text:
    Samuel A. CAVALLARI and Virginia C. Cavallari, his wife, Appellants, v. Caroline Harris GOEBEL, General Accident Fire & Life Assurance Corp., Ltd., and Reserve Insurance Company, Appellees.
    No. 78-1125.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.
    Walter G. Campbell, Jr., of Krupnick & Campbell, P. A., Fort Lauderdale, for appellants.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appel-lees Caroline Harris Goebel and General Accident Fire & Life Assurance Corp., Ltd.
   DOWNEY, Judge.

Appellants, Mr. and Mrs. Cavallari, brought suit against appellees to recover money damages for injuries appellant Samuel Cavallari suffered as a result of an automobile accident with appellee Caroline Harris Goebel. Being dissatisfied with the jury verdict and judgment of $5,000 for Samuel Cavallari, Mr. and Mrs. Cavallari have appealed.

The appellees admitted liability for the accident so that only damage issues were presented to the jury. Samuel claimed injuries to his ankle, neck, and back, which allegedly resulted in permanent injuries and sexual impotence. Virginia’s claim was derivative for loss of the services, consortium, and society of her husband.

Without detailing the evidence, we find it sufficient to say that appellants adduced proof of Samuel’s injuries, the permanency thereof, and the resulting impotence, all of which tied to the accident. However, there was also evidence to the contrary. The appellees adduced competent evidence that Samuel’s injuries were not permanent and that both the ankle problem and the alleged sexual residual predated the accident. Ap-pellees introduced medical records from the Mayo Clinic which reflected that Samuel had complained of sexual dysfunction in visits to the Mayo Clinic in 1944 and 1958. Those records also showed he suffered from gout which could have had a contributory affect upon his ankle.

In view of the conflicts in the evidence, the jury could find that not all of Samuel’s ailments were accident related and that many of those ailments predated the accident. The record would also support a finding that his complaints were exaggerated. Thus, we have classical jury questions which were decided adversely to appellants.

Appellants assert as error, on the grounds of surprise, the admission of the Mayo Clinic medical records. However, we have considered the foregoing assertion and have found no reversible error in the admission of those records.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

LETTS, C. J., and ANSTEAD, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frank JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-2732.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We previously relinquished jurisdiction to allow the trial court to correct the errors in appellant’s sentence. The corrected sentence has been rendered. Inadvertently, the trial court failed to strike the $2.00 assessment and $10.00 court costs in. the corrected sentence. We affirm the corrected sentence, but remand with directions that the assessment and costs be stricken therefrom.

AFFIRMED AS MODIFIED.

LETTS, C. J., and ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    John HATCH, Appellant, v. CITY CAB COMPANY OF ORLANDO and Travelers Insurance Company, Appellees.
    No. SS-283.
    District Court of Appeal of Florida, First District.
    May 1, 1980.
    David M. Hammond of Meyers, Mooney & Adler, P. A., Orlando, for appellant.
    C. Thomas Ferrara of Pitts, Eubanks & Ross, P. A., Orlando, for appellees.
   PER CURIAM.

Claimant appeals two orders of the judge of industrial claims dated June 17,1977, and August 25, 1978. He raises several points on appeal, only one of which merits our consideration.

Claimant urges that the judge erred in not awarding costs to him since he was successful in gaining benefits. We agree and reverse the orders insofar as they failed to award costs to the claimant. Otherwise, the orders are affirmed, but the cause is remanded for a determination of costs to be awarded claimant, based on such other evidence as may be required.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.


author: WATSON, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. John E. MILLER.
    No. 63242.
    Supreme Court of Louisiana.
    April 7, 1980.
    James L. Dendy, Baton Rouge, for respondent.
    Harold J. Lamy, New Orleans, Chairman, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Edgar H. Lancaster, Jr., Tallulah, Alfred S. Landry, New Iberia, A. Russell Roberts, Metair-ie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., Executive Counsel, New Orleans, for petitioner, Louisiana State Bar Association, Committee on Professional Responsibility.
   WATSON, Justice.

This is a disciplinary proceeding against John E. Miller brought by the Louisiana State Bar Association through its Committee on Professional Responsibility.

Attorney Miller was convicted of a felony, the theft of more than $500.00 in violation of LSA-R.S. 14:67. When an attorney is convicted of a serious crime, the Committee on Professional Responsibility files a petition asking for appropriate disciplinary action. Article 15, Section 8, Articles of Incorporation of the State Bar Association. The idea is not to add further punishment to that meted out by the criminal court. The primary purpose of such a proceeding is to protect the public against those who are morally unfit to continue in the practice of law. Louisiana State Bar Association v. McSween, 347 So.2d 1118 (La., 1977); Louisiana State Bar Association v. Summers, 379 So.2d 1065 (La., 1980).

The Commissioner appointed to hold a hearing in this matter has reported that it involves theft of travel expense funds over a period of five years, but that restitution of ninety percent of the total, or between $12,000.00 and $13,000.00, was made in 1971. Various Baton Rouge attorneys who have practiced law with and against attorney Miller testified that he has otherwise conducted himself properly and honorably both before and after the offense. Three businessmen in Baton Rouge testified that he has handled their affairs in a competent and satisfactory manner. Both Kenneth Deason and George W. Robinson, Jr., would continue to employ Mr. Miller in their businesses. Attorney James L. Dendy testified that Miller participated with him in overseeing the expenditure of large sums of federal funds in connection with construction of the interstate highway system, and that Miller is truthful and honest and has rehabilitated himself since 1970.

Respondent Miller does not deny his guilt and pleads various mitigating circumstances as follows: The fraudulent theft of travel expenses while employed by a governmental agency does not relate directly to the practice of law. He has rehabilitated himself and atoned for the crime. He has conducted himself properly in the ten year interval, handling and accounting properly for thousands of dollars, capably managing legal affairs for many clients, and donating his time and effort to defend criminal indigents. Citizens and lawyers who are familiar with the situation believe that his continuation in the practice of law would not dishonor the legal profession in Louisiana.

It is correct that the crime in question was not directly concerned with the practice of law, but it unquestionably involved fraud in violation of the Bar Association’s rule DR 1-102 and therefore warrants some disciplinary action. Attorney Miller appears sincerely contrite and repentant. Restitution of the funds was made prior to commencement of these proceedings. The evidence is that, attorney Miller has rehabilitated himself since the crime and has continued in the practice of law during the past ten years without any further discredit to himself or to his profession. The Commissioner has not recommended any particular penalty. While some disciplinary action is necessary to preserve the integrity of the Bar Association and to caution other members against criminal conduct, a suspension from the practice of law for a period of eighteen months is appropriate in this instance. Compare Louisiana State Bar Ass’n v. Ponder, 340 So.2d 134 (La., 1976) and Louisiana State Bar Ass’n v. Jones, 372 So.2d 1186 (La., 1979); Louisiana State Bar Ass’n v. Adams, 368 So.2d 694 (La., 1979); Louisiana State Bar Ass’n v. Stinson, 368 So.2d 971 (La., 1979).

For the reasons assigned, it is ordered that John E. Miller be suspended from the practice of law for a period of eighteen months and that he be cast for all costs of these proceedings.

       Honorable L. Julian Samuel participated in this decision as Associate Justice ad hoc, in place of Summers, C. J., and Honorable John Charles Boutall participated in this decision in place of Blanche, J., who was recused.


author: STONE, Justice, ad hoc. MARCUS, Justice

text:
    STATE of Louisiana v. Floyd R. POPE.
    No. 65221.
    Supreme Court of Louisiana.
    April 7, 1980.
    Dale C. Wilks, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   STONE, Justice, ad hoc.

Defendant, Frank R. Pope, upon a finding of guilty as charged, was sentenced to six months and placed upon inactive probation for one year and now appeals. Defendant was charged by bill of information with the crime of Defrauding an Innkeeper, a violation of R.S. 21:21.

The defendant checked into the Grand Hotel, 1500 Canal Street, New Orleans, Louisiana on Friday, October 6, 1978 and paid for the first night in cash. His room reservation was to expire on October 8, 1978. He accumulated charges (room service) totaling $231.00. On Sunday, October 8, one Gloria White Toney, front desk manager, called the defendant concerning his bill. The defendant stated that he would come down and pay it, but never did. Later on the same day the defendant was confronted by the hotel management about the payment of the obligation. The defendant had no identification aside from his airline ticket, no major credit cards, no driver’s license and no luggage. Upon an examination of the defendant’s room, an unregistered man was found, even though defendant had registered as the single and only occupant of the room in question.

Defendant testified that the man found in his room was a person he had found in the French Quarter and had brought to his hotel and provided with food and lodging. Defendant offered to pay his bill by wiring his Philadelphia bank on Tuesday for money, since Monday, October 9, 1978 was a legal holiday. The management refused to wait until Tuesday for the money because the defendant had no identification, no luggage and no adequate means of identification. The police were called and the defendant was arrested on Sunday, October 8, 1978.

The state charged the defendant with defrauding an innkeeper in violation of R.S. 21:21 which reads in part,

“No person shall:
(1) Obtain accommodations at any hotel, inn, boarding house or restaurant or procure food without paying therefor, with intent to defraud, except when credit is given by express agreement.
(6) Obtain accommodations, food, property or services by other than the use of a credit card from any hotel, inn, boarding house or restaurant by the use of deception knowing he is without sufficient means to pay for them.”
Louisiana R.S. 21:22 provides:
§ 22. Prima facie evidence of intent to defraud
The failure of any person to pay the proper charges due for any food, lodging, beverages, or anything of value due to any hotel, inn, boarding house or restaurant before departing from the premises, without first personally appearing before the room clerk or other agent of the establishment before departing and protesting the amount alleged to be due, or without working out satisfactory credit arrangements for the payment thereof, is prima facie evidence of intent to defraud, within the meaning of R.S. 21:21.

The defendant has never paid the obligation incurred at the hotel. The defendant testified that he knew that he was without sufficient funds with which to pay his bill because he had only $100 in cash and no credit cards. He testified that he did not discuss the terms of his bill with anyone at the hotel prior to being confronted with his overdue bill.

The defendant bases his appeal to the court on a single assignment of error in which he claims that the court erred in finding him guilty of defrauding an innkeeper on grounds of insufficient evidence to prove that he, the defendant, had the requisite criminal intent. We believe* this contention to be without merit.

Any “rational trier of fact” could have found guilty beyond a reasonable doubt under the circumstances presented in this case. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L,Ed.2d 560 (1979).

Defendant testified when asked, that he did not wire for any money after he realized the amount of accumulated charges, again indicating that he did not know that the bank would be closed on Monday. We think that he should have attempted to make the necessary arrangements for the credit extension before the bill was incurred or at least at the time he discovered he would not be able to pay it; and that the bill should have been paid as soon thereafter as the funds were in fact available to him. The trial court reached the proper conclusion in our judgment; that the defendant obtained credit with intent to defraud, in violation of the statute cited.

Affirmed.

MARCUS, J., concurs and assigns reasons.

BLANCHE, J., concurs, being of the opinion that the defendant’s conviction is supported by the State’s long standing “some evidence” rule.

MARCUS, Justice

(concurring).

I concur, finding some evidence to support the conviction.


author: DIXON, Chief Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Clyde A. “Rock” GISCLAIR.
    No. 65504.
    Supreme Court of Louisiana.
    April 7, 1980.
    Michael S. Fawer, Matthew H. Greenb-aum, New Orleans, Jean E. Williams, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Pat Quinlan, Asst. Attys. Gen., for plaintiff-respondent.
   DIXON, Chief Justice.

Between November 1, 1974 and July 1, 1975, Clyde A. “Rock” Gisclair, the assessor for St. Charles Parish, was assisted in the renovation of his camp by several employees of the parish assessor’s office. This work was performed during regular working hours and the only pay that the employees received was their salaries from the state. On June 3, 1977 the defendant was charged with two counts of theft in violation of R.S. 14:67 and one count of public payroll fraud in violation of R.S. 14:138. The defendant, having waived his right to a jury trial, was tried by the trial judge and found not guilty on the charge of theft and public payroll fraud. Instead, he was found guilty of unauthorized use of movables: the services of state employees, in violation of R.S. 14:68, a responsive verdict to a charge of theft according to C.Cr.P. 814(A)(23). The defendant filed a motion for a new trial, urging that the verdict was contrary to the law and the evidence in that the trial judge’s finding of guilt was based on a misinterpretation of R.S. 14:68. The motion was denied on January 26, 1979, and the defendant was sentenced to pay a fine of $100.00. Defendant’s application for writs was granted to review his conviction.

The defendant was originally charged under the theft statute, R.S. 14:67, which provides:

“Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.”

He was found guilty of unauthorized use of movables, R.S. 14:68, which provides:

“Unauthorized use of movables is the intentional taking or use of any movable which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices or representations, but without any intention to deprive the other of the movable permanently. The fact that the movable so taken or used may be classified as an immovable, according to the law pertaining to civil matters, is immaterial.”

The legislature has expressly provided in C.Cr.P. 814(A)(23) that unauthorized use of movables constitutes a proper responsive verdict to a charge of theft since all of the elements of R.S. 14:68 are included within R.S. 14:67. This court has held that where there is evidence to prove the greater offense, it follows that the evidence necessarily and automatically will support a conviction of the lesser offense which has been made responsive by the legislature, without looking at the evidence to make such a determination. State v. Qualls, 353 So.2d 978 (La.1978); State v. Peterson, 290 So.2d 307 (La.1974); State v. Cooley, 260 La. 768, 257 So.2d 400 (1972).

Therefore, the first question which must be answered is whether there is evidence in this case to prove the greater offense of theft of services. The relevant count in the indictment returned against the defendant charged that he committed theft of services and funds in excess of $500.00 belonging to the parish and the state. The trial judge held that there was insufficient proof of any specific intent on the part of defendant to permanently deprive the state of anything of value and therefore no conviction could lie under the theft statute. The judge concluded that the state had suffered no deprivation or loss of the services of its employees because the services which were allegedly taken under traditional working hours were returned to the state during other hours of the day and night. The trial judge was correct in this part of his analysis but in looking at the sufficiency of the evidence to prove the crime of theft we must go one step further. In defining anything of value, R.S. 14:2(2) provides that:

“ ‘Anything of value’ must be given the broadest possible construction, including any conceivable thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private, and including transportation, telephone and telegraph services, or any other service available for hire. It must be construed in the broad popular sense of the phrase, not necessarily as synonymous with the traditional legal term ‘property.’ In all cases involving shoplifting the term ‘value’ is the actual retail price of the property at the time of the offense.”

“Services” fall within the broadest possible construction of “anything of value.” But whether services can be the object of theft does not end with that inquiry. The indictment charges that the services belonged to the parish and the state. The parish and the state cannot own the services of their employees. It has been held that ownership of services is not conveyed by a contract with the party to whom they are rendered because the knowledge or skill which a man possesses is not subject to ownership. Gonsalves v. Hodgson, 38 Cal.2d 91, 237 P.2d 656 (1951). Human effort and work are not the subject of ownership. If anyone owns them it is the employees themselves, and in this case there is no charge that the services were stolen from the employees.

Support for this proposition can be found in a decision of the Ninth Circuit in Chappell v. United States, 270 F.2d 274 (1959), where an Air Force sergeant was charged with converting to his own use the services of an airman in painting, during duty hours, property of the sergeant. The court found that an employee’s services were not a thing of value belonging to the United States which could be the object of theft. See Comment, 12 Stan.L.Rev. 663 (1959-1960). In the absence of a specific statute, it is usually held that use of the labor or services of another does not constitute larceny. Lafave & Scott, Criminal Law, § 87, 634 (1972). For this reason many modern statutes make it theft to steal labor or services or the use of property. Because there is no such statute in Louisiana, a person cannot be convicted in this state of the theft of services of employees under the present theft statute. Therefore, there was no evidence presented to prove that the defendant was guilty of the greater offense of theft.

Nor do we find evidence sufficient to support a conviction for the lesser included offense of unauthorized use of movables, defined in R.S. 14:68. In his motion for a new trial, the defendant contended that the services of employees are not “movables” as that term is used in R.S. 14:68. In denying the defendant’s motion, the trial judge equated the meaning of “movables” with the definition of “anything of value” found in R.S. 14:2(2) and determined that services constituted movables. There can be no foundation for his ruling. The unauthorized use of movables statute was commonly known as the joy riding statute and was meant to cover specific tangibles. The history of the statute indicates that it was intended to cover mainly the unauthorized use of automobiles. The Reporter’s Comments observe that the unauthorized use of any movable, including such objects as vehicles generally, farm implements, livestock, etc., is included within the statute. It is clear that the choice of the term “movables” in the statute was due to the lack of another term to describe the tangible objects covered under prior laws. The services of employees are not tangible objects and cannot be the object of a charge of unauthorized use of movables under R.S. 14:68. Therefore, there was no evidence of an essential element of the unauthorized use of movables.

For the reasons assigned, defendant’s conviction and sentence are reversed and the indictment is dismissed.

DENNIS, J., concurs.

WATSON, J., dissents.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I do not agree with the conclusion of the majority that “movable” in La.R.S. 14:68 includes only tangible objects. I consider that it also includes incorporeal movables. However, labor of an employee is not a thing subject to ownership by an employer. As noted in the majority opinion, if anyone owns human effort and work, it is the employee himself, and in this case there is no charge that the services were stolen from the employees. Accordingly, I respectfully concur.

      . The state dismissed one of the counts of theft at trial.

      . The record is totally devoid of any evidence that the defendant stole any funds.

      . See Jones v. Leslie, 61 Wash. 107, 112 P. 81 (1910).

      . See Cal.Penal Code § 484; Ill.Rev.Stat. Ch. 38, § 16-3; Minn.Stat.Ann. § 609.52; Model Penal Code § 223.7.

      .The unauthorized use of movables statute was enacted to combine several earlier statutes. See Acts 1892, No. 30, § 1 (using animal of another); Acts 1914, No. 168, § 1; Acts 1920, No. 91, § 1 (using automobile of another); Acts 1934, No. 209, § 1 (milking cow of another); Acts 1938, No. 286, § 12, subsec. (1) (using automobile of another).


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Victor MATTHEWS.
    No. 65505.
    Supreme Court of Louisiana.
    April 7, 1980.
    Anderson Council, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Victor Matthews was convicted of possession of heroin with intent to distribute, a violation of R.S. 40:966(A)(1). He was sentenced to life imprisonment. On this appeal of his conviction and sentence, defendant relies on sixteen assignments of error grouped and presented in nine arguments. We have reviewed the assignments included in Arguments III, IV, V, VI, VII, VIII and IX and conclude that they lack merit. We find it necessary to discuss only the two remaining arguments.

ARGUMENT I

ASSIGNMENTS OF ERROR 1 AND 11

On November 25, 1976, Louisiana state troopers obtained a search warrant and went to the residence of Victor Matthews located at 159 South Lane in Houma, Louisiana. At approximately 5:00 a. m., the officers entered the residence and conducted a search. One-hundred-eighty-three foil packages of heroin were found in a dresser in defendant’s bedroom. Thereafter, defendant was arrested and charged with pos- • session of heroin with intent to distribute.

By assignments of error numbers one and eleven, defendant argues that the supporting affidavit did not contain sufficient facts to establish probable cause to issue the warrant.

The affidavit upon which the warrant was issued reads as follows:

“Affiant has been informed by a confidential informant, who is a known user of heroin and frequently (sic) visitor of Victor Matthews at 159 Smith Lane in the City of Houma, Parish of Terrebonne, that Victor Matthews has been making numerous trips to New Orleans over the past six months for the purpose of buying heroin. The heroin purchased in New Orleans was sold by Victor Matthews in the Houma area. The confidential informant further states to affiant that said informant has accompanied Victor Matthews on many of these heroin-bying (sic) trips and has purchased and been given some of the heroin for personal use.
“Said confidential informant related to affiant that she injected one ‘paper’ of heroin on Friday night, November 19, 1976 at the residence of Victor Matthews. The heroin had been given to her by Matthews while at his residence.
“Said confidential informant further related that she accompanied Victor Matthews and two other persons to New Orleans on Saturday November 20,1976, for the purpose of purchasing heroin. A large quantity of heroin was purchased by Matthews on the trip. All parties returned to 159 Smith Lane in Houma on Saturday night where Matthews placed the heroin in the freezer compartment of his refrigerator.
“Affiant was informed this afternoon, November 24, 1976, by said confidential informant that Victor Matthews was to make a trip to New Orleans in the evening hours. His ultimate destination was to be Mid City Liquor Store on Willow St. in New Orleans. Said confidential informant called later in the evening, informing affiant that Matthews had left for New Orleans in his red Volkswagon about 6:45 p. m.
“Armed with this information affiant x called Federal Drug Enforcement Administration in New Orleans and requested they have agents keep Mid City Liquor store under surveillance. At 8:00 p. m. the D.E.A. office called affiant and confirmed Matthews was at the liquor store. At 8:45 p. m. the D.E.A. office called and informed affiant that the suspect had left the store.
“Affiant further states that informant called affiant at approximately 4:15 a. m. on November 25, 1976 and stated to affi-ant that subject Matthews was in possession of (3) three “Bundles" of heroin and that the informant knows this by seeing the quantity of heroin in subject Matthews pocket in his residence at approximately 3:30 a. m. and 4:00 a. m. on November 25, 1976.”

In the instant case, defendant argues that the affidavit failed to establish the credibility of the unidentified informant and of the information. Since the affidavit was based primarily on the hearsay information of the informant, defendant argues, the reliability of both the informant and the information must be proven.

In State v. Paciera, 290 So.2d 681 (La. 1974) this Court set forth the following guidelines governing the issuance of a search warrant:

“ . . . The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the creditability of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.”

Defendant argues that the reliability of the information was not proven as is required under Paciera, supra. The affidavit states that “informant called affiant at approximately 4:15 a. m. on November 25, 1976 and stated to affiant that subject Matthews was in possession of three ‘bundles’ of heroin and that the informant knows this by seeing the quantity of heroin in subject Matthews’ pocket in his residence at about 3:30 a. m. and 4:00 a. m.”

Under Paciera, reliability of the information can be proven by direct personal observation by the informant. Defendant argues that the affidavit is insufficient because it does not state how the informer knew that the objects inside defendant’s pocket were “bundles” of heroin. Although the affiant testified, at the hearing on the motion to suppress, that the informant saw the heroin out of the defendant’s pocket, this information was known to the affiant but not disclosed to the issuing magistrate and thus can not be used to rehabilitate an otherwise insufficient affidavit. State v. Koncir, 367 So.2d 365 (La.1979). While the affiant’s failure to state the facts and circumstances underlying the informant’s personal observation of the heroin may have made this affidavit less reliable than if the facts and circumstances had been included, the statement that the informant personally observed heroin in the defendant’s pocket was sufficient to establish the reliability of the information since this Court has held that affidavits must be given a common sense and realistic interpretation. State v. Babbitt, 363 So.2d 690 (La.1978).

The defendant further argues that the affidavit failed to establish the credibility of the unidentified informant. Defendant contends that the affidavit does not disclose any prior accurate reports by the informant nor does it contain any specific independent corroboration of the accuracy of the report. While this may be true, it is not necessarily dispositive of the question of whether the informant’s credibility was established by the affidavit. This Court has held that regardless of the absence of independent corroboration and of a past reliable informant record, the credibility of the informant can be established by the inclusion in the affidavit of declarations against the informant’s penal interest. State v. Mena, 344 So.2d 357 (La.1976) and State v. Welsh, 371 So.2d 1314 (La.1979). In United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971) the United States Supreme Court stated that declarations against penal interest provide strong reasons for crediting an informant’s tip:

“ . . . people do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search.”

Thus the informant’s admission in the affidavit that she injected one paper of héroin at the defendant’s residence on November 19th; that she had accompanied defendant to New Orleans on November 20, 1976 for the purpose of purchasing heroin; and that she had accompanied defendant in the past and had purchased heroin (admissions against penal interest sufficient to make her a principal in defendant’s heroin distribution scheme) were sufficient to establish her reliability.

Because we find that the affidavit sufficiently established the credibility of the informant and the reliability of the information, we conclude that there was probable cause to issue the warrant.

ARGUMENT II

ASSIGNMENT OF ERROR 2

By this assignment of error defendant contends that the trial court erred in denying defendant’s request for the name of the informant.

At the hearing on the motion to suppress, the defense called the affiant and asked him to disclose the identity of - the informant who gave him the information concerning the defendant. The state objected that the defendant was not entitled to that information. The trial court sustained the state’s objection noting that the instant case was distinguishable from State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), wherein this Court held that the defendant was entitled to know the identity of the informant because of the allegations that the evidence was planted on him. Defendant reserved an exception to the court’s ruling.

In State v. Babbitt, 363 So.2d 690, 695 (La.1978), this Court defined the informant’s privilege as follows:

“The informer privilege is the privilege of withholding the identity of an informant who supplies information to law enforcement officials concerning crime. It is founded upon public policy and seeks to advance the public interest in effective law enforcement. Roviaro v. United States, [353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639] supra. This court has consistently held that a confidential informant’s identity will be divulged only under exceptional circumstances. State v. Robinson, 342 So.2d 183 (La.1977); State v. Russell, 334 So.2d 398 (La.1976); State v. Thorson, 302 So.2d 578 (La.1974). The general rule is that the burden is upon the defendant to demonstrate exceptional circumstances and much discretion is vested in the trial judge on the question of whether the circumstances warrant disclosure. State v. Robinson, supra; State v. Russell, supra; State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972); State v. Greenbaum, 257 La. 917, 244 So.2d 832(1971).”

Defendant argues that under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and the constitutionally protected rights to confrontation and cross-examination he is entitled to know the identity of the informant. However, the Rovia-ro case is distinguishable from the present case in that it involved the informer’s privilege at the trial itself rather than at a pre-trial hearing to determine probable cause for a search. The case at bar involves a probable cause determination at the hearing of the motion to suppress. According to the state’s evidence in Roviaro, supra, the informant had been an active participant in the crime. Under such circumstances, that court held that the informer’s privilege must give way if the disclosure of the informant’s identity was relevant and helpful to the defense of the accused and was essential to a fair determination of the cause. Roviaro, supra at 628. Unlike Roviaro, supra, no evidence was presented in the instant case that the informant set up and participated in the crime as an aid to law enforcement officers.

Counsel’s argument that the state’s failure to disclose the informant’s identity violated defendant’s right to confrontation and cross-examination was rejected by the United States Supreme Court in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Similarly, in State v. Diliberto, 362 So.2d 566 (La.1978), this Court, citing McCray, supra, held that “when the issue is not guilt or innocence, but instead the probable cause for an arrest or a search, police officers need not invariably be required to disclose an informant’s identity, if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a confidential informant.”

In the case at bar, the affiant was called to the stand at the hearing on the motion to suppress and was examined by counsel. Furthermore, defendant did not meet the burden of proving exceptional circumstances which would warrant the pretrial disclosure of the informant’s identity.

Therefore we conclude that the trial court did not err in denying defendant’s request for the name of the informant.

Decree

For the foregoing reasons, the conviction and sentence of defendant, Victor Matthews, are affirmed.

AFFIRMED.

      The Honorable Edward A. de la Houssaye III participated in this decision as an Associate Justice pro tempore.

      . These arguments and the corresponding assignments of error are discussed in an appendix not published with this opinion.

      . Counsel argued at the close of hearing on the motion to suppress that the heroin could possibly have been planted by the informant, but the court sustained the state’s objection noting that counsel had not alleged this theory either and therefore, argument after the fact would not be permitted.


author:
CALOGERO, Justice.
     WATSON, Justice,

text:
    STATE of Louisiana v. John Ralph ORTEGO.
    No. 65721.
    Supreme Court of Louisiana.
    April 7, 1980.
    Edward A. de la Houssaye, J. pro tern., concurred in result.

      Predric G. Hayes, Fredric Hayes, Inc., Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., A. Bruce Rozas, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant John Ralph Ortego was initially charged by bill of information with aggravated battery, two counts of armed robbery, aggravated criminal damage, attempted first degree murder, two counts of simple kidnapping and possession of a firearm by a felon. Defendant was tried for only three of the eight counts: two counts of armed robbery and one count of possession of a firearm by a person convicted of a felony. Following trial on these three counts he was found guilty as charged. He was sentenced to twenty years at hard labor on each of the two armed robbery charges, the sentences to run consecutively. He was also sentenced to five years for the possession of a firearm charge to run concurrently with the other two sentences. On this appeal of his convictions and sentences, defendant relies on twenty-five assignments of error. Only the assignments which relate to the excessiveness of defendant’s two consecutive twenty year sentences for armed robbery present a serious issue and will be discussed in this published opinion. The remaining assignments which are governed by well-settled principles of law and which present facts of interest only to the parties will be discussed in an appendix not to be published with this opinion.

At trial the state adduced the following evidence. Defendant and another man called “Bozo” went to a cabin in Lakeside Park in Evangeline Parish where the two victims were staying. Bozo knocked on the cabin door and was admitted. Defendant also entered the cabin and beat the male victim, one Joe Brasseaux, with a pistol. Defendant told Bozo to “take everything.” Bozo took money from the female victim’s purse and took a wallet and jewelry from the male victim while defendant held a pistol. Defendant then put the gun to the female victim’s head and told her to go with him or it would be her life. The female victim and her sister (who was also staying at the cabin but from whom nothing was stolen) went with defendant and Bozo at gunpoint. Both were later released unharmed.

In related assignments defendant contends that the two consecutive twenty year sentences are excessive and that the trial court erred in failing to comply with La. Code.Cr.Pro. art. 894.1(C) which requires the trial court to “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” Defendant argues that the imposition of consecutive rather than concurrent sentences for crimes arising out of one course of conduct requires particular justification by the trial court.

Under Article 883 of the Code of Criminal Procedure, the sentencing judge has the authority when a defendant is convicted of two or more offenses based on the same act or transaction or constituting parts of a common scheme or plan to impose either concurrent or consecutive sentences. Article 883 provides as follows:

“If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.”

Although the trial court has this discretion statutorily there is a constitutional limitation that sentences, whether consecutive or concurrent, not be excessive. In determining whether sentences are excessive we should consider, among other factors, whether convictions arise out of a single course of criminal conduct. The general preference for concurrent rather than consecutive sentences was recognized by this Court in State v. Underwood, 353 So.2d 1013, 1019 (La.1977) in which we observed that “[bjased on the American theory and practice, concurrent rather than consecutive sentences are the usual rule, at least for a defendant without previous criminal record and in the absence of a showing that the public safety requires a longer sentence.”

This Court, however, has never held that if convictions arise out of a single course of illegal conduct, consecutive sentences will necessarily be found to be excessive. Other factors must be considered. In this case it appears that defendant is not a first offender. And the maximum sentence for one count of armed robbery irrespective of whether he has been multiple billed is ninety-nine years; for two counts, 198 years. In this light the imposition of two twenty-year consecutive sentences for two armed robberies is not necessarily excessive. However, because the trial court failed to state its reasons for the imposition of the instant sentences, we are not able to review this argument fully to determine whether the imposition of these two consecutive twenty-year sentences is excessive.

The statutory guidelines provided by Article 894.1 of the Code of Criminal Procedure furnish criteria by which this Court can measure whether a sentence within the statutory limits is nevertheless excessive either by reason of its length or its nature. State v. Cox, 369 So.2d 118 (La.1979). Therefore when a trial judge fails to state for the record the considerations and the basis for the imposition of the sentence in accordance with Article 894.1(C) this Court will ordinarily set aside the sentence and remand the case for resentencing in accordance with the mandatory requirements of law. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Jackson, 360 So.2d 842 (La.1978). And while we do not on the face of the record before us find that the imposition of the two consecutive twenty-year sentences for two counts of armed robbery arising out of a single incident is necessarily excessive, we must re-remand for the trial court’s resentencing and articulation under Article 894.1.

All of defendant’s remaining assignments are without merit.

Decree

Accordingly, defendant’s convictions are affirmed but the sentences imposed are vacated and set aside and the case is remanded to the district court with instruction to the trial judge to resentence defendant in accordance with Article 894.1.

CONVICTIONS AFFIRMED; SENTENCES VACATED; CASE REMANDED FOR RESENTENCING.

WATSON, J., concurs and assigns reasons.

de la HOUSSAYE, J. pro tem., concurs in the result.

WATSON, Justice,

concurring:

I concur in the remand of this case for resentencing and articulation of reasons for the sentence under LSA-C.Cr.P. art. 894.1, because I believe the defendant is entitled to an articulation under the law, but I emphasize that under the facts and circumstances of this case, the sentence imposed does not appear excessive, and by concurring in the remand I do not in any way mean to imply that I consider the sentence excessive.

       Honorable Edward A. de la Houssaye III participated in this decision as an Associate Justice pro tempore.

      . Article I, § 20 of the Louisiana Constitution of 1974 prohibits the imposition of cruel, excessive or unusual punishment:
      “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.”


author: DIXON, Chief Justice.

text:
    Thomas J. WEST, Jr., et al. v. Douglas A. ALLEN et al.
    No. 65858.
    Supreme Court of Louisiana.
    April 7, 1980.
    Ross P. LaDart, Harvey, for defendants-respondents.
    John L. Avant, Avant, Wall, Thomas, Riche & Falcon, Baton Rouge, for plaintiffs-applicants.
   DIXON, Chief Justice.

The plaintiffs, Jefferson Parish firemen, brought this suit to compel the members of the Jefferson Parish Council to comply with Article 10, § 16 of the Constitution of 1974 relative to the establishment of a system of classified fire and police civil service to apply to all parishes with a regularly paid fire department. The plaintiff firemen contend that the action of the council in maintaining a general civil service system including all parish employees is contrary to the constitutional provision providing for a statewide system to include only firemen and policemen. The plaintiffs further contend that the council has a ministerial duty to comply with Article 10, § 16 and with legislative enactments which provide for the operation of the statewide system. The defendants answered by claiming that the parish’s civil service system was authorized by its Home Rule Charter which had been continued in effect by Article 6, § 4 of the Constitution of 1974. The trial court dismissed plaintiffs’ suit, holding that Article 10, § 16 had no application to the Parish of Jefferson. The Court of Appeal affirmed. This court granted writs to review the actions of the lower courts.

Part 1 of Article 10 of the Constitution provides for the establishment of a state and city civil service system to be applicable to the employees of the state (but not local governmental subdivisions) and to employees of cities with populations of over four hundred thousand. Article 10, § 1. Parishes, and cities with populations of over ten thousand but less than four hundred thousand, may elect to be governed by Part 1 of Article 10 by a majority vote. Article 10, § 14. In addition, parishes and cities with a population of less than four hundred thousand may have, by act of either the legislature or of the local governing authority, a civil service system applicable to any or all local employees, except that, in cities with a population of over thirteen thousand and in the parishes, firemen and policemen are expressly excluded from such local civil service systems. Article 10, § 15.

Part 2 of Article 10 is entitled “Pire and Police Civil Service.” The initial provision, § 16, provides:

“A system of classified fire and police civil service is created and established. It shall apply to all municipalities having a population exceeding thirteen thousand and operating a regularly paid fire and municipal police department and to all parishes and fire protection districts operating a regularly paid fire department.”

That section creates, as a matter of constitutional law, a system of fire civil service applicable to all parishes. Article 10, § 18 provides that while the legislature can make some modifications in the fire and police system, it cannot make the system inapplicable to any parish having a regularly paid fire department. Article 10, § 19 provides that no provision of Part 1 authorizing political subdivisions to be placed under the provision of that Part shall authorize the inclusion of firemen and policemen in a system under Part 1.

Jefferson Parish operates a regularly paid fire department; members of the department are included in the parish’s general civil service system as provided in the parish’s Home Rule Charter. The parish admits that “Jefferson Parish has not heretofore established a separate system of classified fire and police civil service as provided in LSA-R.S. 33:2531, et seq. and Article X, Section 16, et seq. of the Louisiana Constitution of 1974.”

The parish contends that its firemen need not be included in the statewide special fire and police civil service system because its general system is operating under the parish Home Rule Charter, and the provisions of such charters were carried over by the Constitution.

Article 6, § 4 of the Constitution, on which the parish relies, provides:

“Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.”

The parish argues that this provision continued in effect the provisions of its charter, including its civil service system.

Jefferson Parish’s Home Rule Charter creates a civil service system which includes the firemen and policemen. That function of the local governmental subdivision (Jefferson Parish) is inconsistent with the 1974 Constitution, which in Part 2 of Article 10 (§§ 16-20) establishes a system of classified fire and police civil service. The inconsistencies are: the Jefferson system includes police and firemen in the system with all other employees, while the Constitution establishes a system of fire and police civil service which applies to towns larger than thirteen thousand and to all parishes with • paid fire departments; the constitutional system covers all towns of a certain size, and all parishes, while Jefferson Parish seeks to exclude its firemen from the constitutional system; the Constitution authorizes civil service systems for political subdivisions, specifically excluding from them police and firemen (Article 10, § 19), while Jefferson includes police and firemen with all other employees in its civil service system.

The plaintiffs instituted this suit alleging that the Jefferson Parish Council had a ministerial duty to establish a separate fire civil service system in compliance with Article 10, § 16 of the Constitution. R.S. 33:2531. The plaintiffs prayed for an alternative writ of mandamus to issue directing the council to establish such a system. The parish contends, however, that the mandamus is not the appropriate remedy in this dispute on the grounds that the plaintiffs’ petition exhibited confusion as to the law which should be applied by the defendants, and that it reveals no “ministerial duty”, a prerequisite to mandamus required by C.C.P. 3863. Whether the obligation of the parish to comply with the constitutional and statutory provisions requiring a separate civil service system for firemen is a “ministerial duty” is beside the point. C.C.P. 2164 provides that an “appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” The Official Revision Comment to that provision states that “the purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.” In their pleadings the plaintiffs have clearly raised the issue of whether Jefferson Parish firemen are part of the civil service system established under the Jefferson Parish Home Rule Charter or of the system created by Article 10, § 16 of the Constitution. The pleadings state a cause of action for declaratory relief as to which system governs their employment. This court, therefore, should render such relief as the record supports. Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La.1974); Greer v. Rohrer, 346 So.2d 1290 (3d Cir. 1977).

For the reasons assigned, the judgments of the courts below are reversed and set aside. Judgment is hereby rendered in favor of the plaintiff firemen declaring that the classified civil service system for firemen and policemen established by Article 10, § 16 of the Constitution and R.S. 33:2531, et seq. is applicable to the Parish of Jefferson and the firemen it employs; all costs are to be paid by the defendants-respondents.

      Honorable Edward A. de la Houssaye III participated in this decision as an Associate Justice Ad Hoc.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Johnnie Lee ABERCRUMBIA.
    No. 65911.
    Supreme Court of Louisiana.
    April 7, 1980.
    Thomas A. Self, Don M. Burkett, Many, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Davis, Dist. Atty., E. L. Edwards, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
   BLANCHE, Justice.

Defendant, Johnnie Lee Abercrumbia, was charged by grand jury indictment with first degree murder. Following trial, a twelve-member jury returned a unanimous verdict of guilty of manslaughter in violation of R.S. 14:31. Defendant was sentenced to twenty-one years at hard labor. On appeal, defense counsel alleges twenty-seven assignments of error. We find merit in assignment Number 26, in which defense counsel claims the trial court erroneously charged the jury on the definition of manslaughter.

On the day of the shooting, defendant was playing pool at a local cafe. He had a small snake with him which he placed, or attempted to place, on the victim. As a result, the victim tried to hit defendant, but instead, hit a pool stick which was in his hand. The pool stick broke and hit the defendant’s head. Defendant and the victim began to argue and then went outside the cafe.

One state witness testified that he followed the defendant and victim out of the cafe and saw defendant pull a gun. Another witness saw the gun in defendant’s hand after he heard a shot. Either one or two shots were fired. The victim was hit in the chest and later died in the hospital.

In closing argument, defense counsel argued that the shooting was committed in self-defense and also argued that it was an accident. At trial, the defendant testified that the victim, with a two by four in his hand, came after him as though to hurt him. Defendant claimed he pulled a gun and “threw it up” in the air in order to scare the victim, but didn’t intend to shoot him. Defendant’s version was that the gun “could have went off when it was on the way up”, allegedly because he was nervous.

Defense counsel claims the trial judge, in his charge to the jury, erroneously stated the definition of manslaughter, the crime for which defendant was convicted. R.S. 14:31 defines manslaughter as:

“(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or (2) A homicide committed, without any intent to cause death or great bodily harm, (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or (b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Articles 30 or 30.1.”

The trial judge instructed the jury that:

“Manslaughter is a homicide which would be murder under either Article 30, first degree murder, or Article 30.1, second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s [blood] had actually cooled or that an average person’s blood would have cooled at the time the offense was committed; or a homicide committed without any intent to cause death or great bodily harm; or when the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person.” (emphasis supplied)

It can readily be seen that the instruction of the law of manslaughter is erroneous in that the trial judge used the words, “Manslaughter is ... a homicide committed, without any intent to cause death or great bodily harm; [or] when the offender is engaged in the perpetration . . .”. By inserting the conjunction or into the definition the judge effectively created a new category of manslaughter. He left “a homicide committed, without any intent to cause death or great bodily harm” standing alone as a definition of manslaughter without the intended qualifying phrase “when the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or any intentional misdemeanor directly affecting the person.”

In State v. Dardar, 353 So.2d 713 (La. 1977), we stated with regard to a disputed portion of a jury charge that such disputed portion must be considered and viewed in context with the entire instruction, and when so viewed, should not be disturbed unless erroneous and prejudicial. Here, the disputed instruction informed the jury that every homicide committed without any intent to cause death or great bodily harm, e. g., an accident or negligent homicide, is manslaughter. The instruction was not only incorrect, but was highly prejudicial when it is considered that defendant claimed the shooting was an accident. Accordingly, if the jury believed defendant’s version that the shooting was accidental, they would have been duty-bound in light of the judge’s erroneous instruction to return a verdict of manslaughter.

Although counsel properly objected, the instruction was never recalled and corrected. Neither was the erroneous instruction otherwise offset by an instruction that the jury must acquit if it found the shooting was an accident or negligent homicide.

The instruction which defined manslaughter was both erroneous and prejudicial and, therefore, the conviction must be reversed. Accordingly, the case is remanded to the district court for a new trial in accordance with law.

REVERSED AND REMANDED.

       Judge Edward A. de la Houssaye, III participated in this decision as Associate Justice ad hoc.


text:
    In the Matter of an Offense Under Investigation, In re ROZAS GIBSON PHARMACY OF EUNICE, INC.
    No. 65924.
    Supreme Court of Louisiana.
    April 7, 1980.
    William J. Guste, Jr., Atty. Gen., John L. A. Lenfant, IV, David C. Forrester, Asst. Attys. Gen., for relator.
    Richard Olsen, New Orleans, for respondents.
   CALOGERO, Justice.

In furtherance of an investigation conducted by the Medicaid Fraud Control Unit of his office the Attorney General of Louisiana caused to be issued as per Article 66 of the Code of Criminal Procedure two subpoenas duces tecum ordering S. Paul Rozas, as owner of Rozas’ Pharmacy, and S. Paul Rozas, as president of Rozas’ Gibson Pharmacy of Eunice, Inc., to produce certain computer logs and Medicaid computer forms of the Rozas’ Gibson Pharmacy.

Counsel for Mr. Rozas and for the corporation filed an “exception to writ of subpoena duces tecum” alleging that the forcible surrender or production of the documents sought would compel him to abandon his privilege against self-incrimination. The trial judge sustained the exception and quashed the two subpoenas in question.

We granted writs upon application of the state to review this ruling of the trial court.

Attached to the state’s motion for issuance of a subpoena duces tecum was an affidavit by an investigator from the Attorney General’s office which stated:

“On Tuesday, June 19, 1979, while checking the drug room at the Nursing Home of Eunice, located in Eunice, Louisiana, Affiant and Investigator Byron I. Davidson, Jr., discovered approximately fifty prescription vials bearing Rozas Gibson Pharmacy labels which displayed a brand name drug but contained what appeared to be a generic substance. A generic drug is chemically equivalent to a brand name drug but is substantially cheaper.
“Samples of the questionable drugs were taken and consent forms releasing the samples and their respective containers were obtained from Doris J. Dupuis, Administrator of the Nursing Home of Eunice.
“On Friday, July 13, 1979, Affiant met with Brent McArthur, Pharmaceutical Consultant for the Attorney General’s Office, Medicaid Fraud Control Unit, who substantiated by inspection that forty-two of the drug samples seized from the Nursing Home of Eunice were generic substitutes.
“Upon review by Affiant of the patient’s medical charts who received generic drugs from Rozas Gibson Pharmacy, it was discovered that the physicians of the patients had prescribed, on each occasion, the brand name drug and not the generic substitutes which was (sic) dispensed.
“A review of the records from the State’s Medicaid Program supplied by the Louisiana Department of Health and Human Resources, on the fifty questionable prescription vials, revealed that Rozas Gibson Pharmacy #1, billed the State Medicaid Program for the brand name drug while dispensing the cheaper generic substitutes, and was subsequently reimbursed by the State’s Medicaid Program for the cost of dispensing the brand name drug.
“In addition, a comparison of patients’ medical history profiles supplied by the Department of Health and Human Resources to medication records maintained by the Nursing Home of Eunice have revealed that Rozas Gibson Pharmacy # 1, billed for quantities of medication in excess of that actually dispensed to the patients at the Nursing Home of Eunice.”

Shortly after the initiation of this investigation, the state learned that Rozas Pharmacy utilized a computer system to maintain a record of the pharmacy’s prescription business and to bill the State of Louisiana for medicaid prescriptions which the pharmacy filled. Pursuant to its investigation the state obtained a subpoena duces tecum which directed Mr. Rozas to produce an assortment of documents including prescriptions, patient profile cards for Medicaid customers, computer claims forms submitted to Medicaid, and any and all computer software, including but not limited to computer programs.

When the state was dissatisfied with the return on this subpoena the state filed a second “motion for subpoena duces tecum” on August 16, 1979, requesting production of the following:

“1. Any and all computer generated daily logs, listing detailed information regarding each prescription entered into the computer on a daily basis, from March 1, 1978 to August 1, 1979,
“2. Any and all Medicaid computer claim forms printed, but not submitted to the Medicaid Program from March 1, 1978, to August 1, 1979.”

Later discovery of the pharmacy’s corporate status resulted in the filing of. an identical motion on August 28,1979, directed to Rozas Gibson Pharmacy of Eunice, Inc., through its president, S. Paul Rozas. Exceptions to both of these latter subpoenas (one to Rozas personally and the other to Rozas as a representative of the corporation) were filed by Mr. Rozas on August 28 and September 18, 1979. At a hearing on these exceptions the trial court quashed the two subpoenas in question on the grounds that these subpoenas violated Mr. Rozas’ Fifth Amendment rights.

The state contends that the trial court erred in quashing the two subpoenas duces tecum for the following reasons: (1) a corporation and a corporate officer acting as a representative of the corporation cannot claim the Fifth Amendment privilege against self-incrimination; (2) The evidence sought herein by the two subpoenas is neither testimonial nor communicative; (3) Mr. Rozas has no reasonable expectation of privacy with respect to the prescription records of the Rozas Gibson Pharmacy.

The issue thus raised presents for our consideration a number of possible questions pertaining to the privilege against self-incrimination relating to both S. Paul Rozas and Rozas Gibson Pharmacy of Eunice, Inc.

Relative to Paul Rozas personally, are the entries made by him on the Pharmacy’s computer and the writings on the unsubmit-ted medicaid forms in effect testimony or communications which are protected by the privilege against self-incrimination? Does Rozas have a reasonable expectation of privacy in the business records requested? Can Rozas as distinguished from his lawyer or accountant be required to bring the records to court in response to a subpoena duces tecum? Would compelling Rozas to produce the requested material constitute giving evidence against himself in violation of Article I, Section 16 of the Louisiana Constitution which reads in pertinent part: “No person shall be compelled to give evidence against himself?” Notwithstanding the answers to the foregoing questions, has Rozas personally waived any privilege against self-incrimination by entering a regulated pharmacy business and/or by participating in a federal program which requires participants to keep records of services provided and to disclose those records upon request?

Relative to Rozas’ Gibson Pharmacy of Eunice, Inc., through its representative and president S. Paul Rozas, may such business corporation through its president claim a privilege against self-incrimination under the federal or state constitutions? Assuming that a corporation or a corporate officer can claim the privilege under the Louisiana Constitution, are the subpoenaed records testimony or communications or protected as per Article I, § 16 La.Const. of 1974, by the proscription against giving evidence against oneself? Does a corporation or a corporate officer have a reasonable expectation of privacy in business records of the corporation? Has the corporation as a regulated business under state law and/or as a voluntary participant in a federal program foregone any reasonable expectation of privacy?

These are interesting and in some instances perhaps troubling questions. However, our resolution of the case before us does not require that all of them be answered. We will limit our discussion here to such matters as will facilitate our deciding the case before us.

Under the circumstances present here Rozas’ Gibson Pharmacy of Eunice, Inc. can through its president S. Paul Rozas be required to produce the subpoenaed records (computer generated daily logs and Medicaid computer claim forms) and such production of these documents does not violate any constitutional privilege against self-incrimination of either the corporation or Mr. Rozas under the United States or Louisiana Constitutions. The privilege which Rozas may personally enjoy, if any, is essentially irrelevant to the corporation’s obligation through its proper representatives to produce these documents.

Rozas’ Gibson Pharmacy of Eunice, Inc., entered the regulated business of dispensing prescription drugs. Although the fact that respondent is engaged in a regulated business may not give the state license to inspect all records of the corporation, in this instance the corporation, through its president S. Paul Rozas, as a pre-condition to participating in the state title XIX program under medicare, signed a medicaid provider agreement which obligated the corporation to keep records of service provided medicaid patients and to disclose those records to the state. Each medicaid claim form submitted by Rozas Pharmacy to the state for reimbursement contained the following certification statement:

“I certify that the service listed has been rendered by a legally qualified person, that the charge is within the department’s prescription pricing regulations and the payment has not been received. I agree to adhere to the published regulations concerning pharmaceutical payments. I hereby agree to keep such records as are necessary to disclose fully the extent of services provided to individuals under the state’s title XIX plan and to furnish information regarding any payments claimed for providing such services as the state agency may request for three years from date of service.” (Emphasis provided)

Pretermitting the question of whether the Rozas’ Gibson Pharmacy of Eunice, Inc. is a “person” capable of claiming Louisiana’s privilege against giving evidence against oneself, this corporation could have no reasonable expectation of privacy as to the computer logs and other records which reveal the extent of service provided medicaid patients. Rozas Pharmacy understood when it began participating in the state medicaid program that records of prescriptions filled for medicaid patients would have to be kept, that the state might inspect those records, and that the state had a right to inspect those records under the medicaid provider agreement signed by Ro-zas Pharmacy.

Rozas Pharmacy argues that the agreement cited above should be narrowly construed and that the original prescriptions written by the patients’ doctors and filed by Rozas are the only records required by the medicaid provider agreement. Respondent’s position is without merit. The state is not investigating the validity of the prescriptions written by the doctors. The state wants to examine respondent’s records to learn whether Rozas Pharmacy has charged the state brand name prices for generic substitutes. The records the state seeks to review, those necessary to disclose fully the extent of medicaid services provided, are what have been subpoenaed by the state.

Nor is there merit to respondent’s contention that R.S. 13:3734(B) prevents the disclosure of respondent’s prescription records of non-medicaid patients contained on the computer logs unless those patients agree to disclose those records. That statute, R.S. 13:3734(B), provides for a “health care provider” privilege. It is not applicable here. The statute on its face is applicable only in civil cases, proceedings before a medical review panel and in medical and dental arbitration proceedings. Furthermore, under the express terms of the statute the nondisclosure privilege belongs to the patient rather than to the health care provider: “. . . a patient or his authorized representative, has a privilege to refuse to disclose ...” R.S. 13:3734(B). (Emphasis provided) Rozas Pharmacy therefore cannot be heard to complain.

Inasmuch as our reversing the trial court’s ruling quashing the subpoena duces tecum directed to S. Paul Rozas, as president of Rozas’ Gibson Pharmacy of Eunice, Inc. will facilitate the state’s securing production of the records sought, it is unnecessary to review the trial court’s ruling quashing the subpoena duces tecum directed to S. Paul Rozas personally.

Decree

For the foregoing reasons the judgment of the trial court quashing the August 28, 1979 subpoena directed to S. Paul Rozas, president of Rozas’ Gibson Pharmacy of Eunice, Inc., is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

       Chief Judge Paul B. Landry, retired, participated in this decision as an Associate Justice Ad Hoc.

      . Bearing on this issue are such cases as: Schmerber v. California, 384 U.S. 757, 763-764,
      16 L.Ed.2d 908 (1966) — compelling a defendant to give blood samples does not violate the Fifth Amendment because no testimonial or communicative evidence is involved. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) — business papers of a partnership, like more intimate writings are protected by the Fifth Amendment privilege. Fischer v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) — a lawyer’s production of his client’s tax records in his possession did not compel the taxpayer to be a witness against himself. Couch v. United States, 409 U.S. 22, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973) — a summons served on a taxpayer’s accountant requiring the accountant to produce the taxpayer’s records in his possession did not violate the taxpayer’s privilege against self-incrimination.

      . Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911) — the Fifth Amendment privilege may not be claimed by a corporation, and a corporate officer may not refuse to produce corporate records even if those records incriminate him. Grant v. United States, 227 U.S. 714, 33 S.Ct. 190, 57 L.Ed. 423 (1913) — the sole shareholder of a dissolved corporation has no privilege against producing the records of the corporation. United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944) — labor union officials may not claim the privilege when ordered to produce union records. United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906 (1950) —officers of an unincorporated organization have no privilege with respect to the records of an unincorporated association.

      . Boyd v. United States, supra; Beilis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed. 678 (1974) — a partner in a three man law firm has no reasonable expectation of privacy in his business records because they belong to the partnership.

      . Fischer v. United States, supra; Couch v. United States, supra.

      . In Grosso v. United States, 390 U.S. 62, 67, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968) the Supreme Court held that there are three pre-con-ditions for the “required records” exception to the Fifth Amendment to apply: (1) TTie purpose of the inquiry must be essentially regulatory, (2) the information obtained must be of a kind the regulated party has customarily kept, and (3) the records themselves must have assumed public aspects making them at least analogous to public records.

      . State v. Wilson, 329 So.2d 680 (La. 1976) — the Louisiana privilege against giving evidence against oneself relates only to testimonial or communicative evidence. This Court has held in the following cases that no compulsion of testimonial or communicative evidence took place: State v. Sheppard, 350 So.2d 615 (La. 1977), giving fingerprints; State v. Anthony, 332 So.2d 214 (La. 1976), exhibiting scar on chest; State v. O’Connor, 320 So.2d 188 (La. 1975), opening cigarette pack; State v. Morgan, 333 So.2d 642 (La. 1976), wearing certain shirt; State v. Collins, 328 So.2d 674 (La. 1976), exhibiting teeth; State v. Lacoste, 256 La. 697, 237 So.2d 871 (La.1970), uttering “hurry up;” State v. Thompson, 256 La. 934, 240 So.2d 712 (La.1970), handwriting exemplars; State v. Du-gas, 252 La. 345, 211 So.2d 285 (La.1968), cert, den. 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691, blood sample; State v. Garon, 161 La. 867, 109 So. 530 (La. 1926), placing shoe in track.

      . Cf. Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948), L. Mayers, Shall We Repeal the Fifth Amendment, (1959), 38 Ohio State Law Journal 351 (1977).

      . See R.S. 37:1171 et seq. for state regulations relating to the operation of a pharmacy.

      . Medicaid provider agreements are required by 42 C.F.R. 431.107 (1978):
      “(a) Basis and purpose. This section implements section 1902(a)(27) of the Act, which requires agreements between medicaid agencies and providers.
      “(b) Agreements. A state plan must provide for an agreement between the medicaid agency and each provider furnishing services under the plan in which the provider agrees to—
      (1) Keep any records necessary to disclose the extent of services the provider furnishes to recipients; and;
      (2) Furnish the agency or the Secretary with any information they may request regarding payments claimed by the provider for furnishing services.”

      . R.S. 13:3734(B) provides in pertinent part:
      “Except as hereinafter provided, in civil cases, proceedings before a medical review panel, pursuant to R.S. 40:1299.47 and in medical and dental arbitration proceedings, pursuant to R.S. 9:4230-4236, and in proceedings and investigation preliminary to all such actions, a patient or his authorized representative has a privilege to refuse to disclose and to prevent a health care provider from disclosing any communication, wherever made, relating to any fact, statement or opinion which was necessary to enable that health care provider or any other health care provider to diagnose, treat, prescribe or act for the patient.”


author: DIXON, Chief Justice . MARCUS, Justice

text:
    STATE of Louisiana v. Michael MARTIN.
    No. 65975.
    Supreme Court of Louisiana.
    April 7, 1980.

      Walter L. Sentenn, Jr., Robert Barnard, Tilden H. Greenbaum, III, New Orleans, Orland Indigent Defender Program, for plaintiff-respondent.
    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 defendant-relator.
   DIXON, Chief Justice .

Michael Martin was found in possession of a concealed handgun and was charged with violation of R.S. 14:95.1, a statute which makes it unlawful for those who have been convicted of certain crimes to possess firearms. The bill of information alleged that Martin was convicted in 1976 of simple burglary, one of the offenses enumerated in R.S. 14:95.1. On October 11, 1979 defendant filed a motion to quash the information, contending that the simple burglary conviction was obtained through a guilty plea which was invalid because he was not adequately informed of his right against self-incrimination. After a hearing on the motion, the trial court quashed the bill of information. We granted the state’s application for review of that ruling.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that a guilty plea may not be accepted unless there is an affirmative showing that it is intelligently and voluntarily made, evidenced on review by a record which shows defendant’s effective waiver of his right against self-incrimination, his right to trial by jury and his right to confront his accusers. In State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), we first applied the principles of Boykin, in the context of a prisoner’s attempt to have his prior guilty plea set aside. In State v. Lewis, 367 So.2d 1155 (La.1979), we held that the only previous pleas of guilty which could be used to enhance a sentence are those supported by a contemporaneous record of a Boykin examination demonstrating the free and voluntary nature of the plea of guilty with the articulated waiver of the constitutional rights required by Boykin v. Alabama, supra. In Lewis, we also referred to possession of a firearm by a convicted felon, the offense with which Martin is here charged, as an example of the sentence enhancement use of a previous plea of guilty. Defendant was therefore correct in contending that the bill of information must be quashed if the record of his prior guilty plea does not show that he was adequately informed of his right against self-incrimination.

The transcript of the 1976 proceeding in which Martin entered a plea of guilty shows that the trial judge’s sole reference to defendant’s right against self-incrimination was made in the following terms:

“Now, you also waive your right by not going to trial you waive your right to question witnesses against you. By pleading guilty, you’re also waiving your right to remain silent because you’re not remaining silent when you plead guilty. Do you understand that?”

The issue presented by this language is not whether the judge erred in failing to pronounce the magic words, “right against self-incrimination.” We recognize that the purpose underlying the rule of Boykin is to ensure the defendant’s receipt of adequate information, so that his decision to plead guilty is truly intelligent and voluntary, and that this information may successfully be conveyed in words tailored to a particular individual’s vocabulary and comprehension. See State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (La.1972). Instead, our inquiry must focus on the nature of the decision an accused makes when he chooses to plead guilty, so that we may determine the type of information he must have in order that this decision be truly intelligent and voluntary.

In North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162, 168 (1970), the test for determining the validity of guilty pleas was described by the United States Supreme Court:

“. . . the standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. . . . ”

The identity of these “alternative courses of action” emerges clearly from Alford, a case in which the defendant denied that he had committed the crime with which he was charged, but nevertheless chose to enter a plea of guilty:

“. . . Although denying the charge against him, he nevertheless preferred the dispute between him and the State to be settled by the judge in the context of a guilty plea proceeding rather than by a formal trial. . . .” 400 U.S. at 32, 91 S.Ct. at 165, 27 L.Ed.2d at 168.

In finding that an express admission of guilt is not a constitutional requirement for the imposition of a criminal penalty, the court noted that most pleas of guilty consist of two elements, an admission of guilt and a waiver of trial, but that the admission of guilt is not a necessary element. It appears, then, that in deciding whether or not to plead guilty, an accused must make two separate choices. One choice, whether to admit his guilt or to deny it, is not constitutionally essential to the plea itself. The other, whether to risk standing trial and being found guilty by the trier of fact or to avoid a trial and plead guilty (often of a lesser offense) is the crucial element of his decision. It is with regard to the latter element that an accused must be fully informed: he must be told what three basic rights at trial are guaranteed to him by the Constitution, so that he might, with some degree of basic information, weigh his chances of success against his chances of failure in a trial.

It is obvious that two of the rights about which an accused must be fully informed, the right to trial by jury and the right to confront his accusers, have meaning only in the context of his waiver of his right to trial. On the other hand, the nature of the third right, the right against self-incrimination, is broader, because this right may be exercised not only at trial but also before trial, during any custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966). It was probably this ambiguity which led the judge who “boykinized” Martin to direct his attention only to the immediate, non-trial aspect of this privilege and its waiver, omitting any reference to the defendant’s right to stand trial without being forced to testify against himself. The information conveyed to Martin by this presentation of his right against self-incrimination was insufficient, however, because the choice to stand trial or not is the crux of the decision to plead guilty. An accused cannot make this choice intelligently if he is unaware of the rights which he may exercise at trial. The record of the guilty plea proceeding shows that Martin waived his right to remain silent at that proceeding, but it does not show an intention to waive his right not to testify against himself at a trial. For this reason, his guilty plea may not be used as the basis for the charged entered against him, and the bill of information was properly quashed.

The judgment of the district court is affirmed.

MARCUS, J., dissents and assigns reasons.

EDWARD A. de la HOUSSAYE, J. Ad Hoc, dissents for reasons assigned by MARCUS, J.

MARCUS, Justice

(dissenting).

In State v. Holden, 375 So.2d 1372 (La. 1979), we restricted the application of State v. Lewis, 367 So.2d 1155 (La.1979), to Louisiana convictions subsequent to December 8, 1971 (date of Jackson’s finality). Lewis and Holden both involved habitual offender proceedings (La.R.S. 15:529.1). I would overrule both Lewis and Holden. Therefore, I would not extend the application of Lewis as modified by Holden to La.R.S. 14:95.1 (possession of firearm or carrying of concealed weapon by a person convicted of certain felonies). Accordingly, I respectfully dissent.

       Honorable Edward A. de la Houssaye III participated in this decision as an Associate Justice Ad Hoc.

      . In a motion to quash filed on November 8, 1979 Martin attacked his guilty plea not only on the original ground but also on the ground that he was not advised of his right to confront his accusers and to compulsory process. This latter ground was not before the judge when the first motion to quash was argued and granted on October 11, 1979. It also appears from the record that the November motion to quash, presenting this new argument, was withdrawn on November 26, 1979. Although most of defendant’s brief is devoted to the latter argument, the issue is not properly before us.


text:
    STATE of Louisiana v. Bennie Ray CAIN.
    Nos. 66048, 66049.
    Supreme Court of Louisiana.
    April 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.
    Donald R. Minor, Shreveport, for defendant-appellant.
   CALOGERO, Justice.

On December 1, 1978, defendant Bennie Ray Cain was charged by bill of information with two counts of distribution of cocaine. On February 4,1979 he was indicted by a grand jury for the crime of distribution of heroin. On May 14,1979, defendant pled guilty to possession of heroin and one count of distribution of cocaine. Defendant was sentenced to serve ten years at hard labor without benefit of probation, parole, or suspension of sentence for the heroin offense, this sentence to run consecutively to any other sentence imposed (defendant has an unexpired parole term for a 1973 conviction). For the cocaine conviction defendant received twenty years at hard labor to run consecutively to the sentence for the heroin offense. Defendant on appeal contends that the trial court erred in failing to properly consider as an alternative to prison, placing defendant in a drug rehabilitation program pursuant to C.Cr.P. art. 893(B) and that the sentence defendant received was excessive in violation of Article I, Section 20 of the Louisiana Constitution. We find no merit in either of defendant’s contentions.

Defendant at the time of his arrest was on parole for a 1973 conviction for possession of cocaine with intent to distribute. On August 10, 1978, fifteen months after being released from prison on the 1973 charge, defendant sold thirteen grams of cocaine to a Drug Enforcement Administration Agent for $1,300.00.

One week later on August 17, 1978, defendant sold three ounces of cocaine to the same agent for $3,300.00. In September, 1978 local police found some marijuana in a search of defendant’s house. At this time defendant agreed to keep local agent James Burney informed of drug transactions in the area. In return Burney intervened with Cain’s parole officer to keep the parole board from immediately revoking defendant’s probation and returning him to prison. Despite the fact that he was not authorized by agent Burney to engage in drug transactions, defendant made arrangements to sell a quantity of heroin to the DEA agent he had sold the cocaine to without telling agent Burney what he was doing. During these negotiations Cain represented to the DEA agent that he had connections in California from which he could obtain $100,-000.00 worth of heroin. On October 24, 1978, defendant was arrested while in possession of a quantity of heroin which he had agreed to sell to the DEA agent for $1,300.00.

After reviewing the record and the trial court’s reasons for the sentence he imposed we cannot say that the trial court abused its discretion in concluding that the best interests of society and defendant would not be served by suspending defendant’s sentence and placing him in a drug rehabilitation program. C.Cr.P. art. 893(B). The trial court found that defendant would probably commit a similar offense if given the opportunity. The court found no mitigating circumstances in defendant’s conduct and noted that after being given a break by agent Burney when he was arrested for possession of marijuana, Cain continued to make arrangements to sell heroin. While the court did not believe that defendant had engaged in transactions involving sums as large as $100,000.00 dollars, these representations are evidence of defendant’s propensity to sell narcotics and belies defendant’s contention that he sold drugs only to support his habit. The court found that defendant was not “a small man in the drug traffic in our community” and that a suspended sentence would deprecate the seriousness of defendant’s crime. C.Cr.P. art. 894.1.

For many of the reasons discussed previously we are satisfied that the sentence imposed by the court was not excessive in violation of Article I, Section 20 of the Louisiana Constitution. The trial judge properly considered the guidelines contained at C.Cr.P. art. 894.1 and articulated his reasons for imposing the sentence he imposed. After hearing testimony at the sentencing hearing from defendant, defendant’s wife, defendant’s parole officer, a counselor from a drug rehabilitation program and two narcotics officers, the court found that the only C.Cr.P. art. 894.1 factor favorable to the defendant was that his incarceration would be a hardship on his wife and children. However, after weighing the needs of his family against the needs of society the judge concluded that incarceration for a considerable period of time was required. He thus imposed consecutive sentences.

Ordinarily when a defendant is convicted for several crimes arising out of the same course of conduct in a relatively short period of time, concurrent rather than consecutive sentences should be imposed. State v. Cox, 369 So.2d 118, 124 (La.1979). However, in this case we are not offended by the trial court’s imposition of consecutive sentences. Defendant Cain is not a first offender. His total sentence did not exceed the maximum term he could have been given for the most serious crime that he committed. Defendant also received considerable relief when the state agreed to reduce the distribution of heroin charge to possession of heroin, to drop one charge of distribution of cocaine and not to prosecute defendant as a multiple offender. If defendant had been convicted of the distribution of heroin charge alone, he would have received a mandatory life sentence without probation, parole, or suspension of sentence. R.S. 40:966(B)(1).

Finally we note that defendant’s sentence of ten years at hard labor without benefit of probation, parole, or suspension of sentence for possession of heroin is improper. Withholding parole availability is not sanctioned by the penalty provision of R.S. 40:966(C)(1) which provides:

“A substance classified in Schedule I which is a narcotic drug (all substances in Schedule I preceded by an asterisk '*’), shall be imprisoned at hard labor for not less than four years nor more than ten years without benefit of probation or suspension of sentence and may, in addition, be required to pay a fine of not more than five thousand dollars.”

While defendant failed to object to the sentence insofar as it disallowed parole nor did he argue this error in brief, this Court can on its own motion review errors discoverable by a mere inspection of the pleadings, such as a sentence not sanctioned by statute. C.Cr.P. art. 920(2), State v. Wymore, 377 So.2d 283 (La.1979); State v. Lindsey, 351 So.2d 1178 (La.1977). Therefore we remand the case to the trial court for reimposition of the sentence in accordance with the law.

Decree

For the foregoing reasons defendant’s twenty-year sentence for distribution of cocaine is affirmed. The sentence imposed for possession of heroin is vacated and set aside, and the case is remanded to the district court for resentencing in accordance with R.S. 40:966(C)(1).

SENTENCE AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR REIMPOSITION.

      The Honorable Edward A. de la Houssaye, III participated in this decision as an Associate Justice pro tempore.

      . C.Cr.P. art. 893(B) authorizes a judge to suspend the sentence of a multiple offender who has violated the Controlled Dangerous Substances Law of Louisiana if he determines that it is in the best interest of society and the defendant to place defendant in an authorized state or federal drug rehabilitation program rather than sentencing defendant to prison.

      . Defendant testified at the sentencing hearing that he never sold any cocaine to the agent. He contended that he had represented to the agent that he was selling him cocaine, but the substance he sold him was actually a combination of bonita and milk sugar which looked like cocaine. -He also claimed that he arranged to sell the heroin to the federal agent pursuant to instructions of a state narcotics agent. The trial judge did not believe him.