259 La. 94

#### STATE of Louisiana v. Olen Perry SIMPSON.

No. 50591.

Supreme Court of Louisiana.

Jan. 18, 1971.

On Rehearing June 7, 1971.

Burnett & Harrison, James A. Burnett, Shreveport, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Harry H. Howard, Asst. Attys. Gen., John A. Richardson, Dist. Atty., Fred C. Sexton, Jr., Asst. Dist. Atty., for plaintiff-appellee.

McCALEB, Chief Justice.

Appellant was charged, tried and convicted of selling narcotic drugs (marijuana) in violation of R.S. 40:962 and sentenced to ten years at hard labor in the State Penitentiary. On his appeal, he relies on two bills of exceptions reserved at the trial for a reversal of his conviction.

Bill No. 1 was taken when the judge sustained the State’s objection to defense counsel’s attempt to inform the prospective jurors on voir dire examination that conviction of the crime charged carried with it an automatic minimum sentence without benefit of parole, probation or suspension.

The bill is without merit. The sentence of the defendant, save in capital cas*537es, is a matter which addresses itself to the court. The function of the jury is to determine the guilt or innocence of the accused. See State v. Green, 244 La. 80, 150 So.2d 571 (1963); and State v. Andrus, 250 La. 765, 199 So.2d 867 (1967).

Bill No. 2 was reserved when the trial judge refused to sequester the witnesses upon request of defense counsel on the ground that it came too late as the case “was half over” at the time counsel sought to have the witnesses excluded from the courtroom.

The hill is well founded. Article 764 of our Code of Criminal Procedure requires that the court order the witnesses sequestered upon request of the State or the accused. It provides in part:

> “Upon its own motion the court may, and upon request of the state or the defendant the court *shall,*order that the witnesses be excluded from the courtroom * * * and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court *may modify its order in the interest of justice.”*(Emphasis ours)

Albeit the official comment states “(a) This article is a stylistic revision of a part of former R.S. 15:371”, it is manifest from a reading of Article 371 of the 1928 Code of Criminal Procedure that such is not the case. For, under Article 371, an order for the sequestration of witnesses rested solely within the discretion of the trial judge, it providing that “The judge may, at any stage of the trial, order the sequestration of the witnesses.” However, under Article 764 of our present Code, the judge has no discretion in the matter when request is made either by the State or the defendant. He must grant the order which he is entitled to modify at the time it is granted or thereafter “in the interest of justice.”

The reason advanced by the trial judge for refusing the order in the case at bar cannot be maintained. Article 764 states upon the request of the State or defendant the court shall order that the witnesses be excluded from the courtroom. It does not indicate that the request must be made at the outset of the trial. Indeed, under R.S. 15 :371 which Article 764 revises, it is provided that the judge may grant the order of sequestration at any stage of the proceedings. Since Article 764 does not specify that the request must be made at any specific time during the course of the trial, this Court is without authority to say that it must be made before a certain number of witnesses have been heard. Accordingly, it suffices that the request be made at any time during the taking of the evidence.

We note that during oral argument it was suggested that the error may be regarded as harmless, since no showing has been made that appellant was materially prejudiced thereby.

We hold that it is to be presumed that appellant was prejudiced and find that Article 921 C.Cr.P. is inapplicable here because the refusal of the judge to grant appellant’s request constituted a substantial violation of his statutory right for such an order.

The conviction and sentence are annulled and the case is remanded to the district court for a new trial.

BARHAM, J., concurs in the result under both bills of exception.

SANDERS, Justice

(dissenting).

The majority holds that the trial judge committed reversible error in overruling defendant’s motion to sequester witnesses after about half the evidence had been heard.

*538Article 764 of the Louisiana Code of Criminal Procedure provides:

> “Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court modify its order in the interest of justice.”

Article 764 appears in the General Provisions Chapter of the title on Trial Procedure. It provides for an exclusion of witnesses from where they can see or hear the *proceedings*and a prohibition against discussing the testimony of *any witness*with anyone other than the district attorney or defense counsel. The purpose of the Article is to prevent the witnesses from being influenced by the testimony of others and to strengthen the role of cross-examination in searching for the truth. See State v. Lewis, 250 La. 876, 199 So.2d 907.

From the language of the Article, as well as its purpose, it is obvious that the request is to be made and acted upon before the first witness is called to testify. Otherwise, the defense counsel or district attorney would be allowed to fragmentize the sequestration and choose the testimony to be kept from the witnesses. Hence, in my opinion, the trial judge committed no error in overruling the defense motion for sequestration.

Assuming, however, that I am wrong in my analysis and that the trial judge did commit error in refusing to sequester the witnesses after half the evidence had been heard, Article 921 of the Louisiana Code of Criminal Procedure must be applied to determine whether the error warrants a reversal of the conviction. That article provides :

> “A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”

Article 921 is a restatement of LSA-R.S. 15:557 of the former Code of Criminal Procedure of 1928. LSA-R.S. 15:557 was designed to abolish the so-called Exchequer Rule of presumed prejudice and to substitute in its place reasonable standards to determine whether an error is reversible. Hebert, The Problem of Reversible Error in Louisiana, 6 Tul.L.R. 169, 170-171, 199— 200. The language of Article 921 leaves no room for a presumption of prejudice. Hence, the majority erroneously holds that a presumption of prejudice arises from the trial judge’s ruling.

To determine whether the error is reversible, it must be tested under the code article. The pertinent provision is the one that allows a reversal for a substantial violation of a statutory right.

The record discloses that the State had only two witnesses to the actual sale of marijuana, a police detective and an undercover agent. At the time the motion for sequestration was made, the police detective had already given his testimony on direct examination and his cross-examination was well under way. He had testified at length concerning all aspects of the crime in the presence of the undercover agent. No useful purpose could have been served by having the undercover agent withdraw from the courtroom at this stage. Stated differently, his continued presence in the courtroom, after he had already heard the main testimony, caused no prejudice to the defense.

In my opinion, if a statutory violation occurred, it was insubstantial and furnishes no ground for reversing the conviction.

For the reasons assigned, I respectfully dissent.

*539SUMMERS, Justice

(dissenting).

The language of Article 764 of the Code of Criminal Procedure which permits the court to “modify its order in the interest of justice” when witnesses are excluded from the courtroom is intended, in my view, to permit a departure from the article’s mandatory requirements in this fact situation.

It would be patently unjust and contrary to fundamental principles of fair play and common sense to permit the defense to wait until all of the State’s witnesses had testified, and the defense witnesses in court had heard that testimony, and to then move for the exclusion of all witnesses— thereby denying the State’s witnesses the opportunity to hear the defense witnesses testify. By this tactic the defense witnesses would have the distinct advantage, in refuting the State’s witnesses, of having heard them testify; whereas, the State’s witnesses would labor under a distinct disadvantage in refuting the defense witnesses, not having heard them testify.

I respectfully dissent.

ON REHEARING

DIXON, Justice.

The State applied for rehearing, urging that the error, if any, in refusing sequestration of witnesses was harmless. We granted rehearing.1

Louisiana Code of Criminal Procedure article 764 provides that:

> “Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.”

Louisiana Code of Criminal Procedure article S provides: “The word ‘shall’ is mandatory, and the word ‘may’ is permissive.” While article 764 provides that the court may modify its order in the interest of justice, the issuance of the order in the first instance is mandatory. Before the court may modify its order, there first must be an order to modify. And even then, that order may be modified only in the interest of justice. Here the reason given by the trial judge for refusing the request to sequester was that the request came too late.

The State cites State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970). That case is in-apposite here because the violation of the statutory right there involved was found not to have been substantial in light of the fact that defense counsel was given actual notice and a copy of the inculpatory statement. The court stated, at 237 So.2d 871, 881:

> “The article is statutory law. However, when it is not followed to the letter, as happened in this case, this Court will examine the entire record and determine whether the defendant was prejudiced by the non-compliance, and whether he suffered a substantial violation of his statutory rights.”

We could not examine the entire record in the instant case to determine whether the error is harmless. The transcript of testimony is not included in the record as made up (except for that part surrounding the reservation of the bill). Since a statutory right accorded the defendant was clearly violated, we cannot presume that the defendant was not prejudiced.

In its application for rehearing, the State refers to problems of “gamesmanship” that might arise should selective requests for *540sequestration of witnesses be made after testimony has begun. Simple foresight in demanding the sequestration of witnesses before trial will prevent any advantage, fancied or real, from accruing to either party.

For the reasons assigned, the former judgment of this court, annulling the conviction and sentence and remanding the case to the district court for a new trial, is reinstated and made the final judgment of this court.

SANDERS, J., dissents, adhering to his dissent on original hearing.

SUMMERS, J., dissents for the reasons assigned to the original opinion.

BARHAM, J., dissents.

1

. In making final disposition of this case on rehearing, we need not consider defendant’s Bill of Exception Number 1 concerning the refusal of the trial judge to permit counsel to inform prospective jurors of the possible penalties attendant upon conviction.