
    STATE of Louisiana v. Daniel G. DOLLAR.
    No. 63885.
    Supreme Court of Louisiana.
    June 25, 1979.
    Wilford D. Carter, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Terry J. Johnson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

The defendant was convicted of two counts of armed robbery, La.R.S. 14:64, and sentenced to serve 15 years imprisonment at hard labor. On appeal, defendant relies on five assignments of error. We have reviewed these assignments of error and find no reversible error based on the record preserved for our review.

We note that the defendant has raised a serious argument that he was improperly foreclosed from laying a foundation for the impeachment of a key prosecution witness because of admonitions given by the trial judge during an off the record bench conference. An irregularity or error cannot be availed of on appeal after verdict unless the grounds therefor appear of record and unless an objection was raised at the time of the occurrence. La.C.Cr.P. art. 841. Because the improper remarks allegedly made by the trial judge do not appear of record, and because no contemporaneous objection was raised by the defendant, we are unable to review defendant’s contention on appeal. However, if the defendant’s right to a fair trial was seriously impaired by off the record remarks of the trial judge, then this issue may be raised in an application for writ of habeas corpus. La.C.Cr.P. art. 362. See, State v. Goodbier, 367 So.2d 356 (La.1979).

AFFIRMED.

TATE, J., dissents and assigns reasons.

CALOGERO and DIXON, JJ., dissent.

TATE, Justice,

dissenting.

The witness at this trial identified the accused as the robber. The accused was prevented from questioning this witness as to her prior contrary testimony at an earlier trial, which had instead identified the defendant’s companion as the gunman.

Our majority does not reach the issue, reserving it for post-conviction treatment, on the ground that the record before us does not show a contemporaneous objection.

However, the record before us very plainly shows that the trial court summoned both counsel for a bench conference when the defendant’s counsel sought to question the witness as to her prior testimony. Unfortunately, this bench conference was not transcribed (although it should have been, with the jury retired for the discussion). However, the subsequent cross-examination of the witness by the defense counsel seems to bear out his complaint that he was instructed by the trial judge to desist from this line of questioning. (In fairness to the trial judge, it should be noted that his ruling was made in an effort to protect the accused from possibly prejudiced testimony as to an earlier trial.)

In brief before this court, the state out of commendable fairness withdraws its argument that no contemporaneous objection was made.

Instead of relegating the petitioner to post-conviction remedy as to this potential serious trial error — where through no lapse of the accused the crucial bench colloquy between the judge and counsel was not transcribed — , we should remand the case to determine by hearing whether in fact the trial judge made the erroneous ruling over the defendant’s objection.

I therefore respectfully dissent.  