author: RYDER, Judge.

text:
    Ross Edmund LaCHANCE, Appellant, v. STATE of Florida, Appellee.
    No. 80-892.
    District of Court of Appeal of Florida, Second District.
    April 22, 1981.

      Jerry Hill, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant appeals from the trial court’s order entered after a jury trial adjudicating him guilty of second degree murder and sentencing him to thirty years in prison, subject to the three-year mandatory minimum sentence, with the court retaining jurisdiction over one-third of the sentence.

Appellant challenges whether the circumstantial evidence in the case was sufficient to support the verdict and whether the trial court erred in retaining jurisdiction over one-third of the sentence because the court failed to make findings of fact as required by the statute.

We reject appellant’s contention that the evidence was insufficient to support a verdict of second degree murder. Although appellant presented some evidence supporting an allegedly reasonable hypothesis of innocence, the hypothesis was rebutted in almost every instance by other evidence produced by the State and therefore we affirm appellant’s conviction.

We believe appellant’s second contention to be meritorious. Section 947.-16(3)(a), Florida Statutes (1979), allows a trial judge to retain jurisdiction over one-third of a defendant’s sentence after a conviction of second degree murder. However, that statute requires the trial judge to state with individual particularity justification for such retention on the record before such a retention can be made. See also Hicks v. State, 388 So.2d 357 (Fla. 2d DCA 1980); Tompkins v. State, 386 So.2d 597 (Fla. 5th DCA 1980).

In the case at hand, although the state attorney stated on the record at sentencing several reasons why the trial judge might have retained jurisdiction, the trial judge made no findings of fact and justification on the record before retaining such jurisdiction. Because of this, the trial judge was not legally empowered to retain jurisdiction over one-third of appellant’s sentence.

Accordingly, the judgment and sentence of appellant are affirmed. However, the order of retention over the first one-third of appellant’s sentence is vacated and the cause is REMANDED with directions that the trial judge make findings of fact and justification, with individual particularity, as is required by section 947.16(3Xa), Florida Statutes (1979), retaining jurisdiction over one-third of appellant’s sentence.

SCHEB, C.J., and CAMPBELL, J., concur.

      . 947.16(3)(a). In retaining jurisdiction for the purposes of this act, the trial court judge shall state the justification with individual particularity, and said justification shall be made a part of the court record.


source: Caselaw Access Project

license: Public Domain

text:
    John Wayne ERWIN v. EXCELLO CORP. et al.
    No. 80-C-2348.
    Supreme Court of Louisiana.
    Writ Denied March 27, 1981.
    Reconsideration Writ Denied April 17, 1981.
   In re John Wayne Erwin applying for Certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of Tangipahoa. No. 13,478, 387 So.2d 1288.

Writ denied.

LEMMON, J., would grant the writ.

In re John Wayne Erwin, applying for Reconsideration of denied writ, of March 27, 1981, Court of Appeal, First Circuit. No. 13,478, Parish of Tangipahoa.

Not considered. See La.Sup.Ct. Rule 9, Section 6.


text:
    STATE of Louisiana v. Terry TOLEDANO.
    No. 81-K-0568.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Terry Toledano, applying for Writ of Certiorari, and Mandamus. Parish of Orleans. No. 270-200. 391 So.2d 817.

Granted. The Clerk of the Juvenile Court is ordered to deliver the requested document in a sealed envelope to the Criminal District Court for in camera inspection.

MARCUS, J., would deny.

Defendant must show good cause in the juvenile court why that court should not order disclosure of the juvenile records of Reginald Yawls to the Criminal District Court because the information is relevant to a proceeding in the Criminal District Court. C.J.P. art. 123(B).

WATSON, J., would deny the writ.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. James W. FRIDDLE.
    No. 80-K-1593.
    Supreme Court of Louisiana.
    March 24, 1981.

      Samuel S. Dalton, Dalton, Gillen & Roni-ger, Jefferson, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Bridget Bane, William R. Campbell, Jr., Asst. Dist. Attys., for plaintiff-respondent.
   CALOGERO, Justice.

We granted defendant’s application for writs in this case to determine whether the district court erred in denying defendant’s pre-trial motions to suppress certain evidence obtained as a result of his arrest. Defendant James Friddle was charged by grand jury indictment on August 2, 1977 with two counts of aggravated rape in violation of R.S. 14:42. He was tried before a jury and found guilty of one count of aggravated rape and one count of attempted aggravated rape, but on February 23, 1978, the trial court granted defendant’s motion for a new trial. Thereafter, defendant reurged his earlier denied motions to suppress evidence. The motions were denied and that denial is what we now review, pre-trial.

Certain testimony from defendant’s first trial and stipulated facts form the evidence considered by the trial judge in connection with the motions to suppress. The following events are gleaned from that evidence.

On January 3, 1977, a woman, whom we shall refer to as Mary Smith for the purposes of this opinion, was raped at gunpoint in her apartment. She reported the rape to the police and gave them a description of her assailant. Later that day, Officer David testified that he “received information” which prompted him to begin searching for a silver automobile with a red license plate bearing the numbers EWP3Q4. Around midnight on the same day, a silver Continental with a red and white license plate bearing the numbers EWP304 was observed by two police officers in the eight hundred block of St. Louis Street in New Orleans. After parking their car and returning on foot to the area where the car was spotted, the officers found that the vehicle was gone.

The automobile was later located at about 1:15 a. m., on January 4, 1977, at the Tamanaca Motel, 1725 Tulane Avenue. The license plate check made by the officers revealed that the automobile was owned by one James Friddle. The officers then checked with the motel manager and learned that James Friddle was staying in Room 269. Mr. Friddle had been an occupant of that room since November 15,1976, approximately a month and a half. Whether or not the officers knew of the length of defendant’s stay at the motel is uncertain, but it would have been easily ascertainable from the motel manager.

The police officers contacted headquarters to request assistance, and at approximately 2:00 a. m. on January 4, 1977, five plain-clothes officers and one uniformed officer proceeded to Room 269, knocked on the door and announced “Police”. The defendant, James Friddle, opened the door. Officer David testified that he asked the man if he was James Friddle and whether he owned the silver Continental with the Arkansas plates. When the defendant responded affirmatively to both questions, he was placed under arrest and advised of his rights.

Defendant was wearing only a pair of blue jeans when he answered the door. Therefore, he was escorted inside of his motel room, after being placed under arrest, so that he could get dressed. In the bathroom, Officer David observed clothing which he thought matched the description given by the rape victim, Mary Smith, of the clothing worn by her assailant. These items were seized. An inculpatory statement was allegedly made at this time by the defendant while he was in the bathroom. Thereafter, while still in the motel room, defendant signed a rights of arrestee form waiving his rights. He thereupon informed the officers that he had a gun in the locker of his room. It was also seized.

Finally, the defendant was transported to the Criminal Investigation Division where he was booked at 3:00 a. m. He made an oral statement and gave a written statement after again being advised of his rights. Later that day defendant was brought before a magistrate where a lawyer with the Orleans Indigent Defender Program was appointed to represent him. Bail was set for some of the charges but denied for the capital rape offense and a preliminary hearing was set for January 11, 1977.

On January 7, 1977, a five man line-up was conducted with defendant unrepresented. Therein, defendant was identified by the two victims of the offenses with which defendant has been charged herein.

Defendant and the state stipulated that the arresting officers had no warrant for defendant’s arrest and had not been advised that any warrants were outstanding. (In fact, no warrants existed relative to the defendant or his automobile.) The state further stipulated that defendant’s arrest was made as he stood in his motel doorway and all inculpatory statements by defendant were made following this arrest except for his admitting his name and that he owned the automobile in question.

We granted writs in this case from the trial court ruling denying defendant’s motions to suppress primarily to consider whether defendant’s arrest at 2:00 a. m. at his motel residence without a warrant was in violation of the recent United States Supreme Court case of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

Defendant, relying on the Payton case, contends that an arrest made in one’s residence without a warrant, barring the existence of some exigent circumstance, is illegal. Therefore, defendant seeks to suppress the following evidence as fruits of the illegal arrest: the clothing seized from the bathroom, the gun, and any other items seized from either his motel room or his car at the time of the arrest; the inculpatory statement he made to the officer in the bathroom; both the oral and written statements he made at the police station; the line-up identifications; and any in-court identifications.

In Payton v. New York, supra, the United States Supreme Court directly addressed for the first time the question of whether a warrant was required to arrest a citizen in his home. Therein the Court held:

“It is a ‘basic principle of Fourth Amendment Law’ that searches and seizures inside of a home without a warrant are presumptively unreasonable.... In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”

Payton was decided on April 15,1980 and it is clear that, in accordance with that decision, any arrest made thereafter of a person in his home without a warrant and without the existence of exigent circumstances will be unreasonable and, as such, unconstitutional. Similarly, in State v. Brown, 387 So.2d 567 (La.1980), decided on June 23, 1980, this Court held that a war-rantless entry into a defendant’s home for the purpose of an arrest was, under Article 1, Section 5 of the Louisiana Constitution of 1974, constitutionally invalid unless such entry was made necessary by exigent circumstances. However, we are here confronted with an arrest that was made at least three years prior to the rendition of either Payton or Brown, when such an arrest was specifically authorized by Article 213 of the Louisiana Code of Criminal Procedure. Therefore, we must decide whether Payton and Brown should be applied retroactively to void this arrest, making the evidence obtained pursuant thereto inadmissible at defendant’s forthcoming trial.

The question of the retroactivity of Pay-ton has not yet been directly considered by this Court. While State v. Brown, supra, relied on the principles set out in Payton to conclude that the Louisiana Constitution of 1974 likewise prohibited warrantless arrests in the home absent exigent circumstances, it did not hold that Payton would be applied retroactively to arrests made prior to its rendition. In State v. Smith, 392 So.2d 454 (La.1980), we suggested in dicta that Brown would not be applied retroactively but, because Smith dealt with the arrest of a person in the home of a third party, the question of the retroactivity of Payton was not before the Court.

Nor has the United States Supreme Court precisely determined whether Payton should be applied retroactively. However, in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), that Court noted that the deterrent function of the exclusionary rule is not served by retroactive application to situations in which officers acted in good faith reliance on previously announced standards. The Court stated:

“[it] is indisputable ... that in every case in which the court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the fact finding process, the court has concluded that any such new constitutional principle would be accorded only prospective application.”

In Peltier, the Court was presented with the question of whether to give retroactive application to its decision limiting border patrol searches. The Court therein upheld searches which were conducted pursuant to previously announced regulations that, although not declared invalid at the time of the search, were later declared unconstitutional infringements of the Fourth Amendment.

We believe the same result should obtain here where the question involved, the constitutionality of a warrantless arrest in the home, is not one that “relates to the integrity of the fact finding process,” or the fairness of the trial. Additionally, we do not feel that retroactive application of these decisions, thereby mandating the suppression of the evidence obtained pursuant to the arrest, would serve the deterrent function of the exclusionary rule. As stated above, the officers were acting in good faith pursuant to what they believed to be a valid statute, C.Cr.P. art. 213. For the foregoing reasons, we hold that neither Payton v. New York, supra, nor State v. Brown, supra will be given retroactive effect to mandate the suppression of the evidence seized as a result of this defendant’s arrest.

Defendant argues in the alternative that if we find that the evidence is not to be suppressed as a fruit of the illegal arrest, then the line-up identifications should nevertheless be suppressed because conducted in the absence of counsel after adversary criminal proceedings had been initiated against him and further, because the lineup was unreasonably suggestive. Defendant also contends that any in-court identification should be suppressed because tainted by the improper line-up identification.

Initially, defendant seeks to establish that his due process rights were violated because his line-up was conducted without counsel’s presence.

Defendant was arrested on January 4, 1977. Later that day he was brought before a magistrate, at which time, an attorney with the Orleans Indigent Defender Program was appointed to represent him and bail was set for some of the charges but denied for the capital rape offense. A preliminary hearing was thereupon scheduled for January 11, 1977.

On January 7, 1977, a five man line-up was conducted with defendant unrepresented. Therein defendant was identified by the rape victims. Defendant seeks to suppress any testimony relating to this line-up identification.

In support of his argument that he was entitled to counsel at the line-up stage of the proceedings, defendant principally relies upon United States Supreme Court decisions concerning the right to counsel at a line-up confrontation. The defendant cites extensively from Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977).

In Moore, the Court noted that Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) had made it clear that the right to counsel attaches to corporeal identifications conducted “at or after the initiation of adversary judicial criminal proceedings — whether by formal charge, preliminary hearing, indictment, information, or arraignment.” The Court in Moore therefore concluded that an identification made at the defendant’s preliminary hearing should have been excluded because the defendant was not represented by counsel and the preliminary hearing clearly marked the initiation of adversary judicial criminal proceedings.

This Court has consistently held that a person accused of a crime is not entitled to counsel at a line-up prior to indictment. State v. Kelly, 362 So.2d 1071 (1978); State v. Fields, 342 So.2d 624 (La.1977); State v. Johnson, 327 So.2d 388 (La.1976); State v. Hargrove, 330 So.2d 895 (La.1976); and State v. Maduell, 326 So.2d 820 (La.1976). These cases rely on Kirby v. Illinois, supra, to support their holding. Moore has seemingly extended Kirby by holding that defendant therein was entitled to an attorney at an identification during his preliminary hearing, finding that the preliminary hearing marked the initiation of adversary judicial criminal proceedings. We see no reason to extend the Moore holding to this line-up which was conducted prior to the preliminary hearing.

Furthermore, in the present case, defendant was arrested on January 4, 1977. The line-up was held on January 7, 1977 and defendant’s preliminary hearing was not scheduled until January 11, 1977. Nor had defendant been indicted prior to the line-up. Additionally, two police officers testified that the Orleans Indigent Defender Officer had been contacted and informed of the state’s intention to conduct this line-up, but no one from the office attended the line-up. Therefore, we hold that defendant’s due process rights were not violated in this case by this uncounseled line-up.

Next, defendant argues that the line-up identifications should be suppressed because the line-up was suggestive. He contends that the line-up was so suggestive that any identification made therein would necessarily be unreliable.

It has been held that although the line-up procedure may have been suggestive the out-of-court identification or an in-court identification may nevertheless be admissible at trial if the totality of the circumstances indicates that the identifications are reliable. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Johnson, 389 So.2d 1318 (La.1980), and State v. Guillot, 353 So.2d 1055 (La.1977). It is the likelihood of misidentification that violates due process and the following five factors articulated in Manson v. Braith-waite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), have been repeatedly used by this Court in determining the reliability of an identification:

“.. . the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.”

State v. Stewart, 389 So.2d 1321 (La.1980); State v. Davis, 385 So.2d 193 (La.1980); State v. Doucet, 380 So.2d 605 (La.1979); State v. Williams, 375 So.2d 364 (La.1979); and State v. Guillot, 353 So.2d 1005 (La.1977).

In ruling against defendant, and evidently concluding that the line-up was not suggestive, the trial judge did not consider the five factors set out above for determining whether there is an independent source for the identification. Because we are troubled by the possible suggestiveness of the lineup, we believe that the independent sources for the identifications must be considered and the trial judge has not yet considered them. Therefore, we set aside the trial court’s ruling denying defendant’s motion to suppress the line-up identifications and remand the case to the trial court for retrial of the suppression motion as relates to suggestiveness and any independent source for the identifications.

Defendant argues separately that the in-court identifications should be suppressed at the forthcoming trial because tainted by the unreasonably suggestive line-up.

Having found no illegality as relates to the line-up identification, the trial court in ruling on this issue had no reasons to, and therefore did not, focus upon whether the in-court identifications were based on an independent source rather than the lineup, and thus the factors set out above, as articulated in Manson, were not considered. The ruling denying the motion to suppress the in-court identification must for this reason also be set aside and remanded for retrial and/or reconsideration in accordance with the above views.

Finally, and in further support of defendant’s effort to suppress the items seized on the night of his arrest, his oral and written inculpatory statements, the line-up identifications and the in-court identifications, defendant argues that his arrest was illegal because made without probable cause.

The relevant facts already stated herein-above were the following:

On January 3,1977, Ms. Smith was raped at gunpoint in her apartment. She reported the rape to the police and gave them a detailed description of her assailant. Later that day Officer David testified that he “received information” which prompted him to begin searching for a silver automobile with a red license plate bearing the numbers EWP304. The automobile was eventually located at the Tamanaca Motel at about 1:15 a. m. on January 4,1977. After making a license plate check, the officers determined that the automobile was owned by one James Friddle. They also discovered that a James Friddle was registered at the motel and was residing in Room 269. The officers went to Room 269 and when defendant answered the door and told the officer he was James Friddle and that he owned the silver car with the red plates he was placed under arrest.

As indicated earlier there was no presentation of witnesses at the hearing on the motion to suppress. The facts recited above are gleaned from the stipulations agreed to by both the state and defendant and of selected portions of certain witnesses’ testimony transcribed from defendant’s original trial. From this selected testimony there is no connection made between the rape and the reason the officers were looking for the silver car with the red plates. However, the trial judge who ruled on the present motions to suppress had already conducted a full trial in this case as well as several hearings on various defense motions, including a motion to suppress, and therefore surely had knowledge of all the prior testimony including additional facts which may have borne on the question of the probable cause for the arrest. We are, therefore, not prepared to find an absence of probable cause and order the evidence suppressed on the state of this record. However, fairness dictates that until the record is complete, enabling proper review of the issues, we should not affirm the trial court’s ruling denying the suppression.

For the reasons stated above, we deem it preferable to set aside the ruling of the trial court and remand the case for retrial of the motion to suppress relative to the issue of probable cause to arrest. State v. Haynie, 395 So.2d 669 (La.1981). At such time after remand as we may be called upon to review the trial court’s ruling, we will be provided with a complete record from which to determine whether probable cause existed for the arrest.

For the foregoing reasons we hold that several of defendant’s attacks on the trial court’s ruling denying the motions to suppress are without merit. Payton will not be applied retroactively to void the warrant-less arrest of defendant in his motel room. Nor does the absence of counsel at defendant’s line-up prohibit the admission of the line-up identifications for that reason. However, we nonetheless set aside the trial court’s ruling denying the suppression of the items seized at the time of the arrest, the oral and written inculpatory statements, the line-up identifications and the in-court identifications and remand the case for retrial on the issues of probable cause to arrest, suggestiveness of the line-up and independent sources for the out-of-court as well as the in-court identifications.

Decree

For the foregoing reasons the ruling of the trial court denying defendant’s motions to suppress is set aside and the case is remanded for further proceedings in accordance with the views expressed herein.

REVERSED AND REMANDED.

DENNIS, J., dissents in part, concurs in part and will assign reasons.

WATSON, J., concurs in the result.

       Judges Cecil C. Cutrer, Jimmy M. Stoker, and Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associated Justices Pascal F. Calogero, Jr., James L. Dennis, and Jack C. Watson.

      . The charged crimes were alleged to have been committed against two different victims on separate occasions, approximately three months apart.

      . Code of Criminal Procedure Article 213 provides as follows:
      “A peace officer may, without a warrant, arrest a person when:
      (1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;
      (2) The person to be arrested has committed a felony, although not in the presence of the officer;
      (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
      (4) The peace officer has received positive and reliable information that another peace officer holds a warrant for the arrest.
      A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this article may enter another jurisdiction in this state and make the arrest.”

      . See also Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), holding that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (making the exclusionary rule applicable to the states) would not be given retroactive effect.

      . We prefer to pretermit determining whether in fact the line-up was impermissibly suggestive in light of our remand for consideration of whether the witnesses have an independent source for their identifications. However, we note that defendant is the only man in the line-up without a mustache and with short hair.

      . An incidental question presented in this case is whether defendant’s admission of his name and his ownership of the silver car, in response to questions asked him by the police officers at his door, should be excluded from our consideration in determining whether the officers had probable cause to arrest defendant because the questions were not preceded by Miranda warnings. Miranda does not require that warnings be given before a person, even a suspect, can be asked his name. As for the second question, the officers had already run a license check on the car and knew that it was owned by James Friddle. Thus, defendant’s response that he did own the car added nothing to the probable cause information that the officers had or did not have at the time.

      . From the selected testimony comprising the record for these motions, it appears that the police officers were prevented from giving the testimony that would have linked the defendant and his car to a crime because of a possible Prieur violation. Apparently, the link is established through defendant’s involvement in a crime other than the two with which he is charged herein. Evidence of other crimes is not admissible at trial before the jury and the testimony by the officers relating to such other crimes evidence was properly excluded at the trial. State v. Prieur, 277 So.2d 126 (La.1973). However, such evidence is admissible at a hearing on a motion to suppress and should be considered in determining whether there was probable cause to arrest.
      Additionally, it appears that the trial testimony of another witness, Michelle Baylis, was likewise interrupted by a Prieur objection and that the probable cause for the Friddle arrest just might be established from a complete rendition by her of the facts of which she was aware in a new hearing on a motion to suppress. Her trial testimony, at best, provides a scant reference to possibly suspicious activity at her residence by the driver of a silver car with a red and white license plate. The witness’ testimony was first interrupted after she had simply stated that she heard what she thought was her door being opened with keys and assumed it was her husband coming home. Later, in rebuttal testimony, when she was asked if anything unusual happened on January 3, 1977, she replied, “Yes, I heard someone at my door. I looked through the peephole and I saw a man walking away.... ” She testified that she saw the man get into his car and drive away. She scribbled notes at that moment on the back of an envelope and later turned them over to the police. The writing on the envelope, which was introduced into evidence as S-26, provided the following, as read into the record by Ms. Baylis: “EWP304, red license plate on white, large silver car, guy in hooded grey sweatshirt.” No description of the man was included on the envelope, nor does the testimony reveal that one was verbally given to the officers.
      Because of the scant nature of this testimony, there is no link between the man she saw through the peephole walking away and any attempt by him to open her door, although we might surmise that this was one and the same incident to which she was referring. In any event, these facts do not establish the commission of a crime upon which probable cause to arrest might be based. Furthermore, even if we felt that the above facts did establish criminal activity, since no description of the man was given to the police by Ms. Baylis, the evidence would seem to fall short of establishing probable cause to arrest not a described subject but whomever might be the registered owner of the described car.


author: DIXON, C. J., DENNIS, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana ex rel., Robert Wayne WILLIAMS v. Frank C. BLACKBURN.
    No. 81-K-0798.
    Supreme Court of Louisiana.
    March 26, 1981.
   In Re: Robert Wayne Williams, applying for Supervisory and Other Writs, Parish of East Baton Rouge, Number 1-79-356.

Denied.

DIXON, C. J.,

would grant a stay order and grant the application to consider the argument which minimized the importance of the jury’s function because of the appellate function of the Supreme Court.

CALOGERO, J., concurs in denial of stay of execution and denial of writs and assigns reasons.

DENNIS, J., would stay the execution until this Court has heard oral arguments and addressed two very troublesome issues raised by the case for reasons to be assigned later today.

DENNIS, Justice,

dissenting to denial of stay order.

I would stay the execution until this Court has heard oral arguments and fully addressed two very troublesome issues raised by this case.

We have never directly addressed the issue of whether this Court may affirm a death sentence if one or more of the aggravating circumstances found by the jury does not exist. The Supreme Court has indicated that it would be unconstitutional to base a death penalty exclusively upon an invalid statutory aggravating circumstance. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

Recently, the United States Fifth Circuit Court of Appeals held unconstitutional a death sentence imposed when one of the aggravating circumstances was later held to be unconstitutional even though there were two other aggravating circumstances, either of which by itself would be legally sufficient to permit the jury to impose the death penalty. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980). This Court presently has under consideration cases in which the issue will be fully addressed. This Court, therefore, should grant a stay of execution at least until it has fully decided the question either by an opinion in this case or in one of the other cases now pending before us.

The other very substantial question which has been raised is whether the prosecuting attorney made an impermissible closing argument to the jury which conveyed the message that the jury’s awesome responsibility of deciding whether death is the appropriate punishment is in any way lessened by this Court’s limited review of the capital sentence proceeding. See State v. Berry, 391 So.2d 406 (La.1980) (on rehearing).

CALOGERO, Justice,

concurring in the denial of the stay of execution.

Inasmuch as the Court majority finds all of relator’s contentions in this application to be without merit, granting the stay would serve no purpose other than to cause delay and retard the judicial process. Therefore, I concur in the denial of the stay of execution.

Nonetheless, I believe that one of relator’s contentions has merit. Relator argues that the District Attorney’s reference, in his closing argument to the jury in the penalty phase of the trial, to automatic review by the Supreme Court of all death cases constitutes reversible error. I have previously expressed my views on this issue in a dissent from this Court’s refusal to grant a rehearing in State v. Berry, 391 So.2d 406 (La.1980).

Just as in Berry, the prosecutor here presented lengthy argument to the jury emphasizing specific statutory provisions concerning the appellate review process in death cases in an effort to convey to the jury that their responsibility for deciding this defendant’s fate was lessened by the fact that their decision was not a final one. As I stated in Berry, it is my view, as well as the view expressed in the overwhelming majority of cases from other jurisdictions, that comments by the prosecuting attorney in his argument to the jury during the penalty phase of a capital trial that a higher court will review their findings are calculated to induce the jury to disregard their responsibility, and that such argument constitutes reversible error. 75 Am.Jur.2d § 230; Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977); Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977); Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365 (1975); State v. Gilbert, 258 S.E.2d 890 (S.C.1979); State v. Tyner, 258 S.E.2d 559 (S.C.1979); State v. Jones, 296 N.C. 495, 251 S.E.2d 425 (1979); and People v. Johnson, 284 N.Y. 182, 30 N.E.2d 465 (1940).


text:
    Sandra FREDERICK v. CAMPBELL “66” EXPRESS, INC., and ABC Insurance Company.
    No. 81-C-0446.
    Supreme Court of Louisiana.
    March 27, 1981.
    On Reconsideration April 17, 1981.
   In Re: Campbell “66” Express, Inc., applying for reconsideration of granted writ of March 27, 1981, Court of Appeal, Fourth Circuit, No. 11,343, Parish of Orleans.

Application ordered returned to relator. Rule 7, § 7 of La.S.Ct. rules. Court of appeal properly affirmed trial court’s denial of plaintiff’s motion to recuse. However, under the circumstances, plaintiff’s case should not have been dismissed with prejudice because of the actions of her attorney. Hence, judgment of the Court of Appeal affirming the trial court’s dismissal with prejudice is reversed and the case is remanded to the trial court to enter a judgment of dismissal without prejudice, 392 So.2d 173.

Denied.

LEMMON, J., would grant.


author:
DIXON, Chief Justice.
     BOUTALL, Justice ad hoc,

text:
    STATE of Louisiana v. Reginald P. FONTANA.
    No. 66626.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Cari Parker-son, Dist. Atty., John R. Harrison, Sam A. Smith, Asst. Dist. Attys., counsel for plaintiff-appellee.
    Paul Henry Kidd, Monroe, counsel for defendant-appellant.
   DIXON, Chief Justice.

On February 20, 1978 the defendant was stopped and arrested on a warrant for issuing worthless checks. His car was impounded, and an inventory search disclosed a rubber tourniquet, two cloth armbands, syringes and a bottle containing a white powder later identified as phenmetrazine, a Schedule II controlled dangerous substance. Defendant was charged with knowing and intentional possession of phenmetrazine (R.S. 40:967). Found guilty by the jury, he was sentenced to five years at hard labor, suspended, and placed on five years supervised probation subject to the special conditions that he spend one year in Ouachita Parish jail and report to the Monroe Substance Abuse Clinic.

On appeal, defendant appears with new counsel and presents three assignments of error. He argues that he received ineffective assistance of counsel at trial. He claims that the trial court should have granted his motion for a mistrial after a police deputy testified that he was first arrested on a warrant for issuing worthless checks. Finally, he argues that his conviction should be reversed or the case remanded to permit him to file a motion for a new trial because there is no evidence to prove that he possessed phenmetrazine illegally. Defendant claims that at the time of his arrest he had a valid prescription for Prelu-din, which is composed mainly of phenme-trazine. We find that the evidence supports the defendant’s position and therefore reverse the conviction on this ground, pre-termitting discussion of the other two assignments of error.

Defendant filed no motion for acquittal or for new trial. However, this omission no longer precludes review, as it once did, for we have held that a refusal to review an allegation that the state failed to present any evidence of the crime charged (or of an essential element) simply because no such motions have been filed is patently unfair and denies the defendant due process. State v. Boutte, 384 So.2d 773 (La.1980); State v. Peoples, 383 So.2d 1006 (La.1980). Moreover, the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and adopted by this court in recent cases, requires us to determine not whether there is any evidence to support the conviction, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime proved beyond a reasonable doubt.

An examination of the evidence adduced at trial discloses that the essential element of the crime — illegal possession of the controlled dangerous substance — was not proved. R.S. 40:967(0) states in part:

“It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner

It is, therefore, permissible for a person to possess a Schedule II substance if he obtains it “directly, or pursuant to a valid prescription” from a practitioner. In this case two physicians testified that they had prescribed Preludin for the defendant on several occasions. Dr. Henry Jones, Jr. testified that he first saw the defendant on July 18, 1977; he prescribed Preludin on that day and on three other visits to help the defendant control his weight. Dr. Jones testified that phenmetrazine was the major component of Preludin and that he never prescribed phenmetrazine itself to patients. Dr. Henry Roan testified that he prescribed Preludin for the defendant several times, including February 15,1978, five days before defendant’s arrest.

The two pharmacists who testified at trial stated that they knew phenmetrazine only as Preludin. Michael Napoli testified that he filled Preludin prescriptions for the defendant on four different occasions. All the prescriptions were ordered by Dr. Jones and were for thirty 75 mg. tablets, a thirty day supply. Mike Scott testified that his records showed nine Preludin prescriptions had been filled for the defendant. These prescriptions were also for thirty 75 mg. tablets.

Three criminalist experts in the field of chemical analysis of controlled dangerous substances also testified. One stated that the 75 mg. Preludin tablet was a time release pill composed of two layers, an outer pinkish coating of inert ingredients, and a white core of phenmetrazine. He explained that if the tablet was broken and placed in water, the phenmetrazine would dissolve and filter into the water. The pink coating would not dissolve and could be removed. Boiling off the water would then leave as residue the white powder found in the defendant’s possession. Another criminalist testified that phenmetrazine was the only drug in Preludin, and that Preludin was the only drug that contained phenmetrazine. A third testified that when he saw phenme-trazine, he presumed that it came from Preludin. He stated that phenmetrazine could probably be manufactured by a clandestine chemist, but he had never seen any clandestine phenmetrazine.

The evidence presented does not establish beyond a reasonable doubt that the defendant possessed phenmetrazine illegally, that is, without a valid prescription. While the defendant may have been separating his properly obtained Preludin into its component parts and using it in manner different from that prescribed by his physicians, R.S. 40:967(C) does not prohibit such activity. The state did not argue or present any evidence at trial that the defendant used misrepresentation, fraud, deception or subterfuge to obtain the prescriptions. It did not allege that the defendant forged the prescriptions.

Since the evidence assembled by the state does not prove the offense charged, the verdict must be overturned and the conviction reversed. Because the reversal is based on the failure of the evidence to prove an essential element of the crime charged, the double jeopardy clause of the Fifth Amendment bars a second trial of the defendant, and he must be discharged. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

The conviction is reversed, the case is dismissed, and the defendant is ordered discharged.

BOUTALL, J. ad hoc, dissents with reasons.

BOUTALL, Justice ad hoc,

dissenting.

The decision in this case is based upon weighing the evidence presented by the state against the defense that the substance was obtained by prescription. The jury as a finder of fact is entitled to make a credibility evaluation. Under Louisiana Constitution of 1974, Art. 5 § 5(B) the appellate jurisdiction of the Supreme Court in criminal cases extends only to questions of láw. We should not ignore this limitation under the aegis of Jackson v. Virginia.

       Judges James C. Gulotta, John C. Boutall and Patrick M. Schott of the Fourth Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . Defendant’s first counsel did not file any pretrial motions, to suppress the evidence, to quash the indictment, or for a preliminary examination or bill of particulars. He also failed to file a motion for a new trial.

      . The trial judge admonished the jury to disregard the remark. Defendant believes that the admonition did not correct the prejudicial effect of the remark. He argues that the jury may have concluded that he "forged the prescriptions when they heard that he was wanted for issuing worthless checks. He also claims that he was really being tried for illegal use of a controlled dangerous substance and that the implication of moral turpitude prejudiced his case.

      .See State v. Harveston, 389 So.2d 63 (La.1980); State v. Guillot, 389 So.2d 68 (La.1980); State v. Morgan, 389 So.2d 364 (La.1980).

      . He also prescribed Preludin on January 3, 1978, March 21, 1978, June 14, 1978, July 19, 1978, August 28, 1978, September 20, 1978 and October 10, 1978.

      . July 18, 1977, August 15, 1977, October 5, 1977 and March 30, 1978.

      . Three prescriptions were written by a Dr. Roger Sharp and filled on November 1, 1976, August 4, 1977 and September 1, 1977. Six were written by Dr. Roan and filled November 1, 1977, May 3, 1978, July 19, 1978, August 28, 1978, September 20, 1978 and October 10, 1978.

      . R.S. 40:971(B)(1) states in part:
      “It shall be unlawful for any person knowingly or intentionally:

      (b) To acquire or obtain possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge: or

      (e) To alter any controlled dangerous substance obtained by prescription without prior approval of the department;

      (g) To obtain or attempt to obtain a prescription or prescription blank form from a doctor, dentist, or veterinarian for a controlled dangerous substance and/or legend drug by fraud, theft, misrepresentation, deception or subterfuge.”


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Roosevelt DISON.
    No. 80-KA-2191.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., S. Michael Henry, Asst. Dist. Atty., for plaintiff-appellee.
    Charles R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, for defendant-appellant.
   DIXON, Chief Justice.

Defendant was convicted of first degree murder and was sentenced to life imprisonment. The charge arose out of the “contract killing” of Charles Rollo in Natchi-toches Parish. Although circumstantial evidence was adduced at trial that tended to confirm defendant’s involvement in the crime, the state’s case relied primarily upon a confession given by defendant, in which he admitted shooting the victim after he was offered money to do so. We are called upon to review the admissibility of the confession.

The basic facts of this case are not in dispute. On Easter Sunday of April 15, 1979, Charles Rollo was killed by a shotgun blast while standing in the driveway of his home in Natchitoches. A passing motorist saw a light colored automobile pulling out of the driveway at the time that the homicide was committed; steam was escaping from the hood of the car. A short while later, the same motorist again saw the car, stopped at the foot of a bridge. He was unable to identify the driver. When the officers investigating the shooting received this information, they contacted a service station manager in nearby Powhatan. They learned that defendant had stopped at the station twice on the Saturday before the murder, driving a yellow Cadillac that had been overheating. On Thursday, April 19, defendant was stopped for questioning in Coushatta. He was later arrested. The murder weapon was subsequently recovered from the waters beneath the bridge; it was eventually traced to Don Willie, a neighbor of James Ray Salim.

Although there is some question as to whether defendant received his Miranda warnings at the time of his arrest in Cous-hatta, it is clear that no statements were obtained from him at that time. However, defendant testified that, during the time that he was questioned in Coushatta, a deputy told him that “if I would lay my cards on the table, he would see to it that I come out of this smelling like a rose.”

Defendant was then transported to Natchitoches. He was not questioned during the trip. After he arrived at the Natch-itoches jail, though, defendant claimed that a deputy told him to take off his shirt, stating, “Now, what he need (sic) is a boot in the rear end.” Defendant was questioned for several hours on the night of April 19. During this questioning, he alleged that an unidentified plainclothes officer told him, “Don’t you know .... that .... people .... they will find you in the river, and no one know how you got there?” Although defendant stated that this menacing statement troubled him in the days to come, he continued to refuse to divulge any information about the homicide.

On the morning of Friday the 20th, defendant was reportedly questioned again for a short while. He stated that no “concrete promises” were made to him, but that deputies “said they couldn’t do it, they’d get ... the sheriff to do it.”

Pursuant to C.Cr.P. 230.1, a hearing was held on Saturday the 21st, at which time defendant was fully informed of his right to counsel. Although the chronology is not clear from the record, defendant had been contacted by Robert L. Salim, an attorney, at some time during this period, in regard to legal representation. At the “72-hour hearing,” defendant informed the judge that he did not want an appointed counsel, because he was attempting to retain an attorney privately. However, attorney Sal-im’s fee was not acceptable to defendant’s family, and he never became counsel of record. The record does not indicate when, if ever, defendant learned that Mr. Salim would not represent him. Defendant did learn that Robert Salim was the brother of James Ray Salim, and deputies allegedly told him that Robert Salim had visited him in jail to find out the location of his cell, “so they can send somebody in there to kill you.” Defendant, according to his own testimony, was unmoved by this warning: “It didn’t disturb me one way or the other.... I didn’t believe it.”

The record does indicate that telephone calls were received at the Natchitoches jail, in the nature of threats on defendant’s life. Because of this, the sheriff’s office decided to remove defendant from Natchitoches. In the early morning hours of April 24, defendant was taken to Lake Charles by Deputies Delphin and Coleman. Defendant stated that the two officers attempted to question him about the homicide again, but that he forestalled them:

“... I didn’t want to make ’em angry .... cause I didn’t know what was going on, I didn’t know .... man, after this guy had told me, that, ‘You know you can get caught in the river, and nobody know how you got there,’ that was on my mind, so I didn’t know what was happening, so, you know, to keep from telling them don’t ask me no questions, I just got off on another conversation.”

Defendant’s conversation during the drive was centered on the Muslim religion, rather than the homicide. However, defendant claims that the two deputies told him that the murder weapon had been discovered, and that it had been traced to him by his prints. Defendant also alleged that Deputy Delphin told him that, although he could not personally offer him any promises of leniency, the- sheriff could, and that the sheriff could purchase an airplane ticket and send defendant wherever he wanted to go-

Upon arriving in Lake Charles, defendant asked to talk privately with Sheriff Sam James, of Natchitoches Parish. Sheriff James was contacted, and he arrived in Lake Charles several hours later. Defendant and the sheriff had. a private talk. It is disputed whether defendant was given his Miranda warnings prior to this conversation. Defendant’s version of the substance of the talk is as follows:

“Okay. He told me, he said, ‘Son,’ he said, ‘if you put your cards on the table with me,’ he said, ‘if you be fair with me, I’ll be fair with you,’ he say, T promise you I’ll do everything to help you. If you lay your cards on the table,’ he said, ‘you’ll come out of this smelling like a rose.’ He said, T could. .. . ’ I say, ‘That sure is a nice suit you got on.’ He say, ‘Yeah, I can get you one just like it. And I can buy you a ticket and put you on a plane and have you out of here. Send you anywhere you want to go.’ And, uh .... I questioned him. I said, ‘Could you do that?’ He said, ‘Yeah, I can do it.’ And, he said, T will do it.’
Q. What else, if anything, did he tell you?
A. That’s about all he told me.”

In addition, defendant later remembered that the sheriff told him that he would have an armed robbery charge dropped if defendant would make a confession. Defendant also claimed that many other promises were made, but that he could not remember them all.

Immediately after his conversation with the sheriff, in which defendant admitted killing the victim, defendant was taken into a room with the two deputies from Natchi-toches Parish and another deputy, to transcribe the confession. Again, the testimony concerning the Miranda warnings is contradictory.

On May 5, defendant was moved from Lake Charles to Many, again for reasons of safety. The sheriff and an unidentified deputy accompanied defendant, and defendant contends that the sheriff repeated the promises he had made in Lake Charles. Subsequently, defendant was questioned in Many by Deputies Coleman and Delphin, and a two page statement was transcribed. The purpose of taking this statement was said to be to clarify some areas of doubt in the prior, four page confession.

At the hearing on the motion to suppress, the testimony of Deputies Delphin and Coleman and that of Sheriff James completely contradicted defendant’s. At trial, the three officers essentially reiterated their testimony that no inducements had been offered to defendant prior to the confession, and that defendant was fully apprised of his constitutional rights.

R.S. 15:451 clearly states that it is the prosecution’s burden to prove that a confession was obtained voluntarily before it can be admitted into evidence:

“Before what purposes to be a confession can be introduced in evidence, it must be “affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

It is obvious that, if the allegations made by defendant are true, the confession would be inadmissible. The critical question is whether the state satisfactorily rebutted the claims made by defendant and carried its burden of proving the voluntariness of the confession. In this regard, two principles are pertinent. First, the state cannot rely upon general disclaimers that no undue influence was brought to bear upon a defendant who confesses to a crime: the defendant’s specific allegations must be specifically rebutted. See State v. Franklin, 381 So.2d 826 (La.1980), State v. Davis, 380 So.2d 607 (La.1980). Second, when credibility is at issue, a trial judge’s determination should not be upset unless it is unsupported by the evidence. See State v. Robinson, 384 So.2d 332 (La.1980), State v. Jackson, 381 So.2d 485 (La.1980).

Defendant’s version of the events leading up to his confession contains several salient points. From the time that he was arrested until the time he arrived in Lake Charles, defendant had been unwilling to divulge any information concerning the homicide. He made no inculpatory statements until he had a private talk with Sheriff James. For this reason, it does not appear that the allegations concerning the conduct of the various officers before the trip to Lake Charles are particularly relevant. Defendant stated that, when he was questioned in Natchitoches, he “took the Fifth;” on the drive to Lake Charles he managed to maneuver the conversation away from his involvement in the homicide. Defendant stated that he knew that only Sheriff James could make any “concrete promises” of leniency, and for that reason refused to talk to the two deputies. It was not until after his conversation with the sheriff that defendant made his confession; he stated firmly that he would not have confessed but for the sheriff’s inducements.

It should also be noted that defendant had previously been imprisoned after a conviction for negligent homicide; nothing in the record indicates that defendant was not able to understand his right to remain silent or his right to the assistance of counsel. The record does indicate that defendant was informed of his rights on numerous occasions.

Point by point, Sheriff James contradicted defendant’s version of their conversation. The sheriff positively testified that he made no promises at all to defendant: “... I couldn’t promise him anything. It would be left up to the court system.” The sheriff further testified:

“I told Dison this. What he needed to do was lay the cards on the table. Just tell .... all I wanted him to do was tell the truth about what happened, and who all was involved.
... All I was trying to do is get him to implicate who all was involved.”

The sheriff’s statement underscores the fact that defendant’s confession was something of a breakthrough in the investigation of the murder. The investigating authorities were convinced that the murder was the product of a conspiracy, but no firm evidence existed as to the identity of those involved. By implicating others, defendant’s confession gave valuable assistance to the investigation. To this extent, defendant may have thought that his cooperation with the sheriff would be to his benefit. His belief was certainly confirmed when, subsequent to the confession, he met with Sheriff James and Judge Cunningham. According to the sheriff, the judge advised defendant to “stand pat” by his statement; according to defendant, the judge told him that he would either have the armed robbery charge dropped or make the sentence concurrent with the sentence on .the murder charge. This unusual meeting, even though it occurred after the confession was obtained, appears to have given an official sanction to defendant, and surely might have confirmed his belief that the confession might entitle him to favored treatment.

Indeed, the sheriff admitted that he told defendant, “... in the past, anybody that tried to help themselves, usually got help.” When the second statement was taken from defendant in Many, Deputy Coleman testified that he remarked to defendant that, if he cooperated, he would do what he could to help him. Both officers testified, however, that they told defendant that they could promise him nothing. Absent such an admonition, and in light of all the circumstances of the case, these statements would certainly constitute prohibited inducements.

Even if we accept the trial judge’s determination that defendant’s version of his conversation with the sheriff is not worthy of belief, the testimony of the sheriff and Deputies Coleman and Delphin is deeply troubling. The law has long been settled that confessions obtained by “any direct or implied promises, however slight, [or] by the exertion of any improper influence,” are inadmissible under the terms of the Constitution. Bram v. United States, 168 U.S. 532, 542-43; 18 S.Ct. 183, 187, 42 L.Ed. 568, 573 (1897). At the minimum, an implied promise was made to defendant that he would probably receive some type of help if he confessed. Were it not for the sheriff’s sworn testimony that he told the defendant that he could make no promise or offer of leniency, this statement would constitute an improper exertion of influence over the defendant, rendering his confession inadmissible. Upon consideration of the entire transcript of this matter, it is evident that the sheriff genuinely negated any implication that defendant would receive special consideration in return for his confession. The sheriff’s statements to defendant that he could promise him nothing, and that the “court system” was the ultimate arbiter of his case, make the facts of this case similar to those in State v. Vernon, 385 So.2d 200 (La.1980), in which the defendant was merely told that his cooperation would be brought to the attention of the district attorney. As the sheriff later testified at trial:

“... I knew from the beginning, or I figured I knew, that there was more involved in this deal than Roosevelt Dison. And if he wants to call it a promise, or anybody does, I told him to get all his cards on the table, because that was what it was going to take [before] the District Attorney, or the Judge, or any Court would give him any consideration. Just go ahead and tell the whole entire thing.”

We find no error in the trial judge’s determination that defendant’s testimony was simply not credible. The prosecution satisfactorily rebutted defendant’s allegations that he was coerced and induced into confessing. And, because the record indicates that defendant was apprised of his rights and advised that no promises could be made to him, we find no error in the admission of the confession.

The conviction and sentence are affirmed.

      . In his other assignment of error, defendant contends that he should have been permitted to testify at trial during the state’s case in chief for the limited purpose of giving his version of the events leading up to the confession. Reliance is placed upon the opinion in State v. Lovett, 345 So.2d 1139 (La. 1977). Defendant fails to note that the rationale underlying the Lovett decision was legislatively supplanted in 1978, when C.Cr.P. 703(B) was amended to provide that a defendant who becomes a witness at trial is subject to cross-examination on the entire case. Acts 1978, No. 746. The constitutionality of the provision was upheld in State v. Day, 391 So.2d 1147 (La.1980). This assignment of error is without merit.


text:
    STATE of Louisiana v. James COOK.
    No. 80-KA-2188.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., Abbott J. Reeves, J. Donald Cascio, Haydn S. Berey, Asst. Dist. Attys., for plantiff-appellee.
    Cynthia Fayard, Denham Springs, for defendant-appellant.
   CALOGERO, Justice.

Defendant James Cook was charged by bill of information with possession of marijuana with intent to distribute, an offense in violation of R.S. 40:967(A)(1), allegedly committed on February 23, 1979. After trial by jury, a sentence of five years’ imprisonment at hard labor was imposed.

Defendant relies on two assignments of error, neither of which has merit. Article 920 of the Code of Criminal Procedure mandates that which shall be considered by this Court on appeal, including “.. . error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” Because there is error in the jury’s verdict discoverable by mere inspection of the pleadings and proceedings, we must reverse the conviction and order the defendant retried.

The penalty for violation of R.S. 40:967(AX1), possession of marijuana with intent to distribute, is a maximum of ten years’ imprisonment at hard labor. R.S. 40:967(BX2). Therefore, according to the Louisiana Constitution of 1974, Art. I, § 17, and according to C.Cr.P. art. 782, the offense is triable by a jury consisting of no less than twelve persons, ten of whom must concur to render a verdict. In his instructions to the jury, the trial judge erroneously stated that only nine of the jury’s number needed agree to render a verdict. This error in instruction which is not discoverable by this Court absent objection may nevertheless explain the events which later transpired.

After charging the jury, the judge gave them a list of the verdicts responsive to the offense charged, as is required by C.Cr.P. art. 809. The verdict sheet contained inked notations on both the front and the back. On the front, typewritten, was the following:

“RESPONSIVE VERDICTS GUILTY
GUILTY OF ATTEMPTED DISTRIBUTION OF MARIJUANA
GUILTY OF POSSESSION OF MARIJUANA
GUILTY OF ATTEMPTED POSSESSION OF MARIJUANA NOT GUILTY”

Beside the third and fourth options, “GUILTY OF POSSESSION OF MARIJUANA and GUILTY OF ATTEMPTED POSSESSION OF MARIJUANA”, there appeared no markings. Beside the first entry, “GUILTY”, there appeared nine strokes, or “1” entries. Beside “NOT GUILTY” appeared two strokes or “l’s”. And beside “GUILTY OF ATTEMPTED DISTRIBUTION OF MARIJUANA” there appeared one stroke, or “1”.

On the reverse of the verdict sheet there appeared the entry signed by the foreman “We the people of the jury find the defendant Guilty.” Beneath that recitation appeared the following:

“Guilty — 9
Possession — 0
Dist. — 1
Not Guilty — 2”

It is evident from the review of the typewritten list of responsive verdicts and from the corresponding handwritten entries on the reverse with a 9-0-1-2 tally that the single entry beside “Dist.” on the reverse was intended to correspond with a single stroke appearing on the front of the responsive verdict beside “GUILTY OF ATTEMPTED DISTRIBUTION OF MARIJUANA.” (Underscore provided.) We conclude that the evident recitation of the jury’s vote from a construction of these various entries is that nine jurors voted for guilty, one for guilty of attempted distribution of marijuana, and two for not guilty. It is also clear that under the law only nine votes in favor of guilty of the charged crime is insufficient to convict inasmuch as the 1974 constitution requires ten.

The trial judge accepted the jury’s verdict apparently continuing in his misapprehension concerning the number of concurrences required for a conviction. He did, of course, poll the jury after being presented the inscribed verdict sheet, but his question and the juror responses as appear in the record are ambiguous. The question was “[i]s this your verdict?”, and apparently each of the jurors in turn answered affirmatively. It is noteworthy that each juror was not instructed to state his individual vote, nor asked whether he had voted “guilty”, but was rather asked to state whether or not the verdict was “your verdict.” Given the written vote tally on the verdict sheet, it seems clear to us that the affirmative response of at least three of the jurors signified not that they actually voted for “guilty”, but rather that they had participated in the voting and that the verdict sheet accurately reflected that participation and the jury’s verdict. We conclude that the verdict sheet and the entries thereon, indicating a 9-0-1-2 tally, express the true verdict and vote of the jury, nine jurors only concurring in the finding of guilty.

As previously stated, the trial judge’s error in the instruction is not part of the record for this Court’s error patent review and is therefore, absent objection, not grounds for reversal of the conviction. State v. Chaney, 273 So.2d 259 (La.1973); State v. Bueche, 243 La. 160, 142 So.2d 381 (1962); State v. Marqueze, 45 La.Ann. 41, 12 So. 128 (1893). The verdict of the jury, however, is discoverable in the pleadings and proceedings for purposes of the errors patent review, as we have repeatedly held. State v. Sanford, 248 La. 630, 181 So.2d 50 (1965); State v. Craddock, 307 So.2d 342 (La.1975); and the verdict proper surely includes those markings placed upon the verdict sheet by the jury. As earlier noted, the sheet included, in addition to the foreman’s designation of the guilty verdict, a vote tally, and on the reverse, markings indicating a pre-tally count. This verdict, therefore, represents a finding of guilty with only nine juror concurrences. Since we find error evident in the verdict, the defendant’s conviction must be reversed.

In the absence of a concurrence of ten of the twelve jurors, there was no legal verdict rendered, either of conviction or of acquittal. Hence, it is proper that the defendant be retried. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824).

Decree

Accordingly, for the reasons set out above, the defendant’s conviction is reversed and the defendant is remanded to the district court for retrial.

REVERSED AND REMANDED.

      . The state alleges that defendant sold to a confidential informant for ten dollars a certain quantity of marijuana.

      . Prior to July of 1978, this crime was included under R.S. 40:966. The reclassification, however, did not entail an alteration of the attendant penalty.

      . These assignments deal with the trial judge’s determination at a preliminary hearing that there existed probable cause to hold defendant for trial, and additionally with the admission at trial of evidence used to impeach defendant’s testimony.

      . Defense counsel objected at trial to the court’s charge regarding the number of juror concurrences required to render a legal verdict in the case, although not for the reason that such verdict would require ten votes (rather, counsel claimed that only a unanimous verdict was legal). However, this objection was not preserved for review by assignment of error and/or argument in support thereof. State v. Stoltz, 358 So.2d 1249 (La.1978).


author: MARCUS, Justice.

text:
    Mr. and Mrs. Byron TASSIN and Jacqueline Carr v. SLIDELL MINI-STORAGE, INC., Aetna Insurance Company, Sidney Tiblier III, Rodney Zeringue, Stovall Construction Company and Overhead Door Company.
    No. 80-C-2378.
    Supreme Court of Louisiana.
    April 6, 1981.

      Jacqueline Carr, Slidell, William M. Ma-gee, Mandeville, for plaintiffs-applicants.
    Bienvenu, Foster, Ryan & O’Bannon, William L. Brockman, New Orleans, Thomas H. Gray, Slidell, Schafer & Schafer, John J. Messina, Gary M. Heilman, New Orleans, for defendants-respondents.
   MARCUS, Justice.

Mr. and Mrs. Byron Tassin and Jacqueline Carr instituted this action for damages sustained to furniture and related items stored in units leased by them in a storage facility known as Slidell Mini-Storage, Inc. Made defendants were Slidell Mini-Storage, Inc., Sidney Tiblier III and Rodney Ze-ringue, owners of the storage facility, and their insurer, Aetna Insurance Company. Also named defendants were Stovall Construction Company, contractor of the storage facility, and Overhead Door Company, installer of the doors of the facility.

Defendants (owners/lessors) and their insurer answered generally denying the allegations of the petition and further answered by affirmatively asserting no liability on their part on the ground that the contracts entered into between plaintiffs and Slidell Mini-Storage explicitly provided that Slidell Mini-Storage would not be responsible for any loss caused by water.

The trial judge found that the damage to the goods was caused by water that found its way into the leased units. He further held that despite the clause in each agreement exculpating the lessor for the loss of property stored on the premises caused by “water,” the owners of the storage facility were nevertheless liable to plaintiffs under La.R.S. 9:3221 since they knew or should have known that the doors on the units were defective inasmuch as they would not withstand the heavy rains and thunderstorms that are common, natural phenomena in southeast Louisiana. Further finding that plaintiffs clearly proved the amount of damages to their property, he rendered judgment in favor of Mr. and Mrs. Tassin for $4,802 and in favor of Jacqueline Carr for $3,140 and against Slidell Mini-Storage. He further dismissed all third party demands. Slidell Mini-Storage and Aetna were the only parties to appeal. Plaintiffs did not answer the appeal. The court of appeal reversed, finding that the clause in each lease exculpating the lessor for loss of property by water controlled and precluded the imposition of liability on Slidell Mini-Storage. The court further held that, even assuming that La.R.S. 9:3221 was applicable, there was no evidence in the record supportive of a finding that Slidell Mini-Storage knew or should have known of the alleged defect. Upon plaintiffs’ application, we granted certiorari to review the correctness of this decision.

The record reflects that plaintiffs entered into identical warehouse lease agreements with Slidell Mini-Storage. The Tassin lease, executed by Byron Tassin, was for unit 16 and was dated April 29, 1976. The Carr lease, executed by Alfred E. Carr, Jr. as agent for his daughter, Jacqueline Carr, was for unit 15 and was dated February 16, 1977. Each agreement contained the following provision under “2. Insurance”:

Insurance on property stored on. said premises for loss caused by fire, water, theft, Acts of God, or otherwise, shall be obtained at Depositor’s option and expense and Warehouseman shall not be responsible for any such losses, whatsoever.

Both Mr. Tassin and Mr. Carr testified that they read the contracts in their entirety including the clause regarding insurance; however, no insurance was obtained on the goods stored in the warehouse.

Subsequent to the execution of the agreements, plaintiffs moved furniture and related items into the units for storage. Upon opening their respective units on or about March 11,1977, plaintiffs found them to be very damp and most of the items were mildewed and discolored. Ms. Carr and her father testified that items in the back of the unit were sitting in approximately two to three inches of water. Mr. Carr noted that there was no water in the front by the door.

Mr. Carr, qualified as an expert in the building industry, testified that the overhead doors on storage units 15 and 16 did not close flush with the concrete slab flooring despite the rubber stripping on the bottom of the doors, thereby leaving a gap between the door and concrete of about one-fourth inch when the doors were fully closed and locked. Photographs received in evidence revealed that a person could reach a hand and part of an arm under the door and into the unit even when the door was fully closed and locked. Further testimony by Mr. Carr and other witnesses as well as photographs taken of the area showed the concrete slabs of these particular units sloped toward the back of the units. Mr. Carr opined that the cause of the water getting into the unit was the fact that the “door did not seal properly” and that water that entered by rain or otherwise would remain on the floor because the “slab was not level, or sloping toward the front.” Testimony by several witnesses as well as certified National Weather Service records indicated that while there was considerable rainfall and thunderstorms during the three weeks prior to March 11, 1977, the weather conditions were not unusual for that time of the year in southeast Louisiana. Defendants offered testimony to the effect that the concrete flooring and overhead doors of the mini-storage units including 15 and 16 were not defectively constructed. Mr. Tiblier, one of the owners of the facility, testified that he had never received any complaints of water damage from any of the tenants either prior or subsequent to the commencement of this suit.

It is clear that the relationship existing between plaintiffs and Slidell Mini-Storage pursuant to the warehouse agreements was one of lease and is therefore governed by the rights and obligations under Louisiana law pertaining to lease agreements. La. Civ.Code art. 2695 provides:

The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects the lessor shall be bound to indemnify him for the same.

Nevertheless, the owner can shift responsibility for condition of the premises including liability for injury caused by any defect therein to the lessee pursuant to La.R.S. 9:3221.

However, the codal articles and statutes defining the rights and obliations of lessors and lessees are not prohibitory laws which are unalterable by contractual agreement, but are simply intended to regulate the relationship between lessor and lessee when there is no contractual stipulation imposed in the lease. General Leasing Co. v. Leda Towing Co., Inc., 286 So.2d 802 (La.App. 4th Cir. 1973), cert. denied, 290 So.2d 334 (La.1974). All things that are not forbidden by law may become the subject of or the motive for contracts and, when legally entered into, the contracts have the effect of law between the parties who have made them. La.Civ.Code arts. 1764, 1901. Our jurisprudence is that the usual warranties and obligations imposed under the codal articles and statutes dealing with lease may be waived or otherwise provided for by contractual agreement of the parties as long as such waiver or renunciation does not affect the rights of others and is not contrary to the public good. Louisiana National Leasing Co. v. A. D. F. Services, Inc., 377 So.2d 92 (La.1979); Klein v. Young, 163 La. 59, 111 So. 495 (1972); General Leasing Co. v. Leda Towing Co., Inc., supra. We must therefore determine if the warehouse agreements in the instant case containing the exculpating clauses effectively relieved owners/lessors of liability to plaintiffs imposed under Louisiana lease law for damages to plaintiffs, goods stored on the leased premises.

First, we are convinced that the damage to plaintiffs’ property was caused by water that entered and remained in the storage units due to defects in the structure. Plaintiffs proved by a preponderance of the evidence that the doors and concrete flooring of storage units 15 and 16 were such as to allow water to blow or seep into the units. The doors did not close properly and the concrete sloped to the rear rather than to the front. Moreover, we consider that the clause in each lease agreement clearly and unambiguously transferred liability of the owners/lessors for loss caused by water to property stored on the premises to the lessees including water loss caused by a vice or defect in the premises. The lessees assumed this responsibility by freely entering into the warehouse agreements, thereby dispensing with the implied warranty in their favor established by La.Civ. Code art. 2695.

Although plaintiffs assumed responsibility for water damage caused by a vice or defect in the premises, we are convinced that the owners/lessors knew or should have known that the storage units were defective in that they did not secure against the entering of water into the units resulting from rain normally occurring in southeast Louisiana. It should have been obvious to them that, since the doors did not close flush with the concrete flooring which sloped to the rear, water would enter the units and cause damage to property located therein. Moreover, since the units did not contain shelving, they should have been aware that property would be placed on the flooring and would be affected by any water that might enter and accumulate in the units.

Under the circumstances, even though the lessees assumed responsibility for water damage caused by a vice or defect in the premises, La.R.S. 9:3221 did not relieve the owners/lessors of the responsibility imposed on them by La.Civ.Code art. 2695 because they should have known of the defects in the premises. This is the conclusion reached by the trial judge. We are unable to say that it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1980). To the contrary, we consider that the record fully supports this conclusion. Accordingly, we must reverse the judgment of the court of appeal and reinstate that of the trial judge.

DEGREE

For the reasons assigned, the judgment of the court of appeal is reversed and the judgment of the district court is reinstated and made the judgment of this court. All costs of this appeal are assessed against Slidell Mini-Storage, Inc.

      . These defendants further asserted a third party demand against Overhead Door Company alleging that any damage to plaintiffs’ property was due to the negligent installation of the storage unit doors. Stovall Construction Company answered denying the allegations of plaintiffs’ petition. Overhead Door Company answered denying the allegations of plaintiff petition and third partied the other defendants for indemnification and/or contribution should the plaintiffs be successful in their suit.

      . La.R.S. 9:3221 provides:
      The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

      . 388 So.2d 67 (La.App. 1st Cir. 1980).

      . 394 So.2d 605 (La.1980).


text:
    DREHER CONTRACTING & EQUIPMENT RENTAL, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 80-CA-2407.
    Supreme Court of Louisiana.
    April 6, 1981.
    Adcock, Dupree & Shows, Jeff Hughes, Herschell C. Adcock, Baton Rouge, for plaintiff-appellant.
    Marshall B. Brinkley, Baton Rouge, for defendant-appellee.
    Charles H. Ryan, Janet Boles Chambers, Boles & Mounger, Baton Rouge, for interve-nor-appellee.
   MARCUS, Justice.

This case involves the Louisiana Public Service Commission’s grant of a certificate of public convenience and necessity to Loyd Brown, d/b/a Brown’s Vacuum Truck Service, authorizing him to transport fresh water and salt water (special commodities) by motor vehicle over irregular routes within Union and Ouachita Parishes.

An application for the aforesaid certificate was filed by Brown with the Commission on July 24, 1979. After publication of notice for hearing by the Commission, an opposition and protest was filed by Dreher Contracting & Equipment Rental, Inc., which had been granted a similar certificate for Union, Ouachita and Morehouse Parishes two years before. A hearing was held before an examiner on October 31, 1979. The application was considered at an open session of the Commission held January 21, 1980. The ^Commission found that in view of the evidence present in the record, “the public convenience and necessity require, and would be materially promoted by the granting of the authority sought.” Accordingly, the application was approved conditioned upon grantee’s compliance with the “laws and rules and regulations of the Commission bearing thereon.” The order of the Commission was dated February 1, 1980.

After the order became effective, Dreher, pursuant to La.R.S. 45:1192, filed a petition in the district court setting forth its cause of objection to the order of the Commission. The petition alleged that the decision of the Commission was arbitrary and capricious and that no showing was made that the public convenience and necessity would be materially promoted by the granting of this certificate. The Commission answered generally denying the allegations of the petition. Brown intervened uniting with the Commission in resisting Dreher’s action. After a hearing, the district judge, finding “some factual evidence” to support the Commission’s finding that the public convenience and necessity would be promoted by granting the certificate to Brown, affirmed the order of the Commission. Dreher appealed to this court pursuant to La.Const. Art. 4, § 21(E).

On appeal to this court, Dreher contends that the district court erred in holding that the scope of judicial review of an order of the Commission requires only a finding that some evidence was presented which supported the Commission’s issuance of the order and further that the evidence presented in this case did not support the Commission’s granting of the certificate.

La.R.S. 45:164 provides in pertinent part:

No motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of public convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.

The principles are well settled for judicial review of Commission orders granting certificates of public convenience and necessity under this provision. The applicant has the burden of clearly showing that the public convenience and necessity would be materially promoted by the issuance of a certificate to it. Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972); Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644 (1965); Saia Motor Freight Line v. Louisiana Public Service Commission, 243 La. 787, 147 So.2d 390 (1962). The orders of the Commission and of other administrative bodies exercising discretionary authority are accorded great weight and will not be overturned in the absence of a showing that the administrative action is arbitrary and capricious. Truck Service, Inc. v. Lousiana Public Service Commission, supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra. A ruling of the Commission may not be deemed arbitrary unless it is shown that it is not supported by some factual evidence. Beauregard Electric Cooperative, Inc. v. Louisiana Public Service Commission, 378 So.2d 404 (La.1979); B & M Trucking, Inc. v. Louisiana Public Service Commission, 353 So.2d 1323 (La.1977); Truck Service, Inc. v. Louisiana Public Service Commission, supra. In other words, upon judicial review a court will not upset orders such as the one in this case unless after looking at the evidence it concludes that the Commission could not have reasonably concluded that there had been a clear showing that the public convenience and necessity would be materially promoted thereby, and that the Commission’s action was therefore arbitrary and capricious and a clear abuse of its power. B & M Trucking, Inc. v. Louisiana Public Service Commission, supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra.

The record reflects that Brown had been involved in hauling fresh and salt water used in oil and gas well drilling operations in Union and Ouachita Parishes for approximately five years prior to the hearing without having obtained a certificate. His operation was based in Sterlington in Union Parish. His equipment consisted of two vacuum trucks and one tank truck, and he employed four full-time employees. Brown had never been cited by the Commission for unauthorized transportation. Dre-her, which had been issued a permit by the Commission about two years earlier, had seven vacuum tank trucks, employed fourteen persons, and serviced customers in Ouachita, Morehouse and Union Parishes. Murphy Dreher testified that he had properly serviced customers in Union and Qua-chita Parishes in the past and could continue to do so.

Seven letters in support of Brown’s application were filed with the Commission prior to the hearing by various oil and gas-related firms in the area Brown serviced. The letters generally stated that Brown’s services in the past had been highly satisfactory, that the services were presently necessary and vital to the industry in that area, and that the need for those services was growing due to the increased drilling activities. Max Parker, a production superintendent for Mid-Louisiana Gas, testified that there was a need for Brown’s services in the area and that he felt that his business would be hurt and that he might experience some delays if Brown was denied authorization. Robert Freeman, president of Freeman Chemical and Concrete Company, also testified as to the need for Brown’s services and stated that his business could possibly be inconvenienced or delayed if Brown was denied certification. Both witnesses testified to an increased need for such services in the future with the drilling of more wells in the area and that there was a need for both Dreher’s and Brown’s services in the two parishes. There was further testimony suggesting that, because of Brown’s business location on the border of Union and Ouachita Parishes, he was able to service drilling sites in the two parishes more economically and efficiently than Dreher, whose base of operation was located in Bastrop in Morehouse Parish.

The district court properly stated the standard for judicial review of an order by the Commission granting a certificate of public convenience and necessity. Upon review, we find that the record contains sufficient evidence upon which the Commission could have reasonably concluded that there had been a clear showing that the public convenience and necessity would be materially promoted by granting a certificate to Brown. Clearly, the action of the Commission was not arbitrary and capricious.

DECREE

For the reasons assigned, the judgment appealed from upholding the Louisiana Public Service Commission’s grant of a certificate of public convenience and necessity to Loyd Brown, d/b/a/ Brown’s Vacuum Truck Service, is affirmed.

      . La.R.S. 45:1192 provides:
      If any of the persons, mentioned in R.S. 45:1191, or other party in interest, shall be dissatisfied with any order entered by the commission, adopting, fixing, changing, altering, or modifying, any rate, classification, rule, charge, or general regulation, the dissatisfied person may, within three months after the order made by the commission becomes effective, file in a court at the domicile of the commission, a petition setting forth the particular cause of objection to the order or regulation of the commission complained of. All such cases shall be tried in the same manner as civil cases and shall be given precedence over all other civil cases in the court, and shall be heard and determined as speedily as possible. The court may affirm the order of the commission complained of, or it may change, modify, alter, or set it aside, as justice may require.

      . La.Const. Art. 4, § 21(E) provides:
      Appeal may be taken in the manner provided by law by any aggrieved party or interve-nor to the district court of the domicile of the commission. A right of direct appeal from any judgment of the district court shall be allowed to the supreme court. These rights of appeal shall extend to any action by the commission, including but not limited to action taken by the commission or by a public utility under the provisions of Subparagraph (3) of Paragraph (D) of this Section.


author:
DENNIS, Justice. MARCUS, Justice
      BLANCHE, Justice

text:
    Alvin J. DUVALLE, Jr. v. LAKE KENILWORTH, INC. et al.
    No. 80-C-1405.
    Supreme Court of Louisiana.
    April 6, 1981.
    James S. Quinlivan, Jr., River Ridge, for plaintiff-applicant.
    S. Frazer Rankin, of Montgomery, Barnett, Brown & Read, New Orleans, for defendants-respondents.
   DENNIS, Justice.

The issue presented in this tort suit is whether summary judgment should have been granted declaring that plaintiff’s exclusive remedy is under the worker’s compensation statute. Resolution of the question depends on whether defendant has shown there is no genuine issue as to a material fact, i. e., that the work of Dennis Miller Pest Control Company performed for Lake Kenilworth, Inc., was either “a part of [Lake Kenilworth’s] trade, business or occupation or which [it] had contracted to perform” for purposes of establishing coverage by the worker’s compensation statute. La. R.S. 23:1061.

Plaintiff, Alvin J. Duvalle, Jr., was an employee of Dennis Miller Pest Control Company that had contracted with Lake Kenilworth, Inc. to provide pest extermination services for Lake Kenilworth’s apartment complex on a monthly basis. Duvalle brought this tort action for injuries he allegedly sustained when he tripped over loose carpeting while servicing one of defendant’s apartments. Defendant successfully moved for summary judgment on the grounds that since pest extermination was part of its trade, business or occupation, plaintiff’s exclusive remedy for his injuries was under the worker’s compensation statute because Lake Kenilworth was plaintiff’s “statutory employer,” against whom a worker cannot maintain an action for an unintentional tort. La.R.S. 23:1032, 1061. Plaintiff appealed contending that the record indicated there was genuine issue as to a material fact which could be determined properly only by a trial on the merits.

The court of appeal affirmed finding statutory employer status under a different rationale, i. e., that Lake Kenilworth had impliedly contracted with its tenants to provide pest control that was “work ... which [Lake Kenilworth] had contracted to perform,” La.R.S. 23:1061; 383 So.2d 408.

A motion for summary judgment should be granted where it is shown that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. La.C.C.P. art. 966; Cates v. Beauregard Electric Coop., 328 So.2d 367 (La.1976). The party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. Mashburn v. Collin, 355 So.2d 879 (La.1977). And where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Mashburn v. Collin, supra; United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 992, 8 L.Ed.2d 176 (1962); 6 Moore’s Federal Practice, § 56.15[1]; Green v. Southern Bell Tel. & Tel. Co., 204 So.2d 648 (La.App. 3d Cir. Í968).

In order for defendant to succeed under its motion as framed, it must be undisputed that Lake Kenilworth was plaintiff’s principal or statutory employer. To meet this test it must appear certain that the work undertaken by plaintiff’s actual employer, Dennis Miller Pest Control Company, was part of Lake Kenilworth’s trade, business or occupation or was work which it had contracted to perform. La.R.S. 23:1061.

The affidavits and deposition filed by the parties raise material issues of fact. It cannot be determined conclusively from the evidence of record whether the pest control services performed by Dennis Miller were part of Lake Kenilworth’s trade, business or occupation. From the deposition of the apartment company’s property manager, it appears that application of pesticides to the apartment interiors had always been done under contract by a firm specializing in this work. Consequently, this case is distinguishable from Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978), in which movant established that both Sun Oil and other oil companies regularly performed the same type work as was done under the contract at other facilities as part of their businesses with their own employees. Nor is it without debate that Lake Kenilworth had contracted with its tenants to provide the services or work performed by Dennis Miller. The record contains no reference to such an agreement or contract, permitting a reasonable inference that none existed.

Accordingly, we conclude that the defendant is not entitled to a summary judgment in this case. The judgments of the trial and intermediate appellate courts are reversed and the case is remanded for trial, subject to the right of intervenors Denny Miller, Jr. Pest Control and Morrison Assurance Company, Inc., to participate as co-plaintiffs.

REVERSED AND REMANDED.

MARCUS, J., concurs and assigns reasons.

BLANCHE, J., dissents and hands down reasons.

LEMMON, J., recused.

MARCUS, Justice

(concurring).

I concur. See Lushute v. Diesi, 354 So.2d 179 (La.1978).

BLANCHE, Justice

(dissenting).

I respectfully dissent. Even if the proof will show that Lake Kenilworth provides pest control services for its tenants, this fact will not make Lake Kenilworth the statutory employer of pest control employees. Lake Kenilworth is also responsible for keeping a roof over its tenants’ heads, and the plumbing and electrical services in good working order, but Lake Kenilworth’s “trade, business or occupation” is not that of a roofer, plumber or electrician. It is in the business of renting space and must employ independent contractors to keep the premises in a good state of affairs, but this fact does not put them in the apartment repair business. The distinction is that, although it requires repair services, it is not in the repair service business. R.S. 23:1061 was enacted for the benefit of the injured employee by preventing a general contractor (principal) from avoiding payment of workmen’s compensation by using a subcontractor who may be insolvent or incapable of making workmen’s compensation payments to the injured worker. Such a holding does not serve the purpose of the above statute and, on the merits, the furnishing of such a service is simply not the usual trade, business or occupation of the landlord even though it benefits his tenants, or even though it may be a service which the landlord contracts for their mutual benefit.

One of the far-reaching effects of such a decision is to require small property owners who own one or two rental units to purchase costly workmen’s compensation insurance if they plan to keep their property in repair, or either repair it themselves. This is so because just to own a house and rent it for a consideration puts the owner in the carpentry, plumbing, electrical, roofing, painting and other types of business beyond this writer’s imagination.

If the business of renting to others puts a landlord in the pest control business because he furnishes a pest control service to his tenants, or in the roofing business because it is necessary from time to time to have the roof repaired, or the plumbing business when he has to call the plumber, my concern is not for the landlord — it is for the renters who will ultimately pay.