent a clear abuse of discretion. State v. Marcal, 388 So.2d 656 (La.,1980) cert. den. 451 U.S. 977, 101 S.Ct. 2300, 68 L.Ed.2d 834, reh. den. 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984. Res gestae is always admissible in evidence. R.S. 15:447. State v. Brown, 395 So.2d 1301 (La.,1981). The res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants and not the words of the participants when narrating the events. R.S. 15:447. In order to constitute res gestae the utterance or circumstances must be a necessary incident of the criminal act or an immediate concomitant of it, or form in conjunction with the act one continuous transaction. R.S. 15:448. State v. Drew, 360 So.2d 500 (La.,1978), cert. den. 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25. This close connexity in time and location is essential because no notice is required by the State that it intends to introduce evidence which forms part of the res gestae. State v. Haarala, 398 So.2d 1093 (La.,1981).

The investigation of the shooting incident and the determination that the subject gun had been fired were events which formed part of a continuous transaction involving the defendant’s possession of the firearm. Therefore, the testimony of Officers Slack and Laper, on this subject was relevant and clearly admissible as part of the res gestae. No notice was required by the State regarding the intent to use this evidence and the trial court correctly denied defendant’s motion for a mistrial grounded upon these allegations.

These assignments of error lack merit. Assignment of Error No. 4.

Defendant contends that the trial court erred in refusing to allow counsel to traverse the police officer’s qualifications as a weapon’s and ammunition’s expert. He further alleges that the court erred in qualifying Officer Laper as an expert.

The trial judge is vested with wide discretion in determining the competence of an expert witness. State v. Boyer, 406 So.2d 143 (La.,1981). To warrant use of expert testimony the subject of the inquiry must be so distinctly related to some science, profession, business or occupation as to be beyond the understanding of the average layman and the witness must have sufficient skill, knowledge or experience in that field to make it appear that his opinion or inference will probably aid the trier of fact in his search for truth. R.S. 15:464. State v. Wheeler, 416 So.2d 78 (La.,1982). Experience, as well as special training, can qualify an individual as an expert witness. 15:464. See: State v. Short, 368 So.2d 1078 (La.,1979), cert. den., 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113. However, the fact that a witness called as an expert is not competent to give expert testimony does not affect his competency to testify as to matters not requiring expert knowledge. R.S. 15:467. Where there is a challenge to the expert qualifications of a particular witness, cross-examination on the issue of competency should be afforded before the testimony on the subject matter is received. See: State v. McCall, 162 La. 471, 110 So. 723 (La.,1926).

The court asked the witness how long he had been a policeman and he replied 23 years. The court then responded “He’s an expert”. When the defendant requested a right to traverse the witness’ qualifications, the court said that this could be done at the time of the cross-examination. The defendant requested a mistrial which was not ruled upon. The defendant next objected to the testimony of the witness concerning the effects of teflon coated ammunition and its reputation on the market. The objection was overruled. During cross-examination of this witness, the defendant discovered that the witness had attended numerous seminars and schools, homicide seminars and schools dealing with violent crimes. In addition, the witness stated that he specialized, for many years, in sex crimes and homicide investigations which entail the study of ballistics, and the result and trauma caused by missiles. However, he admitted that he was not a law enforcement expert and he had not previously been qualified to testify as a ballistics expert. The State had not offered this witness as an expert and it is questionable as to whether an expert was needed to testify that he observed teflon coated ammunition, that this ammunition could penetrate a bulletproof vest, and that it was the most dangerous ammunition on the market today. However, since this witness had experience and special training in the field of ammunition, the trial court did not abuse its discretion in qualifying him as an expert. The trial court did err in instructing the defense to wait until cross-examination in order to traverse the witness concerning his expertise. The error, however, was harmless as the witness had sufficient training and experience to qualify as an expert (as was more fully revealed by the defendant’s cross-examination). For these reasons, this assignment lacks merit.

Assignment of Error No. 5.

The defendant contends, by this assignment of error, that the district court imposed an unconstitutionally excessive sentence.

The conviction of the crime of being a convicted felon in possession of a firearm carries a sentence of imprisonment at hard labor for not less than three nor more than ten years without the benefit of probation, parole, or suspension of sentence and a fine of not less than one thousand dollars nor more than five thousand dollars. R.S. 14:95.1(B). In this case the trial judge ordered the defendant to serve nine years and eleven months in prison at hard labor and to pay a fine of three thousand dollars or serve an additional thirty days in jail.

The imposition of a sentence within statutory limit may violate a defendant’s constitutional rights against excessive punishment. La. Const. Art. 1 § 20. State v. Sepulvado, 367 So.2d 762 (La.,1979). The courts must attempt to particularize the sentence to the offender. State v. Kersey, 406 So.2d 555 (La.,1981). Therefore, the trial judge is required to state for the record the considerations taken into account in imposing a particular sentence. State v. Simms, 410 So.2d 1040 (La.,1982). He should consider circumstances militating for incarceration and those mitigating against it. State v. Franks, 373 So.2d 1307 (La.,1979), cert. den. 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818.

In this case the court found that the defendant was a violent recidivist and he did not intend to rehabilitate. There is, however, no indication that the court considered any mitigating factors in order to particularize this sentence to the offender.

Since we are unable to review the exces-siveness of the defendant’s sentence because it was imposed without full adherence to the statutory guidelines for sentencing, we must set the sentence aside and remand for resentencing.

Assignment of Error No. 6.

In his sixth assignment of error the defendant contends that the evidence adduced at trial was insufficient to support a finding of guilt.

Under the United State’s Supreme Court decision of Jackson v. Virginia, a conviction cannot stand unless the evidence viewed in the light most favorable to the prosecution would convince any rational trier of fact that the State proved the essential elements of the crime beyond a reasonable doubt. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1981).

In this case the accused was charged with being a convicted felon in possession of a firearm. R.S. 14:95.1. The essential elements of the crime are set forth in R.S. 14:95.1(A) which provides:

95.1. Possession of firearm or carrying concealed weapon by a person convicted of certain felonies
A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, burglary of a pharmacy, burglary of an inhabited dwelling, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon.

It is noteworthy that constructive possession will satisfy the element of “possession.” State v. Mose, supra.

The State proved that the accused was a convicted felon by introducing, without opposition, the certified bill of information and minute entry of the defendant’s conviction for simple robbery in 1975 (Doc. No. 240-271 B). The State also introduced into evidence a .38 caliber revolver which was seized from the car which the defendant had occupied at the time of his arrest. The balance of the evidence revealed that the defendant was stopped because he was suspected of committing attempted murder. He was in the automobile owned by a friend, Delphia Walker. Ms. Walker testified that she lent the car only to the defendant and she did not put a gun in the car. She further testified that she had not seen this gun before and she did not own a weapon.

Officer Laper testified that he recovered two spent pellets and two live rounds of ammunition from the Conti Street residence. He also testified that he seized the gun from the car occupied by the defendant and at that time the gun contained two spent casings and three rounds of ammunition. Officer Laper also testified that the spent pellets were the same sort of pellets as were in the live rounds of ammunition.

Officer Slack testified that he recovered two live rounds of ammunition from inside the defendant’s right front pocket.

The totality of the evidence when viewed in the light most favorable to the prosecution satisfies this Court that any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt.

For these reasons, Assignment of Error No. 6 has no merit.

For the reasons herein assigned the defendant’s conviction is affirmed. The sentence is vacated and the case is remanded to the district court for resentencing, with a full statement of reasons for the particular sentence imposed.

CONVICTION AFFIRMED. SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.


author: PER CURIAM:

text:
    Joseph A. HARRISON, Jr. v. Lionel DELISE.
    No. 83 CE 0940.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 19, 1983.
    Timothy J. Barbier, Napoleonville, for plaintiff, appellant.
    Risley C. Triche, Triche, Sternfels & Nail, Napoleonville, for defendant, appellee.
    Before LOTTINGER, WATKINS, SHOR-TESS, LANIER and CRAIN, JJ.
   PER CURIAM:

After a thorough study, review and evaluation of this entire record, we are convinced that for the facts as found by the trial judge and the reasons assigned in his written reasons, a copy of which is attached hereto, the trial judge was correct, and we affirm at appellant’s costs.

AFFIRMED.

REASONS FOR JUDGMENT

Suit was timely filed on August 8, 1983 by plaintiff Joseph A. Harrison, Jr. under the provisions of R.S. 18:491 and R.S. 18:1401 et seq. to challenge the right of the defendant Lionel Delise to seek election as police juror for Ward Four in Assumption Parish.

In his petition the plaintiff alleged that the defendant qualified on July 29, 1983 and the record reflects that on that date defendant did in fact sign the qualifying form before a notary public of that parish. The plaintiff contends that the defendant does not meet the qualifications for the office he seeks as set forth in Article 3, Section 4 of the Constitution of this State adopted in 1974, in that the defendant is domiciled and had been domiciled in Ward 2 of the Parish of Assumption for the past year.

The defendant was duly served and the matter was scheduled for trial for 10:00 a.m. August 12,1983 as required under R.S. 18:1409.

On August 11,1983 at the request of both plaintiff and defendant court was convened for the purpose of permitting the defendant to file “Exceptions”. On that date the defendant filed a pleading entitled “Exception”. Attached to this pleading were certified copies of reapportion ordinances and plats reapportioning the Police Jury wards of Assumption Parish. According to these exhibits, Ward 4, for which the defendant has qualified for Police Juror, was (by resolution duly adopted and approved by the U.S. Department of Justice July 11, 1983) created in whole or in part out of former Wards 2, 3 and 4 and new Ward 4 included portions of former Ward 5 and 9. The defendant took the position that taking the plaintiffs allegations as alleged to be true, the defendant being alleged to be domiciled in present Ward 2 is entitled to qualify for the election of office of Police Juror for present Ward 4 under the provisions of Article 3 Section 4(B) of the Louisiana Constitution of 1974.

The plaintiff, at this so-called “exception” hearing introduced into evidence the certified copy of the “Notice of Candidacy” form which showed that the defendant gave his address of domicile as Rt. 2, Box 332-A, Napoleonville, Louisiana, and which further stated he was an elector of Ward 4 and that he was holding himself out as qualifying for the office of Police Juror as a domiciliary of that Ward, i.e., Ward 4. The plaintiff contended that the defendant, not having indicated that he was qualifying under Article 3, Section 4(B), would be precluded from introducing evidence to prove his right to qualify under Article 3, Section 4(A) of the Constitution above referred to.

The court took the so-called “exceptions” under advisement and on the morning of the trial referred the exceptions to the merits, giving each side the opportunity to reintroduce the evidence tendered at the “exception” hearing. The defendant thereupon filed an answer wherein he contended he was domiciled in Ward 4, Precinct 2 as presently constituted and alternatively pleaded his right to run for the office of Police Juror if he were found to be in fact domiciled in Ward 2 as presently constituted under the provisions of Article 3, Section 4(B) of the Louisiana Constitution of 1974.

Article 3, Section 4(A) provides:

“An elector who at the time of qualification as a candidate has attained the age of eighteen years, resided in the state for the preceding two years, and been actually domiciled for the preceding year in the legislative district from which he seeks election is eligible for membership in the legislature.”

Article 3, Section 4(B) provides:

“However, at the next regular election for members of the legislature following legislative reapportionment, an elector may qualify as a candidate from any district created in whole or in part from a district existing prior to reapportionment if he was domiciled in that prior district for at least one year immediately preceding his qualification and was a resident of the state for the two years preceding his qualification. The seat of any member who changes his domicile from the district he represents or, if elected after reapportionment, whose domicile is not within the district he represents at the time he is sworn into office, shall be vacated thereby, any declaration of retention of domicile to the contrary notwithstanding.”

Section 4(b) of Article 3 has been held to be applicable to candidates for police jury elections. Toldson v. Fair, 374 So.2d 759 (La.App.2d Cir.1979) writ refused 375 So.2d 1182 (La.1979); McCarter v. Broom, 377 So.2d 383 (La.App. 1st Cir.1979).

At the trial the parties introduced by joint stipulation a map of Assumption Parish showing the wards as they existed prior to the reapportionment ordinance adopted in 1983 and showing the wards as they existed thereafter. This joint exhibit also showed the portions of the then existing wards incorporated into the newly created wards. The evidence clearly demonstrated that the defendant in this case had two residences, one in the physical boundaries of newly created Ward 4 and one in what is now newly created Ward 2 and of which was part of a ward of which present Ward 4 was created.

Evidence was introduced by way of testimony and documentary evidence concerning which of the two residences was the actual domicile of the defendant.

The defendant Lionel Delise from the date of his marriage in or about 1953 established his original home and/or domicile of origin in that part of the Parish of Assumption known as the Little Texas area, which area is admitted to have been included in old Ward 4 as well as new Ward 4. The defendant was first elected as Police Juror for that Ward in 1974 and again thereafter in 1978. In 1978, the defendant commenced construction of a house in Labadieville, an area admittedly outside of the geographic boundaries of old Ward 4 while he was serving as Police Juror for Ward 4. This house was eventually completed and the defendant, his wife and daughter established an additional residence there. From that date the defendant continued to maintain the two residences and did much in the way of acts obviously intended to retain his residence in Little Texas, the sufficiency of which need not be passed upon as will be hereinafter shown. The acts did however evidence the obvious intent of the defendant and probably convinced him that having done what he did he was still domiciled there for political purposes. While there was considerable testimony to possibly support a conclusion by this court that the defendant was in fact domiciled in Ward 2 and outside of the area he was serving (which conclusion the court does not feel compelled to reach a resolution of that issue under the facts of this case).

As this court understands the law, as enunciated by our appellate courts, a liberal construction which encourages participation in the election process is favored. As stated by Justice Tate of the Louisiana Supreme Court in Roe v. Picou, 361 So.2d 874, 878 (La.1978).

“In similarly rejecting technical objections to the sufficiency of a notice of candidacy, we stated long ago that the election laws do not ‘indicate that it was the purpose of the law makers to obstruct with mere technical difficulties, the exercise of the right, which every citizen has, to seek the approval of his political associates, or of the public at large. To the contrary, the whole spirit of the legislation is to encourage the multiplication of worthy candidates for nominations to public office, in order that the body of voters constituting a political party, or constituting the electorate at large, may have the benefit of a choice, and not be ' compelled to accept candidates chosen by the minority or thrust upon them in some other way.’ Langridge v. Dauenhauer, 120 La. 450, 452-53, 45 So. 387, 388 (1908).”

Article 3, Section 4(A) and 4(B) provide two constitutional rights to a candidate to seek the office of Police Juror. To accept the plaintiffs argument that if he elects to attempt to qualify as a domiciliary of a certain ward and is found wanting that this precludes his right to qualify under an alternative provision would do violence to the liberal interpretation concept. It must be remembered that Section 4(B) only comes into play for the first election after reapportionment takes place. The evidence clearly demonstrates that this defendant was domiciled at one of two locations, clearly entitling him substantively to run for the office of Police Juror of Ward 4 under either Section 4(A) or 4(B). The plaintiff does not dispute the defendant’s substantive rights under those two constitutional provisions.

What the plaintiff strongly contends is that R.S. 18:463 proeedurally, must be strictly followed.

R.S. 18:463 provides as follows:

“A notice of candidacy shall be in writing and shall state the candidate’s name; the office he seeks; the address of his domicile; the parish, ward, and precinct where he is registered to vote, and the political party, if any, with which he is registered as being affiliated. The candidate shall designate in the notice the form in which his name shall be printed on the ballot. The candidate may designate his given, first, and middle name, the initials of his given, first, and middle name, a nickname, or any combination thereof as the form in which his name shall be printed on the ballot, but he shall not designate a deceptive name. If the candidate designates a nickname in place of or in combination with his given name or the initials thereof, the nickname shall be set off with quotation marks. A candidate shall include his surname in his designation of the form in which his name shall be printed on the ballot. The notice of candidacy also shall include a certificate, signed by the candidate, certifying that he has read the notice of his candidacy, that he acknowledges that he is subject to the provisions of the Louisiana Election Campaign Finance Disclosure Act (R.S. 18:1481 through R.S. 81:1493, if he is a candidate for any office other than United States Senator, Representative in Congress, or member of a committee of a political party, and that all of the statements contained in it are true and correct. The certificate shall be executed before a notary public or shall be witnesses by two persons who are registered to vote on the office the candidate seeks. If the candidate is serving outside the state with the armed forces of the United States, his notice of candidacy shall be witnessed by a commissioned officer in the armed forces of the United States. Each notice of candidacy shall be executed in duplicate original. One duplicate original shall be filed as provided in this Subpart and one shall be transmitted to the Election Campaign Finance Com-, mittee.
On the forms for Notice of Candidacy which are prepared, printed, and distributed by the secretary of state, a notice shall be printed below the signature line which shall inform the candidate that copies of the forms and pamphlets of explanation and instruction which are distributed by the Election Campaign Finance Committee are available from the clerk of court or the committee.”

The difficulty with that position is that R.S. 18:463 addresses qualifying under Section 4(A) of Article 3 of our Constitution only. In addition the “Notice of Candidacy” form supplied by the Secretary of State introduced in evidence does not appear to be structured in a manner as to permit a candidate to qualify under Section 4(B) without substantially modifying the form. This is understandable inasmuch as the opportunity for so qualifying occurs only rarely. This court acknowledges that a citizen may in fact waive, lose or forfeit a substantive right by failing to comply with proper procedure.

Able counsel for the plaintiff relies heavily on Roe v. Picou, a case involving a candidate who qualified for the position of police juror in a ward, the number of which had been changed during or so close to qualifying time that the candidate, along with his opponent was shown to have been confused as a result of litigation. Although our Supreme Court held in that case that the defendant would not be precluded from the opportunity to run for purely technical reasons, and permitted the candidate to run notwithstanding the fact that he indicated on his “Notice of Candidacy” form he was running in a ward in which he was not actually qualified, counsel advances that case to support the proposition that the defendant Delise, was an incumbent when the parish was reapportioned in 1983 and knew the facts and designation of the wards and can not be heard to use lack of knowledge as an excuse.

The court accepts the Roe v. Picou decision as support for the proposition that where a candidate is in fact qualified to seek a particular office and clearly indicate the office he seeks, and he and his opponents are clearly aware of his interest to qualify technical errors on the “Notice of Candidacy” form will not disqualify him. See also Rousseau v. Democratic Executive Committee, 164 So. 175 (La.App. 1st Cir.1935).

Using the plaintiff’s logic could produce an absurd situation in a case such as this. Let us assume that the defendant had indeed shown his domicile on his “Notice of Candidacy” as being in newly created Ward 2 and had indicated he was qualifying to run under the provisions of Section 4(B) for the position of Police Juror of Ward 4. Let us further assume that the plaintiff did successfully challenge his alleged new domicile in Ward 2 and did successfully establish that the defendant’s domicile was his old one in Ward 4, would the defendant found to be domiciled in Ward 4, running in Ward 4 be disqualified because he had indicated he was attempting to qualify under Section 4(B) instead of 4(A)? This court does not believe so.

The Constitution adopted by the people of this state has admittedly changed the law concerning the residence and/or domiciliary requirements of elected officials. The law seeks to discourage and to prohibit absentee representation. We now require those elected officials representing certain geographic areas to be actually domiciled in the area they serve. There will be time enough to challenge this defendant under Section 4(B) of Article 3 of the Louisiana Constitution if he is in fact elected. If he is not elected, then the issue of his domicile will become moot.

The Court therefore being of the opinion that the defendant, Lionel Delise, being entitled under Section 4(B) of the Louisiana Constitution of 1974 to run for the office of Police Juror of Ward 4 and being of the further opinion that his failure to technically indicate the precise manner or theory under which he was seeking to run was nonconfusing and was therefore insufficient to disqualify him, dismisses the challenge of the plaintiff, Joseph A. Harrison, Jr. to disqualify him, at his cost.

Convent, Louisiana, this 15th day of August, 1983.

s/Charles S. Becnel JUDGE