author: DENNIS, Justice.

text:
    STATE of Louisiana v. Dale BOUFFANIE.
    Nos. 61477, 61478.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      Leslie J. Clement, Jr., Wilbert J. Tauzin, II, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Dale Bouffanie, was originally charged by bills of indictment with two offenses of first degree murder and two offenses of armed robbery. The district court, after a hearing, denied defendant’s motions to suppress physical evidence and a confession. The bills of indictment were amended to accuse defendant of two offenses of second degree murder. Defendant pleaded guilty to these offenses reserving his right to appellate review of the trial judge’s rulings on the motions to suppress. The trial judge sentenced defendant to two consecutive sentences of life imprisonment at hard labor. Defendant appealed, relying on sixteen assignments of error, two of which were not briefed or argued.

A tortuous factual pattern surrounds the contested seizures of evidence and the confession. A warrant for the arrest of defendant Bouffanie for criminal neglect of family was issued on January 17, 1977. Police officers made several trips to the defendant’s residence to arrest him but were told on each occasion that Bouffanie was not there. On the morning of February 7, 1977, the bodies of Boone Terrebonne and Rowena Theriot were discovered near Milo’s Lounge in Galliano. The police renewed their efforts to locate the defendant when it developed that he possibly had committed the two homicides and a burglary. In the late afternoon of February 7, 1977, police officers began surveillance of the house in which the defendant resided with Mrs. Mona Bouzigard Guidry. Upon seeing Bouffanie enter the house with Mrs. Guidry and her brother, Ronald Bouzigard, the officers approached the house with the intention of arresting him for criminal neglect of family. After answering their knock, Mrs. Guidry denied that defendant was present and consented to a search of the premises. The grounds as well as the inside of the house were inspected. The defendant was not found but a duffel bag containing rifles and a back-pack filled with pistols were found beneath the house near the back steps.

Mona Guidry and Ronald Bouzigard were taken to the Galliano jail for questioning and advised of their rights. Guidry gave an inculpatory statement which implicated the defendant in a local burglary involving the rifles and pistols found at the house. She was arrested, charged as an accessory after the fact to simple burglary and put in jail. Bouzigard gave no statement and was allowed to leave.

Early the next morning, on February 8, 1977, police officers found defendant sleeping in a car outside the house where he was last seen and arrested him for criminal neglect of family. Defendant complained of pain, and was taken to the Galliano hospital where he received treatment in the emergency room from Dr. Barry Simon. According to the doctor, the defendant was incapable of rational conversation and unable to give a patient history. One of the officers told the doctor that Bouffanie was suffering from heroin withdrawal, and the defendant told the doctor that he had been stabbed in New Orleans. The doctor incorporated this information in his written diagnosis. Doctor Simon administered a sedative and prescribed additional librium capsules to be given to the defendant, if needed, every four hours. After the medical treatment was completed at about 4:00 a. m., Bouffanie was taken to the jail.

Later the same day the police, after receiving information that Mona Bouzigard Guidry and Ronald Bouzigard were involved in the homicides and robberies under investigation, interrogated them and obtained a statement from each implicating Bouffanie, Guidry and Bouzigard in the murders and armed robberies of Boone Ter-rebonne and Rowena Theriot. Guidry and Bouzigard both stated that, after dropping Bouffanie at the place where he planned to rob Terrebonne, they later picked him up and drove him to his residence where a bullet was removed from his body, melted in a spoon and thrown in a trash can. Based on these statements, search warrants were issued authorizing the inspection of the defendant’s person and the house. In executing the warrant to search the house the officers found and seized as evidence against Bouffanie the melted bullet, spoon and some bloody clothing.

At approximately 11:00 p. m. on February 8, 1977, Doctor Robicheaux, the parish coroner, examined Bouffanie’s chest pursuant to the search warrant and found a bullet wound and another kind of wound. Defendant’s blood alcohol and drug screen tests were negative. After talking to the defendant for approximately twenty-five minutes, Doctor Robicheaux turned him over to the police and advised the officers that he would prescribe a sedative if defendant later complained of nervousness. However, the doctor did not recall that the defendant was in pain at that time.

Immediately upon being returned to the jail at 11:57 p. m., Bouffanie signed a waiver of rights form and gave a statement confessing to the murders and armed robberies of Terrebonne and Theriot. After the interrogation, which lasted about one hour, defendant was transported to the jail in Thibodaux. As they passed a hospital on the way defendant requested some medication. He was taken into the emergency room where he received some medicine. The record reflects that defendant was administered a mild sedative but does not indicate whether he received any additional treatment. Apparently, Bouffanie was then taken to the Thibodaux jail after only a brief stop.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error defendant contends that the district court should have suppressed' his confession because it was coerced by police officers who withheld medical assistance from him during his acute heroin withdrawal until he gave them the statement.

Before a confession or inculpatory statement can be introduced in evidence the State must prove affirmatively and beyond a reasonable doubt that it was free and voluntary and not made under the influence ■of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451; La.C.Cr.P. art. 703(C); State v. Glover, 343 So.2d 118 (La.1977). In reviewing the trial judge’s ruling as to the admissibility of a confession, his conclusions on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Bias, 352 So.2d 1011 (La.1977); State v. Cobbs, 350 So.2d 168 (La.1977); State v. Adams, 347 So.2d 195 (La.1977). However, because of the State’s burden, it is required to rebut specific testimony introduced on behalf of defendant concerning factual circumstances which indicate coercive measures or intimidation. State v. Simmons, 328 So.2d 149 (La.1976).

Despite conflicts in the testimony, our review of the record reflects that the evidence supports the trial judge’s finding that the State sustained its burden on the issue of voluntariness. Although one officer testified that Bouffanie complained of pain the night his confession was given, all of the other officers testified that he appeared nervous but coherent and did not request medication. All of the officers testified that no inducements, promises or threats were made or offered to defendant before he signed the confession. Bouffanie testified that his confession resulted from his confusion, his need of medical attention, and his psychological intimidation by the police officers’ questions about his wound. However, the police officers’ testimony rebutted these contentions, and Bouffanie himself admitted that he signed a waiver of rights form and was fully aware of the meaning of his confession.

Doctor Simon and two other medical experts called by the defendant testified that it was possible that Bouffanie was experiencing drug withdrawal at the time of his confession, and, if so, it was possible that he may have been induced by his condition to give a confession that he otherwise would not have made. However, each witness indicated that because of the many variables he could not state that either proposition was more probable than not.

The testimony of the doctor who examined defendant immediately prior to the taking of the confession provided even less basis for finding that the statement was involuntary. Doctor Robicheaux did not recall that the defendant told him that he was in pain. He administered no medicine to the defendant at that time, although he had treated the defendant before and was aware of his drug problem. Doctor Robi-cheaux’s medical examination of the defendant related primarily to the execution of the body search warrant, but the doctor testified that the defendant, although frail, was physically sound and in possession of his mental faculties.

On the record presented for our review we cannot say that the trial judge erred in finding that the State had borne its burden of proving beyond a reasonable doubt that defendant confessed voluntarily.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 3, 10, 11, 13

In these assignments defendant contends that the initial search and the seizure of the guns at his residence were unconstitutional. Consequently, he argues, all fruits of those unlawful acts should have been suppressed, including the guns, the confessions of Guidry and Bouzigard, and the evidence obtained with the two search warrants.

As the officers were looking for Bouffa-nie at the house, a detective observed what he thought was a person hiding underneath the house near the back steps. He ordered the person to come out and received no answer. Upon pulling the object from under the house he discovered that it was a cloth backpack containing pistols. A second object resembling a person was likewise withdrawn and found to be a duffel bag containing rifles. The guns were recognized by one of the officers as being of the same type that were taken in the recent burglary under investigation. Positive identifications of them as the stolen weapons were made at the police station when the serial numbers were checked.

The Fourth Amendment and the Louisiana Constitution of 1974, Article 1, § 5 prohibit unreasonable searches and seizures. Absent one of the narrow exceptions to the requirement of a search warrant, warrant-less searches and seizures are unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Fearn, 345 So.2d 468 (La.1977). In order for evidence obtained without a search warrant to be admissible, the State bears the burden of proof in showing that the search and seizure were justified under one of the narrow exceptions. State v. Franklin, 353 So.2d 1315 (La.1977).

The State contends that the weapons were seized while in plain view during the consensual search of the premises for Bouf-fanie. In order for the plain view doctrine to apply: (1) there must be a prior justification for an intrusion into a protected area; (2) in the course of which evidence is inadvertently discovered; (3) and it must be immediately apparent without close inspection that the items are evidence or contraband. State v. Fearn, supra. The uncon-tradicted testimony of the police officers indicates that Mona Guidry gave them permission to search the premises for Bouffa-nie. Since Mrs. Guidry was a resident of the house her consent to search for Bouffa-nie authorized the officers to look anywhere on the premises that he could have been hiding to avoid arrest. The acts of the officers in pulling the objects which appeared to be persons from under the house after receiving no response to a command did not exceed the reasonable scope of Mrs. Guidry’s consent to search. Defendant argues that it was not immediately apparent without close inspection by the officers that the bags filled with guns were evidence or contraband. However, an officer testified that the first bag seized was open, exposing to view a large number of firearms, which the officers were aware was the kind of property taken in the burglary under investigation.

Although the record is not free of doubt as to whether it was immediately apparent without close inspection that the guns were evidence, the testimony reasonably supports findings on this and other factual issues which justify approval of the police conduct as a plain view seizure.

These assignments are without merit.

ASSIGNMENTS OF ERROR NOS. 2, 9, 12, 14, 15

In these assignments defendant argues that the fruits of the second search of the house, i. e., the bullet, spoon and clothing, should have been suppressed because the search was conducted pursuant to a search warrant which was illegal due to its having been obtained on the strength of the involuntary confessions of Mona Guidry and Ronald Bouzigard.

In his motion to suppress the defendant alleges that the confessions were obtained by the authorities under the influence of fear, duress, intimidation, threats, inducements, and promises and without the ac-cuseds’ having been advised of their rights.

We put to one side the question of whether Bouffanie lacks standing under the Louisiana Constitution to suppress the fruits of confessions unlawfully obtained from his codefendants. Under the federal constitution it is possible that only the person whose Fifth Amendment right has been violated can claim the protection of that privilege. See, Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 983, 22 L.Ed.2d 176 (1969) (Fortas, J., concurring). Accord: State v. Mitchell, 278 So.2d 48 (La.1973). But see, Massachusetts v. White, 371 N.E.2d 377 (1978), cert. granted, 436 U.S. 925, 98 S.Ct. 2817, 56 L.Ed.2d 767, 1978. On the other hand, the California Supreme Court seems to have taken the position that a defendant has standing to challenge the violation of a third party’s rights through physically and psychologically coercive tactics, but that he may not exclude evidence whose only taint results from questioning a suspect without the required Miranda warnings. People v. Varnum, 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772 (1967), cert. denied, 390 U.S. 529, 88 S.Ct. 1208, 20 L.Ed.2d 86 (1968). Under the A.L.I. Model Code of Pre-Arraignment Procedure, § 290.2(6) the defendant may have evidence suppressed if probable cause for the search warrant was based in necessary part on information unlawfully acquired. Arguably, the combined requirements of Louisiana constitutional provisions would produce a similar effect. The express intention of Article I, § 5 of our state constitution is that any defendant against whom evidence acquired through an unreasonable search or seizure is offered, whether or not it was obtained in violation of his rights, has standing to exclude the evidence. State v. Boyd, 359 So.2d 931 (La.1978); State v. Joseph, 351 So.2d 1162 (La.1977); State v. Culotta, 343 So.2d 977 (La.1977); State v. Roach, 338 So.2d 621 (La.1976). Article I, § 5 prohibits unreasonable seizure of the person as well as property, communications, houses, papers and effects. If the detention of a person for questioning without being advised of his rights and the reason for his arrest, as required by Article I, § 13, or the compulsion of him to give evidence against himself in contravention of Article I, §§ 13 and 16, constitutes an unreasonable seizure of his person, anyone adversely affected by the seizure has standing to raise its illegality. It is not necessary to deal with these issues in this opinion, however, because we conclude that the defendant has failed to carry his burden of proving either that the confession was obtained with coercive tactics or without advising the suspects of their rights.

The general rule is that on the trial of a motion to suppress the burden of proof is on the defendant to prove the grounds of his motion. La.C.Cr.P. art. 703(C). One exception to the rule is that the State has the burden of proving beyond a reasonable doubt the voluntariness of a confession which the defendant has moved to suppress as evidence at the trial on the merits. La. C.Cr.P. art. 703(C); La.R.S. 15:451; State v. Glover, supra. This exception does not apply in the instant case, however, because the State did not seek to introduce, nor the defendant to suppress, the confessions of Guidry and Bouzigard for use as evidence at the trial on the merits.

Although the redactors recognized the possibility of other exceptions to the general rule of burden of proof, see, La.C.Cr.P. art. 703, Official Comment (e); see, e. g., State v. Franklin, 353 So.2d 1315 (La.1977) (the State has the burden of proving that a warrantless search is justified under one of the narrow exceptions to the warrant requirement), the defendant has the burden of proof in overcoming the rebuttable presumption of the validity of the affidavit supporting the search warrant. Franks v. Delaware, - U.S. -, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See, State v. Melson, 284 So.2d 873 (La.1973); State v. George, 273 So.2d 34 (La.1973); State v. Anselmo, 260 La. 306, 256 So.2d 98 (1971); A.L.I. Model Code of Pre-Arraignment Procedure § 290.2(6).

The Supreme Court and this Court have both assigned to the defendant the burden of disproving the veracity of the factual statements in the affidavit upon which a search warrant was issued. Franks v. Delaware, supra; State v. Melson, supra; State v. George, supra; State v. Anselmo, supra. The same underlying policies of these decisions, the deterrence of unwarranted police conduct and the preservation of judicial integrity, demand that a defendant be allowed to challenge a search warrant based in necessary part upon an illegally obtained confession, unless he lacks standing as a matter of constitutional law. Accordingly, if the defendant in the instant case has standing, the procedure and burden of proof set forth by the Supreme Court in Franks v. Delaware as governing challenges to the truthfulness of factual statements made in an affidavit supporting a search warrant would appear, in substantial part, to be applicable here:

“* * * [Wjhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” - U.S. at -, 98 S.Ct. at 2676-77.

At the motion to suppress hearing no evidence was introduced which tended to show that the confessions were involuntary. The defendant called Guidry and Bouzigard as witnesses, but they refused to testify claiming their privileges against self-incrimination. Since they had also been charged with the murders and robberies of Terrebonne and Theriot, the trial judge found that the privilege had been invoked with justification.

Applying the rules of Franks v. Delaware by analogy to the evidence in the instant case, we conclude that the defendant made a substantial preliminary allegation in his motion to suppress that the police officers had obtained the search warrants based essentially on involuntary confessions; that the confessions were necessary to the finding of probable cause; and that the defendant was afforded a hearing. However, at the hearing the allegation of unwarranted police conduct was not established by the defendant by a preponderance of the evidence. Accordingly, the trial judge correctly denied the motion to suppress.

These assignments of error are without merit.

OTHER ASSIGNMENTS OF ERROR

The remaining assignments of error are without reversible merit. Numbers 5 and 6: The defendant contends that the judge should not have allowed Guidry and Bouzigard, who were charged as co-defendants, to invoke the privilege against self-incrimination. However, the evidence supports the trial judge’s rulings that their testimony would have tended to incriminate them. La.R.S. 15:276. Number 7: The objection to defense counsel’s hypothetical question was properly sustained because it assumed as true that which had not been proven, La.R.S. 15:278, and defense counsel did not represent that the particular facts assumed on that occasion would be educed during the hearing. Number 16: No harmful or reversible error occurred when a deputy sheriff was allowed to express his opinion that defendant confessed voluntarily because the remark was not made to a jury and the judge indicated that he would not consider it as evidence.

Accordingly, the defendant’s convictions and sentences are affirmed.

      . Defendant also contends that the confessions of Guidry and Bouzigard were illegal as fruits of the illegal seizure of the guns at the house. However, we considered and rejected the basis for this argument in reviewing defendant’s assignment of error number three, when w» concluded that the guns were seized while in plain view during a consensual search of the premises.

      . However, the A.L.I. commentators acknowledge that this question is not free from difficulty:
      “The Supreme Court seems never to have squarely faced the issue. There are implications cutting against the Code provision in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), and in the dissenting opinions of Justices White and Harlan in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). There are lower court cases which support the provision. Hair v. United States, 110 U.S.App.D.C. 153, 289 F.2d 894 (1961); McGinnis v. United States, 227 F.2d 598 (1st Cir. 1955). But other cases say that probable cause may be based on evidence obtained from ‘mere technical trespasses.’ United States v. Buchner, 164 F.Supp. 836 (D.D.C.1958), aff'd, 106 U.S.App.D.C. 16, 268 F.2d 891 (1958), cert. denied, 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 573 (1959); United States v. Halsey, 257 F.Supp. 1002 (S.D.N.Y.1966); United States v. Conti, 361 F.2d 153 (2d Cir. 1966), vacated on other grounds, 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035 (1968).” A.L.I. Model Code of Pre-Arraignment Procedure, § 290.2, Pt. 2 Commentary.


source: Caselaw Access Project

author: SUMMERS, Justice. TATE, Justice, DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. James H. BOONE.
    No. 61782.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      James A. Hobbs, Blackwell, Chambliss, Hobbs & Henry, West Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

By an August 22, 1977 amended indictment, defendant James H. Boone was charged in two counts with arson with intent to defraud on September 11, 1975, and arson with intent to defraud on November 29, 1975, offenses reprobated by Article 53 of the Criminal Code. In a trial before a jury of six on August 22, 1977, defendant was found guilty on both counts. On the September offense he was sentenced to serve three years at hard labor, the sentence being suspended and defendant placed on probation for five years. On the November offense he was sentenced to imprisonment in the parish jail for five years. Four assignments of error are urged on this appeal for reversal of the conviction and sentence. In addition, defendant claims an error patent on the face of the record.

Assignment 1: Prior to the amended indictment upon which this prosecution is based, defendant was originally charged on November 23, 1976 jointly with Willie D. Allen in a four-count indictment. Count one charged simple arson on, or about, October 13, 1970. Count two charged arson with intent to defraud on June 2, 1974. Count three charged arson with intent to defraud on September 11, 1975. And count four charged arson with intent to defraud on November 29, 1975. The last two charges being the ones upon which this prosecution is based.

With the indictment in this posture, a December 20, 1976 defense motion for a bill of particulars was filed containing sixty-four requests for information. Only thirty-one of these requests pertain to the counts which were eventually prosecuted in this case, because count one charging simple arson was severed on May 5, 1977, and count two was also severed prior to trial.

Insofar as pertinent to the counts upon which this prosecution is based, the motion for particulars asked in connection with each count, whether the State contended that the damage to the buildings or structure mentioned in the amended indictments was caused by an explosion or fire. To these requests the prosecution answered, “The State is not required to reveal its evidence.” Defense counsel then filed a motion to compel the State to furnish the information requested. At the hearing on this motion the State’s attorney took the position that an answer to the defendant’s request would require the State to disclose its physical evidence, which it was not compelled to do. Nevertheless, the prosecutor stipulated that the State had no objection to the appointment of an independent expert designated by the defense to examine the State’s evidence under court supervision, in order that the defense could arrive at its own conclusions regarding which method was used to commit the crime involved.

While sustaining the prosecution’s answer to the motion for bill of particulars, the trial judge approved the State’s offer to permit the defense to examine the pertinent evidence in order that the defense could arrive at its independent conclusion as to which method was used to commit the alleged arson. Accordingly the trial judge fixed a time within which the defense should move to avail itself of the State’s offer. In its brief the State asserts that the defense has never availed itself of the offer, and this is not denied.

The charges involved set forth that James H. Boone did:

“On September 11, 1975, commit arson of property, a dwellinghouse and its contents at 21 Magnolia Drive, Monroe, Oua-chita Parish, Louisiana, the property of Levi Redding with the intent to defraud State Farm Fire and Casualty Company of the sum of $51,288.09, contrary to the provisions of R.S. 14:53.
“On or about November 29, 1975, commit arson of property, a dwelling house and its contents located on Kendlewood Drive, West Monroe, Ouachita Parish, Louisiana, with the intent to defraud Aetna Fire Insurance Company and United States Fidelity and Guaranty Company of the sum of $250,000.00 contrary to the provisions of R.S. 14:53.”

Article 53 of the Criminal Code defines the crime charged as follows: “Arson with intent to defraud is the setting fire to, or damaging by any explosive substance, any property, with intent to defraud.”

Inasmuch as the crime may be committed by either of two methods, “by an explosive substance” or “by setting fire to,” defendant contends he should be advised of the method the State intends to prove.

While ordinarily the State would be required to disclose which method was used to commit a crime, when the statutory definition of a crime sets forth two methods by which it may be committed, circumstances may alter such a requirement. This case presents such an exception. Here the State has offered the defense the opportunity to examine the physical evidence to be presented to the jury in order that defendant might draw his own conclusion as to how the fire was set. Under the State’s offer, approved by the trial judge, if defendant had availed himself of this right to inspect and analyze the physical evidence, he would know as much about how the fire was set as the State knew. This being the case, no reversible error is shown. The State should not be compelled to bind itself to a conclusion concerning a scientific analysis which the jury may not accept. Such a matter falls within the jury’s fact-finding prerogative. The State did all it should do when it made the evidence available to the defense in advance of trial. State v. Mason, 305 So.2d 523 (La.1974). This assignment is without merit.

Assignment 2: On December 23, 1976, when the indictment contained four counts, defendants Boone and Allen jointly filed a motion to quash the indictment based on the allegation that the crimes charged were not of the same or similar character, or based on the same act or transaction connected together or constituting a common scheme or plan. Thereafter two counts of the indictment were severed, and the charge against Allen was deleted from this indictment.

At a time when the indictment had been amended to reduce the charges to three counts, and defendant Boone was still jointly charged with Allen, they filed a motion to sever. In that motion defendants simply alleged that if the State were allowed to proceed and prosecute them for all three offenses in one trial, they would be denied a fair determination of their guilt or innocence on each charge. Thereafter, prior to trial, another count of the indictment was severed, leaving the two charges upon which this prosecution proceeded. Also, as noted, the charge against Allen was dropped from this indictment.

To some extent, therefore, the motion to quash and the motion to sever were satisfied. Defendant, however, maintains that it was error for the trial judge to deny the motion to quash as to the remaining two charges for which he was convicted.

Considered together, the motion to quash and the motion to sever present the issue: Were these two offenses properly joined? Although no transcript of the hearing held prior to trial on these motions appears in the record, on the basis of the quoted articles of the Code and extracts of the evidence at the trial, the following conclusions can be drawn from the charges.

Article 493 of the Code of Criminal Procedure permits the joinder of offenses in these terms:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts' or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

These offenses are charged in the same indictment in separate counts for each offense. They are offenses of the same or similar character. Both involved the setting of fires to dwelling houses to defraud insurance companies. The offenses involved dwelling houses in rather close proximity — one in Monroe and the other in West Monroe in Ouachita Parish. Also, the offenses were closely related in point of time, having occurred about ten weeks apart. Finally, at defendant’s election the offenses were tried by the same mode of trial, thus fulfilling the requirements for joinder set forth in Article 493.

These pretrial motions for severance on application of the defendant should not be granted unless “it is deemed appropriate to promote a fair determination of defendant’s guilt or innocence of each offense.” La.Code Crim.Pro. art. 495.1.

Aside from citing the pretrial severance standards set forth in State v. Carter, 352 So.2d 607 (La.1977), and a general statement to the effect that the trial judge fell into legal error when he refused to sever the offenses charged, the defense has not pointed out to this Court wherein severance “is deemed appropriate to promote a fair determination of defendant’s guilt or innocence on each offense.” An independent review of this record also fails to disclose wherein the determination of defendant’s guilt or innocence on each offense has been prejudiced by the joinder. There is, therefore, no showing which would warrant a finding that the trial judge erred in denying severance.

Assignments 3 and 4: At the trial Levy Redden, whose residence at 21 Magnolia Drive in Monroe was burned, testified that he had pled guilty to arson with intent to defraud his insurer. He testified that he negotiated with defendant Boone and Willie D. Allen to have the house burned in order to collect the insurance, paying them ten percent of the amount to be recovered from the insurance company for the loss of the building.

According to Redden’s testimony he owned two residences during February 1975, a rental dwelling in Farmerville and his residence on Magnolia Drive in Monroe. Both were insured against loss by fire.

Redden was in financial difficulties at the time and mentioned this fact to Allen. As a result of gentle persuasion by Allen, Redden agreed that Allen would burn the house in Farmerville. The Farmerville house was then occupied by tenants who would not vacate until the end of the school term in May.

Boone entered into the conspiracy to burn the Farmerville house during the month of June 1975, after the tenants vacated the house. An agreement was reached whereby Redden would pay Boone and Allen ten percent of the money collected from the insurance company when the house was destroyed by fire. Redden was required to pay $800 in advance, which he did by borrowing that amount from a bank in West Monroe. It was planned that Allen and Boone would burn the house during the month of June. However, the plan aborted because new tenants moved into the vacated house two days earlier than anticipated. Despite Redden’s efforts, at Boone’s suggestion, to have the tenants delay moving into the house in order that the burning could be accomplished, they were unwilling to cooperate. The plan to burn the house was therefore abandoned, for Redden refused to have it burned while it was occupied.

This development required a change of plans and, at Boone’s suggestion, the conspiracy shifted to the burning of Redden’s Magnolia Drive residence in Monroe. Because of the changed circumstances Redden was required to pay Boone an additional $400. It was also understood that Redden would go on a vacation during the month of July and the house would be burned during his absence. In keeping with this revised scheme, Redden left a house key with Boone and he and his family traveled to Arkansas and Missouri on vacation. On his return five days later, the house had not been burned. Disappointed, Redden contacted Boone for an explanation.

Shortly thereafter Redden traveled to Florida with his family expecting the house to be burned on his return. From Florida he telephoned Boone to inquire if the house had been burned, at which time Boone explained that the man who was to do the job was in the hospital with a heart condition. Thereupon Redden returned to Monroe.

During the following month of August Redden purchased another house on Willow Drive in Monroe and moved there with his family on or about the first of September. Then, on September 11, 1975, while the Magnolia Drive house was vacant, the conspiracy was consummated and that house was burned.

Thereafter Boone contacted Redden and demanded an additional $400 which he said would be used to pay someone who had slowed the fire truck down so the house could burn. This payment was not made.

Redden then made a claim for the insurance, collected $51,000, $41,000 for the building and $10,000 for the contents, paid the mortgage on the house, sold the lot for an additional $10,000 and paid Boone $2,900, the balance due on $4,100 which was the ten percent agreed upon for burning the building.

During Redden’s testimony, defense counsel objected to all evidence relating to the aborted plan to burn the Farmerville house. When the objections were denied and the evidence was admitted, he moved for a mistrial contending that this testimony was evidence of another crime committed by defendant which was inadmissible. To permit such testimony, he argued, was grounds for a mistrial under Article 770(2) of the Code of Criminal Procedure. Moreover, he reasoned, the testimony related to a prior offense which was inadmissible because defendant had not been notified in advance as required by the decision in State v. Prieur, 277 So.2d 126 (La.1973), that evidence of a prior offense would be presented.

The circumstances surrounding the burning of Redden’s Farmerville house were incidents of an ongoing conspiracy to defraud the insurance companies who insured Redden’s houses. When the Farmerville plan aborted, the identical conspiracy involving the identical conspirators was shifted to the Magnolia Drive house in Monroe with the identical ends in view. Money paid by Redden for the burning of the Farmerville house was to be applied to the burning of the Monroe house instead. And the initial agreement to pay Boone and Allen ten percent for burning the Farmerville house was to apply to the burning of the Monroe house. It was impossible, therefore, to prove the agreement to burn the Monroe house without mentioning the agreement entered into in connection with the Farmer-ville house.

Evidence of the Farmerville caper was necessary to explain the facts surrounding the commission of the offense in Monroe. As such it was relevant and admissible. La.Rev.Stat. 15:441. The fact that the events and circumstances leading to the commission of the offense forming essential elements of the crime charged occurred over a period of months does not, under the circumstances of this case, render evidence of the Farmerville conspiracy inadmissible or irrelevant; nor does that evidence, because of the time factor separating the chain of events, become a separate offense. All of these activities were integral parts of a single transaction. Facts and circumstances of illicit conduct do not always fall into neat, compact patterns.

For these reasons the trial judge properly admitted evidence of the Farmerville conspiracy. See State v. Kaufman, 331 So.2d 16 (La.1976), cert. denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591; State v. Joseph, 341 So.2d 861 (La.1977).

In addition to the assignments of error which have been found to be without merit, defendant argues in brief that error is discoverable by a mere inspection of the pleadings and proceedings, and for that reason should be considered by this Court on appeal under the authority of Article 920(2) of the Code of Criminal Procedure.

In stating in brief that the trial judge failed to afford defense counsel access to a presentence report and an opportunity to rebut any adverse information which may be contained in such a report, defense counsel does not designate any portion of the record which will support his assertion. His brief does state, however, that he requested a copy of the report in order that he might determine whether it contained adverse information which was false or unfounded and which could be rebutted.

To support his position defense counsel relies upon this Court’s decision in State v. Underwood, 353 So.2d 1013 (La.1978), where the case was remanded to allow defense counsel to rebut adverse information in a presentence report. He concedes, however, that the Underwood case is distinguishable in that the presentence report in that case was shown to contain false information, whereas no such showing is made in the instant case. Nevertheless, defense counsel urges this Court to implement the Underwood decision by affording an opportunity to the defendant to view the presentence report to ascertain whether it contains false information detrimental to his case.

In the absence of a designation of that portion of the record which would establish that defense counsel made a timely request to view the presentence report which was denied, and in the absence of any showing whatever that the presentence report contained false information prejudicial to defendant, this Court’s unanimous opinion in State v. Berain, 360 So.2d 822 (La.1978), is controlling. There Chief Justice Sanders wrote:

“Louisiana Code of Criminal Procedure Article 877 provides that the pre-sentence investigation report utilized by the judge in imposing sentence is privileged. ‘Before imposing sentence the court may advise the defendant or his counsel of the factual contents and conclusions of any pre-sentence investigation report.’ LSA— C.Cr.P. art. 877. In State v. Underwood, La., 353 So.2d 1013 (1977), this Court vacated the defendant’s sentence due to the trial court’s error in not allowing defense counsel access to the pre-sentence report and an opportunity to rebut a false statement in it. That holding is inapplicable to the present situation. In Underwood, there was proof that the pre-sentence report was materially and prejudicially false. Here, there is no such proof or allegation. Moreover, the record does not contain a request by the defense for the report. Absent such a request, we find no error. State v. Norris, La., 347 So.2d 225 (1977).” See also La.Code Crim.Pro. arts. 875-76; La.Rev.Stat. 15:574.12.

For the reasons assigned, the conviction and sentence are affirmed.

TATE, Justice,

concurring: I concur, but with reservations as to the rationale and result as to Assignment 2.

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

The majority’s reliance on La.R.S. 15:455 is misplaced. The “co-conspirator” exception to the hearsay rule, which is itself subject to criticism, see, Comment, The Co-conspirator Exception to the Hearsay Rule, 37 La.L.Rev. 1101 (1977), does not provide a foundation for the introduction of evidence concerning a conspiracy to commit a crime not charged in the indictment.

Nevertheless, evidence of the Farmerville arson conspiracy was admissible in this case as part of the res gestae. Recent decisions of this Court have required a very close connexity between the crime charged and the crime sought to be introduced into evidence. State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Mitchell, 344 So.2d 1026 (La.1977). See also, The Work of the Louisiana Appellate Courts for the 1973-1974 Term—Evidence, 35 La.L.Rev. 525, 526—27 (1975):

“In light of the purposes behind the Prieur guidelines, it is believed that for evidence of the other crime to qualify as res gestae under Prieur, the other crime must be so closely connected that the indictment or information as to the instant crime is deemed to carry with it notice as to the other crime as well.”

This test is met in the present case. The conspiracy to burn the Farmerville residence was closely intertwined with the charged offense and the indictment must have put the defendant on notice that evidence of the Farmerville arson would be admitted.

I respectfully concur.


author: SUMMERS, Justice. TATE, Justice

text:
    STATE of Louisiana v. Randall WEBB.
    No. 61893.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      Alton T. Moran, Director, Allen J. Ber-geron, Jr., Michael W. McKay, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Anthony J. Marabella, Jr., Marilyn C. Castle,- Asst. Dist. Attys., for plaintiff-appellee.
   SUMMERS, Justice.

A December 1976 indictment of the East Baton Rouge Parish Grand Jury charged that Randall Webb committed attempted aggravated rape, aggravated kidnapping, and armed robbery. Webb was tried before a jury and found guilty on all three counts. His motion for a new trial was heard, and granted on the aggravated kidnapping charge. New trials were denied in the armed robbery and aggravated rape convictions. On each of these last two convictions Webb was sentenced to be confined in the custody of the Director of the Department of Corrections for a period of fifty years, the sentences to run concurrently. This appeal is from the denial of a new trial on the attempted aggravated rape and armed robbery convictions.

According to the State’s witnesses, on February 2, 1976, Webb went to the house of the victim and demanded money. When she denied that she had money, he forced her at knife point to go with him to a bank to cash a check. On the way to the bank, defendant drove the victim to a wooded area and told her that he was a member of a motorcycle gang whose members were at her house waiting for her children. He threatened also that if she did not have sexual relations with him he would return to her house where all members of the gang would assault her.

After he forced her to disrobe and have sexual relations they drove to a grocery store where defendant took $2.00 from the victim to purchase gasoline. He compelled her to go with him to a bank where he forced her to cash a check for $250, then took the money and released her.

Assignment 1: Two prospective women jurors, Ragan and Weidner, were being questioned concerning their attitude toward an attempted aggravated rape prosecution and the effect of such an offense upon their judgment. In answer to a leading question that it was the rape charge that “bothered” them, both replied in the affirmative. Because of other answers, a challenge for cause was allowed as to Ra-gan. Weidner also conceded the “possibility” that she would be more willing to believe the woman than the man in a rape situation. When Weidner was asked if there was any problem with her being able to strictly apply the presumption of innocence, she replied that she had three daughters, and the problem would be on her mind. In summary, however, she stated that she thought that she could honestly weigh the facts from the testimony.

In ruling on the defense motion to challenge Weidner for cause, the trial judge answered the defense argument that Weid-ner was disqualified because of her feminist leanings, her daughters and her statement that there was a “possibility” that she would favor the victim. As to the latter challenge, the judge said, “I don’t think Miss Weidner said that it was a strong possibility that she would be unduly influenced. She simply said there was a mere possibility. I think that exists for all persons.”

Insofar as pertinent here, the grounds upon which a juror may be challenged for cause are:

“(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence; . .” La.Code Crim.Pro. art. 797(2).

As in many other facets of a criminal trial, judging the sincerity, fairness and credibility of jurors on voir dire is a matter which lies heavily upon the shoulders of the trial judge. His evaluation of the attributes required to qualify a prospective juror is entitled to great weight. Accordingly, his exercise of the wide discretion that determination requires will not be set aside unless it is arbitrary and unreasonable. Furthermore, rehabilitation of Weidner by the trial judge effectively removed the charge of bias. State v. Demouchet, 353 So.2d 1025 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Passman, 345 So.2d 874 (La.1977); State v. Jones, 315 So.2d 650 (La.1975).

This assignment is without merit.

Assignment 3: The defendant urges on appeal that the trial judge committed error when he denied a defense motion for access to a taped interview with the alleged victim.

Sergeant Smith of the East Baton Rouge Sheriff’s Department testified that he participated in the investigation leading to the arrest of Webb. He recounted the steps in the investigation and arrest ending with an interrogation of Webb in the parish courthouse. At this point in Smith’s testimony defense counsel stated, while the jury was retired, that he had learned that certain objects recovered during the investigation were obtained on the basis of information furnished by the victim in a taped interview. That being the case, defense counsel asserted that he had a right to listen to the taped recording prior to examining the victim. The State’s attorney answered that the victim had taken the stand previously and defense counsel was given full opportunity to cross-examine her at that time; for this and other reasons the defense was not entitled to this information.

In denying the defense the right to listen to the taped recording of the interview with the victim, the trial judge ascertained that no Brady motion had been filed on behalf of defendant. He declared further that he was aware of no rule of law which would permit a defendant to compel production of the statement of a witness obtained in an investigation, unless it could be alleged that the testimony of the witness was inconsistent with the pretrial statement. When the ruling had been made defense counsel acquiesced, saying, “We can proceed, Your Honor, I’ll get it out of him another way.”

There was, therefore, no objection to the ruling and the matter cannot be considered on appeal. La.Code Crim.Pro. art. 841.

Assignments 4 and 5: Defendant was arrested and booked at the courthouse in Baton Rouge. The arrest followed an interview with Webb’s wife in nearby Ascension Parish. Webb’s wife was being detained by the authorities in Ascension Parish while Webb was being interrogated by the Baton Rouge authorities. As a result of his interrogation, Webb gave a confession which was tape recorded.

As the contention on appeal is understood, Webb’s sole claim of involuntariness of the confession is that he requested permission to speak to his wife on the telephone prior to giving the statement to the Baton Rouge authorities. Permission was not granted, however, until he had given the statement, at which time he was allowed to telephone his wife. In effect, the contention is that the confession was induced by promises of the interrogating officers to release Webb’s wife if he would confess.

The record does not support the defendant’s contention. Officers present at the time testified that no promises or threats were made to the defendant before his statement was recorded; nor did any of the interrogating officers promise that Webb’s wife would be released from detention if he gave a statement.

From Webb’s testimony it can be concluded that he believed that she had been arrested because she had helped him to elude capture. His concern was that she would be charged as an accessory to his crimes, and would be retained in custody until he gave a statement. These inferences he drew from the situation surrounding him, conceding that no one responsible for his arrest or incarceration told him that these were the facts, or that they made promises or threats.

In his ruling the trial judge was of the opinion that' Webb’s inferences were drawn from facts within his knowledge — that his wife had helped him to elude capture — not from representations, inducements or promises by the authorities who arrested or interrogated him. Accordingly the trial judge held that the confession was admissible.

Admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are not supported by the evidence. La.Rev.Stat. 15:451; La.Code Crim.Pro. art. 703(C); State v. Mullins, 353 So.2d 243 (La.1977).

Assignment 7: Defendant had pled not guilty by reason of insanity. As proof of his mental condition Doctor Allen John-stone, a psychiatrist, was called to testify on his behalf. Doctor Johnstone had prepared a written report as a result of his examination of Webb, and defense counsel asked him to read it to the jury. Without objection, the report was read to the jury and the doctor was examined at length by the trial judge and cross-examined by the prosecutor on his opinion of Webb’s mental condition. On redirect examination, defense counsel offered to introduce the doctor’s written report into evidence. The State’s attorney objected, and the trial judge sustained the objection.

The trial judge was of the opinion that the written report was sought to be introduced in order that it could be examined by the jury after they retired to deliberate. Being of the opinion that this would not be permissible, he felt the report should not be admitted. The trial judge was also of the opinion that the doctor’s testimony was the best evidence because it was given under oath, whereas the report was not prepared while he was under oath. And, finally, the report had been read to the jury and the doctor had departed from the report and explained and elaborated on the contents of that document.

Without commenting upon the validity of the ruling denying the introduction of the written report, it can be safely concluded that no harm resulted to defendant by the denial and no cause for reversal of this conviction resulted. The jury had the full benefit of the report together with the doctor’s explanations and elaborations on its content. La.Code Crim.Pro. art. 921.

Assignment 9: After the jury returned its verdict finding defendant guilty on all counts, defendant filed a motion for a new trial. In addition to general allegations that a new trial should be granted on all three counts, defendant set forth in the motion that the $250, which defendant allegedly forced the victim to procure for him by cashing a check, was relied upon by the State as “ransom”, an essential element of the offense of aggravated kidnapping. Furthermore, according to the motion, this same $250 was also offered by the State in connection with the armed robbery charge as “anything of value”, an essential element of the offense of armed robbery. La.Rev. Stat. 14:44 and 64.

Because of this, the motion alleges, the same $250 cannot serve to prove an essential element of both crimes. Therefore, one of the charges is necessarily lacking in proof of an essential element. Defendant concludes by asserting that proof of the aggravated kidnapping or armed robbery charge must fail.

The trial judge denied the motion for a new trial of the convictions for armed robbery and aggravated rape; however, being of the opinion that the $250 was proof in connection with the robbery, and not the aggravated kidnapping, he granted a new trial on the aggravated kidnapping conviction on the ground that proof of an essential element of that crime was lacking. At the time of this ruling the State sought supervisory writs but they were denied. State v. Webb, 351 So.2d 152 (La.1977).

Because of the joinder of these offenses, it is defendant’s position on appeal that the use of the same money to prove essential elements of two crimes tainted the legality of all three convictions mandating a new trial as to all three.

On the other hand the State contends that it was error for the trial court to grant a new trial as to the aggravated kidnapping conviction, because defendant was not entitled to a new trial on any charge.

Defendant has no cause to complain of the denial of his motion for a new trial of the armed robbery and aggravated rape convictions. The trial judge properly denied the motion on these convictions.

The principal argument advanced by defendant is that the jury was confused by the joinder of these offenses. Initially it is noted that joinder is approved in Louisiana law. Article 493 of the Code of Criminal Procedure so provides in these broad terms:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

All three offenses in this crime spree were closely related in point of time and basically arose out of one continuing transaction. They were, therefore, properly joined. Furthermore, the State contends that defendant cannot complain of this join-der because no severance was applied for as prescribed in Article 495.1 of the Code of Criminal Procedure:

“The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”

A search of the record supports the State’s contention. Severance was available to the defense before and during the trial. This remedy is not available after conviction.

In this Court’s view, no taint resulted from the fact that the $250 was an essential element of two of the offenses charged. The number of offenses involved in this prosecution was not such that the jury was confused or presented with an unmanageable situation, nor was the evidence offered of such complexity that the trier of fact was unable to distinguish the evidence and apply the law intelligently as to each offense.

The jury received evidence that the defendant abducted the victim, threatened her life with a knife, forced her to have sexual relations with him, took two dollars from her for gasoline, forced her to cash a check for $250 and give him the proceeds, and then released her. There was, therefore, evidence of every element of armed robbery and aggravated rape, clearly and definitely defined. Granting a new trial on the conviction for aggravated kidnapping is not before this Court on appeal.

For the reasons assigned, the convictions and sentences for armed robbery and aggravated rape are affirmed.

On Application for Rehearing

TATE, Justice

(concurring in denial).

The defendant appellant raises a substantial issue in his application for rehearing. He avers that he is prejudiced by the trial court’s grant of a partial new trial — setting aside the conviction on the aggravated kidnapping issue, but with a denial of the new trial as to the other counts. While I do not believe his argument is meritorious insofar as it contends the partial new trial grant is unauthorized, he makes the additional contention that a retrial on the aggravated kidnapping charge will subject him to prejudice, since on the new trial he may be impeached by proof of the prior convictions in the other two charges based on the same facts which we now have affirmed. He therefore argues that a new trial should have been granted on all three counts.

The defendant primarily bases his argument on the revisions of La.C.Cr.P. art. 857, which provides: “The effect of granting a new trial is to set aside the verdict or judgment and to permit retrial of the case with as little prejudice to either party as if it had never been tried.” (Italics mine.)

While I do not believe that this code article provides that the new trial be granted as to all multiple bills, when a new trial is required as to one count, I do think that it requires that, on the new trial of the severed count, the defendant must be permitted to take the stand, the same as in the original trial, without being subject to impeachment by reason of the prior convictions arising out of the same facts in a consolidated trial of the multiple bills, which included the count upon which a new trial is granted. By this means, the effect of granting the partial new trial is, in accordance with the code article, “to permit retrial of the case with as little prejudice to either party as if it had never been tried.”

For these reasons, I concur in the denial of the defendant’s application for rehearing.


author: DENNIS, Justice. TATE, Justice,

text:
    TENNESSEE GAS PIPELINE COMPANY v. ADMINISTRATOR, DEPARTMENT OF EMPLOYMENT SECURITY of the State of Louisiana, et al.
    No. 61908.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    George M. Wear, Jr., Shotwell, Brown & Sperry, Monroe, for plaintiff-applicant.
    James A. Piper, James A. McGraw and Willie D. Maynor, Baton Rouge, for defendant-respondent.
   DENNIS, Justice.

In this case we are called upon the determine whether a lump sum payment of lifetime benefits under a retirement or pension plan disqualifies a retiree for unemployment compensation benefits for any period of time other than the week in which the lump sum is paid.

Relator, Tennessee Gas Pipeline Company, employed Gaddie Scroggins for twenty-eight years at its plant in Natchitoches, Louisiana. The company provides a retirement benefits program for its employees which Scroggins joined in 1948. Initially, both he and the company made payments into the retirement fund. However, after 1969 the company made 100% of the contributions on behalf of Scroggins.

Scroggins retired from his employment with the company July 1, 1975 upon attaining the mandatory retirement age. The retirement plan provided several options regarding the time and method of payment of benefits. The basic option available to Scroggins was a monthly payment of $438.25 for the rest of his life or, in the event of his death within ten (10) years, to his named beneficiary for the balance of the ten year period. However, Scroggins elected the option of receiving a lump sum cash payment of $55,951.87 which was paid to him in January, 1976.

Shortly after his retirement Scroggins filed a claim for unemployment compensation with the Department of Employment Security. The company opposed his claim, contending that Scroggins was disqualified for benefits because of the retirement payment he had received. The Department, after hearings and appeal as provided by statute, La.R.S. 23:1624-31, concluded that Scroggins was not disqualified for unemployment benefits except for the one week in which he received the lump sum payment.

Thereafter relator sought judicial review of the administrative decision pursuant to La.R.S. 23:1634. The district court upheld the agency’s decision and on appeal the intermediate court affirmed its judgment. Tennessee Gas Pipeline Company v. Administrator, Dept. of Employment Security, 356 So.2d 114 (La.App. 3d Cir. 1978). We granted certiorari to determine whether the court of appeal correctly interpreted the law by holding that the lump sum payment was remuneration from a retirement plan which was paid only with respect to the one' week in which it was actually received by Scroggins.

At the time the controversy arose, La. R.S. 23:1601(7)(c) provided:

“An individual shall be disqualified for benefits:
“(7) For any week with respect to which he is receiving or has received remuneration in the form of:
U * * *
“(c) Payments under any private retirement or pension plan, system or policy toward the cost of which a base period employer is contributing or has contributed on behalf of the individual.”

Prior to claimant’s retirement, relator sent claimant a letter outlining his options under the company’s retirement income plan which stated in pertinent part:

“Your estimated normal benefit under the Retirement Income Plan, that is, the benefit that you would automatically receive if you did not elect, before .retirement, to choose another method, is monthly income payments of $438.25 which are guaranteed for ten years certain and life thereafter. The ‘ten years certain’ means that in the event of your death before 120 monthly payments have been made, the remainder of the payments would be paid to your beneficiary. Listed below are other types of monthly income options which you may elect in lieu of the above:
“(6) If you prefer, you may receive a single sum settlement of your accumulated cash values instead of monthly payments. Your estimated cash values amount to $53,838.88.”

During the hearing before the appeals tribunal for the Department of Employment Security, the trust officer for the retirement income plan in question testified concerning the computation of the lump sum settlement claimant received:

“The amount of a lump sum settlement is computed based upon projected total of monthly benefits which is computed actu-arially in accordance with a person’s life expectancy and discounted for 3 payments. The lump sum is a prepayment of monthly benefits due to an employee for the rest of his life. Mr. Scroggins elected to receive his benefits in the form of a lump sum payment and by letter dated January 12, 1976 was paid the sum of $55,951.87 by check number 00195 drawn upon the thrust account. This sum represents a prepayment of the $438.25 per month which Mr. Scroggins was guaranteed for the rest of his life.” [emphasis supplied]

The lump sum payment unquestionably represented a prepayment of monthly benefits actuarially estimated to cover the remaining days of Scroggins’ life. Although the Department did not find any facts to the contrary, Scroggins was awarded unemployment compensation because of the agency’s “policy” that a lump sum settlement “is not to be prorated.”

By deciding the case in accordance with its “policy” rather than the clear provisions of the statute the Department acted contrary to law. La.R.S. 23:1601(7)(c) expressly provides that an individual is disqualified for benefits during any week with respect to which he has received remuneration in the form of pension plan payments to which a based period employer has contributed. The uncontroverted testimony of the trust officer who computed claimant’s lump sum settlement clearly indicates that the $55,951.87 lump sum constituted a prepayment of benefits with respect to all of the remaining weeks of Scroggins’ life. Accordingly, Scroggins received remuneration with respect to more than merely the single week in which he received the lump sum payment. The lump sum payment represented remuneration with respect to the actuarially estimated balance of Scroggins’ life.

For the reasons assigned, we conclude that the Department’s adjudication of Scroggins’ claim was based on an error of law. Accordingly, the agency’s decision and the court judgments affirming it are vacated. The case is remanded to the Department for a redetermination of Scroggins’ claim consistent with this opinion.

TATE, Justice,

dissenting; I respectfully dissent for the reasons stated by the court of appeal, 356 So.2d 114 (La.App. 3d Cir. 1978). I would not disturb the administrative interpretation of a statute which can equally well be construed to accord with the agency’s view in the context of its field of expertise.

      . Claimant contributed a total of $4,844.22 to the plan.

      . Act 366 of 1976 amended La.R.S. 23:1601(7)(c) to include retirement or pension payments by the State of Louisiana and any of its instrumentalities or political subdivisions.

      . This position is consistent with the position of other states’ courts. See, Annotation, 56 A.L.R.3d 520 (1974). The Department’s reliance on the decision of Hale v. Gerace, 324 So.2d 558 (La.App. 1st Cir. 1975) is misplaced in the present case. In Hale, the court found that because there was no evidence that the employer was contributing any part of the money the claimant was receiving from the plan at the time of the employee’s claim, claimant was not disqualified until he had completely withdrawn his own funds set aside in the pension plan.
      In the present case, undisputed evidence indicated that the employer “has contributed on behalf of’ claimant by regular annual payments into an independent trust account. The record also reflects that at the time Scroggins’ claim was pending, claimant had received remuneration in the form of the lump sum payment by relator and that this lump sum represented a prepayment of lifetime retirement benefits. Nothing in La.R.S. 23:1601(7)(c) indicates that the relative amount of contributions made by employee and employer should be considered.

      . Since the lump sum payment was based on a $438.25 monthly payment, the Department should compute the extent to which Scroggins is disqualified for benefits on a weekly basis. La.R.S. 23:1601(7)(d). Should it be determined that Scroggins is not entitled to any unemployment benefits as a result of his Tennessee Gas Pipeline Company employment, our decision herein should not be construed to prevent him from becoming eligible to receive benefits from a new base period employer. See, La.R.S. 23:1472; 1600-01.


author: TATE, Justice.

text:
    James P. COUSINS, Plaintiff-Appellant-Relator, v. The LUMMUS COMPANY and the Travelers Insurance Company, Defendants-Appellees-Respondents.
    No. 62001.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.
    J. Michael Cumberland, Badeaux, Discon, Cumberland & Barbier, New Orleans, for plaintiff-appellant-relator.
    Michael A. Britt, Leach, Paysse & Baldwin, New Orleans, for defendants-appel-lees-respondents.
   TATE, Justice.

The plaintiff sues his employer and its insurer for workmen’s compensation benefits for total and permanent disability. The trial court awarded him benefits only for 100 weeks, and it denied his claim for total and permanent disability. The court of appeal affirmed. 355 So.2d 629 (La.App. 4th Cir. 1978).

We granted certiorari, 358 So.2d 640 (La.1978), upon the plaintiff’s complaint that the previous courts had applied an incorrect test as to the legal disability of a skilled workman.

The plaintiff has been a journeyman electrician for 31 years, working upon construction jobs as they occurred. At work on May 15,1974, he fell off a scaffold, injuring his head and neck. As a residual of his injury, without substantial contradiction, he suffers recurring dizzy spells and cannot safely perform climbing duties. (The medical evidence shows, by objective testing, that the dizziness and vertigo result from inner ear damage directly resulting from the accident at work.)

The previous courts found that the plaintiff was not totally disabled. The court of appeal points out that he “is able to perform well all job related tasks except for working off the ground.” 355 So.2d 630. (Italics ours.) Working out of his union hall, and selecting those foremen who would permit him to work without performing the climbing duties, the plaintiff has suffered no loss of earnings; the previous courts felt this also to be significant.

However, the evidence also shows without contradiction that climbing is a normal part of the work that a construction electrician is called upon to do, although some work of electricians does not require climbing. The evidence likewise shows that the plaintiff was able to secure employment, without being required to perform the climbing duties normally expected of him, by personal arrangements with his respective foremen.

The circumstance that a disabled workman can obtain employment at the same pay in good times, or by sufferance of his foreman, is not determinative of his legal disability for purposes of the workmen’s compensation act.

Under well-settled principles of interpretation of the compensation statute applicable to the case, a skilled workman is deemed totally disabled within the intent of the then-applicable compensation law if he cannot perform a substantial portion of the work incident to. his special occupation— that is, if he is unable to perform the duties of the occupation for which his training, education and experience qualify him. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.); Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (La.1973); Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849 (1969); Lindsey v. Continental Casualty Company, 242 La. 694, 138 So.2d 543 (1962).

As these decisions note: The workman’s loss of the capacity to perform the full duties of his employment constitutes total disability, even though he actually performs his duties with assistance or actually secures employment through sufferance or at restricted duties and suffers no actual loss of earnings. By reason of his work-caused disability, and his incapacity to perform some of the substantial duties of his employment, the workman is thereby placed at a disadvantage in a labor market now restricted in opportunity to him because of his work-disability.

The previous courts were in error in failing to apply the jurisprudential principles set forth above. Under them, the plaintiff employee is entitled to be awarded benefits for total and permanent disability under the compensation statute in force at the time of his injury.

Decree

For the reasons assigned, therefore, we amend the judgments of the previous courts so as to hold the defendants liable to the plaintiff for weekly compensation at the rate of $65.00 per week during disability, not to exceed five hundred weeks in all, commencing May 15, 1974, with credit for compensation previously paid, and with legal interest upon each delinquent weekly installment from date of delinquency until paid. The defendants are assessed all costs.

JUDGMENT OF COURT OF APPEAL AMENDED SO AS TO AWARD THE PLAINTIFF EMPLOYEE COMPENSATION FOR TOTAL AND PERMANENT DISABILITY.

      . The defendants cite and rely upon dicta in Peltier v. Liberty Mutual Insurance Co., 230 So.2d 591 (La.App. 1st Cir. 1970). That decision’s dictum is inconsistent with the jurisprudential principles set forth in the decisions of this court cited in the text.


author: TATE, Justice. DIXON, Justice

text:
    STATE of Louisiana, Appellee, v. Hugh C. WILBOURN, Appellant.
    No. 62005.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      Edward S. Bopp, A Law Corp., Arabi, Bruce C. Ashley, II, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Dennis J. Waldron, Asst. Dist. Attys., for appellee.
   TATE, Justice.

The defendant was convicted of three counts of negligent homicide, La.R.S. 14:32, and sentenced to five years imprisonment on each count, the sentences to run concurrently. The defendant’s appeal relies upon two assignments of error.

Assignment of Error No. 1 presents a •substantial issue. It concerns the denial of a motion to suppress certain evidence obtained as the result of a warrantless and allegedly unconstitutional search and seizure.

Context Facts

The accused is charged with the deaths of three persons injured by a hit and run motorist on September 21. On the following day at about 4:15 p. m., the police received an anonymous telephone tip that a brown Ford believed to be involved in a hit and run accident on Paris Road was located in a carport in the vicinity of Norton Street at Paris Road.

The dispatcher radioed to two police officers who were cruising in the vicinity. They saw a brown Ford with a white top parked in a carport at 513 Norton Street. Only the rear of the car was fully visible from the street.

The officers entered the carport to look at the car. When they came to its front, they saw blood and particles of hair on the right front. They radioed their findings, and other officers.came and took pictures, then taped a covering on the front of the vehicle.

The automobile belonged to the defendant, who was a tenant at 513 Norton Street. Subsequently, the owner of the premises came home and identified the accused as the vehicle’s owner. Neither the accused nor the home owner authorized the search of the vehicle, nor its subsequent impounding (when it was removed to a police laboratory).

The police officer’s entry in the carport to look at the front of the vehicle was admittedly made without a warrant, as was the subsequent removal of the vehicle to the police laboratory.

Legal Issue

The ultimate issue is whether the police officers’ entry into the carport to look at the vehicle violated any reasonable expectation of privacy on the accused’s part that is constitutionally protected. State v. Lamartiniere, 362 So.2d 526 (La.); State v. Fearn, 345 So.2d 468 (La.1977); State v. Nine, 315 So.2d 667 (La.1975). These decisions indicate that the test is not only whether the person had an actual (subjective) expectation of privacy, but also whether the defendant’s expectation of privacy is of a type which society at large is prepared to recognize as being reasonable.

Our resolution of this issue is not free from doubt. Under some circumstances, and with the physical layout of some carports, the individual’s reasonable expectation of privacy might be violated by an unauthorized entry into a carport to look at its contents.

However, it is a particular individual’s right to privacy, not a particular place, which is protected by the constitution. Thus, it is appropriate to take into consideration the particular facts and circumstances, the total atmosphere of the case, in determining whether the constitutional right to privacy has been violated by an unauthorized entry into a part of the premises which is open to the public. State v. Nine, cited above, at 315 So.2d 671.

Under the particular circumstances of this case, we do not find that either the accused’s subjective expectation of privacy, or else what society would consider a reasonable expectation of privacy, were offended by the police officers’ entry into the unenclosed carport to look at the front of the vehicle, which had been reported (although by a tip of unverified reliability) as having been involved in a hit and run accident the day before. The carport was on the side of the house, not enclosed from the street, and only partially enclosed on one side:

Persons entering the side-door of the house, or those knocking at the side-door to find out if someone was home or to deliver or sell something, could readily view the front of the vehicle parked alongside. That sort of entry into this carport by members of the public (including police officers on an investigatory mission) is deemed to have been reasonably within the contemplation of the accused, when he left property in the semi-public premise available for public view.

We therefore find no unconstitutional invasion of the accused’s right to privacy resulted when the police officers entered this particular carport to look at the vehicle, and no unconstitutional taint in their recording the information they observed there.

Nevertheless, a further troublesome issue is raised by the accused. A couple of hours after the first visit, the vehicle was seized by officers and removed to the police laboratory, still without the officers having obtained a warrant and judicial authority to do so. The accused contends, with considerable force, that, at least, the results of the laboratory testing consequent to this war-rantless seizure should be suppressed.

The laboratory testing was limited to findings based on an examination of the exterior of the vehicle. Cf. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). We are not faced with a warrantless search of the interior or trunk of the car, following a warrantless seizure. If we were, our conclusion might well be different than the following:

With some reservations, we finally conclude that the trial court did not err in finding that the warrantless seizure was justified by exigent circumstances, insofar as it was immediately necessary to protect evidence on the vehicle’s exterior. The circumstances consist of the hurricane alert at the time, instanced by overcast skies, and the testimony of the officer in charge of the substantial possibility that, should the hurricane strike, the evidence of blood and hairs on the automobile might be damaged or obliterated by rain, even though covered by plastic and even though the vehicle was in a carport (which, however, was open at the side and to its rear).

Conclusion

The other assignment of error concerns the failure to select the petit jurors by lot in open court as required by La.C. Cr.P. art. 784. See State v. Hoffman, 345 So.2d 1 (La.1977). Here, the order of calling the petit juror venire had indeed been determined by lot, but in the jury pool room instead of in open court.

The present case was tried before Hoffman had held to be invalid the latter procedure utilized by the Criminal District Court of Orleans Parish. However, Hoffman specifically limited the effect of its ruling to jury panels selected after the finality of the decision of the court in that case.

Accordingly, for the reasons assigned, we affirm the convictions and sentences.

AFFIRMED.

DIXON, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

True, there was no expectation of privacy, and the initial intrusion into the carport was not illegal. But no adequate reason is suggested to justify the failure of the police to obtain a warrant for the seizure of the car. The imminent hurricane, relied on to complete the “exigent circumstances,” should have convinced prudent police to keep the car in the protection of the carport and obtain a warrant for its seizure.


author: DIXON, Justice.

text:
    Paula Fletcher CADIERE v. WEST GIBSON PRODUCTS COMPANY, INC., d/b/a West Brothers Gibson Discount Center and Morrison’s Assurance Company.
    No. 62050.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.
    Stephen M. LaRussa, Gaidry & LaRussa, Houma, for plaintiff-applicant.
    Larry P. Boudreaux, Thibodaux, for defendants-respondents.
   DIXON, Justice.

Paula Fletcher Cadiere was employed as a salesperson at West Brothers Gibson Discount Center in Houma, Louisiana. On October 4, 1974 Ms. Cadiere was injured when the mannequin she was dressing fell and struck her in the head, causing her to jerk backwards. After reporting the incident to her employer, she immediately sought medical attention from Dr. Richard Haydel and complained to him of headache and nausea. Dr. Haydel prescribed an analgesic for her and she remained at home on the next two work days, Friday and Saturday, and on the following Monday. Ten weeks later, on Christmas Eve, pains in Ms. Cadiere’s back became so intense that she was taken to the emergency room at Terrebonne General Hospital. Her symptoms of back and leg pain were diagnosed as attributable to a ruptured disc, and a myelogram confirmed this opinion, revealing a defect at the L5 level on the right side below the L4-5 inner space, and another defect at the L5-S1 level. In March, 1975, an orthopedic surgeon, Dr. Dexter Gary performed a two-level laminectomy at both L4 — 5 and L5-S1 levels. The operation proved initially successful, but within a few months Ms. Cadi-ere began to suffer back and leg pains once again. After unsuccessful recourse to physical therapy, interspersed with psychiatric consultation, she underwent a second operation at Chalmette General Hospital by a Dr. Llewelyn.

On September 25, 1975 Ms. Cadiere filed suit for workmen’s compensation benefits seeking total and permanent disability benefits. The trial judge rendered judgment in the plaintiff’s favor, concluding that she was totally and permanently disabled. This judgment was appealed, and on February 13, 1978 the Court of Appeal reversed the trial court in an unpublished opinion. Writs were applied for by plaintiff and were granted on May 5, 1978. 357 So.2d 1160 (La.). We reverse.

The employee in a workmen’s compensation action must establish by a preponderance of the evidence that he received a personal injury arising out of and in the course of his employment and that a causal relationship exists between his disability and that accident. Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976); Blazier v. Georgia-Pacific Corp., 301 So.2d 701 (3d Cir. La.App.1974). However, the burden of proof shifts to the defendant once the plaintiff shows that the accident and injury are causally connected without an intervening cause. Haughton v. Fireman’s Fund American Insurance Companies, 355 So.2d 927 (La.1978).

At trial the • plaintiff testified that she was hit on the head by the mannequin, an incident within the statutory definition of accident, R.S. 23:1021. The existence of the injury is well documented in the record and is not in dispute. Ms. Cadiere’s testimony that the accident caused the injury is supported by the expert testimony of Dr. Gary who, in response to hypothetical questions, gave the opinion that a sudden jerking of the back could account for serious disc trouble at a later date. In further support of her contention, the plaintiff introduced the testimony of her relatives, and especially her grandmother with whom she lived, that she complained of back pains at frequent intervals after the October 4, 1974 accident.

The reviewing court must give great weight to the factual conclusions arrived at by the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring Co., 283 So.2d 716 (La.1973). “The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Co., supra at 724.

In overruling the trial court, the Court of Appeal appears to have been influenced by three factors: the testimony of Jackie Bou-dreaux and Georgia Deroche, co-workers with the plaintiff at the time of the accident; the ten week period after the incident during which the plaintiff sought no medical treatment for her back; and a preexisting injury caused to the plaintiff’s back when she tried to move a recliner in 1970, and for which she was hospitalized for approximately two weeks with a back sprain.

Jackie Boudreaux, who had been assisting the plaintiff to dress the mannequin at the time of the accident, testified that Ms. Ca-diere did not fall to her knees upon impact and could not have hit her back upon a dress rack because the racks were at least four feet behind her when she jerked back in response to being hit. She was supported in this statement by Georgia Der-oche who was doing other work nearby. Both women testified that the plaintiff made light of the incident and complained only of a headache, if at all. However, neither was an eyewitness to the plaintiff’s movements at the moment the mannequin struck her. Their testimony related to the degree of Ms. Cadiere’s response to being hit by the mannequin and indicated that the plaintiff merely moved backwards when the figure struck her. Dr. Gary, however, testified that any quick jerking movement could significantly affect a preexisting back problem. The statements that the plaintiff was nonchalant after the incident were also contradicted by Ms. Cadiere’s going to see her physician and her subsequent absences from work. In light of all the testimony adduced at trial, we cannot say that the trial court was clearly in error to discount the testimony of Jackie Boudreaux and Georgia Der-oche and to award compensation to the plaintiff.

This same deference to the findings of fact and evaluation of witnesses’ credibility made by the trier of fact should also control when considering the weight to be given the ten week period during which Ms. Cadi-ere did not seek medical attention. Ms. Cadiere testified that she saw no doctors because she was afraid that she would be dismissed from her position at West Brothers if she complained too greatly. Although the Court of Appeal may believe its own evaluation of this evidence to be as reasonable as that reached by the trier of fact, in the absence of clear error, which we cannot say is present from the record, the appellate court should not have substituted its judgment for that, of the lower court.

As to the presence of preexisting back problems, the Court of Appeal seems to have ruled that the injury caused in 1970 precluded a finding that the plaintiff’s present disability was work related and therefore compensable. However, the jurisprudence is clear that the employer takes the employee as he finds him, and that an employee’s disability is compensable if a work related accident aggravates or accelerates a preexisting condition to produce disability. Crawford v. Al Smith Plumbing and Heating Service, Inc., 352 So.2d 669 (La.1977); Parks v. Insurance Company of North America, supra; Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973). Ms. Cadiere’s and Dr. Gary’s testimony sufficiently establishes the existence of an accident and the causal connection between the accident and the aggravation of any preexisting condition.

For the reasons assigned, the judgment of the Court of Appeal is reversed, and the judgment of the district court is reinstated at defendants’ cost.