text:
    STATE of Louisiana ex rel. Bruce HINKLEY v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 63072.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: Bruce Hinkley, applying for remedial writs (Parish of East Baton Rouge).

Writ granted. See Per Curiam. 367 So.2d 283 (La.1978).

SANDERS, C. J., and MARCUS, J., dissent adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

SUMMERS, J., dissents.


source: Caselaw Access Project

author: SUMMERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. Sammy Glynn LAWSON.
    No. 61397.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, First Asst. Dist. Atty., for plaintiff-appel-lee.
    Cecil Campbell, II, L. G. Campbell, Campbell & Campbell, Bossier City, for defendant-appellant.
   ON REMAND

SUMMERS, Chief Justice.

On remand in these proceedings a hearing was held in the trial court pursuant to this Court’s order, at which time Rebecca Ates, a juvenile, was called as a witness by the defendant. According to her testimony, when defendant called her as a witness at the trial the judge appointed counsel to represent and consult with her. Thereupon, appointed counsel discussed with Rebecca whether she should testify, and informed her of her rights against self-incrimination. Appointed counsel then claimed the Fifth Amendment right against self-incrimination on her behalf and she was not compelled to testify.

As the per curiam opinion in this case sets forth, defendant contended that the privilege against self-incrimination was personal to Rebecca, and that the trial judge erred in allowing her attorney to claim it for her.

Before considering the merits of the contention we remanded the case to the District Court for a hearing and determination of whether Rebecca, at the time of trial, would have claimed for herself the privilege against self-incrimination.

When, at the hearing on remand, on October 10, 1978, Rebecca was called to testify, she was interrogated by counsel for the defendant. She then acknowledged that she had been summoned as a witness at Lawson’s trial in March of 1977 and was called by the defendant to testify. She also stated that she wanted to testify in the case and would have done so if she had taken the stand. After this brief examination defense counsel tendered the witness.

On cross-examination by the State’s attorney Rebecca acknowledged the fact that counsel had been appointed to represent her at the trial and that she had conferred with him on the question of whether she would testify. After conferring with him, she said, she decided to take counsel’s advice against taking the stand and testifying, although she did in fact want to testify. But despite her desire to testify, she instructed her appointed counsel to do what he thought best, letting him make the decision for her.

Upon further interrogation, however, when she was asked what she would have answered if the judge had asked her at the trial whether she wanted to plead the Fifth Amendment, she replied that she would have answered no and that she did not want to take the Fifth Amendment. Immediately after this testimony she again asserted that she had instructed her appointed counsel to do whatever he thought was best and that she did not argue with him about the decision to claim the Fifth Amendment right against self-incrimination.

We are satisfied that this latter testimony on remand is, although vacillating, a recantation of Rebecca’s position at the time of trial, notwithstanding the fact that all proper precautions were taken at the trial to protect her right against self-incrimination. As a defense witness, this change in the attitude she expressed at the trial nineteen months before may well be influenced by her desire to obtain a new trial for the defendant. The credibility of a witness who adopts such an extreme departure from her position at trial is suspect, when not satisfactorily explained.

Where a juvenile is involved, the better view is to appoint counsel, as was done here, and permit the witness’ counsel to assert the privilege against self-incrimination on behalf of the witness after consultation and with the permission of the witness. The alternative would be to permit the juvenile to testify knowingly, or through ignorance, without benefit of counsel and incriminate herself, hardly a suitable choice. We seriously question whether juveniles in all cases are sufficiently informed in the law to decide whether their testimony is incriminating.

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

DENNIS, J., dissents.

BLANCHE, J., not participating.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Donald ARBUTHNOT and Norman Williams, Appellants.
    No. 62058.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Charles C. Garretson, New Orleans, for Arbuthnot.
    Bernard E. Pulghum, Jr., Orleans Indigent Defender Program, New Orleans, for Williams.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph E. Roberts, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendants Arbuthnot and Williams were convicted of armed robbery, La.R.S. 14:64, and sentenced to 65 years and 99 years respectively at hard labor.

The defendant Williams filed seven assignments of error; we find that reversible error is presented by Assignment 4. In brief, the defendant Arbuthnot argues three assignments (not including the reversible assignment urged by Williams); however, his counsel did not formally file assignments of error (initially with the trial court), as required by La.C.Cr.P. art. 844 (1974).

Context Facts

The defendants were jointly charged with the armed robbery of Larry Tedley. From the truncated record before us, it appears that one robber (allegedly Williams) went into the store wearing a ski mask, which he took off when he demanded the money. The other robber (Arbuthnot) was shot during the getaway.

From the truncated record, it appears that only two persons were able to observe the identity of the robber (allegedly Williams) who went into the store: Tedley, who testified at the trial; and a Mrs. Silver, who did not testify. The improper elicitation of hearsay testimony as to Mrs. Silver’s identification of Williams as the robber who went into the store is the basis of our reversal of his conviction.

The excerpts of testimony in the record indicate that Arbuthnot, the co-defendant, was apparently identified by a bystander as he left the scene. He was arrested at the hospital to which he was taken after he was shot during or following the robbery.

The appeals of the two defendants present different issues and will be discussed separately.

The Defendant Williams

The defendant Williams’ Assignment 4 complains of the admission of prejudicial hearsay identification evidence. It requires reversal of his conviction.

As noted, the defendants are charged with the armed robbery of Tedley, who identified Williams as one of the robbers. There was one other witness to Williams’ participation in the robbery, a Mrs. Silver. The state did not call her to testify.

Nevertheless, over objection, the state introduced testimony of a police officer that she also had identified Williams as one of the robbers. This hearsay evidence, in effect doubling the eyewitness identification of Williams, was clearly inadmissible, and clearly reversible. State v. Jacobs, 344 So.2d 659 (La.1976), see 38 La.L.Rev. 582-84 (1978); State v. Thompson, 331 So.2d 848 (La.1976), see 37 La.L.Rev. 607-08 (1977).

In Louisiana criminal trials, hearsay evidence is inadmissible except under certain recognized exceptions. La.R.S. 15:434. Hearsay evidence is testimony in court, or written evidence, of an out-of-court statement offered to show the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court assertor. State v. Martin, 356 So.2d 1370 (La.1978); McCormick on Evidence, Section 246 (2d ed. 1972).

The traditional exclusion of hearsay evidence is based upon considerations of unreliability and of potential unfairness to the accused to permit the introduction of out-of-court statements which cannot be tested by cross-examination of the out-of-court declarant. State v. Hudson, 361 So.2d 858 (La.1978); State v. Ford, 336 So.2d 817 (La.1976). See also Pugh, Louisiana Evidence Law 388-432 (1974). Moreover, there is a chance that the witness will consciously or unconsciously misrepresent what the de-clarant told him. State v. Jacobs, 344 So.2d 659 (La.1976).

It is suggested that the officer did not testify to any out-of-court statement, merely that the (absent and unsworn) witness had identified Williams’ photograph as that of the robber.

In State v. Ford, 336 So.2d 817 (La.1976), we expressly rejected this argument that a non-oral communication of picking out a photograph is not subject to exclusion as hearsay. We there pointed out, 336 So.2d 821: “The assertive action of Summerville [the victim] was a communication to the officers that the photograph before him was one of his robber. It was introduced for the purpose of proving the truth of the matter so asserted, i. e., that the defendant Ford was his robber. It was therefore hearsay, as an assertive communication introduced for the truth of the assertion thereby made.”

In Ford, the error was not prejudicial because the testimony of the identifying witness was itself available for the trial jury. See also State v. May, 339 So.2d 764 (La.1976).

Here, however, the identifying witness did not herself testify at the trial. As we noted, in reversing a conviction in State v. Jacobs, 344 So.2d 659, 662 (La.1976), “the state may not bolster its case with an inadmissible extrajudicial identification when the identifier has not testified that she made such a pre-trial identification.”

By use of the hearsay description of the identification by Mrs. Silver, the state was improperly permitted to introduce an out-of-court assertion by an unsworn and uncross-examined witness to bolster (double) its identification testimony and thereby to strengthen improperly the testimony of what, at least under the truncated record before us, is its only identification witness.

The improper use of hearsay evidence on a material contested issue of its case is reversible error. State v. Monroe, 345 So.2d 1185 (La.1977); State v. Hayden, 243 La. 793, 147 So.2d 392 (1962). This is especially so here: The uncross-examined hearsay identification testimony, which deprived the defendant Williams of his cross-examination rights, was used to corroborate substantially the sole eyewitness who testified to identify him as the robber, whose testimony standing alone may not have been as readily believed by the trial jury.

Accordingly, defendant Williams’ conviction must be reversed.

Since we have found that reversible error as to Williams conviction is urged by Assignment 4, we need not discuss the inadmissible prejudicial testimony improperly elicited by the state concerning an alleged reason the other eyewitness (Mrs. Silver) did not testify at the trial, see Assignment 5. Likewise, Assignment 3, a hearsay statement by the testifying police officer that one of the accused was the robber, presents a close issue, because the trial court’s admonition to the jury to disregard this apparently deliberate attempt to bolster the state’s testimony identifying Williams may not have been sufficient to cure the prejudice thereby caused.

We mention these trial errors in an effort to caution against their re-occurrence in the re-trial.

The Defendant Arbuthnot

Under the record, a different issue is presented as to the review of the co-defendant Arbuthnot’s appeal.

Arbuthnot’s counsel did not himself file formal assignments of error.

However, under the 1928 code of criminal procedure, see La.R.S. 15:501 (1950), as well as under the 1966 Code of Criminal Procedure, art. 842 (1966), a bill of exceptions reserved by one co-defendant was presumed to have been reserved by all the defendants. This language was not expressly retained in the 1974 revision of the code which abolished the technicalities of the former bill of exceptions system, see La.C.Cr.P. arts. 841, 842 (now providing that an “objection” made by one defendant is presumed to have been made by all), 844 (1974). Nevertheless, no legislative intent is exhibited to change this long-standing provision that a properly preserved contention of error by one defendant preserves it for appellate review for all defendants.

Assuming — but not expressly deciding — that errors preserved by Williams’ assignments are available to Arbuthnot, we are nevertheless unable to say, on the record before us, that Arbuthnot was prejudiced by the erroneously admitted evidence and prejudicial rulings (Williams’ Assignments 3, 4, and 5) concerning improper identification evidence referring to Williams and comments bolstering the identification by one witness (only) of the co-defendant Williams as the robber who went into the store disguised with a ski mask and who held up the victim. The truncated record before us indicates that Arbuthnot was identified independently of any association with Williams and was discovered and arrested after the other robber (allegedly, Williams) and he had separated following the crime.

Decree

For the reasons assigned, we affirm the conviction and sentence of the defendant Arbuthnot; but we reverse the conviction and sentence of the defendant Williams, and remand his case to the district court for a new trial in accordance with law.

DEFENDANT ARBUTHNOT’S CONVICTION AFFIRMED;

DEFENDANT WILLIAMS’ CONVICTION REVERSED.

SUMMERS, J., dissents.

BLANCHE, J., not participating.

      . In brief, the prosecution states: “there were two eyewitnesses to the incident,” Mr. Tedley and Mrs. Silver.

      . As noted, Arbuthnot’s counsel did not file any formal assignments of error. However, after the appeal was lodged here (and after he was reminded by our clerk’s office of his obligation to file a brief in argument of the appeal), his counsel filed a brief in his behalf.
      In examining the record, we note that on May 23, 1977, his counsel had presented a motion to dismiss Arbuthnot’s appeal to the district court, which granted it. Tr. 32. The jurisdiction of the trial court had been divested by the previous order of appeal, and the dismissal by the trial court of a previously taken appeal is not included among the actions authorized by the trial court after the jurisdiction of the appellate court attaches. La.C.Cr.P. art. 916.
      Accordingly, we have reviewed the record presented by Arbuthnot’s appeal, despite this indication (not supported, however, by any affidavit of Arbuthnot himself) that he had abandoned his appeal.

      . The other assignments of error by Williams do not present reversible merit.


text:
    Valco CRUMP, Plaintiff-Appellee-Relator, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and National Gypsum Company, Defendants-Appellants-Respondents.
    No. 62299.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Earl G. Pitre, Metairie, for defendants-appellants-respondents.
    Peter Frank Liberto, New Orleans, for plaintiff-appellee-relator.
   TATE, Justice.

The plaintiff Crump claims workmen’s compensation. He sues for benefits for total disability caused by an occupational disease (asbestosis) contracted during his employment with National Gypsum Company. La.R.S. 23:1031.1 (1975). His employer and its compensation insurer are made defendants.

The trial court awarded Crump compensation for total and permanent disability at the rate of $85.00 weekly, not to exceed 500 weeks in all. The court of appeal reversed the trial court’s finding of disability, but found that Crump was entitled to recover $50.00 weekly for a period of 100 weeks because of a non-disabling but permanent impairment of his lung function, La.R.S. 23:1221(4)(p). 357 So.2d 1374 (La.App. 4th Cir. 1978).

We granted certiorari, 359 So.2d 622 (La. 1978), because we felt that the intermediate court had applied an incorrect standard of review.

On appellate review, the trial court’s factual findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong. The reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable.

See: Cadiere v. West Gibson Products Company, 364 So.2d 998 (La.1978); Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974). See also Canter v. Koehring, 283 So.2d 716 (La.1973).

As noted by these decisions, 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.

Facts

The plaintiff Crump had been employed by National Gypsum for twenty-eight years, the last twenty as a punch-press operator. It is undenied that the plaintiff contracted asbestosis in the course of his employment due to his exposure to asbestos dust. The defendants maintain, however, that it has not ripened into disability to work.

The plaintiff commenced work for the company in 1946. Lung x-rays taken in 1969 indicated the existence of the disease. Between 1971 and 1977, the plaintiff was under treatment for his asbestosis, in an effort to control it and to prevent its aggravation.

Asbestosis is a disease which results from scarring of the lungs by exposure to asbestos dust. Because of this scarring, the lungs have less capacity and furnish less oxygen to the victim’s blood. The record reflects that the disease may progress gradually or in spurts, but it also indicates that progression of the disease may be inhibited by factors (such as wearing masks at work) which reduce the exposure to the irritant.

The uncontradicted testimony of the plaintiff Crump and members of his family (including a brother who is a business manager of the union representing National Gypsum’s employees) shows a gradual increase of the symptoms (shortness of breath, coughing, tiring upon exertion) in the last years of Crump’s employment. Following his mandatory retirement upon reaching the age 65 in 1976, Crump has been unable to secure other employment (except one short-term job in which he earned $12.00), and upon exertion (such as walking or attempting to cut his lawn) he is short of breath and forced to desist.

For reasons to which we shall advert, the medical evidence, in conjunction with this uncontradicted lay testimony, supports a factual, conclusion that Crump’s asbestosis progressed from non-disabling in 1969 to being a substantial contributory cause of his present disability to perform manual labor as of the time Crump’s employment terminated in 1976.

Legal Principles Applicable

The legal test for disability caused by occupational disease is the same as that for disability cause by accident. La.R.S. 23.1031.1 A; LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (1967).

Claims for compensation are prescribed unless the employee files a claim within four months of the date the disability manifests itself. La.R.S. 23-1031.1 E; LaCoste, cited above. The mere knowledge of an employee that he has the disease is not a manifestation of the disability. La-Coste; cf. also Chivolette v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976). Ordinarily, for workmen’s compensation purposes, a disease does not develop or manifest itself, La.R.S. 23:1209, where an employee continues at his employment with increasing difficulty, until the time when the claimant’s employment terminates, since an earlier date is conjectural so long as the employee actually continues to perform his duties. Bolden v. Georgia Casualty & Sure. Co., 363 So.2d 419 (La.1978) and decisions therein cited.

To be compensable, the disability must result from work-cause, either accident or occupational disease. In determining disability, the entire record, both lay testimony and medical evaluation and opinion, should be considered; for this issue of fact requires the judicial application to all the evidence of the legal test of disability, to which medical estimates of the ability or not to work must yield. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977); Tantillo v. Liberty Insurance Company, 315 So.2d 743 (La.1975); Williams v. Hudson East, 261 La. 959, 261 So.2d 629 (1972).

Basis of Trial Court’s Determination of Disability

The trial court found that Crump was totally disabled by 1976 to perform manual labor, as a result of the work-contracted asbestosis. In addition to the lay evidence summarized above, this determination is supported by the medical evidence which is not inconsistent with the progression of the disease into disability following its non-disabling inception in 1969 or earlier.

Dr. Morton Brown, a pulmonary disease specialist, concluded that the x-ray and lung tests (showing the progress of the asbestosis) supported a finding that with exertion Crump gets short of breath and the exertion causes untoward effects on his body which should not be allowed to occur (e. g., strain on heart, etc.), Tr. 39. Comparison of the various x-ray interpretation reports and lung function studies supports a finding that by 1973 or so the disease had progressed into greater manifestation than in its earlier stages.

All three physicians who examined Crump agreed that he is now disabled from the performance of manual labor. In reversing the trial court, the court of appeal felt that the testimony of two (Dr. Bloom and Dr. Klein) of them could be characterized as showing that, instead of the asbestosis, the cause of Crump’s disability was primarily his age and weight.

For the reasons to be stated, under the facts of this case the court of appeal was in error in substituting its evaluation of the testimony of these physicians for that of the trier of fact, and in holding that by reason of such evaluation the evidence of non-disability preponderated over the other evidence summarized above, which supports the trial court’s finding of disability.

Dr. Bloom

The intermediate court relied heavily upon the testimony of Dr. Albert Bloom, the plaintiff Crump’s personal physician from 1971 to 1977. Dr. Bloom found the plaintiff to be disabled from manual work, by reason of the asbestosis (decreasing the capacity of the lungs), cardiovascular difficulties (arising from insufficient oxygen supply from the lungs, due both to Crump’s asbestosis and his being overweight), and his age of 65.

The physician generally testified, however, that the asbestosis had not progressed from 1971 through 1977, which he opined was due to the workers wearing masks at work following 1971 (which theoretically inhibits progression of the disease). He thought that the asbestosis was not disabling, simply because in fact Crump had performed the duties of his employment until his retirement in 1976.

The trial court apparently accepted Dr. Bloom’s evaluation that Crump is now disabled from performing manual labor by decreased oxygen supply from the lungs, to which the work-caused asbestosis is a substantial contributory cause.

However, the trial court rejected Dr. Bloom’s conclusions that the disease had not progressed from its 1971 condition into disability in 1976. We cannot say the trial court was unreasonable in so doing.

In the first place, Dr. Bloom admitted that he was testifying from memory and without having preserved any office notes, Tr. 6, 42, while the actual x-ray reports of the employer’s radiologists do show some progression of the disease (see footnote 1, and see below). In the second place, the circumstance that Crump had (although with difficulty) performed the duties of his employment for the last year or so before his retirement is not determinative of whether he is legally disabled within the meaning of the workmen’s compensation statute.

Dr. Klein

Dr. Russell Klein, a specialist in the field of pulmonary disease, testified for the defendants. Dr. Klein had examined Crump once, in December 1976 (eleven months after the latter’s employment terminated).

Earlier, at the request of the defendants, he had also interpreted two lung function tests (of October, 1975 and February, 1976). Based on a comparison of these studies with similar ones conducted in 1973 and 1974, and on a comparison of x-rays taken by him in December 1976 with the report of one taken in March 1976, he found no progression of the disease.

He further testified that the first x-ray interpretations supporting a diagnosis of asbestosis were taken in 1969, and that there seemed to be no progression of the disease by 1976. Tr. 73. He opined that the plaintiff’s functions were within normal limits for people of Crump’s age and size, although he admitted that Crump was disabled from performing manual labor (primarily, he thought, because of his age).

The record reflects the following reasons to discount this specialist’s testimony:

His opinion was founded on limited pretrial data furnished to him concerning Crump’s condition prior to 1973 and 1974, especially insofar as to any aggravation of the disease following its 1969 x-ray manifestation and its aggravation by 1973 (see footnote 1).

For instance, he was not afforded access to any earlier x-ray examinations. Tr. 69.

Nevertheless, on cross-examination at the trial, he was for the first time afforded an opportunity to compare the 1969 x-rays. He was forced to admit that the 1976 x-rays showed progression of the disease. He agreed with the trial court’s comment that the 1976 x-rays showed a worse condition of the lungs. Tr. 79-80.

Further, Dr. Klein admitted that he tested Crump only at rest and that, if there had been exertion, there might have been less of the necessary oxygen produced by the lungs. Tr. 74. He explained that he did not do so “basically because he [Crump] gave me no history of being limited by exertion or shortness of breath.” Tr. 74. We note that, for instance, another physician (Dr. Brown) who examined Crump at about the same time elicited from the patient in compiling his history the complaint that he “gets short of breath with exertion,” Tr. 34, and that the lay evidence and the testimony of his personal physician (Dr. Bloom, see, e. g., Tr. 8) indicates that shortness of breath was Crump’s complaint from the onset of the disease.

The trial court was thus not unreasonable in discounting Dr. Klein’s conclusions of non-progression and non-disability, when it found that disability was proved by the preponderance of the evidence, medical and lay, of the record as a whole.

Conclusion

Accordingly, the intermediate court erred in disregarding and reversing the trial court’s factual determination that the plaintiff Crump had proven his work-caused total and permanent disability by a preponderance of the evidence. We therefore reverse and set aside the judgment of the court of appeal, and we reinstate the judgment of the district court. All costs of these proceedings are to be paid by the defendants-appellants.

COURT OF APPEAL REVERSED; DISTRICT COURT JUDGMENT REINSTATED.

SUMMERS, C. J., dissents.

BLANCHE, J., not participating.

      . See: P-22 (1/73); P-20 (10/73) (an additional marked thickening of the pleura); P-2 (2/76, notes “widespread changes in both lungs”); P-21 (2/76, comparing same x-rays with earlier ones: no change from 1974; but noting extensive irregularities apparently not found in 1972 x-ray study, see P-14 (2/72)).

      . The pulmonary function studies, which were made in 1972 and following, show a vital capacity or lung function about 80% of the predicted “normal” capacity. The defendant’s specialist (Dr. Klein) felt that the series (1973, 1974, 1975, 1976) he examined marked no progression of the disease. If the disease had progressed into a legal (but non-manifest) disability by 1973, the lack of further progression may not be determinative. However, we do note an accelerated decrease in the percentages between 1974 (86%) (P-28), 1975 (84%) (D-3), and 1976 (80%) (D-4). The plaintiff’s specialist (Dr. Brown) also noted that the studies indicated no evidence that the measurements were made after exercise, Tr. 31.


author: MARCUS, Justice.

text:
    CITY OF BATON ROUGE v. June G. OVERTON.
    No. 62397.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    John Samaha, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Mary V. Gilliland, Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

June G. Overton was charged by bill of information with operating a vehicle while intoxicated in violation of La.R.S. 14:98. After a bench trial, defendant was found guilty as charged and sentenced to pay a fine of $400 plus court costs and to serve sixty days in jail, forty days of which were suspended. The remaining twenty days of the jail sentence were to be served on weekends commencing on a designated date. Defendant was placed on unsupervised probation for a period of one year. Defendant’s application to this court under our supervisory jurisdiction was granted. She asserts three assignments of error. Because all of the assigned errors relate to the same legal issue, we will consider them together.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

Defendant contends the trial judge erred in admitting the result of the photo-electric intoximeter (PEI) test in evidence in that the certification of the machine used to administer the test was proved by hearsay evidence.

The record reflects that the state called three witnesses: Officers Crawford Wheeler and Joseph Monte, the arresting officers, and Officer Mark Pinkley, who administered the PEI test to defendant.

The arresting officers testified that they stopped the vehicle operated by defendant for improper lane usage. Defendant was unsteady on her feet, her eyes seemed bloodshot, and there was a slight odor of alcohol on her breath. She admitted that she had been drinking. Defendant was then taken to police headquarters where she was given a field sobriety test which she was unable to perform successfully. They also stated that defendant was administered a PEI test at headquarters. During cross-examination of one of the arresting officers, defense counsel asked for what violation of law defendant had been arrested. The officer responded: “To begin with the violation was improper lane usage. In turn, at headquarters Miss Overton failed the PEI test and it was DWI.”

Officer Pinkley testified that he administered the PEI test to defendant at police headquarters on the date in question. A certificate indicating that he was qualified to administer PEI tests was received in evidence without objection. The officer stated that he used machine # 777 to administer the breath test to defendant. He identified the log on machine # 777 in which all tests are recorded as well as the certification of the machine. He also identified the entry in the log showing the date on which the test was administered by him to defendant. He was then questioned as to the entry reflecting when the machine was inspected. He responded that it showed the date and place where the machine had been serviced and tested as well as by whom (Dale Efferson, Louisiana State Crime Lab). At this point, defendant objected to any evidence relating to the certification of the machine by Efferson on the ground of hearsay. The trial judge overruled the objection (Assignment of Error No. 1). During redirect examination, the witness stated that the result of the test administered to defendant was “.14 grams percent,” which figure was in excess of the amount necessary to create a presumption that defendant was under the influence of alcoholic beverages. Defendant objected to the admissibility of the result of the test, reasserting her argument that proof of certification was improperly admitted. The objection was not sustained (Assignment of Error No. 2). The state also offered in evidence a “PEI intoximeter checklist” prepared by the witness. Defendant objected to its introduction based on her previous argument that proof of certification of the machine was improperly admitted (Assignment of Error No. 3).

The legislature has enacted a system of laws governing tests for suspected drunken drivers. La.R.S. 32:661, et seq. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, urine or other bodily substance for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving a vehicle while believed to be under the influence of alcoholic beverages. La.R.S. 32:661. Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of alcoholic beverages, the amount of alcohol in a person’s blood at the time alleged as shown by chemical analysis of the person’s blood, urine, breath, or other bodily substance shall give rise to certain presumptions. If there was at that time 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that this person was under the influence of alcoholic beverages. La.R.S. 32:662.

Recognizing the importance of establishing safeguards to guarantee accuracy in chemical testing, the legislature further provided that in order to be considered valid, the chemical analysis must be performed according to methods approved by the Department of Health. La.R.S. 32:663. Pursuant to this statutory mandate and to our decision in State v. Jones, 316 So.2d 100 (La.1975), the Louisiana Health and Human Resources Administration, Division of Health, promulgated rules and regulations pertaining to the performance of these chemical tests. Rules and Regulations for Chemical Test for Intoxication, 1 La.Register 562 (1975). Section 6 of these rules and regulations requires that maintenance checks on a routine basis at least every four months on certain designated items as well as repair work be performed on the testing devices by technicians working for the Applied Technology Section of the Louisiana State Police Crime Laboratory who are certified by the Louisiana Health and Human Resources Administration, Division of Health, Bureau of Laboratories. Records covering maintenance, etc., of the photoelectric intoximeter instrument will be kept by the Louisiana State Police Crime Laboratory. In State v. Graham, 360 So.2d 853 (La.1978), we held that it was reversible error to admit in evidence the result of a PEI test where the state has not properly proven that the test was performed in full compliance with this section of the rules and regulations even though there is independent evidence of intoxication in the record.

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. State v. Drew, 360 So.2d 500 (La.1978); State v. King, 355 So.2d 1305 (La.1978). Hearsay evidence is inadmissible except under one of the statutory or well-recognized exceptions. La.R.S. 15:434.

The “public documents” exception to the hearsay rule has been recognized by this court. Under this exception, the usual requirement that the declarant be shown to be unavailable is dispensed with. State v. Nicholas, 359 So.2d 965 (La.1978). In Nicholas, we stated:

[T]he evidence so introduced must be admissible for some relevant and proper purpose, and the trial court must scrutinize such offerings so as to limit their introduction in accordance with this (especially in jury trial situations). Further, upon any indicia of unreliability being shown, the trial judge has the discretion to reject the evidence or to condition its admissibility upon further proof, and should exercise it, in order to assure that the probability of trustworthiness is so great as to justify the document’s introduction as an official record under this exception to the hearsay rule.

In the instant case, there is no contention that the log entry, an unsworn, written, out-of-court assertion offered to prove the truth of the matter asserted, i. e., that the machine had been inspected and certified, was not hearsay evidence. However, the state contends that this evidence is admissible under the “public documents” exception to the hearsay rule. This may well have been true had the log book itself been properly admitted in evidence; however, the state offered only Officer Pink-ley’s testimony as to what the log entry said. Such hearsay testimony does not fall within the “public documents” exception, nor any of the other statutory or well-recognized exceptions to the hearsay rule. Thus, we conclude that the state did not properly prove that the machine had been certified in accordance with section 6 of the rules and regulations. Accordingly, the trial judge committed reversible error in admitting the hearsay testimony as evidence of the certification of the machine and in relying upon such testimony for the subsequent admission of the result of the PEI test.

By supplemental brief, the state contends the allegedly improper admission of the certification evidence does not constitute reversible error since one of the arresting officers had previously testified without objection during cross-examination that defendant had failed the PEI test. We do not agree. Although unobjected to hearsay testimony constitutes substantive evidence, we conclude that it is clearly too unreliable to render harmless the trial judge’s error in admitting in evidence the result of the PEI test administered upon defendant.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded for a new trial in accordance with the views herein expressed.

SUMMERS, C. J., dissents.

       Chief Judge William A. Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . 361 So.2d 1213 (La.1978).

      . At the time this crime was committed and the test administered to defendant (June 21, 1977), La.R.S. 32:663 required, as noted above, that the chemical analysis be performed according to methods approved by the Department of Health. Subsequently, that statute was amended to require that the methods be approved by the Department of Public Safety. 1977 La. Acts, Act No. 533 § 1 (effective September 9, 1977). Pursuant to that amendment, the Department of Public Safety has promulgated a new set of rules and regulations pertaining to breath and blood alcohol analysis methods and techniques. Breath and Blood Alcohol Analysis Methods and Techniques, 4 La.Register 390 (1978) (effective October 20, 1978). The amendment to the statute and the new rules and regulations adopted pursuant thereto are not applicable here.


author: PER CURIAM.

text:
    STATE of Louisiana v. Richard G. REEKS.
    No. 62512.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Bernard S. Dolbear, New Orleans, Warren G. Reeks, River Ridge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Richard G. Reeks was charged by bill of information with possession of a controlled dangerous substance, to-wit: PCP, in violation of La.R.S. 40:968. After trial by jury, defendant was found guilty and sentenced to serve two years at hard labor. The trial judge suspended execution of the sentence and placed defendant on probation under the supervision of the division of probation and parole for a period of three years. The trial judge imposed specific conditions in placing defendant on probation. On appeal, defendant relies on three assignments of error for reversal of his conviction and sentence.

We have reviewed the record and find no merit to defendant’s assignments of error. Accordingly, we affirm his conviction and sentence.

DECREE

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


author: DIXON, Justice.

text:
    Marie Sanders HURKS v. L. H. BOSSIER et al.
    No. 62519.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    James A. Bolen, Jr., Bolen & Erwin, Alexandria, for defendant-respondent.
    James M. Buck, Kramer & Davis, Alexandria, for plaintiffs-appellants.
   DIXON, Justice.

In this workmen’s compensation case we granted writs to review the question of “dependency” of a claimant for death benefits. R.S. 23:1252. The trial court rendered a judgment for the plaintiff, and the Court of Appeal reversed. Hurks v. Bossier, 359 So.2d 1114 (La.App.1978).

The record is sparse; the evidence of dependency lacks detail, and is sometimes imprecise; none of it, however, is controverted or disputed.

Twenty-six year old Lawrence Hurks died in a compensable accident on August 27, 1976. His earnings averaged $154.00 a week. He was living apart from his wife and children, who were in Texas; he lived with his fifty-four year old mother — plaintiff here — and his eighty-one year old grandmother, a heart patient, ambulatory with a walker, who was unable to come to court. Marie Sanders Hurks, Lawrence’s mother, was regularly employed at a nursing home. She made about $3700.00 a year after taxes, and had no other income. The grandmother received $159.00 a month from social security payments. The plaintiff did not pay rent, because the house had been her father’s. The only specific testimony adduced concerning the cost of living was that it took $45.00 to $50.00 a month to fill up the butane tank for the purpose of cooking and keeping the house warm for the grandmother, and over $20.00 a month to pay the light bill. When questioned about money for clothes, Mrs. Hurks testified that there was not enough money for clothes, either before or after her son’s death.

Lawrence gave his mother $50.00 to $60.00 a week. It was not considered to be room rent, but was given “to help support the house.”

These facts alone show that plaintiff was living at a poverty level. Plaintiff’s income, after utilities were deducted, was almost doubled by her son’s weekly contributions. The Workmen’s Compensation Act provides that a surviving spouse and a child are conclusively presumed to have been dependent upon the deceased workman. R.S. 23:1251. R.S. 23:1252 provides: “In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death; . .

The last time this section was under consideration by this court was in McDermott v. Funel, 258 La. 657, 247 So.2d 567 (1971). There, a twenty-three year old son lived with his mother and two small sisters; he earned $55.00 a week, while his mother earned about $40.00 a week as a domestic, when she worked. The son contributed $15.00 to $20.00 a week. We held, “It was error to attempt to deduce a mathematically exact balance sheet of expenses and earnings through the use of isolated portions of her testimony, in context imprecise and incomplete.” (258 La. at 667, 247 So.2d at 570). We held there that the evidence showed the plaintiff to have been actually dependent on her deceased son.

Dependency is discussed in The Law of Workmen’s Compensation by Arthur Larson, Matthew Bender, Volume 2, 1976, § 63.11:

“The general test of dependency may be stated as follows: A showing of actual dependency does not require proof that, without decedent’s contributions, claimant would have lacked the necessities of life, but only that decedent’s contributions were relied on by claimant to maintain claimant’s accustomed mode of living.
It follows that there can be no absolute dollar standard by which to test either the magnitude of claimant’s need or the magnitude of decedent’s help in meeting that need. What counts is the relation between the two. So, although ordinarily the receipt of only $65 could scarcely be expected to establish dependency, dependency was indeed found in a case involving a claimant who was living in extreme poverty with virtually no income.”

As for partial dependency, the standard is stated in Larson’s work at § 63.12:

“Partial dependency may be found when, although the claimant may have other substantial sources of support from his own work, from property, or from other persons on whom claimant is also dependent, the contributions made by the decedent were looked to by the claimant for the maintenance of his accustomed standard of living.”

Mrs. Hurks made hardly enough money to live. Her son’s contributions substantially increased her income. Even with her son’s contributions, her uncontradicted testimony was that there was hardly enough money for her to buy clothes (an obvious need if she were to continue her employment).

The evidence before us establishes at least a prima facie case of dependency. The absence of any evidence that Mrs. Hurks was not dependent on her son requires a reversal of the Court of Appeal, and a reinstatement of the judgment of the district court.

Therefore, the Court of Appeal is reversed, and the judgment of the district court in favor of the plaintiff, Marie Sanders Hurks, and against defendants, Mid-State Materials, Inc. and U. S. Fire Insurance Company, in solido, condemning them to pay to her $25.00 a week from August 27, 1976, plus legal interest from date of judicial demand until paid, is reinstated, all at the cost of the defendants.

       Chief Judge James E. Bolin participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Joe W. Sanders, Retired.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Otto CLARK.
    No. 62524.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Louis A. Heyd, Jr., John M. Standridge, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Madeline Hebert, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Otto Clark, was convicted by a jury of armed robbery, La.R.S. 14:64, and sentenced to serve fourteen years at hard labor. On appeal he relies on fifteen assignments of error for the reversal of his conviction and sentence. Seven of the assignments are pretermitted because they were not briefed or argued. The remaining assignments present no error which warrants a reversal of defendant’s conviction. However, one of the assignments points to an error which requires that defendant’s sentence be vacated and that the case be remanded for the appointment of a sanity commission.

In his assignment number fifteen defendant seeks relief from the trial court’s refusal to grant his motion for the appointment of a sanity commission or his motion for a new trial which reurged the objection of mental incapacity to proceed. Although we find no error in the trial judge’s refusal to appoint a commission before trial, the.record reflects that reasonable cause to doubt the defendant’s capacity arose after trial. Under the circumstances of the case we conclude that the trial judge erred in failing to appoint a sanity commission before sentencing the defendant. For this reason the defendant’s sentence must be set aside and the case remanded for the appointment of a sanity commission.

In order to understand the circumstances surrounding the post-trial sanity issue it is necessary to know some of the events which occurred before and after trial. Defendant filed a pre-trial motion for the appointment of a sanity commission to determine whether defendant had the mental capacity to proceed. At a pre-trial hearing on the motion the only evidence consisted of a letter from Dr. John Goethe, a psychiatrist, who had seen defendant several times over a period of three months as a treating physician. Dr. Goethe wrote that in his opinion the defendant was under significant stress when examined by him and that additional psychiatric evaluation was warranted. The trial judge denied the pre-trial motion for appointment of a sanity commission, stating that the mere need for psychiatric evaluation did not furnish a reasonable ground to doubt the defendant’s mental capacity to proceed.

After trial and before sentencing, defendant’s attorney filed a motion for a new trial, again alleging that his client lacked the mental capacity to proceed. Another written report from Dr. Goethe was introduced in which he stated that he was unable to evaluate the effects of medication upon defendant’s mental condition because defendant had not returned for examination as scheduled. The letter further noted:

“As I have stressed to you in our telephone conversations, I do not feel that Mr. Clark has been fully evaluated, much less fully treated. I can not make a judgment as to the possible connection between this patient’s emotional problems and his legal difficulties. However, I do feel that a more complete psychiatric evaluation is indicated and that he should continue to receive psychiatric treatment.”

A Charity Hospital psychiatrist, Dr. William Super, examined defendant after the trial. His written report stated that defendant was on medication, had suicidal thoughts and heard inner voices which screamed and directed his actions.

The trial judge denied the motion for a new trial. However, before sentencing the defendant the court ordered Dr. William Super to conduct a psychiatric examination of the defendant. Subsequently, a report by Dr. Super was filed which stated that defendant was improved over the prior examination and indicated that he was still receiving medication. Shortly after the date of Dr. Super’s report the court sentenced the defendant to serve fourteen years at hard labor.

Each of the reports by Dr. Super consisted of a series of handwritten entries made on a “Doctor’s Order Sheet” from Charity Hospital. The reports do not purport to be complete psychiatric evaluations. Rather, they consist only of brief notations of the defendant’s complaints and prescriptions for his medication. Nothing in the reports relates to any of the factors which should be considered by an expert reporting to a judge charged with the responsibility of determining whether a defendant has the mental capacity to proceed. See, State v. Bennett, 345 So.2d 1129 (La.1977).

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. La.C.Cr.P. art. 641. The defendant’s mental incapacity to proceed may be raised by the defense, the district attorney, or the court at any time, La.C.Cr.P. art. 642, even after conviction as a reason why sentence should not be passed. State v. Henson, 351 So.2d 1169 (La.1977); State v. Gunter, 208 La. 694, 23 So.2d 305 (1945); State v. Allen, 204 La. 513, 15 So.2d 870 (1944); State v. Migues, 194 La. 1081, 195 So. 545 (1940); State v. Schmidt, 163 La. 512, 112 So. 400 (1927); In re Chandler, 45 La.Ann. 696, 12 So. 884 (1893). When the question of the defendant’s mental capacity to proceed is raised there shall be no further steps in the proceedings against him until he is found to have the capacity to proceed. La.C.Cr.P. art. 642.

The ordering of a mental examination as to the defendant’s present capacity to proceed rests in the sound discretion of the trial court. It is not enough that the defense has filed a motion arguing the defense, but there must be sufficient evidence to raise a reasonable doubt as to such capacity. However, if there is a substantial doubt as to the defendant’s mental capacity it is an abuse of discretion for the trial judge to refuse to order a mental examination. See, La.C.Cr.P. art. 643, Official Revision Comment (a) and authorities cited.

The trial judge does not, however, have the discretion to decide how the mental examination shall be conducted. Within seven days after a mental examination is ordered, the court must appoint a sanity commission consisting of two to three physicians, having the qualifications specified by law, to examine and report upon the mental condition of the defendant. La.C.Cr.P. art. 644.

After considering the record presented for our review, we conclude that the trial judge acted within his sound discretion in determining that the additional evidence introduced after the defendant’s conviction, together with that already on file, created reasonable ground to doubt the defendant’s mental capacity to proceed. However, the trial judge exceeded his discretion in failing to appoint a sanity commission to examine and report upon the mental condition of the defendant, and in taking further steps in the proceedings, i. e., sentencing the defendant, without fully complying with the procedure for determining defendant’s mental capacity to proceed.

The trial court clearly may not substitute the examination and report of a single physician for that of a duly appointed sanity commission. Nor may the trial court conduct further proceedings against the defendant after his mental capacity to proceed is raised, until the defendant is found by lawful procedures to have the capacity to proceed. When a mental examination as to the defendant’s present capacity to proceed is ordered, the question must be determined by the court in a contradictory hearing. La.C.Cr.P. art. 647. At the very least, the defendant is entitled to introduce the report of a duly constituted sanity commission into evidence at the hearing. La.C. Cr.P. art. 647. It necessarily follows, therefore, that the court may not, after ordering a mental examination, determine the question of mental capacity to proceed or take further steps in the criminal proceedings without appointing a duly constituted sanity commission to examine and report upon the mental condition of the defendant.

For the foregoing reasons, the defendant’s conviction is affirmed, the defendant’s sentence is set aside, and the case is remanded with instructions to the trial court to appoint a sanity commission and proceed to determine whether the defendant has the present mental capacity to proceed.

CONVICTION AFFIRMED. SENTENCE VACATED: REMANDED FOR APPOINTMENT OF SANITY COMMISSION AND FURTHER PROCEEDINGS.

SUMMERS, C. J., concurs.

BLANCHE, J., not participating.


text:
    Rhonda Marie WILSON et al. v. N. W. MAGEE et al.
    No. 62633.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Bruce J. Borrello, Metairie, for defendants-respondents.
    Daniel E. Becnel, Jr., Robert R. Fau-cheux, Jr., C. William Bradley, Jr., Barry J. Landry — The Law Offices of Daniel E. Bec-nel, Jr., Reserve, for plaintiffs-applicants.
   MARCUS, Justice.

Rhonda Marie Wilson instituted suit against N. W. Magee, B. & G. Crane Service, Inc. and its insurer, Liberty Mutual Insurance Company, seeking damages for personal injuries sustained by her when a crane, being transported on a truck owned by B. & G. Crane Service, Inc. and operated by N. W. Magee, struck a pipe rack across the road and fell onto the car she was driving.

Trial by jury resulted in a verdict in favor of plaintiff with an award of $50,000 for past, present and future pain, suffering, mental anguish, permanent disfigurement and future disability; $12,500 for past, present and future medical expenses; and $12,500 for past, present and future loss of wages. The trial judge signed a judgment in accordance with the verdict of the jury except that the $12,500 award for medical expenses was made subject to a credit of $215.85 (the amount stipulated by the parties during trial as having been paid by defendants). Defendants’ request for a re-mittitur as an alternative to a new trial was denied by the trial judge. Defendants appealed. It was stipulated by the parties that defendants did not contest the issue of liability on appeal; rather, the sole issue was that of quantum.

The court of appeal found that the record did not justify the awards for damages fixed by the jury. Accordingly, it reduced the award for general damages from $50,-000 to $20,000; medical expenses from $12,-500 to $6,126.98, the amount of medical expenses actually incurred; and set aside the award of $12,500 for loss of earnings. The appellate court further remanded the case to the trial court to determine the amount of unemployment compensation lost by plaintiff between the date of the accident (June 24, 1976) and the date the medical evidence sets forth that she was able to return to work (February 8, 1977). On application of plaintiff, we granted certio-rari to review the correctness of the appeal court’s decision reducing these awards.

The courts of appeal have a constitutional duty to review the law and facts and thereafter render a judgment on quantum based on the merits, determining whether the jury has abused its “much discretion” that the law accords it in awarding damages. La.Const. art. 5, § 10(B); La.Civil Code art. 1934(3); Carollo v. Wilson, 353 So.2d 249 (La.1977); Temple v. Liberty Mut. Ins. Co., 330 So.2d 891 (La.1976). Before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. Carollo v. Wilson, supra; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974); Revon v. American Guarantee & Liability Ins. Co., 296 So.2d 257 (La..l974); Fox v. State Farm Mutual Automobile Ins. Co., 288 So.2d 42 (La.1973); Walker v. Champion, 288 So.2d 44 (La.1973). In the event the appellate court finds from the record an abuse of discretion, the award may be disturbed by lowering it to the highest point which is reasonably within the discretion afforded the trier of fact. Carollo v. Wilson, supra; Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); Coco v. Winston Industries, Inc., supra.

We first address ourselves to the issue of whether the court of appeal erred in finding that the jury abused its discretion in awarding $50,000 in general damages to Ms. Wilson; and, if not, whether its reduction of the award to $20,000 was proper.

The record reflects that on June 24,1976, N. W. Magee, an employee of B. & G. Crane Service, Inc., was operating a tractor-trailer loaded with crane equipment along the River Road. The boom portion of a crane, weighing approximately 5,000 pounds, struck a pipe rack overhanging the highway and fell upon plaintiff’s car which was traveling immediately behind the tractor-trailer. Ms. Wilson emerged from the car in hysterics covered with shattered glass. She began to run toward a nearby building but fell down; she was helped to a seat in the car belonging to an eye witness. Shortly thereafter, she was taken by ambulance to the emergency room of Ochsner Foundation Hospital. She complained primarily of pain in her neck and head resulting from a blow sustained in the accident. According to the examining doctor, she was suffering from severe cervical muscle spasm, fear, apprehension and nervousness. Medication was prescribed. Ms. Wilson returned the following day, complaining of pain over her entire body, particularly in her back and neck. She was given an injection and additional medication. Three days later, she again returned to the emergency room at Ochsner, at which time the doctor noted severe muscle strain and contusions. Ms. Wilson complained of continued headaches and back pain and of increased pain in her right knee. There was no change in the medication. The doctor prescribed heat to the affected areas and bed rest.

On June 29, 1976, Ms. Wilson visited Dr. Raul G. Reyes, a private physician, who hospitalized her for two weeks where she was given physiotherapy to the affected areas of her body. After discharge from the hospital, she was given a knee brace because of her complaints that her knee gave out on her when she attempted to walk. Her condition was followed by Dr. Reyes. On July 22,1976, Ms. Wilson visited another doctor, Dr. Kenneth E. Vogel, who found that she was suffering from a cerebral concussion, acute cervical strain and a musculo-ligamentous injury to the right knee. He urged her to continue conservative treatment with Dr. Reyes, which she did. Dr. Reyes advised her to attempt to walk without her brace from time to time. Upon one of these occasions, she fell and struck her knee resulting in increased pain of the knee. At this time, Dr. Reyes recommended consultation with an orthopedist. Ms. Wilson was examined by Dr. Stewart I. Phillips, an orthopedic surgeon, who recommended surgery to correct the recurrent dislocation of the patella. Surgery was performed on November 2, 1976. Recurrent dislocation of the patella was found and repaired. Evidence of a fresh osteochon-dral fracture and the “grossly unstable” condition of the knee was noted. Ms. Wilson was discharged from the hospital on crutches and wearing a cast on her right leg from thigh to the ankle. She wore the cast for a period of six weeks. The operation left a disfiguring scar on her knee. Also, Ms. Wilson’s right thigh ended up smaller than her left one. Dr. Phillips found that approximately ten percent residual disability of the knee joint was expected.

Ms. Wilson, who was twenty-two years old at the time, testified that she was in shock immediately after the accident. She described the physical pain and mental anguish she suffered from the injuries sustained by her in the accident. She indicated that she still experienced pain in her knee, back and neck at the time of trial but was unable to take medication for this pain since she had become pregnant. She stated that she has walked with a limp since the accident and that her knee was still swollen. Also, because of the pain in her knee, she was unable to kneel. She also mentioned that there was no feeling in the bottom portion of her knee. Ms. Wilson further testified that the disfiguring scar on her knee caused her much distress as she liked to wear shorts and bathing suits.

After careful review of the record, we find that the evidence reasonably supports the award of general damages by the jury. We therefore conclude that there was no abuse of the “much discretion” vested in the jury when it awarded Ms. Wilson $50,000 in general damages. Accordingly, the court of appeal erred in reducing this award.

Next, we consider whether the court of appeal erred in reducing the award for medical expenses from $12,500 to $6,126.98.

It was stipulated at trial that the medical expenses incurred by Ms. Wilson amounted to $6,126.98. There is no evidence to reasonably support an award for future medical expenses. Dr. Phillips’ report of February 8,1977, indicated that Ms. Wilson was recovering magnificently and that no further treatment was contemplated other than a final post-operative examination. Ms. Wilson stated that she had an appointment to see Dr. Phillips in May 1977 (trial of this matter was held on April 21, 1977). Her treating physician, Dr. Reyes, testified that he had not seen plaintiff since before the surgery. He did not state that he anticipated seeing her again. None of the doctors who treated Ms. Wilson indicated that future medical expenses were likely. Thus, we conclude that the record clearly reveals that the jury abused its discretion in awarding Ms. Wilson future medical expenses. The record only supports an award of $6,126.98, the amount of medical expenses actually incurred and stipulated to at the time of trial. Accordingly, the court of appeal did not err in reducing the award to this amount.

Finally, we consider whether the court of appeal erred in setting aside the award of $12,500 for loss of wages.

Prior to the accident, Ms. Wilson had been employed as a substitute teacher three or four days a week at a salary of fifteen dollars a day. However, she had not worked as a teacher since school let out in May and did not plan to return to teaching in the fall. Rather, she had registered at Delgado to study to be an inhalation therapist. At the time of the accident (June 24, 1976), she was unemployed and was receiving unemployment compensation. After the accident, these payments ceased since she no longer was physically able to work. Dr. Phillips indicated in his report dated February 8, 1977, that she could return to work at that time. Also, after the accident, she had married and was pregnant at the time of trial. Although Ms. Wilson’s injuries temporarily postponed her plans to attend school, there is no showing of any past, present or future loss of wages. Finding no evidence that reasonably supports an award on this account, we conclude that the jury abused its discretion in awarding Ms. Wilson $12,500 for loss of wages. The record only supports an award equal to the amount of unemployment benefits she lost during the time she was unable to work. Accordingly, the court of appeal did not err in setting aside the award for loss of wages and in remanding the case to the trial court for a determination of the amount actually due her.

DECREE

For the reasons assigned, the judgment of the court of appeal is amended to reinstate the award of $50,000 for past, present and future pain, suffering, mental anguish, permanent disfigurement and future disability made by the jury; in all other respects, the judgment of the court of appeal is affirmed.

SUMMERS, C. J., concurs.

       Chief Judge James E. Bolin participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . After institution of suit but prior to trial, plaintiff married Keith Cammon. Since she is referred to as Rhonda Marie Wilson throughout the record, we will do likewise in this opinion.

      . 359 So.2d 315 (La.App. 4th Cir. 1978).

      . 362 So.2d 780 (La.1978).


author:
DENNIS, Justice.
     DIXON, Justice

text:
    STATE of Louisiana v. Dorothy NELSON.
    No. 62653.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      A. J. Boudreaux, Staff Appeals Counsel, 24th Judicial Dist. Indigent Defender Bd., Kenner, for defendant-relator.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   DENNIS, Justice.

Defendant, Dorothy Nelson, was charged with carrying a concealed weapon, La.R.S. 14:95, and false personation, La.R.S. 14:112. After a judge trial, the defendant was convicted of false personation but found not guilty of carrying a concealed weapon. Defendant Nelson was sentenced to pay a fine of $100, or to serve a jail sentence of thirty days in default of payment. The trial judge imposed but suspended, upon defendant’s good behavior, execution of an additional jail sentence of ninety days.

Two Jefferson Parish Sheriff’s deputies observed the defendant outside a drug store on the night of September 24,1976 wearing street clothes and a gun belt with a pistol in a holster on the right side of the belt. When the deputies asked the defendant why she was carrying the gun, she replied that she was a New Orleans police officer. The defendant was unable to produce evidence of her commission, however, and the deputies placed her under arrest.

It is the state’s position that the defendant impersonated an officer with the intent to gain the advantage of carrying a weapon. The trial judge in his reasons for judgment did not specify what privilege or advantage he found the defendant had intended to gain from the alleged impersonation.

We granted writ of certiorari because the state’s position, which was apparently adopted by the trial court, appears to be contrary to the meaning of the criminal statute. La.R.S. 14:112 provides that false personation is a crime only if done “with the intent to injure or defraud, or to obtain or secure any special privilege or advantage.” As noted above, the trial judge found that the defendant was not guilty of the crime of carrying a concealed weapon. The carrying of an unconcealed weapon is not a special privilege or advantage enjoyed by a police officer. Each citizen is guaranteed the right to keep and bear arms not concealed on his person. La.Const.1974, Art. 1, § 11; cf. La.R.S. 14:95. Accordingly, the record designated for our review is devoid of any evidence that the defendant personated an officer in order to gain a special privilege or advantage.

However, in granting the writ we overlooked the fact that defendant’s objection to the absence of any evidence of an essential element of the crime was not raised in the trial court. In a trial before a judge alone, the proper procedural vehicle for raising this objection is a motion for a judgment of acquittal at the close of the state’s case. La.C.Cr.P. art. 778; State v. Williams, 354 So.2d 152 (La.1977); State v. Russell, 352 So.2d 1289 (La.1977); State v. Blackstone, 347 So.2d 193 (La.1977). Examination of the trial court record discloses that defense counsel did not move for an acquittal. Further, counsel made no objection when the trial judge rendered his verdict, see, La.C.Cr.P. art. 841, and counsel did not move for a new trial after the verdict was rendered. See, La.C.Cr.P. art. 851. Unless the defendant affords the trial court an opportunity to rectify its error by a timely objection, written motion or other means, La.C.Cr.P. art. 841, this Court will not review the assignment on appeal unless it presents an error discoverable by a mere inspection of the pleadings and proceedings, without inspection of the evidence. La.C. Cr.P. art. 920. Since a determination of the question of whether there was any evidence of an essential element of the crime requires an inspection of the evidence in the case, we must decline to review the defendant’s assignment of error.

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

AFFIRMED.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents and joins in DIXON’s, J., reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

The conviction of a crime in a trial at which no evidence of an essential element of the offense is adduced denies the defendant due process of law, and violates both the United States and the State Constitutions. Such constitutional violation is reviewable in a post conviction proceeding.

We have the record before us, and it reveals an absence of evidence that the defendant impersonated a police officer in order to gain any privilege or advantage.

Instead of affirming the conviction, we should treat this application as one for post conviction remedy, and reverse the conviction.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.


author: SAMUEL, Justice Ad Hoc.

text:
    STATE of Louisiana v. John W. WILKERSON.
    No. 62678.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      George M. Papale, Gretna, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Douglas Friederichsen, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-respondent.
   SAMUEL, Justice Ad Hoc.

John W. Wilkerson was charged by bill of information with possession of marijuana, a violation of La.R.S. 40:966. Following denial of his motion to suppress the evidence, he pled guilty to the charge, reserving his right to seek appellate review of the denial of the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). Defendant was sentenced to serve six months in the parish prison, but was given credit for time served and the remainder of the sentence was suspended. This Court granted supervisory writs to review the sole assignment of error, the denial of the motion to suppress.

In January of 1978 defendant and his roommate had been employed for two months at the apartment complex in which they resided. They were working as carpenters and general maintenance men for the manager of the complex, and had done some work for the manager’s brother. On January 27,1978, the complex manager, Mr. Bohall, received a telephone call informing him of a disturbance at the defendant’s apartment. Mr. Bohall walked over to the building and called out to the defendant’s roommate. The defendant appeared at the top of the stairway carrying a gun. Upon request, defendant handed the gun over to Mr. Bohall, who found it to be unloaded. Mr. Bohall then left the building to get Jefferson Parish Deputy Sheriff Thomas Smith, who worked during his spare time as a security guard for the apartment complex. Failing to find Deputy Smith at home, the manager returned to the defendant’s apartment, where he observed some damage.

Shortly thereafter, for no reason ascertainable from the record, the defendant told Mr. Bohall that his roommate had stolen some things from Mr. Bohall’s brother. At this point Mr. Bohall told the defendant to pack his belongings and move them to a vacant apartment. The move was requested because the manager “didn’t want him to have a confrontation . . . [when the roommate] arrived at the apartment.” The manager’s son and the defendant moved the latter’s belongings to the new apartment while the manager called the Jefferson Parish Sheriff’s Office to see what legal recourse he had against defendant’s roommate. No mention of the defendant was made in the conversation with the police, even though deputies (other than the security guard) came to the apartment in response to the manager’s call. The manager primarily was interested in obtaining from the deputies information as to whether he could “lock out” defendant’s roommate. To this query the deputies responded that it was not a police matter.

About an hour later Deputy Smith, the complex security guard, arrived at the old apartment. From there Deputy Smith and Mr. Bohall went to the apartment where the defendant’s belongings had been stored. The defendant was not present, but the two entered the apartment, using the manager’s key. Mr. Bohall then turned over the defendant’s unloaded pistol to the deputy. Deputy Smith testified he thought this was reason enough to search the defendant’s belongings for other possible weapons in the event defendant returned upset and wanted to shoot someone. Smith further testified he asked for and received Mr. Bo-hall’s consent to search the defendant’s property. During his search he discovered marijuana in a piece of the defendant’s luggage. He called the sheriff’s office and this prosecution ensued.

On the ground that Deputy Smith had not been acting in his capacity as a law enforcement official at the time he conducted the search, the trial court denied the motion to suppress the marijuana thus discovered, apparently simultaneously concluding the search as conducted by a private citizen was not a violation of defendant’s constitutional rights.

As has been recognized since Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), the Fourth Amendment of the United States Constitution gives protection only against unlawful governmental action. This Court has yet to decide whether Article I, Section 5 of the Louisiana Constitution of 1974 bans unreasonable searches by private citizens as well as police. See State v. Abram, 353 So.2d 1019 (La.1977); State v. Hutchinson, 349 So.2d 1252 (La.1977). However, it is unnecessary for us to resolve the question at this time, for we find that Thomas Smith was acting in his capacity as a law enforcement officer at the time he conducted the war-rantless search. A Louisiana deputy sheriff never truly goes off duty. He remains at all times a member of the law enforcement, agency, charged with greater knowledge and responsibility in criminal affairs. Cf. State v. Monroe, 366 So.2d 1345 (La.1978); State v. Schwartz, 354 So.2d 1332 (La.1978).

It is recognized that the state bears the burden of showing a warrantless search was conducted in the presence of exigent circumstances or with a valid consent. State v. Brown, 366 So.2d 550 (La. 1979); State v. Franklin, 353 So.2d 1315 (La.1978). Since Deputy Smith had no reason to believe the defendant had committed any crime, there was no evidence to be seized. Though the defendant has waved a gun around, it had been found to be unloaded and was now in the officer’s possession. Even if the deputy believed the defendant had stolen items from Mr. Bohall’s brother (as pointed out above, the only information received on this subject was that defendant’s roommate had stolen those items), there was no reason to believe they were in the defendant’s luggage or, if they were, that the items would be destroyed (State v. Hall, 342 So.2d 616 (La.1977) or moved (State v. Williams, 347 So.2d 231 (La.1977)).

Deputy Smith did testify Mr. Bo-hall had given him consent to search the luggage. But the officer also knew Mr. Bohall had asked the defendant to deposit his goods in the new apartment. Thus, defendant had the right to expect privacy relative to his closed luggage, an expectation recognized under the Fourth Amendment. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); State v. Abram, supra. For a warrantless search to be justified by consent, such consent must have been given by the defendant or a third party who possessed common authority over, or other sufficient relationship to, the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Wagster, 361 So.2d 849 (La.1978). As manager of the apartment complex, Mr. Bohall arguably possessed a degree of authority over the unleased apartment. Mr. Bohall, however, could not have authorized the officer’s search of the defendant’s luggage.

The state has failed to show any justification for the warrantless search of the defendant’s belongings. Accordingly, we reverse the trial court’s denial of the motion to suppress. The defendant’s plea of guilty is vacated, and the case remanded to the trial court for further proceedings in accordance with law.


text:
    STATE of Louisiana v. Bernard HARRIS.
    No. 62693.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Frank G. DeSalvo, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Chief Justice.

An Orleans Parish Grand Jury indictment returned on September 17, 1975 contained two counts: The first count charged Bernard Harris with distribution of heroin on the 13th of August 1975, and the second count charged both Bernard Harris and Henry Harris with distribution of heroin on July 30, 1975.

After trial the jury found Bernard Harris guilty on counts one and two. Henry Harris was acquitted. Bernard Harris was sentenced to life imprisonment at hard labor on each count, the sentences to run concurrently. On this appeal defendant Bernard Harris urges six assignments of error for reversal of his convictions and sentences.

This case is part of the “Topeat” operation, a joint State and Federal program aimed at law enforcement against illegal drug traffic in the New Orleans area. Police officer Larry Taplin was a prominent undercover investigator in this program. In that capacity he purchased three “bundles” of heroin (approximately 24 dosage units each) from defendant on two ■ separate occasions in the city of New Orleans. Both transactions were prearranged to permit surveillance by other police officers.

The first of these transactions occurred on the evening of July 30, 1975 at the residence of Bernard Harris’ sister. On that occasion, Henry Harris was present during the transaction but was apparently not considered an active participant by the jury. Officers Reiher, Brady, Titus, and Driscoll observed the meeting (but not the sale) from various positions on the street. The second sale was transacted on the afternoon of August 13, 1975 in the parking lot of a shopping center at the corner of Washington Street and Claiborne Avenue and was witnessed by Officer Brady. Samples from each bundle were analyzed at the crime laboratory and tested positive for heroin.

In brief the principal defense contention is based upon assignment of error number 10 relating to the denial of the defense motion to examine Officer Taplin on voir dire, prior to trial. The defense has consolidated the argument on assignment 10 with assignments 3, 4, 5, 6 and 8.

On the morning of the day this case was set for trial the defense filed a motion alleging that defense counsel attempted to interview Officer Taplin, a key state witness, concerning the facts and circumstances surrounding the offenses charged but Officer Taplin refused an interview. The motion also alleged that Officer Taplin’s refusal was “at least in part based upon the advice of the District Attorney’s office.” Officer Taplin’s refusal is alleged to have impeded defense counsel’s ability to prepare a defense to the charges against appellant, and is tantamount to a denial of defendant’s constitutional right to counsel and to be confronted by, and to cross-examine, the witnesses against him.

At a pretrial hearing on the motion defense counsel called Officer Taplin to the stand to support his allegations. Officer Taplin testified under oath that defense counsel attempted to speak to him concerning the facts of the case and that he refused, telling defense counsel that he would answer his question “on the stand” in court. He further testified that his decision not to answer defense counsel’s questions out of court was not based upon advice from the District Attorney’s office. No other evidence was produced by the defense, and the trial judge denied the motion. Later at the trial Officer Taplin testified in detail concerning the facts of the case, but counsel for Bernard Harris declined to cross-examine him, stating that he could not adequately cross-examine Taplin for fear that he would tread into “unknown waters” and never know what to expect by way of answers. The result would be to endanger the defense of his client.

The right of confrontation is a trial right, and attempts to employ it for pretrial discovery have been rejected. See State v. Phillips, 343 So.2d 1047 (La.1977); State v. Badon, 338 So.2d 665 (La.1976); State v. Morgan, 315 So.2d 632 (La.1975).

Nor do the Articles of the Code of Criminal Procedure pertaining to discovery in criminal cases enacted by Act 515 of 1977 permit such pretrial examination of the State’s witnesses. La.Code of Crim.Pro. arts. 716-729.6.

This Court has held that a witness may or may not speak with opposing counsel and that determination shall be made by the witness alone, but the State may not deny the defense access to the witness. State v. Hammler, 312 So.2d 306 (La.1975).

Based upon this authority the denial of the defense motion was proper.

The other assignments of error urged in defendant’s brief were, according to defense counsel, “taken in reference with the defense Motion to Voir Dire Officer Taplin, which was filed with the Court and denied prior to trial.” It is understood, therefore, that these other assignments were dependent upon the validity of the defense motion. Having decided that the motion lacks merit, we find it unnecessary to further consider these other assignments.

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

BLANCHE, J., not participating.