SUMMERS, Justice.
Defendant, Charles Spurgen Bryant, was indicated for the crime of aggravated rape. After a trial by jury, he was found guilty as charged on June 5, 1974. On June 27, 1974 he was sentenced to death. On this appeal eight assignments of error are relied upon for reversal of his conviction and sentence.
Errors 1 and 5
The trial judge denied a motion to suppress evidence consisting of a hunting knife, its sheath and a .22 caliber pistol used in the crime. Later these objects were introduced at the trial over a defense objection.
An investigation was under way by the Ouachita Parish Sheriff's office and City Officers of Monroe regarding a report that late in the evening of December 18, 1973 a coed at Northeast Louisiana University had been forcibly raped. In the course of the investigation it was learned on December 19, 1973 that defendant was incarcerated in the parish jail, having been arrested by the State Police for a traffic violation. When he was booked on the traffic charge earlier, defendant had the knife in question on his person, which he surrendered to the jailer. The knife was then inventoried and placed in a "property bag" for safekeeping until the time when it was to be returned to defendant.
Also, when he was arrested, with his consent, his automobile was towed to a local service station for storage. The unlocked glove compartment of the car then contained the pistol used in the crime.
Copes, whose service station was on the State Police list for towing service, testified that the State Police requested that he tow the car in to his place of business for safekeeping. For his own protection, because he was responsible for the car and its contents, and on his own initiative, he searched the car for valuable which could be stolen while the vehicle was impounded. In doing so he found the gun in the unlocked glove compartment, locked it in his office and informed the State Police. Until Deputy Strueben of the sheriff's office called the next day, Copes had no contact with the sheriff's office. Strueben testified that when defendant told them where the car was, he went to the service station to make sure it was there so that he could obtain a search warrant. As he walked up, Copes came out and handed him the gun. He did not ask Copes to get the gun out of the car, in fact, he never saw the car.
Defendant contends both seizures were made without a warrant and without his permission or consent. The argument is that the searches were too remote in time to be incidental to his traffics arrest. He asserts that loss of possession of his property because of his arrest did not strip him of the constitutional protection against unreasonable search and seizure. Under the circumstances there was no likelihood that the knife and gun would be lost or destroyed and, according to defendant, there was ample time to obtain a warrant.
The State contends that the search of the property bag was a reasonable routine inventory search and the fruit of the search was clearly admissible. As to the car, the service station owner, on his own initiative, discovered and removed the pistol for safekeeping and then turned it over to a deputy. There was, therefore, no governmental action to which the protection of the Fourth Amendment would extend.
After talking with the defendant, who freely admitted the crime and told them where the weapons were, the Sheriff's officers obtained the knife from the jailer and the gun from the owner of the service station where the car was in storage.
This is the first question: Does the taking of the knife from the property bag in the jailer's custody constitute an unreasonable search and seizure? Routine police procedure for safekeeping of valuables cannot realistically or logically be regarded as a search, for it involves no intention or purpose to locate evidence of a crime. When the knife was taken into custody, defendant had only been arrested for a traffic violation and he was not under suspicion for aggravated rape. Stowing the knife for safekeeping, then, was neither a search not a seizure in the sense that evidence of a crime was involved. United States v. Blackburn, 389 F.2d 93 (6th Cir. 1968).
"A search implies an examination of one's premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest." Haerr v. United States, 240 F.2d 533 (5th Cir. 1957), approved in United States v. Blackburn, supra.
It is standard police procedure for the police to store physical objects found in the possession of persons they have taken into custody. "Custody must of necessity be asserted initially over whatever the arrested party has in his possession at the time of the apprehension." Charles v. United States, 278 F.2d 386 (9th Cir. 1960). "Search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment." United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Since it was permissible to search defendant at the time of his arrest, objects impounded by law enforcement officials at the time of his arrest are thereafter subject to search and seizure while impounded. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). They had a right to examine him at the time of his arrest, and if the examination produced evidence of other crimes than the offense for which he was arrested he is without a right to complain. His rights were not violated. United States v. Gardner, 480 F.2d 929 (10th Cir. 1973), cert. denied, 414 U.S. 977, 94 S.Ct. 297, 38 L.Ed.2d 220; Evalt v. United States, 382 F.2d 424 (9th Cir. 1967); Baskerville v. United States, 227 F.2d 454 (10th Cir. 1955); United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); United States, 227 F.2d 454 (10th Cir. (5th Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331, reh. denied, 402 U.S. 966, 91 S.Ct. 1635, 29 L.Ed.2d 131; Cotton v. United States, 371 F.2d 385 (9th Cir. 1967).
Since defendant had previously been lawfully deprived of the possession of the knife, and the custody and control of that object was legitimately under the dominion of the police, it was not an unreasonable search and seizure for the police to use it as evidence of another crime.
Next, was the seizure of the pistol, for which no search was necessary, within constitutionally permissible standards of reasonableness? It is, of course, state action which is the basic factor in this consideration, for a search by a private person does not come within the ambit of the Fourth Amendment's protection: that protection applies to governmental action. It was intended as a restraint upon the activities of sovereign authority, and not a limitation upon other than governmental agencies. With that in mind, the question is does the action of the service station operator constitute state action. Did he act as an agent of the state in the inventory search he conducted of defendant's car?
Copes testified that he conducted the search for his own protection against liability which would arise if it were claimed that articles in the car were missing while it was stored under his care. The search was not made at the request of the police or on orders from them. And the deputy to whom he handed the gun the moment he arrived did not search the car. Copes' actions cannot be attributed to law enforcement officials merely because his business was listed, like others, to be called upon in its proper turn to perform the service of towing cars to a place of safety.
This search for the pistol, therefore, was conducted by a private individual, not law enforcement officials. There was, therefore, no state action reprobated by the constitution. Hence these facts do not support the motion to suppress. La. Code Crim. Proc. art. 703. It should be noted, moreover, that in his confession and during the trial, defendant freely admitted using both weapons to perpetrate this rape.
This assignment of error has no merit.
Errors 2 and 4
Based upon a defense motion to suppress inculpatory statements and confessions obtained by sheriff's deputies, a hearing was held at which the motion was denied.
Defendant asserts he was denied counsel and at first declined to make the statement claiming his right against self-incrimination.
At the hearing on this motion it was shown that defendant gave three detailed recorded confessions after having signed a waiver of his rights prior to each. At first defendant talked freely about his crime: however, when the police attempted to record his confession, he refused to allow it to be taped, stating that he feared it would be played in public, or his wife would hear it. All the while, however, he had no objection to an oral confession which was not recorded, indicating that he would not mind writing the confession. Finally, defendant contends, after he was assured that it would not be played in public, he repeated his confession so that it could be recorded.
Although admitting that he knew his confessions would be used against him, he contends that he would not have made the recorded confession if he had known it would be played in the courtroom. He argues that he was assured it would only be played in chambers for his lawyer, the sheriff and the district attorney. The deputies responsible for obtaining the confession testified they did not promise him it would not be played in court.
As a matter of fact, the recorded confession was not offered into evidence and the recordings were not played to the jury. The State relied solely on the testimony of the deputies to whom defendant orally related his actions and his confession. With respect to these oral confessions, no misrepresentations were made by the sheriff's deputies to induce them, and they were freely and voluntarily made.
This assignment has no merit.
Errors 3 and 6
Defendant contends that the trial judge erred when he refused to suppress the lineup identification and when he allowed testimony concerning this identification at the trial. When the victims were told a suspect was in jail in custody, the defense contends, the lineup with five other inmates was unduly suggestive because the other participants were wearing variations of street clothes (sport shirts, T-shirts, jeans, etc.) whereas defendant was wearing a jumpsuit bearing the stamp "Ouachita Parish Jail" over the left front breast pocket. This marking on his clothes, defendant argues, together with the fact that the victim had been advised that the suspect was in jail, suggested to the victim that defendant was the person involved in the crime.
The jumpsuit worn by defendant was the type commonly worn on the streets. There was nothing distinctive about this garb which would set the wearer apart as a person in custody. Furthermore, the stamp on the pocket was not visible to the victims, being obscured by a paper card pinned over it. This card bore defendant's lineup number, and was identical to cards similarly placed on the other participants in the lineup.
A view of the photograph of the lineup is convincing. All of the participants were similar in appearance. Most importantly, however, is the fact that the victim testified that she recognized defendant immediately and paid little attention to his clothes or the other participants, a fact which is easily understood when it is known that she was in close proximity to defendant for approximately five hours on the night of the offense.
Error 7
This assignment of error must be considered in light of the fact that none of the recorded inculpatory statements made by the defendant were introduced into evidence or played to the jury. The transcript does make clear, however, that the existence of these recorded confessions and the failure of the prosecution to introduce them into evidence was established by the defense. It was a defense tactic obviously employed with the expectation that this omission on the part of the prosecution would give rise to the inference that the recordings would exculpate the defendant. In furtherance of this notion defendant called a deputy clerk and introduced a certified copy of the minutes showing that his motion to suppress the recordings had been overruled. He also called the deputy sheriff who obtained the confession. This officer testified to the existence of the tapes and their length. Twice, during this stage of the trial, the prosecutor, in the presence of the jury, stated that the State had no objection to the tapes being played and offered to join with defendant in introducing them; this defense counsel declined.
During his closing argument, the State's attorney said:
"That is substantially what we have. The defense presented, I believe, two witnesses. They indicated that this defendant had made statements that were recorded and defense counsel chose not to play those statements but — apparently they were available. The witnesses testified both in their — on the defense's side of the case and the state's side of the case these statements were more or less the same thing he had told them orally. In fact they were not more or less, they were the same thing. He didn't very his story on any significant point from the recorded statement to the oral statement. It was the same thing."
When the closing argument was over, defense counsel, asserting that he did not wish to interrupt the State's closing argument, requested that the trial judge instruct the jury that the defendant was not required to introduce the recorded statements and that the reference in the closing argument of the State's attorney to defendant's failure to introduce the recorded statement was objectionable and should be disregarded.
The trial judge found that the objection was not timely and should have been entered when the argument became objectionable in the defense's judgment. He, moreover, refused to admonish the jury as requested, finding that the statement of the State's attorney was not a reference to defendant's failure to testify but, instead, was a comment on facts deliberately brought out by the defense itself. In addition, the trial judge was of the opinion that the subject was covered in the instructions on burden of proof which he would give in his general charge.
The ruling of the trial judge was correct under these facts and circumstances. To be objectionable a remark by the prosecutor in closing argument that the defendant failed to testify must be direct and the inference plain that the remark was designed to bring the jury's attention to such failure. State v. Howard, 262 La. 270, 263 So.2d 32 (1972). In the case at bar, the remarks objected to were a comment on a deliberate defense tactic to bring before the jury evidence that the State failed to introduce recorded confessions. It was an effort to obtain the benefit of the inference that the State's failure to introduced the recording arose from the fact that they would exculpate defendant. Under the circumstances, the comment was on the evidence and permissible. State v. Johnson, 151 La. 625, 92 So.2d 139 (1922). There is, therefore, no merit to this assignment.
Error 8
The error complained of here arises out of the refusal of the trial judge to grant a new trial upon the ground that "the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right." La. Code Crim.Proc. art. 851 (5).
To support this contention, on the hearing on the motion the defendant testified that his court appointed attorney had advised his that the maximum penalty on the aggravated rape charge would be life imprisonment, and that he was not advised that the death penalty could be imposed in the case until shortly prior to the closing arguments and the judge's charge to the jury. At this time defense counsel advised him that he was "not convinced that death was the punishment." He advised the defendant that in his opinion the death penalty did not apply, but he would be sentenced to death by the trial judge it convicted, for the trial judge was of the opinion that the death penalty was mandatory if the verdict was guilty.
On voir dire examination, the State's attorney advised two prospective jurors that the death penalty was prescribed by law but actually it was no longer imposed because of a decision of the United States Supreme Court which did away with the death penalty, and if defendant were found guilty he would be sentenced to life imprisonment. No defense objection was entered to this advice.
Defense counsel also testified that plea bargaining was in progress prior to and during the trial in which the State offered to accept a plea of attempted aggravated rape. In the face of advice that a death penalty was mandatory if a guilty verdict was returned and that a plea bargain was available, this exchange took place between defendant and the State's attorney.
"Q. So. actually you were discussing with Mr. Davenport (defense counsel) the penalty that might be imposed was death if convicted, at that point as far as you knew any negotiations for plea bargaining was not over at that point. Is that right? (parentheses added.)
"A. Not as far as I knew but it had already gone so far that a plea bargain at that stage of the game may have been more detrimental to the case that it would have done good.
"Q. You mean you felt you might be acquitted and therefore a plea bargain wouldn't be —
"A. — Well, I felt like I'd rather take my chances with twelve people after that kind of evidence than I would have been just waiting for — to say I'm guilty, you know, and let the judge decide it.
"Q. But you did that knowing the consequences didn't you?
"A. Well, if —
"Q. Not knowing the consequences but knowing the risk that you —
"A. — Yes, sir."
During voir dire examination of the prospective jurors, one who was selected stated that he could serve in the case "As long as it is not the death penalty. I do not believe in capital punishment." He was accepted by the State without objection and served at the trial. His presence on the jury may have influenced the defendant's judgment. However, the verdict as finally rendered was unanimous.
In addition to the explicit refusal on defendant's part to accept the proffered plea bargain and his election to leave the decision of this case to the jury with a full awareness of the risk involved, other circumstances support the trial judge's denial of the motion for a new trial.
If this misunderstanding was indeed prejudicial and fatal to a valid prosecution, no motion for a mistrial on the ground of a legal defect in the proceedings was availed of when it was ascertained that the trial judge would instruct the jury that the death penalty was mandatory in the event of a guilty verdict. La. Code Crim.Proc. art. 775(3).
During his argument defense counsel clarified the question for the jury when he said:
"If you had been led to believe that it is punishable by life imprisonment you are mistaken. The judge will instruct you that it is punishable by death. If you find this man guilty of aggravated rape you have sentenced him or the judge will have to sentence him, no alternative, to the death penalty, death executed at the penitentiary in Angola by electrocution."
In his charge to the jury the trial judge instructed the jury, in accordance with Article 42 of the Criminal Code, that "Whoever commits the crime of aggravated rape shall be punished by death."
Both the victim and her companion who was present during almost five hours, while the offense was being perpetrated, made a positive identification of the defendant at a lineup within 48 hours of the offense. Before the lineup identification, they were able to assist in the preparation of a composite picture of him. Both positively identified him in court. The trial judge stated categorically in his per curiam that he was convinced from the evidence that the accused was guilty of the crime of aggravated rape. In his opinion the verdict was returned by fair and impartial jurors, and did not result from prejudice of injustice. In his view the evidence of guilt was overwhelming and the defendant was an intelligent individual whose election take the case to the jury was made with full knowledge that capital punishment could be imposed.
From the record before us, it is clear that the facts are not disputed. At no time during the investigatory phase of the case did defendant deny that facts. He freely disclosed what happened. Defendant's confessions and the victim's version of what occurred, according to the testimony of the victim and her companion, were almost identical on all the salient details.
In neither brief nor argument has the defense pointed out wherein prejudice occurred by reason of the impression the defendant obtained that only a sentence of life imprisonment could be imposed. No allegation is made that other evidence or additional evidence would be presented on a new trial, and there is no serious contention that the verdict is contrary to the law and the evidence.
"The motion for a new trial is based on the supposition that injustice has been done the defendant, and unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded." La. Code Crim.Proc. art. 851.
Since this record does not support the conclusions that an injustice has been done the defendant, this motion for a new trial was properly denied.
For the reasons assigned, the conviction and sentence are affirmed.
DIXON, J., concurs.
CALOGERO and BARHAM, JJ., dissent and assign reasons.