# State v. Dotson

> Supreme Court of Louisiana · December 13, 1971 · 260 La. 471

URL: https://www.frixlaw.com/law-library/cases/9534551

## Case

- **Full name:** STATE of Louisiana v. Dan E. DOTSON
- **Court:** Supreme Court of Louisiana
- **Decided:** December 13, 1971
- **Citations:** 260 La. 471; 256 So. 2d 594; 1971 La. LEXIS 3909
- **Precedential status:** Published
- **Opinion:** On rehearing by Sanders
- **Judges:** Hamlin, Barham, Sanders, Summers, Tate, Dixon
- **Cited by:** 172 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9534551

## How later opinions describe it (automated extraction)

- recognizing that defendant’s allegation that CI helped to frame him by placing marijuana into his coat was possible ground for ordering disclosure of CI, but holding that trial court had properly concluded that defendant had insufficiently supported theory

## Opinion text

ON REHEARING
SANDERS, Justice.
We granted a rehearing in this criminal prosecution because of the State’s forceful allegations that our decision was erroneous and, as grounded, would seriously hamper law enforcement. On rehearing, the district attorneys throughout the State joined in a scholarly brief seeking modification of the holding that requires disclosure of the identity of the confidential informant.
The facts may be briefly summarized. On November 22, 1969, Lt. O. G. Bolton of the Bossier City Police Department received a telephone call from a confidential informant, known to be reliable, that the occupants of a green automobile traveling from Shreveport to Bossier City possessed narcotics.
Lt. Bolton proceeded to the ShreveportBarksdale Bridge, on the travel route, and called for additional police vehicles. When the automobile crossed the bridge, Lt. Bolton and other officers stopped the car and *501 arrested Dan E. Dotson, the defendant, and the driver for the possession of narcotics.
Lt. Bolton took Dotson and the driver to the Bossier City Police Headquarters. Another officer brought the automobile to the headquarters.
With the consent of the driver, the police searched the automobile but found no narcotics. The driver, however, was booked with having a defective muffler on his vehicle.
Lt. Bolton asked Dotson whether he would consent to a search of his person. The defendant, however, refused to give his consent. The officers then secured a search warrant from the judge of the City Court of Bossier City. Lt. Bolton then searched the clothing of defendant and seized a matchbox allegedly containing marijuana.
On original hearing, we upheld the trial court’s ruling rejecting the motion to suppress the evidence taken from defendant’s person. We reaffirm that ruling.
We reversed the conviction on the following grounds:
1. Failure of the court to require Lt. Bolton, the arresting officer, to disclose the name of the confidential informant. (Bill of Exceptions No. 2).
2. The erroneous admission into evidence of the matchbox and the substances contained in it. (Bill of Exceptions No. 3).
3. The admission in evidence of Lt. Bolton’s testimony “that he had arrested defendant for possession of marijuana on a previous occasion.” (Bill of Exceptions No. 4).
4. Communication of a juror with the State’s witness Lt. Bolton as they sat at the same restaurant table for lunch. (Bill of Exceptions No. 5).
The legal questions surrounding each of these holdings are complicated and difficult. In order to give these questions adequate treatment, we reconsider the bills of exceptions seriatim.
BILL OF EXCEPTIONS NO. 2:
Disclosure of the Identity of the Confidential Informant.
At the trial, the State called Lt. O. G. Bolton of the Bossier City Police Department as its first witness. He testified to the receipt of the telephone call from the confidential informant, the arrest of defendant Dotson, and the seizure of the matchbox containing marijuana from his trousers pocket.
During the early stages of cross-examination, defense counsel asked the law enforcement officer the name of the confidential informant. When the officer withheld the name, defense counsel requested the court *503 to instruct the witness to answer the question, stating in part:
“The defendant will allege that the stuff that was found on him, marijuana, was planted there by the informant. And as a direct part of his defense, it will be necessary to place this informer on the stand and attack his credibility and attack whether or not he did, in fact, plant the stuff on him. I think this is an exception to the disclosure rule.”
The trial judge declined to order the disclosure of the informant’s name. The defendant reserved a bill of exceptions, and the trial proceeded. The State completed its case. The defense began the introduction of its evidence. It called as witnesses Luther Dotson, defendant’s father; the defendant; Lamar Graham, the driver of the vehicle; and Phil Sage, a friend of the defendant. The gist of defendant’s testimony was that the officers took the marijuana from his coat pocket, rather than his pants pocket .as they had testified, that he had never seen the matchbox before, and that he did not know where the box came from.
Near the end of the defense testimon}', defendant called Lt. Bolton as his own witness. Once again, he asked for the name of the confidential informant. The District Attorney objected. At this time, defense counsel. made the’' following argument to the court: ...
“If it please the court Your Honor, I originally asked for the" inf ormers name. At that time the court may have had reason to enforce the rule that you do not disclose the informers name. However, we have presented a defense in which we have alleged that this match box was not on Danny Dotson intentionally. That he did not know how it got there. And there is really only two possibilities. Either Lt. Bolton put it in his pocket and he drew it out or the informer put it in his pocket and called Lt. Bolton up on the telephone and told him he had it. Therefore, I think it is directly related to the defense in this case.”
The District Attorney replied:
“If the court please, I must respectfully contradict counsel’s assertion, that there has been any evidence from the mouth of any witness even indicating that an informant placed anything upon the person of this man. If the .court will recall, in the defendant’s own testimony, was that he had no idea where it came from. That he was with certain people. But that he had no idea where the material came from.”
The court sustained the objection and again refused to order the disclosure of-the informant’s name. The defendant again reserved a till of exceptions. Apparently, this bill has been combined with the first in formal Bill of Exceptions No. 2.
The informer privilege is the jirivilege of withholding the identity of an *505 informant who supplies information to law enforcement officials concerning crime. The privilege is founded upon public policy and seeks to advance the public interest in effective law enforcement. Roviaro v. United States, 353 U.S. 53 , 77 S.Ct. 623 , 1 L.Ed.2d 639 (1957); Scher v. United States, 305 U.S. 251 , 59 S.Ct. 174 , 83 L.Ed. 151 (1938); 21 Am.Jur.2d, Criminal Law, § 332, pp. 359-360; Gutterman, The Informer Privilege, 58 J.Crim.L.C. & Pol.S. 32.
Because of its social importance, courts zealously guard the privilege. They order disclosure of the name of a confidential informant only under exceptional circumstances for the prevention of an injustice. The burden is upon the defendant to show exceptional circumstances justifying disclosure. State v. Greenbaum, 257 La. 917 , 244 So.2d 832 ; State v. Boles, 246 N.C. 83 , 97 S.E.2d 476 ; State v. Driscoll, 61 Wash.2d 533 , 379 P.2d 206 ; 21 Am.Jur.2d, Criminal Law, § 332, p. 360. On the question of whether the circumstances warrant disclosure, much discretion is vested in the trial court. Durham v. United States, 403 F.2d 190 (9th Cir. 1968); Anno: Accused’s Rights-Informer-Identity, 76 A.L.R.2d 262 , 279.
Although no fixed rule exists, the court-ordered disclosures relate to instances in which the prosecution’s case shows that the informer, cooperating with the police, participated in the crime. When the prosecution’s case shows that the informer participated in the crime, the informer’s identity should be disclosed to the defendant. In such cases, the informer does more than furnish a tip that enables the police to make an arrest. While working with the police, he takes part in the illegal transaction itself. See Roviaro v. United States, supra; United States v. Barnett, 418 F.2d 309 (6th Cir. 1969); United States v. Lloyd, 400 F.2d 414 (6th Cir. 1968); Portomene v. United States, 221 F.2d 582 (5th Cir. 1955); Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir. 1968); Sorrentino v. United States, 163 F.2d 627 (9th Cir. 1947).
In reversing the trial court and ordering disclosure, this Court relied primarily on Roviaro v. United States, supra. 1 In Roviaro v. United States, the petitioner was arrested after the law enforcement officers had overheard him negotiating a sale of narcotics to a government informer and observed him transfer the narcotics to the informer. The indictment charged him with the sale of heroin to “John Doe”, the informer, as well as the fruadulent and knowing transportation of the narcotic after illegal importation. The prosecution’s evidence covered the transaction with the *507 informer. Over defense objection, the name of the informer was withheld.
In setting aside the conviction, the United States Supreme Court said:
"Three recent cases in the Courts of Appeals have involved the identical problem raised here — the Government’s right to withhold the identity of an informer who helped to set up the commission of the crime and who was present at its occurrence. Portomene v. United States, 5 Cir., 221 F.2d 582 ; United States v. Conforti, 7 Cir., 200 F.2d 365 ; Sorrentino v. United States, 9 Cir., 163 F.2d 627 . In each case it was stated that the identity of such an informer must be disclosed whenever the informer’s testimony may be relevant and helpful to the accused’s defense.
“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors,
“This is a case where the Government’s informer was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Moreover, a government witness testified that Doe denied knowing petitioner or ever having seen him before. We conclude that, under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.” (Footnotes omitted).
We now think we erred in applying Roviaro v. United States to the present case, as a decision directly in point. Unlike Roviaro , the prosecution’s evidence hete does not show that the informer set up and participated in the crime as an aid to the law enforcement officers or otherwise.
It is true that defendant denied any knowledge of the marijuana. It is also true that a conflict arose in the testimony as to whether the marijuana was found in defendant’s “very tight” front pants pocket or in his coat pocket.
The State’s witnesses, Lt. Bolton and Sgt. Almond, testified that they found the marijuana in defendant’s pants pocket. Their testimony was corroborated by Officer Sea-ton, a defense witness.
The main theme of defendant’s testimony was that the marijuana was in his coat *509 pocket, and he didn’t know how it got there. Graham, the automobile driver, also testified that the marijuana was taken from the coat pocket.
In his Per Curiam, the trial judge states:
“There must be some act shown, something more than speculation concerning frame or plant, before an informant’s identity should be revealed. Since there was no such showing in this case, the defendant is not entitled to this information.”
The trial judge obviously found the defense theory, that the informer placed the marijuana in defendant’s coat pocket, lacked evidentiary support.
The closest case in point is Jones v. United States, 326 F.2d 124 (9th Cir. 1963.) In that case, a United States Customs Agent stopped Jones’ car after being told by an informer that two individuals in a 1956 red and white Buick, bearing California license number MXW707, had arranged to obtain a package of marijuana and would probably attempt to bring it into the United States. After Jones’ arrest, marijuana was found in the trunk of his car. At the trial, Jones and his co-defendant requested the court to order disclosure of the informer’s name, asserting that they knew nothing about the marijuana and that someone had framed them in order to collect the government reward. The defendants put on evidence in an attempt to show how bulk marijuana was placed in the locked rear compartment of Jones’ car by some unknown third person.
The United States Court of Appeals denied disclosure of the informer’s identity, quoting the trial court’s decision as follows :
“As was said in the case of Roviaro v. United States, 353 U.S. 53 [ 77 S.Ct. 623 , 1 L.Ed.2d 639 ], there is no fixed rule with respect to disclosure of the name of the informer. The problem is one which calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.
“In the case before us, the Government evidently intended to present its case without mention of the information which led to searching the car. It was only when it appeared likely that the search was illegal that the prosecution brought out evidence as to probable cause. Here, we are not dealing with evidence regarding an informer whom the Government puts forth as an actual participant in a crime. . . .
“In weighing the evidence adduced at the hearing on the motions, it seems quite probable that Jones himself, placed the marijuana in the car and that the name of the informer is not essential to his defense. It appears more likely that the name is sought in an effort to force a dismissal of the case, since the Govern *511 ment announced it would not, under any conditions disclose the identity of the informer.
“Following the test laid down in Roviaro v. United States, we are of the opinion that defendants’ request should be denied.”
In the light of the evidence, the trial judge was fully justified in finding that the showing was inadequate to require disclosure of the name. If a bare suggestion that the informer framed the defendant could effect a disclosure of the informer’s name, then the enforcement of our narcotics laws would be jeopardized. Effective law enforcement requires that the confidentiality of the names of crime-informers be safeguarded. In supplying information to a defendant in a criminal proceeding, this Court cannot sacrifice fairness to the public. Neither can it ignore the public’s interest in effective law enforcement.
We conclude that the bill of exceptions lacks merit.
BILL OF EXCEPTIONS NO. 3:
The Admission of the Matchbox of Marijuana in Evidence.
Over defense objection that the foundation was insufficient, the trial court admitted in evidence a matchbox, allegedly containing marijuana. The question raised by ,the bill of exceptions is whether the foundation was adequate for the admission of the evidence.
To admit demonstrative evidence at a trial, the lav/ requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Coleman, 254 La. 264 , 223 So.2d 402 ; State v. Martin, 250 La. 705 , 198 So.2d 897 ; State v. Bertrand, 247 La. 232 , 170 So.2d 386 .
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury. State v. Wright, 254 La. 521 , 225 So.2d 201 ; State v. Whitfield, 253 La. 679 , 219 So.2d 493 ; State v. Progue, 243 La. 337 , 144 So.2d 352 ; 2 Wharton’s Criminal Evidence (12th ed.), § 673, p. 617.
*513 The record reflects that a small Red Ball Safety Match box, containing vegetable material and several small tablets, was taken from defendant’s pants pocket. Sgt. David M. Almond of the Bossier City Police Department, present at the search, took possession of the box. On the same day, he photographed the box and its contents. The photograph was admitted in evidence without objection by the defense. 2 Sgt. Almond placed the box in a locked evidence room of the Police Department. Sgt. Almond kept the key. Two days later, Sgt. Almond withdrew the box and carried it to the Louisiana State Crime Laboratory in Baton Rouge. There, he delivered the box to Ray Herd, Supervisor of the State Crime Laboratory. Mr. Herd wrote on the box the laboratory number, SP-7397-69. He then gave the Sergeant a receipt bearing the laboratory number and containing a brief description of the box and contents. Both Mr. Herd and Sgt. Almond signed the receipt. This receipt was admitted in evidence without objection. 3
At the State Crime Laboratory, the standard procedure is to place the laboratory item in an evidence locker under lock and key. It is withdrawn only by criminologists in the laboratory for testing.
The first criminologist who tested the contents made a written report. On the day of trial, Mr. Herd assigned the numbered box to a second criminologist, Paul L. Cobb, Jr., for testing. Mr. Cobb tested-the vegetable material and found it to be marijuana. Bringing the box and the written report of the first criminologist, he then appeared at the trial. He identified the box. as the same one delivered to him by Supervisor Herd and identified the number on it as the laboratory number. Although he referred in his testimony to the written report of the first criminologist, that report was not offered in evidence.
The question presented is whether the State’s failure to produce the testimony of Supervisor Ray Herd and the other criminologist rendered the foundation fatally defective and the matchbox, containing the vegetable material, inadmissible at the trial. After reconsideration, we think' it does not.
The photograph of the matchbox and its contents is in evidence. The crime laboratory receipt signed by Ray Herd, Supervisor of the State Crime Laboratory, and Sgt. Almond is also in evidence. The disputed matchbox bears number SP-7397-69; The number adequately identifies it for admission purposes as the same box- delivered to the laboratory by Sgt. Almond
It is true a possibility exists that one of the criminologists at the laboratory changed the material in the box when it was tested. The law, however, does not require the *515 foundation to negate every possibility of tampering.
In State v. Coleman, supra, the nurse who stored a marked vial of blood was not called to testify. In sustaining the admission of the vial, this Court stated:
“Since a question of fact is presented here, and we have invariably accorded a wide discretion to the fact-finder in such matters, we will not upset this conviction. Our decision is predicated upon the chain of circumstances established by the State’s evidence in its effort to show continuous custody, control and supervision and, particularly, upon the expert opinion of Dr. Butler, supported by his long experience, that the blood in the vial had not been tampered with. The law makes no requirement that the proof be absolute or positive. A clear preponderance of the evidence on a question of admissibility is sufficient. This requirement is satisfied here.”
In the present case, in addition to the testimony concerning the chain of possession, the trial judge had before him an admittedly genuine photograph of the matchbox and vegetable material taken from defendant. With the photograph, the evidence still falls short of positive identification. The lack of positive identification, however, goes to the weight of the evidence, rather than its admissibility. In our opinion, the foundation is adequate for the admission of the evidence.
BILL OF EXCEPTIONS NO. 4:
Evidence of Prior Arrest.
During cross-examination of defendant Dotson, the District Attorney asked him if he had used marijuana on previous occasions. He replied that he had not.
Later, the District Attorney asked him the location of a certain residence. Defense counsel objected to this question. The District Attorney announced that the question was intended to serve as a basis for rebuttal evidence that defendant had in fact used marijuana.
In response to a question of defense counsel, the District Attorney stated he had no intention of introducing evidence of a prior arrest or conviction.
The trial judge overruled the objection, the cross-examination was pursued, and the defendant persisted in his testimony that he had never used marijuana before.
Lt. O. G. Bolton was later called as a defense witness. On cross-examination, the District Attorney propounded a question and received an answer as follows:
“Q. On the 22nd of November. He has testified you have had previous contact with him. Is this correct?
“A. Yes sir I have. When I arrested him — ”
The defendant objected. Whereupon, the District Attorney announced that he was not trying to show a prior arrest. With *517 this assurance, he was allowed to resume cross-examination and produce testimony tending to show that defendant had previously used marijuana.
Defense counsel moved for a mistrial, hut it was denied. He later perfected the following Bill of Exceptions:
“Defense counsel objected to the State asking questions to the defendant concerning prior arrest and made a part hereof is the trial transcript, pages 86, 88 and 90. Also defendant objected to police officer Buddy Bolton testifying concerning prior arrest on pages 119 and 121 and a mistrial was requested on pages 120-121 of the transcript which motions were overruled and defendant then and there excepted.”
On original hearing, we held that Lt. Bolton’s testimony that he had arrested defendant for possession of marijuana on a previous occasion was reversible error. In so holding, we now think we erred.
On rehearing the State asserts that Lt. Bolton’s mention of arrest (“When I arrested him — ”) refers to the arrest for the present offense on November 22, 1969. The defense, on the other hand, asserts that it refers to a prior arrest. The fragmentary sentence is ambiguous. We find it unnecesary, however, to resolve the conflict.
The record reflects that the testimony of Lt. Bolton referring to the arrest came after the District Attorney had announced that he would offer no testimony of a prior arrest or conviction. It was unresponsive to the question directed to the officer. The question was whether he had any previous contact with defendant. The question merely called for an affirmance or denial of prior contact, already referred to by the defendant while under redirect examination by his own counsel. The reference to arrest was unsolicited.
It is well established that unsolicited and unresponsive testimony cannot be charged against the State to provide a ground for reversal. State v. Sinclair, 258 La. 84 , 245 So.2d 365 ; State v. Callihan, 257 La. 298 , 242 So.2d 521 ; State v. Arena, 254 La. 358 , 223 So.2d 832 ; State v. Simpson, 216 La. 212 , 43 So.2d 585 , cert. denied 339 U.S. 929 , 70 S.Ct. 625 , 94 L.Ed. 1350 .
This rule has greater force in the present case, since the witness who volunteered the information was testifying as a defense witness. Hence, the witness’s reference to an arrest is not reversible error.
The evidence tending to show that defendant had previously used marijuana was admissible. Although the prior conduct was criminal, it had an independent relevance to guilty knowledge, an essential element of the crime charged. LSA-R.S. 15:445, 446; State v. Harris, 232 La. 911 , 95 So.2d 496 ; State v. Wagner, 229 La. 223 , 85 So.2d 272 ; Comment, Admissibility of *519 Evidence of Prior Arrests in Louisiana Criminal Trials, 19 La.L.Rev. 684, 690. On the issue of guilty knowledge or intent, the defendant denied prior use of marijuana. Hence, the State had the right to contradict this testimony. At the trial, as noted in the original opinion, the District Attorney referred to the testimony as “impeaching.” The term impeaching is a misnomer. Technically, the testimony should be designated as rebutting or contradicting. In State v. Monroe, 205 La. 285 , 17 So.2d 331 , we stated:
“Rebutting evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party. State v. Hemler, 157 La. 902 , 103 So. 257 .
“It is rebuttal, not impeaching, to show that the statement of the witnesses as to what occurred is not true. State v. Foster, 150 La. 971 , 91 So. 411 . And contradiction is one of the means of rebutting the testimony of a witness produced by the defendant in a criminal prosecution as the State can not contradict the testimony of a witness for the defendant until the testimony is offered in defendant’s behalf on the trial of the case. State v. Blount, 124 La. 202 , 50 So. 12 .”
See also State v. Poe, 214 La. 606 , 38 So. 2d 359 (on rehearing); Marr’s Criminal Jurisprudence of Louisiana, § 633, pp. 966-967 (1923).
The evidence of prior use of marijuana was properly admitted to rebut or contradict the defendant's testimony on an essential issue. We discern no error in the rulings of the trial judge.
The bill of exceptions lacks merit.
BILL OF EXCEPTIONS NO. 5:
Contact of Juror with Lt. Bolton.
As authorized by Article 791 of the Louisiana Code of Criminal Procedure, the jury in the present case was unsequestered prior to the court’s charge. During the noon recess, the court released the jurors to get lunch. After the recess, defense counsel moved for a mistrial on the ground that one of the jurors had communicated with Lt. Bolton, a state witness, during lunch. 4 To support the motion, defense counsel testified. He related that he observed the juror seated at the same table with Lt. Bolton and two other persons during lunch. As they dined, the four conversed among themselves. In response to questions from the court, defense counsel declined to charge that the diners had discussed the case.
*521 The District Attorney then sought to call the juror to explain the incident. Defense counsel objected, and the court sustained the objection.
In appraising the situation, the trial judge commented:
“The court is aware of the fact that we have in this community, very limited facilities for lunches, as you know. We have just the one small restaurant. And the jury has not been sequestered at this time. Now unless there is some evidence of some improper communication to the jury, I can’t see that I can entertain your motion for a mistrial.”
The trial judge overruled the motion for a mistrial.
In Turner v. Louisiana, 379 U.S. 466 , 85 S.Ct. 546 , 13 L.Ed.2d 424 , the United States Supreme Court reversed a state conviction because of the “close and continual association” of two major state witnesses with the jury in their charge. The Supreme Court held:
“The two principal witnesses for the prosecution at the trial were Vincent Rispone and Hulon Simmons. Both were deputy sheriffs of Tangipahoa Parish.
“The members of the jury were sequestered in accordance with Louisiana law during the course of the trial, and were ‘placed in charge of the Sheriff’ by the trial judge. In practice, this meant that the jurors were continuously in the company of deputy sheriffs of Tangipahoa Parish during the three days that the trial lasted. The deputies drove the jurors to a restaurant for each meal, and to their lodgings each night. The deputies ate with them, conversed with them, and did errands for them.
“Two of the deputy sheriffs who were in this close and continual association with the jurors were Vincent Rispone and Hulon Simmons. Turner’s counsel moved for a mistrial when Rispone testified as a witness for the prosecution, and made the same motion when Simmons testified.
“It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role that Simmons and Rispone played as deputies made the association even more prejudicial. For the relationship was one which could not but foster the jurors’ confidence in those who were their official guardians during the entire period of the trial. And Turner’s fate depended upon how much confidence the jury placed in these two witnesses.” (Footnotes omitted).
There, the jury was sequestered. The two principal state witnesses, both deputy sheriffs, were placed in charge of the jury. For three days, these deputies had close and *523 continual association with the jurors, eating with them, conversing with them, and doing errands for them. The case deals with the constitutional problems raised when a prosecution witness has charge of a sequestered jury.
That decision is inapplicable to casual communications between a prosecution witness and an unsequestered juror. In such a situation, other principles come into operation. The majority rule is that communication between a juror and a witness in a criminal trial without a showing that the defendant was prejudiced furnishes no ground for upsetting a conviction. State v. Nails, 255 La. 1070 , 234 So.2d 184 ; State v. Johnson, 149 La. 922 , 90 So. 257 ; States v. Miles (Mo.), 364 S.W.2d 532 , 9 A.L.R.3d 1266 ; Annot., Jurors-Communications with Witnesses, 9 A.L.R.3d 1275 , 1280-1282.
In State v. Johnson, supra, this Court aligned itself with the majority rule and upheld the conviction after a juror had eaten lunch with a State witness. The Court found no prejudice, holding:
“Defendant also alleges in his motion for a new trial that the said juror Chapman, on the second day of the trial, left the courthouse arm in arm with one Ware, who appeared as a witness for the prosecution, and who was very active against defendant in the trial of the case, and that the said Ware and the said Chapman were in close conversation as they left the courthouse, and went together to the Cosmopolitan restaurant, in the city of Shreveport, and to a secluded part of the restaurant.
“Defendant called A. N. Adcock, H. I. Moore, and Guy Armstrong on this part of the case as witnesses. Neither of these witnesses testified to anything that was said by Ware and Chapman to each other. They merely saw them together, and in conversation, which was proven by Chapman and Ware to be about Chapman’s fast driving to get to court in time. It is established beyond dispute that Chapman and Ware went to the restaurant accompanied by Barry and Linsey, all of whom dined together, and not one word was said about the case against Johnson. As these four men lived at Mooringsport and were acquainted with each other, is was a very natural thing for them to dine together. There was nothing suspicious about it.”
In the present case, the testimony establishes only a conversation among four people, including the juror, seated at a restaurant table. There is no showing that the juror or other diners discussed the case.
In his Per Curiam, the trial judge states:
“The jury had not yet been sequestered and defendant did not charge that the witness had discussed the case with the juror or had sought to influence him in any manner. The mere fact that the wit *525 ness and the juror ate lunch at the same table in the only restaurant in Benton is not grounds for a mistrial.”
The ruling of the trial judge as to the misconduct of a juror is entitled to great weight. See State v. Fike, 129 La. 663 , 56 So. 630 ; Marr’s Criminal Jurisprudence of Louisiana, § 467 p. 714 (1923).
Under the circumstances, this Court cannot presume prejudice. See LSA-C.Cr.P. Art. 921; State v. Nails, supra. While innocent contact of a juror with a witness is to be avoided, when such contact does occur it does not always vitiate the conviction. In our opinion, the trial judge correctly denied the mistrial. The conviction should stand.
For the reasons assigned, the conviction and sentence are affirmed.
TATE, J., dissents for the reasons assigned in our original opinion.
DIXON, J., dissents for the reasons expressed in our original opinion.
. The majority opinion also cited diota from our decision in State v. Pagnotta, 253 La. 770 , 220 So.2d. 69 (1969). As - pointed out by Mr. Justice Hamlin in his dissent, the language relied upon establishes no rule that an allegation of a “frame” is sufficient of itself to require disclosure of an informer’s name.
. Tr. 90; S-1, Tr. 34.
. Tr. 91-92; S-2, Tr. 35.
. The trial judge had admonished the jurors not to discuss the case with anyone. He had placed the witnesses under rule . and instructed them not to discuss the ease with anyone except the District Attorney or defense counsel. See LSA-C. Cr.P. Art. 764.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9534551. Public record. Not legal advice.