author: BLANCHE, Justice. DIXON, Chief Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Clyde STEWART.
    No. 67361.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Richard J. Petre, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Philip Brooks, Metairie, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Clyde Stewart, was indicted by a grand jury on December 21, 1979 for first degree murder in violation of La.R.S. 14:30. He pleaded not guilty and was tried by a jury of twelve persons on August 21, 1979. When the jury was unable to reach a verdict, the court declared a mistrial. Thereafter, on October 2, 1979, the indictment was amended to charge the defendant with second degree murder in violation of La.R.S. 14:30.1. A second jury trial was held on October 4, 1979 and defendant was found guilty as charged and sentenced to life imprisonment. On appeal, the defendant raises seven assignments of error.

The record from the trial court, as narrated by the witness, Anthony Green, reflects the following series of events which led to the defendant’s arrest and conviction for second degree murder. On October 14, 1977, Anthony Alexander and Anthony Green, who were friends, met after work at the Hilton Hotel where Green was employed. From there, they proceeded to a local hamburger place for supper and after-wards, began walking to the intersection of Broad and Canal Streets to catch a bus home when they were stopped by two men who rode up beside them in an automobile. At gunpoint, they were ordered into the car and driven to the Almonaster Bridge in Eastern New Orleans. En route, they were ordered to strip off all of their clothing and to turn over all their money and jewelry to their captors. Upon arriving, Green was told by the passenger/defendant, who had possession of a pistol during the entire time of their ride, to lie face down on the ground outside for a time period that he variously estimated to be either 10, 20 or 30 minutes. Finally, Green was ordered back into the car and Alexander was ordered out of the car. While Green was in the car, which was occupied during that time by the'driver, Alexander was outside with the passenger/defendant. A fight ensued between Alexander and the passenger/defendant which resulted in the defendant dropping the pistol. Upon the occurrence of this event, both Green and the driver scrambled out of the car in an attempt to retrieve the fallen pistol. The driver succeeded, and proceeded to shoot Green who, while fleeing, shouted for his friend Alexander to do likewise. The wounded Green’s flight led him to some bushes where he hid, and from where he heard three shots and saw the perpetrators drive off. When he returned to the scene, he found his friend, Alexander, dead. Green then wrapped some clothes around himself and, being unable to get anyone to stop, walked to a friend’s house and called the police. That night, Green explained the events which had occurred to the police and viewed some mug shots of persons whom the police thought may have been involved. Green was unable to make an identification.

Thirteen months later, Green was notified that the police had a suspect and was again asked to view some mug shots. On November 24,1978, this photographic lineup was conducted at the police station with Green and one officer, Detective Hoyt, present. According to Green, after one to two hours of examining the six photos, he identified the defendant as the passenger who held the gun on them and who participated in the robbery and subsequent murder of Alexander. The defendant was subsequently arrested for first degree murder.

One month later, on December 19, 1978, Green again identified the defendant as the passenger at a six-person physical lineup at the police station. Defendant was then indicted by the grand jury for first degree murder and, ultimately, convicted of second degree murder.

Defendant raises the following assignments of error in connection with his conviction.

Assignment of Error Number 1

Defendant contends his conviction should be reversed because the trial court failed to suppress the evidence and/or testimony at trial relating to the November 24,1978 photographic lineup identification of the defendant on the basis of its suggestive nature.

To decide whether to suppress identification testimony one must balance the reliability of such identification against the corrupting influence of the suggestive identification itself. Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Reliability is seen by examining the five factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), which are articulated in Manson, supra, and followed by this Court. State v. Guillot, 353 So.2d 1005 (La.1977). As applied to this case, the factors reveal: (1) Opportunity of the witness to view the criminal at the time of the crime. Green’s testimony is that the two perpetrators drove Alexander and him around for IV2 hours with the passenger/defendant holding a gun and facing them as they sat in the rear seat. Green said he could see the defendant’s face because of the traffic and street lights. After the crime, he described the defendant as a black male with a black hat, wearing a black Levi suit, and having pock marks on his face. This thorough description reveals Green could clearly see the defendant. (2) The witness’ degree of attention. Green testified that he paid close attention to the defendant as the defendant was- pointing a large gun (he thought it was a .45 revolver) from a distance of 1 to IV2 feet at him for the entire ride. Green said he saw not only the gun, but the defendant’s face as well. (3) The accuracy of his prior description. Green gave a description on the night of the crime of the defendant as a black male with pock marks on his face. This description complies with the ultimate identification of the defendant. (4) The level of certainty demonstrated at the confrontation. Although Green testified that it took him one to two hours to positively identify the defendant after examining the six photos, his time estimate may be compared with the IV2 hour estimate he gave of the time it took his captors to drive the victim and him from Canal and Broad Streets to the Almonaster Bridge, a normal 20-minute ride at night, according to Detective Hoyt. Furthermore, the police officer present at the photographic lineup testified that it only took Green three to five minutes to make the identification. We are not impressed with Green’s ability to gauge time but, nevertheless, if it did take Green the length of time which he claims he took to make the identification, this delay may just as easily be attributed to his diligence as to his failure to be certain. Green was positive in his identification of the defendant at the photographic lineup. (5) The time between the crime and the confrontation. Thirteen months is, in our judgment, a long time to remember a face, but Green testified he could positively identify the defendant. The jury evidently believed his identification was reliable even though Green candidly admitted the time factor did give him trouble.

We conclude that a cumulation of the five factors shows the identification was reliable. Balanced against the reliability is the suggestiveness of the photographic lineup, and we find the photographic lineup procedure was not suggestive in any manner.

Green was called to the police station to view a photographic lineup because the police believed they had a suspect. This, in itself, does not constitute suggestiveness, for it is generally assumed if one is called to examine a photographic or physical lineup that there is a suspect in the crowd. State v. Knight, 323 So.2d 765 (La. 1975); State v. Curtis, 363 So.2d 1375 (La. 1978).

Green also testified that no threats or intimidation were used to obtain the identification. Detective Hoyt was the only other person in the room during the identification and he never suggested a particular photograph should be selected.

Lastly, the defense argues the photographic linkup was overly suggestive because the defendant was the only subject with a pock marked face. This is not correct, as an examination of the six photographs reveals several of the subjects have pock marks and/or scars on their faces.

This assignment is without merit.

Assignment of Error Number 2

Defendant contends his conviction should be reversed because the trial court failed to suppress the evidence and/or testimony at trial relating to the November 24,1978 photographic lineup identification on the basis that the defendant was not represented by legal counsel.

The general rule is that a defendant is not entitled to be represented by an attorney during a pre-trial, post-indictment photographic lineup. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). In State v. Cass, 356 So.2d 936 (La.1977), this Court held in accordance with the United States Supreme Court’s decision in Ash, supra, in finding that a criminal defendant does not have a constitutional right to have counsel present at photographic displays conducted by the state for the purpose of attempting to secure an identification of the perpetrator of a crime.

Here, the defendant contends that the length of time which transpired between the crime and the photographic lineup was sufficient to change the nature of the investigation to accusatory, thereby requiring the attendance of counsel. The record clearly shows that at the time the pho-tographie lineup took place the defendant had neither been arrested nor indicted. Furthermore, merely being a suspect does not place the defendant in the same accusatory station as being the subject of an indictment which, in itself, does not provide the defendant with the right of counsel at a photographic lineup per Ash, supra. We find no merit in the defendant’s contention that his situation presents a set of facts sufficient to deviate from the general rule.

This assignment is without merit.

Assignment of Error Number 3

Defendant contends his conviction should be reversed because the trial court failed to suppress the evidence and/or testimony at trial relating to the physical lineup identification of the defendant on December 19, 1978, on the basis of its suggestive nature.

The lineup itself was not suggestive as all of the six subjects were of the same race, similar in appearance and stature to the defendant, and were all dressed in identical uniforms. The defendant was allowed to choose his position and to tell the other subjects where to stand. None of the subjects used in the photographic lineup, except the defendant, was used in the physical lineup. The witness, Green, sat alone and pointed out the defendant without any coercion, suggestions or assistance from the police or anyone else.

The only possible questionable aspect of the physical lineup was that, not only did Green give a positive identification of suspect # 2 as the passenger/defendant, but he also gave a tentative identification of suspect # 4 as the other perpetrator, i. e., the driver who scrambled with Green for possession of the pistol. The trial testimony reveals that the officer conducting the physical lineup, Detective Richards, did not know if any other prospect was arrested for the crime except the defendant, and had no knowledge that the lineup participant tentatively identified by Green as the other perpetrator of the crime, was in any way connected with the crime. While the record does not reflect this, the implication was that the person (subject # 4) identified by him was never charged with having committed the crime. Nevertheless, this second identification was only tentative, for as Green testified, he was not positive only as to the identity of subject # 4 as the driver. He remained positive of the identification of subject # 2 as the passenger/defendant.

We conclude the physical lineup was not suggestive in any manner, and the positive identification of the defendant by the witness was a reliable one.

This assignment is without merit.

Assignment of Error Number 4

Defendant contends his conviction should be reversed because the trial court failed to suppress the evidence and/or testimony at trial relating to the physical lineup identification of the defendant on December 19, 1978 on the basis that he was not represented by legal counsel.

At the time of the physical lineup the defendant had been arrested, but he was not indicted until two days after the physical lineup. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that the presence of counsel at a pre-indictment lineup was not a requirement of due process. This Court has followed Kirby in a number of decisions: State v. Hargrove, 330 So.2d 895 (La.1976); State v. Johnson, 327 So.2d 388 (La.1976); and State v. Smith, 357 So.2d 798 (La.1978).

Furthermore, a good faith effort, though not required, was made on the part of the police to notify counsel of their intention to hold a physical lineup. Detective Richards testified that he contacted the Office of Indigent Defender Program and informed them of the state’s intention to conduct a physical lineup, but no one from that office showed up. Defendant was not entitled to representation at the pre-indictment lineup, but the police still made a good faith effort to see that he was so represented.

This assignment is without merit.

Assignment of Error Number 5

Defendant contends his conviction should be reversed because the verdict of second degree murder is contrary to the law and the evidence, contending that the evidence was insufficient to prove the defendant was guilty beyond a reasonable doubt. There is direct evidence of the defendant’s guilt, as the state’s case was built upon the positive identification by the witness, Green, of the passenger/defendant. Said identification first occurred in a proper photographic lineup, was confirmed at a proper physical lineup, and was absolute at trial. The state has shown the lineups were not suggestive and the witness’ identification was reliable (as discussed in Assignments of Error Numbers 1 and 3). Were we to accept the defendant’s contention we would, in fact, be substituting our judgment for that of the trier of fact as to Green’s identification when there was “some evidence” of the defendant’s guilt from which any rational trier of fact, after hearing the evidence on this issue, could have believed that Green’s identification of the defendant was reliable.

This assignment is without merit.

Assignment of Error Number 6

Defendant contends his conviction should be reversed because the trial court denied the defendant’s motion to quash the indictment on the basis of the state’s amendment of the grand jury indictment from first degree murder to second degree murder.

Art. 1, § 15 of the 1974 Louisiana Constitution provides that “no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by grand jury;” also see La.C.Cr.P. art. 382. Under the law applicable to the defendant, second degree murder is a crime punishable by life imprisonment and, therefore, is a crime the prosecution of which must be instituted by grand jury indictment. State v. Stevenson, 334 So.2d 195 (La.1976).

However, district attorneys are empowered to amend indictments to charge lesser offenses. State v. Gilmore, 332 So.2d 789 (La.1978). The state may abandon the charge of a greater crime and proceed with prosecution for the lesser crime and no formal indictment is necessary for that purpose. State v. Edwards, 287 So.2d 518 (La.1973). Obviously, the state can, by formal amendment, do what it also can do with no formal indictment change.

Concerning the amendment of an indictment, this Court recently allowed the district attorney to amend the charge from first degree murder to second degree murder after the trial began, but before the first prospective juror was called. State v. Davis, 385 So.2d 193 (La.1980). This is to be distinguished from the situation in State v. Donahue, 355 So.2d 247 (La.1978) where the district attorney nolle prosequied a first degree murder indictment and reinstituted the prosecution by a bill of information. In the present case, the defendant was indicted for first degree murder by a grand jury. The assistant district attorney then properly amended the charge to the lesser included offense of second degree murder before the trial began.

This assignment is without merit.

Assignment of Error Number 7

Defendant contends his conviction should be reversed because the trial court denied his motion to quash the indictment on the basis of the state’s failure to furnish a sufficient bill of particulars.

In its motion to produce, the defense asked the state to furnish any oral statements made by the defendant which were to be introduced in evidence and to give the names and addresses of all of the witnesses known by the state to possess knowledge of the crime.

Before the trial the state gave notice of its intention to offer in evidence an oral statement made by the defendant to Louise Armstrong on October 17, 1977 in her apartment in compliance with La.C.Cr.P. art. 768. However, the state did not use her at trial, nor allude to said statement in any manner.

As to the request for the names and addresses of the state’s witnesses, the state replied that the defendant was not entitled to this information. State v. Thornton, 351 So.2d 480 (La.1977). As a practical matter, the court has recognized that this information becomes available on the public record when the subpoenas and returns are filed with the clerk of court. State v. Hudson, 361 So.2d 858 (La.1978).

Besides furnishing sufficient answers to the defense requests, it appears the defense was already adequately satisfied with the answers. At a February 2,1979 hearing for answers to the bill of particulars and motion to produce, the defense counsel, Mr. Philip S. Brooks, stated:

“All right, if the court pleases, we are satisfied to [sic] the answers to the bill of particulars and the motion to produce.” This assignment is without merit.

For these reasons, the seven assignments of error made by defendant are without merit and defendant’s conviction and sentence are affirmed.

AFFIRMED.

DIXON, C. J., concurs with reasons.

LEMMON, J., dissents and assigns reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur, believing the treatment of Assignment No. 5 is incorrect.

LEMMON, Justice,

dissenting.

This decision should be reversed because the eyewitness identification is so unreliable that it violates due process.

Thirteen months after the crime the victim was requested “to look at pictures to see if I could make an identification”, because “they had some evidence that could link this person to this (the crime)”. This statement to the victim was unduly suggestive.

There is a vast difference between telling an eyewitness called to view a line-up that “we have a suspect’ and that “we have someone linked by other evidence to the crime”. The latter statement virtually tells the eyewitness “we have the perpetrator”. Under such circumstances the eyewitness, instead of being free to determine whether or not any of the persons shown is the perpetrator, is pressured into deciding which of the persons shown is the perpetrator.

This suggestiveness alone, arguably, did not so substantially increase the likelihood of misidentification as to violate due process. However, under the totality of circumstances a very substantial likelihood of irreparable misidentification exists in this case.

The identification was 13 months after the crime. According to the victim, about an hour elapsed from the time he looked at the photographs until he made the identification. He also admitted he had “considerable trouble” and “[i]t was quite hard for me to remember”.

At the subsequent physical line-up, fortified by the questionable photographic identification, the eyewitness positively identified defendant as one perpetrator, but also positively identified a second person in the line-up as the other perpetrator. The undisputed error in the contemporaneous identification of the second perpetrator casts further substantial doubt on the eyewitness’ questionable identification of defendant.

In my opinion the motion to suppress should have been granted.

      . Whether we use our traditional “some evidence” standard of review, State v. Main Motors, 383 So.2d 327 (La.1979) and State v. Entertainment Specialists, 386 So.2d 653 (La. 1979), or the standard of review espoused in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), our result would be the same.


source: Caselaw Access Project

author:
CALOGERO, Justice. BLANCHE, Justice LEMMON, Justice,
      DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. John Morgan WILLIAMSON.
    No. 67338.
    Supreme Court of Louisiana.
    Oct. 7, 1980.
    Rehearing Denied Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Dist. Atty., James M. Bubers, Asst. Dist. Atty., for plaintiff-appellee.
    S. Patrick Phillips, Indigent Defender B., Bossier City, for defendant-appellant.
   CALOGERO, Justice.

Defendant, John Morgan Williamson, was charged by bill of information with the crime of attempted first degree murder, a violation of R.S. 14:27 and 14:30. He was tried before a twelve person jury which found him guilty of attempted second degree murder. He was thereafter charged with and convicted of being a multiple offender under R.S. 15:529.1, and sentenced to sixty years at hard labor. He now appeals on the basis of eleven assignments of error,. eight of which are argued in brief. Because we reverse defendant’s conviction and order him retried for the reasons which follow, we find it unnecessary to address the specific assignments of error.

Near midnight on July 17, 1979, Airman Jackie Neie from Barksdale Air Force Base called for a Yellow Cab to pick him up at the Mint Lounge in Bossier City. Before the cab arrived, he met two fellow airmen who offered him a ride back to the base, one of whom was the victim, Gary Batsell. When the cab arrived,' the driver was told he was no longer needed and given a dollar for his trouble.

After a brief verbal exchange, the cab followed the three airmen for several miles and jockeyed with their truck along the highway. The cab was directly behind the truck when it turned at an intersection and a shot was fired, apparently from the taxi. The bullet entered the back window of the truck and struck Batsell in the back of the neck. The victim was paralyzed from the neck down for ten months, then died as a result of his injuries.

Police investigation immediately after the shooting revealed that the cab dispatched to the Mint Lounge in response to the call was cab 41, driven by John Williamson. A police radio broadcast went out alerting officers to be on the lookout for cab 41 and the defendant.

The Shreveport Police Department spotted the defendant within an hour of the shooting. Defendant was stopped and was patted down while standing next to the open door of the cab. In response to a statement made by the defendant, the officer retrieved a pistol from under the seat of the cab. Tests by a weapons identification expert proved the seized gun to be the same one which fired the shot that hit the victim.

By legislative enactment, the law pertaining to first and second degree murder had been changed on June 29, 1979, shortly before the shooting of Airman Batsell on July 17, 1979.

Between October 1, 1976 and June 29, 1979, first degree murder had been defined simply as any specific intent killing:

“First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm... ”, (R.S. 14:30, as amended by Acts 1976, No. 657, effective October 1, 1976);

and second degree murder after September 8, 1978 and before June 29, 1979 had by definition included only felony murder:

“Second degree murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm. . . . ” (R.S. 14:30.1 as amended by Acts 1978, No. 796, § 1, effective September 8, 1978).

By amendment to the law effective June 29, 1979, however, the first degree murder statute was changed to include only four restrictive specific intent killings:

“First degree murder is the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery;
(2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties;
(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or
(4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing(R.S. 14:30, as amended by Acts 1979, No. 74, § 1, effective June 29, 1979);

and the definition of second degree murder was changed to include, besides felony murder, any specifically intended murder:

“Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm....” (R.S. 14:30.1, as amended by Acts 1979, No. 74, § 2, effective June 29, 1979.)

This alteration of the law, the most recent in a series of changes made by the legislature and prompted by their construction of court decisions, has been the cause of some confusion as to the definitions of the crimes of first and second degree murder.

The judge, along with the prosecutor and counsel for the defense, apparently entertained the misconception that the law as it appeared prior to the 1979 amendment was still in effect at the time of the shooting, when in fact the new law had gone into effect some nineteen days before the offense. The charge reflected that mistake. The trial judge told the jury that to find defendant guilty of attempted first degree murder they need only determine that he specifically intended to kill, and to find the defendant guilty of attempted second degree murder they could do so only upon finding a commission of felony murder, when in truth, first degree murder was the four restrictive specific intent killings and second degree murder was any specific intent killing and/or felony murder.

The situation was further complicated by the judge’s reading to the jury a list of verdicts responsive to the charge of attempted first degree murder. He told the jury that attempted second degree murder was responsive to a charge of attempted first degree murder. That of course is true under the law pertinent to the date of the offense, i. e., second degree murder, any “specific intent” killing, is lesser and included to first degree murder as defined in R.S. 14:30 as amended by Acts 1979, No. 74, § 1. However it was not so, and we so held, in State v. Booker, 385 So.2d 1186 (La.1980), that felony murder was lesser and included to the charge of any specific intent killing.

The consequence of this misstatement of the law is that the jury determined defendant was not guilty [a conviction of a lesser acquits of the greater-Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)] of an attempted specific intent killing (what they were told was attempted first degree murder) and guilty of attempted felony murder (what they were told was attempted second degree murder) which the evidence clearly did not support; yet technically their conviction for attempted second degree murder fit the actually prevailing law and evidence upon which the state relied.

We determine that fairness dictates reversal of the defendant’s conviction under these circumstances. The jury is charged to apply the law as given them by the judge, C.Cr.P. art. 802(2). Presuming that they did so, the otherwise valid verdict was in truth a determination that defendant committed a felony murder. The evidence and indeed the state’s very theory of this case does not support such a determination.

The state points out that defendant did not object to the erroneous jury instruction concerning definitions of the crimes of first degree and second degree murder. And they call our attention to a long line of cases to the effect that erroneous jury instructions are not errors patent on the face of the record. Absent objections and because the trial court is denied an opportunity to correct them, such errors are generally not reviewable. State v. Progue, 350 So.2d 1181 (La.1977); State v. Roche, 341 So.2d 348 (La.1976); State v. Smith, 339 So.2d 829 (La.1976).

The state’s argument is of course correct, so far as it goes. Nonetheless it is within the province of this reviewing court to entertain complaint of Constitutional violations on appellate review notwithstanding that consideration of such complaint more often than not is deferred until filing of a writ of habeas corpus. This Court’s usual pretermission of such issues stems from the need of an evidentiary hearing which can only be had incident to the writ of habeas corpus. The record before us, however, bears full and sufficient proof of the error which no posterior hearing could augment. For this reason, the need for delay is obviated.

In the case at hand the asserted error involves the very definition of the crime of which defendant was in fact convicted. Such an error is of such importance and significance as to violate fundamental requirements of due process.

Furthermore to defer consideration until defendant were to file a writ of habeas corpus would only serve to prolong the occasion when defendant might again be tried, with resultant prejudice to the state’s opportunity to reassemble its witnesses and evidence. For these reasons we find it preferable now to reverse defendant’s conviction and sentence and order him retried.

Because reversal of defendant’s conviction results not from evidentiary insufficiency but from trial court error, and upon defendant’s urging in brief on this appeal, he is subject to being retried for attempted second degree murder, the crime of which convicted. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). While the jury may have decided against finding a specific intent killing, defendant was never really in jeopardy of being convicted for such inasmuch as first degree murder did not encompass a simple specific intent killing at the time of the offense.

Decree

For the foregoing reasons, the conviction and sentence of the defendant are reversed and the case is remanded to the trial court for retrial.

REVERSED AND REMANDED.

BLANCHE, J., concurs and assigns reasons.

LEMMON, J., concurs and assigns reasons.

MARCUS, J., dissents.

DENNIS, J., dissents and assigns reasons.

BLANCHE, Justice

(concurring).

Ordinarily erroneous jury instructions not objected to are not reviewable. In this ease, the objections were not forthcoming because all parties were mistaken as to the definitions of first and second degree murder at the time of trial. I agree that a trial error of this magnitude deprived defendant of due process of law and he should be retried.

LEMMON, Justice,

concurring.

It would be a simple matter to affirm this conviction. The evidence clearly supports a finding of guilt beyond a reasonable doubt of every element of the crime of attempted second degree murder, as that crime had been defined by the Legislature in an act which became effective several days before this offense was committed. But such an affirmation, essentially based on the pragmatic notion that the jury reached the right result on the wrong instructions, simply does not comport with basic concepts of due process. Elementary fairness requires that a conviction be set aside in a case tried by a jury when the jury instructions as to the essential elements of the crime are fundamentally inaccurate. Accordingly, I have no problem in reversing this conviction.

Nevertheless, I am concerned about the majority’s statement in dicta that defendant can be retried only for attempted second degree murder. If the jury’s verdict finding defendant guilty of attempted second degree murder is set aside (at defendant’s request) because of fundamental trial error in instructing the jury as to the essential elements of that crime, it does not logically follow that defendant should be impliedly acquitted of attempted first degree murder when the same fundamental error occurred in instructing the jury as to the essential elements of that crime. Compare Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Inasmuch as adjudication of the issue of future prosecution is not necessary to the holding of this case, I simply point out my disagreement in a concurring opinion.

DENNIS, Justice,

dissenting.

I respectfully dissent.

In my opinion the only error committed during the aspect of the trial discussed by the majority was the judge’s failure to instruct the jury correctly on the available verdicts. Defendant was validly charged with attempted first degree murder, and found guilty of attempted second degree murder, a constitutionally lesser included offense of the charged crime. Accordingly, defendant was afforded due process because he was given notice of the charge of which he was convicted. See State v. Booker, 385 So.2d 1186 (1980). The defendant was charged with knowledge of the correct definitions of attempted murder and second degree murder. His failure to timely object to the judge’s having given erroneous definitions and verdicts to the jury should preclude our review of those errors.

      . Act 74 of the 1979 regular session of the Louisiana legislature became effective by signature of the governor on June 29, 1979.

      . To facilitate ease of discussion hereafter the components of the respective definitions of first and second degree murder before and after the amendment, set out more fully above, will occasionally be referred to as restrictive specific intent killing, any specific intent killing and felony murder.

      . The amendments of recent years have been in response to certain problems of statutory semantics which are only incidentally related to the instant case. See State v. Payton, 361 So.2d 866 (La. 1978). See also Hancock, The Perils of Calibrating the Death Penalty Through Special Definitions of Murder, 53 Tul.L.Rev. 828, at page 845.

      .In Booker, interpreting the law as it appeared prior to the most recent amendments, we held that where no charge was made nor evidence offered of the perpetration or attempted perpetration of one of the felonies enumerated in the second degree murder statute, a jury could not logically conclude that a defendant was guilty of attempted second degree murder after being charged with attempted first degree murder. That is, regardless even of any express designation by the legislature, attempted second degree murder was not a responsive verdict to a charge of attempted murder in the first degree, absent proof of felony.

      . Ineffective assistance of counsel, for instance, has been held more properly raiseable by writ of habeas corpus. State v. Tucker, 332 So.2d 797 (La.1976); State v. Ross, 343 So.2d 722 (La.1977).

      . We cannot say with certainty that the jury’s entering of a verdict of attempted second degree murder resulted from a finding on their part that the defendant was as a matter of fact innocent of any specific intent killing. Rather, the possibility is that the jury, in opting to show mercy or leniency toward defendant, chose the lesser verdict knowing without having to be told that the penalty for attempted second degree murder is less than that for attempted murder in the first degree. The jury was aware of this alternative by reason of the judge’s previously mentioned instruction to them regarding the list of responsive verdicts, including that of attempted second degree murder.

      .The jury had been given an instruction that stated an incorrect definition of the essential elements of the offense of attempted second degree murder. Admittedly, there was no contemporaneous objection to the instruction, and this court has seldom, if ever, applied the plain error doctrine to jury instructions, the usual reasoning being that a defendant is more appropriately relegated to post-conviction proceedings to show ineffective assistance of counsel.
      But this is not the usual case, and very few jury instructions are so prejudicial as to constitute plain error. Furthermore, the record suggests that defense counsel was adequately effective, except for one glaring mistake, and that the mistake was shared by the prosecutor and the trial judge. (The mistake was perhaps understandable, when one considers the newness of the pertinent legislative act and the fact that the statutory definitions of the various degrees of murder were in a constant state of flux for several consecutive legislative sessions.)

      . One cannot logically analyze this verdict as indicating the jury did not find specific intent. The only reasonable explanation of the verdict is that the jury found specific intent to kill or inflict serious bodily harm, but preferred not to subject defendant to the penalty for first degree murder. If the incorrectly instructed jury had not found specific intent, it would necessarily have acquitted of both attempted first and attempted second degree murder.

      . Since the evidence in this record suggests the absence of any of the four types of specific intent required for first degree murder in July, 1979, the prosecution will probably not charge defendant on retrial with first degree murder or attempted first degree murder. (The victim died 10 months later.) Nevertheless, prosecution for first degree murder should not be pre-eluded merely because this conviction of a lesser offense was reversed.


author: WATSON, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Norris VESSEL, C. Paul Phelps, Secretary, Louisiana Department of Corrections, Relator.
    No. 80-K-1957.
    Supreme Court of Louisiana.
    Oct. 9, 1980.
    Rehearing Denied Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, J. Marvin Montgomery, Asst. At-tys. Gen., Richard Crane, Sou Rouprich, Baton Rouge, for Dept, of Corrections.
    Harry F. Connick, Dist. Atty., John Craft & Joseph Meyer, Jr., Asst. Dist. Attys., for the State.
    Orleans Indigent Defender Program, Dwight M. Doskey, New Orleans, for defendant Norris Vessel.
   WATSON, Justice.

At issue is the validity of an ex parte order entered by the Orleans Criminal Court to C. Paul Phelps, Secretary of the Louisiana Department of Corrections, requiring the Department to accept custody of Norris Vessel. Vessel was tried in the Orleans Criminal Court and sentenced to life imprisonment in the custody of the Louisiana Department of Corrections. His case is presently on appeal to this court.

The application for writs briefly states the situation as follows:

“8.
“While housed at Orleans Parish Prison, during the pendency of his appeal, Norris Vessel filed a ‘writ of mandamus and court order’ wherein he alleged that he wished to be removed from the custody of Sheriff Charles Foti at Orleans Parish Prison and be transferred to the custody of the Louisiana Department of Corrections notwithstanding the status of his appeal.
“9.
“On August 12, 1980, this Court [Orleans Criminal District Court] issued an ex parte order directing Charles C. Foti, Jr., Criminal Sheriff for the Parish of Orleans, to transport Norris Vessel to the Louisiana Department of Corrections and further ordered C. Paul Phelps, Secretary of the Louisiana Department of Corrections, to accept and retain the custody of Norris Vessel in the Louisiana Department of Corrections.
“10.
“The Louisiana Department of Corrections refused to accept custody of Norris Vessel because: (1) the department documentation required by La.R.S. 15:566(C) and Article 892 of the Louisiana Code of Criminal Procedure had not been prepared and delivered with the prisoner, Norris Vessel; (2) the order was contrary to Code of Criminal Procedure Article 913 and the holding of the Louisiana Supreme Court in State v. Williams, 262 La. 769, 264 So.2d 638 (1972), and subsequent cases; (3) and because the Relator was not a party to the proceedings.”

The application of the Department through Phelps now represents that a contempt of court charge was filed against Phelps for refusal to accept custody of Norris Vessel, and contends that the ex parte order of August 12, 1980, is unlawful. Writs were granted and proceedings were stayed; Vessel was ordered to appear through counsel.

As factual background, it should be noted that shortly following Vessel’s sentence on June 9,1980, Vessel filed a “writ of mandamus” in this court (Louisiana Supreme Court No. 80-K-1382) asking that he be ordered removed from Orleans Parish Prison to the Department of Corrections because his life was in danger and because he did not have access to law books needed for appeal of his conviction. Apparently, on June 24, 1980, the judge of the trial court issued an order granting Vessel’s request and ordering Orleans Parish Criminal Sheriff, Charles C. Foti, Jr., to transport Vessel to the Department of Corrections. The judgment did not order the Department of Corrections or its officers to take any action. The application by Vessel to this court was dismissed as moot.

On August 12,1980, the judge of the trial court issued another judgment, apparently on his own motion, amending the order of June 24 by adding a paragraph ordering Phelps as Secretary of the Department to accept and retain custody of Vessel. It is conceded that this order was issued without notice to Phelps or the Department. On August 15, 1980, Vessel and a copy of the amended order were delivered to Hunt Correctional Center, a unit of the Department of Corrections, where his acceptance was refused.

The relator is correct in his contention that under C.Cr.P. art. 913 and State v. Williams, 262 La. 769, 264 So.2d 638 (1972) the execution of sentence is suspended during appeal and the trial court has no authority to order a person, whose appeal is pending, to the state penitentiary.

The vitality of Williams was thrown into question by State ex rel. Matthews v. Henderson, 292 So.2d 496 (1974) where this court, while ostensibly reaffirming Williams (292 So.2d 498), actually reversed the basic holding of Williams by approving a trial court order transferring the defendant to the penitentiary while his case was on appeal.

Since Matthews, the Legislature has reworded and reenacted the statutory provision, LSA-R.S. 15:706 A, now to read:

“A. Whenever the jail of a parish is unsafe or unfit for the security of prisoners; or is held by judicial decree unfit for the detention of some or all of the inmates; or presents a security risk to a prisoner or other prisoners or to the public; the sheriff of the parish maintaining and keeping the prisoner or prisoners may apply to the district court of the parish exercising jurisdiction for an order to permit the transfer of any prisoner or prisoners to the jail or jails of any other parish and if such order is granted the sheriff may contract with the sheriff of any other parish to accept the transfer in keeping with the terms hereof. If the prisoner ordered transferred is under sentence to the Department of Corrections, the court shall cause a copy of the order of transfer to be served on the department.”

The Legislature has provided clearly for life threatening situations by authorizing transfer to another jail. See also State v. Clark, 317 So.2d 623 (1975).

Transfer is now limited, statutorily and jurisprudentially, to another parish jail. The statute contemplates application to the trial court by the Sheriff but there is no reason why the defendant cannot apply, with notice to the Sheriff responsible for his custody. In the appropriate case and after hearing, the transfer to another jail should be ordered. State v. Kidd, 377 So.2d 843 (1979).

However, there has been no evidentiary hearing to establish Vessel’s contentions and even if he proves his allegations, the trial court cannot issue an order to the Department of Corrections requiring acceptance of Vessel. The proceedings in the trial court are defective, and the order must be set aside.

The ex parte order of August 12, 1980, directing Sheriff Foti to transport Vessel to the Department of Corrections and requiring Secretary Phelps to accept him is vacated and set aside. The ease is remanded to the trial court for further proceedings consistent with this opinion.

ORDER VACATED; CASE REMANDED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Although there is no legislative authority for a district court to order a convicted defendant, pending appeal, to the Department of Corrections, in the absence of a legislative prohibition against doing so, a district court arguably has the inherent power to issue such an order in an appropriate situation demonstrated at a hearing in which all interested parties have been notified. Since it is not necessary to decide that issue here, I would simply hold that the ex parte order, issued without a hearing and without notice to the Department of Corrections, must be set aside and that no valid contempt citation can be issued in connection with the order.

      . The facts do not appear to be in dispute.

      . The application relates that Phelps believes a contempt charge has been filed, but it had not been served or heard, as of the filing of the writ application.


author: DENNIS, Justice,

text:
    STATE of Louisiana v. Colin CLARK.
    No. 66573.
    Supreme Court of Louisiana.
    Nov. 4, 1980.
    For majority opinion see 387 So.2d 1124, La.
   DENNIS, Justice,

concurring in part and dissenting in part.

I concur in the judgment of the court in affirming defendant’s conviction, but I respectfully dissent from the court’s affirmance of the death penalty in this case.

I disagree with the majority’s holding that the defendant’s sentence was not imposed under the influence of passion, prejudice or any other arbitrary factor. See La.Sup.Ct.R. 28, § 1 a. The sentencing hearing prescribed following a verdict of guilty in a capital case is concerned with the circumstances of the offense and the character and propensities of the defendant. The defendant’s wishes with respect to his life are neither aggravating nor mitigating evidence, and therefore defendant’s plea to the jury, requesting the death sentence, should not have been allowed. See La.C. Cr.P. art. 905.2.

In State v. English, 367 So.2d 815 (La. 1979), we recognized that Code of Criminal Procedure article 905.2’s requirement that the sentencing hearing be conducted in accordance with the rules of evidence mandates a reversal where an erroneous ruling by the trial judge was prejudicial to the defendant. Allowing the defendant to make his plea for the death penalty in this case introduced an arbitrary factor into the sentencing hearing which may have tended to inflame the passions of the jury. See La.Sup.Ct.R. 28, § 1 a. Such a request clearly is not probative of any fact relevant in the sentencing hearing, and its potential prejudice requires at the least a correcting instruction. La. C.Cr.P. art. 771.

Moreover, Article 557 of the Code of Criminal Procedure forbids a court to accept a guilty plea in a capital case. Such a prohibition is a reflection of a legislative policy against a person bringing about his own death. That policy is an additional reason why the sentence in this case should be reversed.

In addition to the defendant’s plea that the jury take his life, another impermissible, arbitrary factor was introduced into the sentencing process. The prosecutor in rebuttal to the defense attorney’s closing argument stated:

“Since the law mandates that a sentence of death shall not be imposed unless the jury finds at least one . . . aggravating circumstance . . . one must conclude that the converse or the reverse is that the death penalty would be mandated if aggravating circumstances were presented and if the mitigating circumstances were of an execrable [sic] nature . ...” [emphasis added]

The prosecutor’s statement to the jury incorrectly represented the law to the jury. The law does not direct the jury to put the defendant to death in any particular case. The law simply requires the jury to find an aggravating.circumstance beyond a reasonable doubt and weigh it against any mitigating evidence. If the jury finds the death penalty “inappropriate,” it is not required to impose capital punishment regardless of the nature or existence of any mitigating circumstances. See La. C.Cr.P. arts. 905.3 and 905.6. Thus, the prosecutor’s statement, which the judge did not tell the jury to disregard, introduced an arbitrary and erroneous factor into the sentencing process which may have improperly prejudiced the jury.

For the above assigned reasons, I therefore respectfully dissent.


text:
    STATE of Louisiana v. Kirk P. VOSLOH.
    No. 66553.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    For majority opinion see 387 So.2d 1174 (La.)
   DENNIS, Justice,

dissenting.

I respectfully dissent.

When argument of a district attorney refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible, a mistrial must be ordered upon motion of defendant. La. C.Cr.P. art. 770. An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. La. C.Cr.P. art. 770. When the argument of a district attorney goes beyond its proper scope, the defendant is entitled to have the trial judge admonish the jury to disregard the argument, if it might create prejudice against the defendant or to have a mistrial ordered if an admonition is not sufficient to assure the defendant of a fair trial. La.C. Cr.P. art. 770; art. 774, comment (c).

Since the district attorney’s remark or comment referred directly to another crime committed or alleged to have been committed by the defendant as to which evidence was not admissible, the defendant was entitled to a mistrial. Even if the remark is considered to have been merely beyond the proper scope of argument, and not a reference to another crime, the defendant was entitled to a mistrial or at least some expression of disapproval of the remark from the trial judge, because the remark clearly “might create prejudice against the defendant.” La.C.Cr.P. art. 771.


text:
    Dollie M. POWELL v. ORLEANS PARISH SCHOOL BOARD.
    No. 80-C-1662.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Dollie M. Powell applying for remedial writ, from Orleans Parish School Board Hearing.

Writ denied. Applicant must first file in district court.


text:
    Roma and Joseph QUARTANA v. David W. JENKS, Mrs. Romayne Jenks, Mrs. Pat Farley and Progressive Arts, Inc.
    No. 80-C-1645.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re David W. Jenks, Mrs. Romayne Jenks, Mrs. Pat Farley and Progressive Arts, Inc., applying for writs of prohibition, mandamus and review, Parish of Jefferson, No. 170-302.

Denied.


text:
    Harold O. RANKIN v. STATE of Louisiana THROUGH ITS DEPARTMENT OF PUBLIC SAFETY.
    No. 80-C-1525.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Harold O. Rankin applying for Writ of Certiorari, or Review, to the Second Circuit, Court of Appeal, Parish of Ouachita, 385 So.2d 894.

Denied.


text:
    J. Minos SIMON v. Bernard METOYER et al.
    No. 80-C-1512.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Bernard Metoyer, A. F. Balthazar, Fred Balthazar and Cleo Balthazar, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides, 383 So.2d 1321.

Denied.


text:
    J. Minos SIMON v. Bernard METOYER et al.
    No. 80-C-1462.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re J. Minos Simon applying for certio-rari or writ of review to the Third Circuit Court of Appeal, Parish of Rapides, 383 So.2d 1321.

Denied.

BLANCHE and WATSON, JJ., would grant.


author: COLE, Judge.

text:
    AMERICAN EAGLE, INC. v. The EMPLOYERS’ LIABILITY ASSURANCE CORPORATION, LTD., et al.
    No. 13501.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Nov. 10, 1980.

      Robert E. Leake, Jr., and T. Michael Mas-terson, New Orleans, for defendant and appellant The Employers’ Liability Assurance Corp., Ltd.
    Ted J. Borowski, Houma, for plaintiff and appellee American Eagle, Inc.
    Frederick R. Bott, New Orleans, for third party defendant Maryland Cas. Co.
    Kenneth Watkins, Houma, for third party plaintiff Marliwood Const. Co.
    Robert L. Morris, Houma, for plaintiff.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

In 1966, appellant Marliwood Construction Co., Inc., agreed to build for appellee American Eagle, Inc., a building to house the American Bank & Trust Company of Houma. This suit arises out of certain defects in the exterior and interior wall paneling of that building.

Marliwood subcontracted the installation of the interior vinyl wall covering to Nathan Leathers. The contract between Mar-liwood and American Eagle originally called for use of an exterior paneling known as Alumaglass; after the contract was let, however, the specifications were changed to provide for a paneling designated as Lyn-Pan and manufactured exclusively by Construction Corporation Systems, Inc. Marli-wood subcontracted the installation of the exterior paneling to Metropolitan South Construction Co., Inc. (Metso).

By the time the building was completed in 1968, defects in the interior and exterior wall paneling had begun to appear. American Eagle accepted the building, with reservation of its claims for the defective paneling, and sued Marliwood and its surety, Employers Liability Assurance Corp., Ltd. (ELAC). The latter two filed third party demands against Metso and its surety, and against Leathers. Metso’s surety, Maryland Casualty, filed a reconventional demand against Marliwood and ELAC, claiming $6,000 in retainage allegedly due to Metso and assigned by Metso to Maryland Casualty. Maryland Casualty also filed a fourth party demand against Construction System.

The trial judge found the defects in the paneling were caused by improper storage at the job site and improper handling of the paneling while it was being transported to the job site and while it was being installed as part of the building. He rendered judgment in favor of American Eagle and against Marliwood and its surety in the amount of $75,607.04, and in favor of Marli-wood and its surety against Metso’s surety, Employers’ Liability Assurance Corporation, in the amount of $38,495.65. No answers to the third and fourth party demands were filed by Metso, Leathers and Constructions Systems, and Marliwood and ELAC did not answer Maryland’s reconven-tional demand. The record does not indicate that default judgments were taken against these defendants, and the claims against them were omitted from the final judgment. Appeal by Marliwood and its surety followed.

DISMISSAL FOR FAILURE TO PROSECUTE

Appellants urge that plaintiff-appellee’s action should be dismissed as abandoned by the failure of any party to take any step in the prosecution or defense in the trial court for five years, pursuant to La.Code Civ.P. art. 561. The unusual setting in which this defense rests necessitates a brief discussion of the post-trial history of the action.

The case was tried on the merits on February 14-18, 1972. At the conclusion of the trial on the latter day, the following minute entry was made:

“The Court then directed that Briefs be submitted, and, after discussion, it was ordered that the transcript of oral testimony be given to counsel prior to the writing of such briefs. Counsel for plaintiff is to be allowed a delay of forty-five (45) days after receipt of the transcript within which to file his briefs, and thereafter, counsel for defendants are to be allowed a delay of forty-five (45) days (collectively) to file reply briefs.
“Further, with regard to the deposition of Charles Lynch, one of the witnesses herein, the ruling on which was made by this Court on February 17, 1972, counsel for the plaintiff is to be allowed a delay of fifteen (15) days from February 17, 1972, and counsel for defendants are to be allowed a delay of fifteen (15) days (collectively) to reply.
“The matter will then be taken under advisement by the Court.” (Emphasis supplied.)

Thereafter, the court and the parties discovered that the court reporter who recorded the testimony during the trial was unable to transcribe the testimony. After that reporter was discharged, the judge’s secretary attempted to “re-construct” the testimony from the tapes and from the judge’s trial notes. When this was only partially successful, the court, on December 30, 1976, issued an order calling for a post-trial conference for January 13, 1977. A subsequent order issued by the court on January 10, 1977, set the conference for February 2, 1977. After this conference, the aid of another court reporter in preparing the transcript was sought. Apparently the transcript was completed in 1978, because on September 1, 1978, another post-trial conference was held at which the parties were assigned new time schedules for post-trial briefing. On July 16, 1979, the judge rendered his reasons for judgment.

If the post-trial conference was a “step in the prosecution” by a party, the motion to dismiss the action as abandoned should be denied. The term “step in the prosecution” consistently has been defined by Louisiana courts as some formal action before the court intended to hasten the suit to judgment. DeClouet v. Kansas City Southern Railway Company, 176 So.2d 471 (La.App.3d Cir. 1965), writs denied 248 La. 383, 178 So.2d 662; Marchand v. Gene Thorpe Finance, Inc., 225 So.2d 485 (La. App. 4th Cir. 1969), writs denied 254 La. 848, 227 So.2d 592; Evergreen Plantation, Inc. v. Zunamon, 272 So.2d 414 (La.App.2d Cir. 1973), writ denied La., 274 So.2d 708; Melancon v. Wood, 303 So.2d 222 (La.App. 4th Cir. 1974). A post-trial conference whose purpose is to facilitate completion of a. transcript so that briefs could be filed and a decision rendered most certainly is a “step in the prosecution” of the matter.

It is arguable, however, that a post-trial conference called by the judge is not a step taken by “the parties,” and thus not sufficient to interrupt the five-year per-emption provided by Article 561. We reject that argument. When the conference was called, it was a step in the prosecution or defense which inured to the benefit of all of the parties; to hold otherwise would pro-, duce the absurdity of requiring a party to make a formal motion for relief which already has been granted by the court. More importantly, however, the purpose of Article 561 is at war with such a contention. The article is not designed to dismiss actions on technicalities, but to dismiss actions which in fact have been abandoned. As Justice (then Judge) Lemmon observed in Kanuk v. Pohlmann, 388 So.2d 757 (La.App. 4th Cir. 1977), at 758:

“The purpose of the C.C.P. art. 561 is to dismiss actions which have been abandoned, and the article provides for dismissal of those cases in which a plaintiff’s inaction during a legislatively ordained period has clearly demonstrated his abandonment of the case. The article was not intended, however, to dismiss those cases in which a plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action.” (Emphasis supplied.)

We note that the predecessor of article 561 (C.C. art. 3519) provided that an action was abandoned if no step in the prosecution was taken by plaintiff within five years. Article 561, however, expressly provides that a step by either party-plaintiff or defendant-will prevent abandonment. In the official revision comments to article 561, the drafters noted:

“This article treats the action as abandoned only if five years has elapsed without any steps being taken by any of the parties in the prosecution or defense thereof. This change was made to provide for the case where the defendant has taken some step in the defense of the action, but subsequently moves to have the action declared abandoned because the plaintiff has failed to take any step in the prosecution thereof for five years.” (Emphasis by the drafters.)

It is obvious the intent of the legislature was that any formal step, taken by any person capable of so doing, would be sufficient to negate the inference that an action has been abandoned, and, accordingly, the peremption of article 561 is inapplicable. In light of this, the post-trial conference called by the judge clearly prevents a finding of abandonment.

Even if the post-trial conference did not constitute a step in the prosecution, the motion to dismiss on the grounds of abandonment should be denied. A well-recognized exception to the general rule of article 561 is that it does not apply where the failure to prosecute was caused by circumstances beyond the plaintiff’s control. This exception was intended to and did survive the 1960 transfer of the principle of abandonment from the Civil Code to the Code of Civil Procedure. If plaintiff did not have the power to hasten the matter to trial, then it is difficult to conclude his failure to do so was within his control. In the instant case, the plaintiff was caught in the lengthy, intolerable delay between trial and judgment in a non-jury case, a situation which has become all too familiar to attorneys. Where the trial judge orders a transcript, with briefs to be filed after submission of the transcript, and the transcript is not submitted, and can not be submitted because of the death or other inability of the initial reporter to transcribe it, the matter is clearly outside the plaintiff’s control. He can file a brief, but that filing would be premature and, in addition, he would be deprived of the purpose for which the court ordered the testimony be transcribed-the opportunity to cite and argue from the printed transcript. He does not have the option to substitute a written narrative of the testimony, as he perhaps could do on appeal. Unable to rectify the situation, he should not be charged with its consequences.

LeBlanc v. Thibodaux, 162 So.2d 753 (La. App. 1st Cir.1964), upon which appellants rely, is distinguishable from the case at bar. In LaBlanc, the court ordered the filing of briefs, after which the matter would be considered as submitted; however, the plaintiff failed to file a brief for almost ten years. Plaintiff was not prevented from filing a brief, and thus his inaction was directly chargeable to him. In the instant case, plaintiff’s brief was not due until after the transcript had been filed, and, due to an unusual set of circumstances, not of his making, the transcript was not filed until slightly more than five years had elapsed.

Similarly, the decision in Landry v. Dore, 149 So. 321 (La.App. 1st Cir. 1933), cited by appellants, is inapplicable. There, our predecessors on this Court noted:

“If the clerk was neglectful in the matter of transcribing the shorthand notes and filing the evidence, (plaintiff) should have invoked the power of the Court to compel him to act.”

In this case, the clerk was not neglectful, but incapable of transcribing the testimony. Where the court reporter is dilatory, an attorney may seek the court’s aid in compelling transcription. The matter properly may be said to be within counsel’s control. In this case, because the court reporter was incapable of transcription, the court already was exercising its power to seek transcription from other sources. The matter was not within plaintiff’s control, and the only remedy he could seek already was being pursued by the trial judge.

Even if the LaBlanc and Landry decisions were not distinguishable, we would have considerable doubt about their continuing force. They were decided during a period in which the law placed upon the party seeking relief the onus of getting the transcript prepared and filed; that approach is changing to one in which the onus is upon the clerk, as will appear from the 1978 amendments to the Code of Civil Procedure which relieve the appellant of any responsibility for the transcript, provided he pays the costs of preparation at a stated time. La.Gode Civ.P. art. 2126.

PEREMPTORY EXCEPTION URGING NO RIGHT OF ACTION

Appellant ELAC has filed in this court the peremptory exception urging that plaintiff American Eagle has no right of action or want of interest. The thrust of the exception is that the work necessary to remedy the defects in the building were paid for by the American Bank & Trust Company of Houma, the tenant in the building, and not by American Eagle, the building’s owner.

The applicable law is La.Civ.Code art. 2769, which provides:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

The evidence establishes American Bank paid to replace paneling in the building constructed by defendants for American Eagle. Exceptors confuse the fact of loss with proof the loss was repaired by the building owner, or at its cost. We are aware of no law which requires, as a prerequisite to recovery of the loss he has sustained through defective workmanship, the owner must establish he caused the repairs to be made, or he paid for the repairs. All that is necessary is that he prove the defects and the cost of repairing those defects. See, e. g., Popich v. Fidelity and Deposit Company of Maryland, 231 S.2d 604 (La.App. 4th Cir. 1970); Garcia v. Hollywood Pool Corporation, 328 So.2d 899 (La.App. 4th Cir. 1976), writs refused, La., 333 So.2d 237. American Eagle has satisfied the burden by proving defects in the paneling, and the amount of money which was required to correct those defects. The fact that the repairs were paid by a third person would only be relevant to the exception if the payment was accompanied by a subrogation or assignment. See, e. g., La. Code Civ.P. arts. 697 and 698. In the absence of such proof, a holding that payment of the cost of repair by a third person bars the owner’s recovery against the wrongdoer would be tantamount to a rejection of the principles which underly the “collateral source” rule, a rule well established in Louisiana.

THE MERITS

The remaining issue is whether the plaintiff-owner proved the existence of a defect in the building which was constructed for him by defendant Marliwood Construction Company, and whether it proved the defect was chargeable to Marliwood. No one seriously contests the trial court’s finding that the paneling was defective, and the record contains overwhelming evidence on that point. Thus the only issue is whether the defective paneling is chargeable to Marli-wood.

Marliwood and the other appellants contend La.R.S. 9:2771 applies and bars imposition of liability upon the contractors. That statute provides:

“No contractor shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.”

Appellants contend the defective panels were supplied according to specifications furnished by the owners that the contractor did not “make or cause to be made,” and the defect in the paneling was due to an insufficiency of the specifications. Appellant contractor clearly establishes validity of the first contention. The evidence reflects the disputed exterior paneling-Lyn-Pan-was selected by the architect and the owner after they examined similar paneling on a building in Jackson, Mississippi, and the architect issued a change order which required the purchase of this type of paneling from its only manufacturer.

The second element-the cause of the defect-presents difficulty. There is evidence from which reasonable minds could conclude the defect was caused by a problem in the chemical process by which the basic panels-made of treated bagasse-were prepared by a manufacturer who supplied them to Construction Systems. If this were the cause of the deterioration of the panels, then defendant contractor would be absolved from responsibility by the terms of La.R.S. 9:2771.

However, there also is evidence-and the trial judge found-the deterioration was caused not by the basic chemical composition of the panels, but by the fact the panels were improperly cut, and became bowed in transportation to the construction site and in storage at the site, and by improper installation. If any of these were the cause, then La.R.S. 9:2771 is inapplicable.

Under the dictates of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), we must affirm the trial judge’s decision unless it was “plainly wrong.” The record contains strong evidence the panels were improperly cut, the panels were visibly bowed and defective when they reached the job site and when they were installed, and the initial caulking was improperly done. There is also strong evidence that any of these defects could have caused the damage which became manifest after the panels had been installed. The strongest counter-evidence is the testimony, by deposition, of Charles Lynch, who was the general manager of Construction Systems, the corporation which purchased the panel “core” from National Bagasse and produced the finished product which was shipped to the job site. Lynch testified positively the defect in the paneling was due to a change by National Bagasse in the chemical composition of some of the “core” panels, including many which were used in the American Eagle building. Appellants place much emphasis on this candid “confession” by the manufacturer., However, the strength of this testimony is weakened when one considers the other possible cause of the defects in the paneling-improper cutting and transportation-would be fault clearly attributable to Construction Systems, rather than to National Bagasse. Under all of the circumstances, we can not conclude the trial judge was plainly wrong in compelling Marliwood to pay the cost of repairing the defective paneling.

Appellants also contest the court’s finding that the defects in certain interior vinyl wall paneling are chargeable to the contractor. In his reasons for judgment the trial judge did not discuss why he imposed liability upon the contractor. Our examination of the record discloses a finding that the defect in the paneling was caused by improper installation would not be “plainly wrong,” and thus we affirm the award of damages for replacement of the paneling.

Appellants apparently take no issue with the other elements of damages awarded by the trial court.

Marliwood and ELAC sought indemnity against Maryland, Metso’s surety; issue was joined, and the trial judge rendered judgment in favor of Marliwood and ELAC. Since the trial judge found defective installation caused the difficulty with the exterior paneling, and that finding was not plainly wrong, indemnification is proper, and that portion of the judgment is affirmed.

Issue was not joined as to the third and fourth party demands filed against Metso, Leathers and Construction Systems, and the reconventional demand of Maryland. The judgment below does not deal with these demands. Although principals of those parties testified at the trial, the record does not reflect they were represented by counsel. Under the circumstances, justice would best be served by a remand to permit the court to dispose of these demands. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by appellants!

AFFIRMED AND REMANDED.

      . The events surrounding the inability of the initial court reporter to transcribe the testimony, and the efforts of others to do so, do not appear in the record, but statements and exhibits to briefs filed in this court provide us with an understanding of those events. The factual assumptions which we make are in conformity with admissions made in their briefs by counsel for the parties to the litigation. See, e. g., LiRocchi v. Keen, 134 So.2d 893, 898 (La.1961).

      . The following excerpt from the official comments to article 561 reflects the continued viability of the “beyond his control” defense to the article’s mandatory dismissal provisions:
      “With respect to the exception to the rule of abandonment based on the defendant’s waiver thereof, the point is moot under the above article, as the problem is solved by its broadened language ‘when the parties fail to take any steps in its prosecution or defense ’ for a period of five years. But the rationale of the three supreme court cases cited above necessarily reconciles the rule of Evans v. Hammer, [209 La. 442, 24 So.2d 814] supra, with earlier decisions recognizing that there should be no dismissal when the plaintiff’s failure to prosecute was caused by circumstances beyond his control. See Note, 16 La.L.Rev. 199 (1955).
      “When the court dismisses a suit on the ex parte motion of defendant and plaintiffs failure to prosecute is due to circumstances beyond his control, plaintiff should rule defendant into court to show cause why the ex parte dismissal should not be vacated, alleging that plaintiffs failure to prosecute was due to circumstances beyond his control. A similar procedure should be followed in a case where the court inadvertently dismisses the suit without noticing that defendant has taken a step in the defense of the suit within the previous five years.” (Emphasis by the drafters.) '

      . The difficulties and injustices caused by situations similar to that which confronted plaintiff-appellee in the instant case apparently prompted the Supreme Court to promulgate a rule limiting the time within which a case may be held in abeyance while the trial transcript is prepared. See La.R.S. 13:4207.1.

      . See, e. g., La.Code Civ.P. art. 2131.

      . Appellant cites Holley v. Butler Furniture Co., 45 So.2d 747 (La. 1950), and Liner v. McEnery, 176 So.2d 786 (La.App.2d Cir. 1965), for the proposition a building owner has no standing to sue to recover for the cost of work performed on its building when the work was contracted and paid for by another. These cases are not remotely relevant; in each, the court held a plaintiff who had borrowed another’s automobile did not have a right of action for damages to the automobile.

      . Witnesses testified the change order was a “closed specification” which could only be met by Construction Systems, the manufacturer of the specific type of panel installed in the building.

      . If the cause of the defect is the chemical composition of the product and the contractor is required, through “closed specifications,” to use the product, the contractor should not be liable for the defect. If the cause is improper installation, of course, the contractor should be held liable. A more difficult question is that which is raised by the evidence in this case: the manufacturer, whose product is required through closed specifications, delivers defective materials to the job site, and the contractor knows or should know of the defect. Does this constitute “fault ... of the . .. specifications?” The court is of the opinion that Section 2771 is designed to insulate the contractor from liability for defects in materials required by the owner to be used when the contractor does not know or should not discover any defect therein, such as where the chemical attributes of the materials make them defective. In such cases, the owner fairly may be said to be relying upon the skill of the architect or the manufacturer of the materials. Where the defect is obvious to the contractor, however, and he nevertheless attempts to “make do” with what has been delivered, the owner may be said to then be relying upon the contractor’s skill. Thus the contractor’s acceptance of obviously bowed and improperly cut panels and his attempt to construct the building with them takes the situation out of Section 2771, i. e., where the owner is relying upon the manufacturer and architect and not the contractor..


author: FORET, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, Plaintiff-Appellee, v. Darrel VAN WILLET, Sr., et ux., Defendants-Appellants.
    No. 7799.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III, Alexandria, for defendants-appellants.
    William W. Irwin, Jr., Johnie E. Branch, Jr., Edward A. Michel, J. Bryan Miller, Baton Rouge, for plaintiff-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   FORET, Judge.

This is an expropriation suit.

The State of Louisiana, through the Department of Transportation and Development, acquired one parcel of land (Parcel 7-4) in full ownership, and temporary servi-tudes on five other parcels (7-4-C-l, 7-5— C-l, 7-16-C-l, 7-17-C-l and 7-18-C-l) for use during the construction of a highway project in North Rapides Parish. The order of expropriation was dated June 23, 1978, and the Department of Transportation and Development (hereinafter referred to as the Department), deposited the sum of $2,883.00, as estimated just compensation, in the registry of the court. The appellants answered and sought a substantial increase in the amount of compensation.

The trial court found the market value of the parcel taken in full ownership to be $6,566.30, and the value of the temporary construction servitudes on the five other parcels to be $457.40. The trial court made an additional award of $1,248.27 for severance damages to the remainder of the property from which parcel 7-4 had been taken. The trial court entered its judgment against the Department and in favor of the appellants-landowners on January 2, 1980. The landowners subsequently perfected this appeal.

A brief description of the properties involved in this appeal will be helpful in understanding our decision. The properties are located in the northern portion of Rapides Parish. They are part of a proposed subdivision called Aurora Park II. There has been some construction already undertaken in this subdivision. However, no improvements have been made on the land with which we are concerned, except for the clearing out of undergrowth and some of the trees.

The expropriation was made in connection with State Project 23-01-17. The project will provide a four-lane, limited access connection from the existing Alexandria-Pineville Expressway to the general area of the Highways 71-167 interchange near the Rapides Parish-Grant Parish line. The affected parcels in this case are located near that interchange. This Court has dealt with other parcels in the immediate vicinity of those with which we are now concerned in State, Department of Transportation & Development' v. Van Willet, 383 So.2d 1344 (La.App. 3 Cir. 1980). The opinion in that case provides a clear and concise factual account of the situation as it existed at the time of the expropriation with which we are concerned.

I. SEVERANCE DAMAGES

We turn now to the first issue presented for our determination by the appellants. This issue concerns the trial court’s award of $1,248.27 for severance damages to the remainder of the property from which parcel 7-4 was taken in full ownership.

The term “severance damage” describes those compensable damages which flow from the partial expropriation of a parcel, i. e., the diminution in value of the land remaining to the condemnee. State, Department of Transportation & Development v. Van Willet, supra. Severance damages are ordinarily calculated as the difference between the market value of the remaining property immediately before and immediately after the taking. State, Through Department of Highways v. Hoyt, 284 So.2d 763 (La. 1973); State, Department of Highways v. Denham Springs Development Co., Inc., 307 So.2d 304 (La. 1975). LSA-R.S. 48:453(B) provides that the measure of severance damages is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.

The burden of proving alleged severance damages to the remainder of property involved in an expropriation proceeding rests upon the owner, who must establish such damages with legal certainty by a preponderance of the evidence. The informed and reasoned opinion of experts, corroborated by the facts in the record, may adequately prove a severance damage loss, especially where accepted by the trier of fact. State, Department of Highways v. Denham Springs Development Co., Inc., supra.

The detrimental effects of the project were identified by the appraisers Willet, Futrell and Cope, as follows:

Proximity to a four-lane expressway with elevated grade; change in beauty and esthetic value; change in basic neighborhood from quiet, wooded residential to frontage road property; and, increased noise, vibration and fumes.

The appellants’ appraisers in this case were Darrel Van Willet, Sr., the property owner, and Perry E. Futrell, Jr. The State’s appraisers were M. C. Gehr and Gene N. Cope. Van Willet found that the remainder property suffered a severance damage factor of 40%. Futrell set the factor at 35%. Cope found the factor to be 10%, while Gehr found that the remainder suffered no damage. The trial court set the severance damage factor at 10%.

Appellants argue that this Court, in the case of State, Department of Transportation & Development v. Van Willet, supra, was presented with the identical issue regarding the severance damage factor to property identical to and contiguous with that with which we are now dealing. There, this Court found that the State’s appraisers had erroneously taken into account the effects of the project in their before valuation. Appellants allege that the same mistake was made by the State’s appraisers in this case. We have studied the record in this case and find that no such mistake was made here. Appellants also argue that the trial court failed to consider all of the factors which were detrimental to the remainder of property in issue here. We disagree.

The trial court simply assigned a damage factor based on the evidence presented to it. It was certainly within the range of factors testified to by the expert appraisers. In expropriation proceedings, the trial court’s factual determination as to the value of property, severance damages, and its evaluation and the weight given to the testimony of expert witnesses, should not be disturbed on review in the absence of manifest error. State, Department of Highways v. William T. Burton Industries, Inc., 219 So.2d 837 (La.App. 3 Cir. 1969); State, Department of Highways v. McPherson, 259 So.2d 33 (La. 1972).

Appellants argue that this Court set a severance damage factor of 30% for property identical to and contiguous with the property now in issue in State, Department of Transportation & Development v. Van Willet, supra. However, we find that the property is not identical. The property involved in the earlier case was improved with duplex-type housing situated on it. The property with which we are dealing has no such improvements on it. We hold that the trial court did not commit manifest error in assigning the 10% severance damage factor to the land involved here.

II. SEVERANCE DAMAGES TO THE SERVITUDE REMAINDERS

The second issue presented by appellants is whether the trial court erred in failing to grant severance damages to the remainders of property on which the temporary construction servitudes had been placed. Appellants argue that the imposition of these servitudes constituted a taking of that property from -the owner. We disagree.

This Court was confronted with this identical issue in State, Department of Transportation & Development v. Van Willet, supra. There we stated at page 1352:

“. .. unused temporary construction ser-vitudes released and terminated prior to close of trial are equivalent to non-takings for purposes of categorizing and determining the compensability of damages flowing from the effects of a public work or project. We believe such conclusion to be warranted because the amount of severance damages awardable is determined as of the time of trial and for the further reason that an actual taking is required before severance damages are allowed except in instances where the landowner suffers special damages not sustained by the public in general.
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Our examination of more recent jurisprudence does not suggest a different outcome; rather, the cases show that severance damages have been awarded only upon the actual physical taking or invasion of the landowner’s real rights.”

We see no reason to depart from that decision.

An actual taking is required before severance damages are allowed except in instances where the landowner suffers special damages not sustained by the public in general. Reymond v. State, Department of Highways, 231 So.2d 375 (La. 1970). We hold that the establishment of the temporary construction servitude on the land belonging to the appellants did not constitute a taking of that property for severance damages analysis.

The appellants-landowners allege, in the alternative, that the damages occasioned to their property upon which the unused temporary construction servitudes were placed were in fact special within the meaning of Reymond v. State, Department of Highways, supra. The record does not show that the damage to appellants’ property resulting from the project is special as to their property only. The construction of this highway project will subject all other owners along Austin Drive and the adjoining lots of the Aurora Subdivision to the same consequences. The term “incidental damages” refers to the general loss or inconvenience experienced by the property owner and the public generally, which is a cost that every citizen in organized society must pay to maintain and improve that society; in other words, “damnum absque injuria”. State, Department of Transportation & Development v. Van Willet, supra. We conclude that the damages to appellants’ property are incidental only and therefore not compensable.

III. VALUATION OF THE SERVITUDES

The next issue presented by the appellants deals with the valuation of the temporary construction servitudes. Appellants argue that it was erroneous as a matter of law for the trial court to consider after-taking facts, i. e. cancellation of the servitudes, in its determination. Appellants allege that the proper term of the servi-tudes should be measured by the expected life of the project as of the date of the taking.

This Court, in State, Department of Transportation & Development v. Van Willet, supra, stated, at page 1350:

“In the case of temporary or limited duration servitudes, just compensation is generally expressed as the fair rental value of the property affected over the life of the servitude. State v. Lutcher & Moore Cypress Lumber Go., Ltd., 364 So.2d 134 (La.App. 4th Cir. 1978). In instances where the term of the temporary servitude is unknown, it would indeed be proper to use the estimated life of the project as the missing term in the calculation of temporary construction servitude values. In the instant case, however, the life of the temporary servitudes is not a missing element to be estimated, but a definite time, i. e., 13 months. Had the trial judge ignored this “after-taking” fact, it would have been contrary to right reason and incongruous to a concept implicit in the constitutional scheme of compensation. While a landowner who has property taken for a public purpose must be put in as good a position pecuni-arily as he would have been had his property not been taken, he ought not, however, recover more than that which he has actually suffered, nor be compensated for more than has been taken from him.”

We find, as the court did there, that defendants’ contention is without merit. Therefore, we hold that the method used for the calculation of the fair rental values of the temporary construction servitudes by the trial court was correct.

IV. TAKING OUT OF COMMERCE

The next issue raised by the appellants is that the trial court erred in failing to consider the appellants’ claim for additional losses caused by lots 7 and 8 being taken out of commerce. It was from these lots that Parcel 7-4 was taken in full ownership.

On October 3, 1972, Darrel Van Willet, Sr. and his son received a letter from Richard Currie, head of the right-of-way section with the then Department of Highways, State of Louisiana, requesting that no development take place on Lots 7 and 8 of Aurora Park, Unit II. Informing the landowners of the pendency of the project, the letters also stated that it was the position of the Department that any development undertaken with the knowledged provided in the letters “cannot be compensated by the Department”. Although the correspondence indicated that the Department would commence negotiations with the landowner shortly, the promised negotiations never materialized, and while the development of the general area proceeded, Mr. Willet testified that he held the properties described in suspense until the Department finally acquired them by expropriation in June, 1978.

The appellants seek to recover damages alleging that the Department effectively prohibited the use of this property for nearly six years. They contend this prohibition resulted in a loss for which they should be compensated.

It should be noted here that this issue was not raised in the pleadings filed in the trial court. The trial court refused to permit the appellants to amend their pleadings during the trial to correct what they claimed to be an inadvertent error. The trial court has discretion in permitting such an amendment. LSA-C.C.P. Article 1154. In the case before us, the State timely objected to the introduction of expert evidence relating to the out-of-commerce claim with regard to lots 7 and 8. This objection was sustained, and the defendants-landowners forced to put on their evidence under a proffer. Appellants argue that this was an abuse of the trial court’s discretion. We hold that the trial court did not abuse its discretion.

However, we note that in his written reasons for judgment, the trial judge stated that if he would have considered this claim made by the appellants, he would have denied it. He stated that his reasons for denying it would have been the same as those given in a previous case related to this one. There, the trial judge found that to allow the appellants recovery under this claim would have amounted, in effect, to a “double recovery”.

That ruling of the trial judge was reviewed by this Court in the case of State, Department of Transportation & Development v. Darrel Van Willet, Sr., et ux., 386 So.2d 1023 (La.App. 3 Cir. 1980). The evidence presented to this Court in that case is the same upon which the appellants base their claim in the present case. We adopt the reasoning of this Court in that case. We hold that appellants have not borne the burden of proof to show the extent of their alleged loss, if any.

V. EXPENSES AND FEES

The last issue raised by the appellants relates to the awards made by the trial court for the expense of exhibits, appraisal fees and attorney’s fees incurred by the appellants. Appellants argue that the trial court erred and denied the appellants constitutional just compensation by failing to make an award to appellant, Darrel Van Willet Sr. for his professional time spent in appraising and testifying in this case, independent of the time that he might have been expected to spend as a landowner. This argument is also without merit. The appellants presented this same issue to this Court in State, Department of Highways v. Willet, 322 So.2d 383 (La.App. 3 Cir. 1975). We adopt the reasoning of the court in that case and hold that Mr. Van Willet is not entitled to compensation.

Appellants also argue that the trial court denied them constitutionally just compensation by failing to fully reimburse them for the expense of preparing exhibits utilized in this litigation. Also, appellants make the same claim with regard to the trial court’s award of $300.00 in fees to Perry Futrell, appellants’ appraiser. The trial court specifically noted in its written reasons for judgment that these two fees were set at such a low figure because they were of little benefit to that court in arriving at the final conclusion. In determining whether the fee allowed an appraiser and taxed as costs in an expropriation suit is reasonable, we think consideration must be given to the question of whether the preparatory work done by the appraiser was reasonably necessary, whether it actually tended to show the value of the property taken for severance damages, and whether the conclusions he reached based on that preparatory work were of some usefulness in determining the award which should be made. State, Department of Highways v. Champagne, 856 So.2d 1136 (La.App. 3 Cir. 1978). Determination of the amount of award for expert witnesses fees rests largely within the discretion of the trial judge. An agreement entered into between an expert witness and one of the parties to the suit as to the fee the expert is to receive, is not necessarily a criterion to be used by the court in fixing that fee. State v. Donner Corporation, 236 So.2d 84 (La.App. 3 Cir. 1970). We find that the trial court did not abuse its discretion in awarding these fees to the appellants for their expert or for the preparation of their exhibits.

VI. ATTORNEY’S FEES

Appellants’ last argument deals with the trial court’s award of attorney’s fees. The appellants prayed for an award of reasonable attorney’s fees in this case, which the trial court was requested to set at an amount equal to 25% of any excess award made here. LSA-R.S. 48:453(E) provides that reasonable attorney’s fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney’s fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court. We hold that the trial court did not abuse its discretion in awarding the amount of $1,300.00 to the appellants as attorney’s fees. The judgment of the trial court is affirmed in all respects.

Costs of this appeal are assessed against appellants.

AFFIRMED.

      . A copy of the plat of survey (with our markings, etc.) is attached as an aid to the reader.