author:
      DIXON, Chief Justice.
     PER CURIAM.

text:
    STATE of Louisiana v. William Glen ROY.
    No. 80-KA-1513.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., Kermit M. Simmons, Douglas H. Allen, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Kennedy & Yeager, Charles J. Yeager, Alexandria, for defendant-appellant.
   DIXON, Chief Justice.

On February 27,1979 at about 9:00 a. m., the defendant, a white male, left the Village Inn Restaurant in Winnfield, Louisiana and drove to some cottages located behind the restaurant, where he got out of his car and approached a young black woman who was carrying an infant and holding a child by the hand. The defendant pointed a pistol at the woman’s head, shouted at her and then shot her. He returned to his car and drove around Winfield at high speed, shooting three more black people (one fatally) before he was caught by the police.

On March 6, 1979 the defendant was indicted by the Winn Parish Grand Jury for the first degree murder of Willie Sean Davis. A sanity hearing was held on May 22, 1979 at which the defendant was found incompetent to stand trial and was committed to East Louisiana State Hospital for treatment. He was given large doses of a major antipsychotic drug called Navane and on September 27, 1979 he was declared capable of standing trial. He was immediately arraigned and entered pleas of not guilty and not guilty by reason of insanity. Trial began on January 28, 1980 and on January 30,1980 the jury returned a unanimous verdict of guilty as charged. Defendant’s motions for a new trial and in arrest of judgment were denied. He was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

In this appeal the defendant does not deny he killed the victim, but contends that he was not responsible for his act because he was insane at the time it was committed. He argues that the jury verdict is contrary to the law and the evidence because he established his insanity by a preponderance of the evidence, and, therefore, the trial court erred in denying his motion for a new trial. C.Cr.P. 851(1).

In Louisiana an adult defendant is presumed to be sane and responsible for his actions. R.S. 15:432. This presumption relieves the state from having to prove a defendant’s sanity in all cases; a defendant who wishes to rebut the presumption must prove the affirmative defense of insanity by a preponderance of the evidence. C.Cr.P. 652. To be exempted from criminal responsibility on grounds of insanity, the defendant must persuade the jury that he had a mental disease or defect which rendered him incapable of distinguishing right from wrong with reference to the conduct in question. R.S. 14:14. Because the determination of sanity is a factual matter reserved to the jury, derived from its evaluation of the evidence, this court has consistently refused to reverse convictions or to consider denials of new trial motions where defendants alleged that the evidence was insufficient to sustain the verdict, relying on Article 5, § 5(C) of the La.Const. of 1974 and C.Cr.P. 858, both of which restrict this court’s review in criminal cases to questions of law, only, and prohibit it from reviewing the sufficiency of the evidence.

Recently, in State v. Poree, 386 So.2d 1331 (La.1980), a case which also involved an insanity plea, a majority of this court reaffirmed that position. In its rehearing opinion, the majority acknowledged that the evidence of the defendant’s sanity was weak, but found it impossible to conclude that no evidence of sanity had been presented. The majority thought it could not hold that the trial court erred in denying the defendant’s motion for a new trial if there was any evidence on which the jury could have based its finding of sanity. Following its perceived constitutional mandate, the majority declared that it could consider error in the denial of a new trial motion only where a defendant contended that there was no evidence of an essential element of the crime charged, as such a contention presented a question of law., rather than a question of fact. In Poree the majority found the question presented was a factual one involving evidentiary sufficiency; hence the matter was excluded from review. Citing State v. Fletcher, 341 So.2d 340 (La.1976), the court declared that it had found no persuasive authority holding this limitation of review offensive to any constitutional guarantees of due process.

In our original Poree decision we recognized that the Louisiana Constitution’s limitation of review to questions of law only, and to cases in which “no evidence” is offered by the state as to an essential element of the crime, assures the defendant due process in most cases. However, we also noted that the Louisiana rule may deny a defendant due process of law when he bears the burden of proving by a preponderance of the evidence an affirmative defense. In such a case the “affirmative defense of insanity would be totally devoid of meaning if the trier of fact were free to find the defendant guilty even when he proves insanity by a preponderance of the evidence.” 386 So.2d 1331 at 1335.

We also stated in our original Poree opinion that the “no evidence” standard of review was in question in light of the United States Supreme Court’s holding in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, the court rejected the previous “no evidence” criterion used in federal habeas corpus review of state convictions (similar to the Louisiana procedure in that review was precluded where there was “some” evidence of the elements of the crime). The court stated that federal courts henceforth were to “consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt.” 443 U.S. at 313, 99 S.Ct. at 2786, 61 L.Ed.2d at 569. The critical inquiry in a review of the sufficiency of the evidence supporting a conviction was to be:

“... whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt... . ” 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573.

In the court’s view, the factfinder’s role as weigher of evidence was preserved by con-sidéring all of the evidence in the light most favorable to the prosecution:

“... The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” 443 U.S. at 319, 99 S.Ct. at 2790, 61 L.Ed.2d at 573-574.

After some initial vacillation, reflected in the Poree decisions and other cases, this court has now adopted the Jackson standard of review when evaluating allegations by defendants that the state presented insufficient evidence to prove an essential element of the crime charged beyond a reasonable doubt. Due process now appears to require extension of the test to situations where the defendant pleads the affirmative defense of insanity, and claims the record evidence does not support a finding of guilt beyond a reasonable doubt.

In July of 1979 the United States Supreme Court held that the rule of Jackson v. Virginia was to be followed in reviewing the conviction of a state court prisoner who had pleaded insanity. In Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979), a per curiam opinion rendered shortly after Jackson, the Supreme Court affirmed the conviction of a defendant who claimed he was denied due process because the evidence upon which he was convicted was insufficient to prove sanity beyond a reasonable doubt. The Seventh Circuit Court of Appeals had held that a challenge to the sufficiency of the evidence supporting conviction presented a due process issue only where the state court conviction was totally devoid of evidentiary support. The United States Supreme Court held that the lower courts had employed the wrong standard, and that under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Jackson, the state prisoner who pleaded insanity presented a federal due process issue when he claimed he was entitled to a determination whether the record evidence supported a finding of guilt beyond a reasonable doubt. The court specifically held that the Court of Appeals erroneously applied the “no evidence” rule on appeal, but also found sufficient evidence in the record to support the jury finding that the defendant was, beyond a reasonable doubt, sane at the time of the offense.

That finding cannot be made in the case before us; the jury’s verdict of sanity is contrary to the preponderance of the evidence. At trial the defense presented three doctors who testified on the sanity issue. Dr. Paul D. Ware, a psychiatrist and member of the sanity commission, examined the defendant on May 5, 1979 and on August 17, 1979 and diagnosed him as a chronic paranoid schizophrenic. He believed the defendant’s condition was at least six months old. At the first examination he found the defendant in an acute psychotic state, unable to evaluate what was happening around him. Dr. Ware testified that the defendant could not distinguish right from wrong; in his opinion the defendant knew what he was doing in the sense that he knew he was shooting someone, but “saw the people he was shooting as the enemy that he must destroy in the same way that a soldier overseas would see someone.” Asked if the defendant knew his actions were against the law, Dr. Ware responded, “I don’t think the law was even a part of his thinking at the time ... he was acting on his internal feeling, without any allowance for the law or what was going on around him.”

Dr. Erie W. Harris, Jr., a psychiatrist, also examined the defendant on May 5, 1979, as a member of the sanity commission. He learned that the defendant had been hospitalized briefly in Texas for an acute psychotic disturbance and that he had been a patient at Central Louisiana State Hospital on at least five different occasions. He diagnosed the defendant’s condition as paranoid schizophrenia, chronic, and of at least ten years duration. He found the defendant explosive, threatening and under the influence of dangerous delusions, markedly preoccupied with blacks and their “evil” nature. The defendant had apparently resolved to shoot an unspecified number of blacks and felt that “what he did was not something he should be guilty or ashamed of — because he was going to war for his country.” Dr. Harris believed that the defendant could not distinguish between right and wrong when he committed the offense “because of his involvement in his mental illness. His perceptions of the people that he killed or attempted to kill .. . were such that he saw them as the enemy and so there was no question of it being right or wrong to him. It was just completely part of the delusional system that he was involved in

Dr. Randolph Williams, coroner of Winn Parish, testified as an expert in general medicine. He had committed the defendant to Central Louisiana State Hospital in 1975 with a diagnosis of paranoid schizophrenia, and found him suffering from the same malady on the day of the crime, when he saw him in the Winn Parish jail. According to Dr. Williams, the defendant was able to form the intent to act and knew the nature and consequences of his act, but could not distinguish right from wrong. The doctor testified, “Paranoid schizophrenia is a psychosis . .. psychosis means one is out of touch with reality. One who is out of touch with reality is not capable of distinguishing between right and wrong ...” Dr. Williams thought that the defendant was not aware that his act was prohibited by law because he considered himself the ultimate law, “He was executing God’s will.”

The large doses of antipsychotic medication were cited by the physicians as evidence of the measure of defendant’s state of insanity.

Neither the defense nor the state presented any lay testimony on the issue of sanity. The state presented no controverting evidence, instead arguing that the defendant intended his actions, knowing that they were illegal and would result in death. The state contended that the defendant’s flight from the scene of the killing and his submission to the police when his car stopped revealed his sanity and his knowledge that he had done something wrong. Such actions are not inconsistent with a state of insanity, and could not by any rational fact finder be said to overcome the overwhelming evidence of insanity. Viewing the evidence in the light most favorable to the prosecution, we conclude that the defendant established the affirmative defense of insanity by a preponderance of the evidence, and that no rational fact finder could have found him sane on the record evidence.

Defendant’s motion for a new trial should have been granted. The conviction and sentence are reversed, and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

ON APPLICATION FOR REHEARING

PER CURIAM.

The state applies for a rehearing, taking issue with the finding of this Court that defendant’s motion for a new trial should have been granted and that his conviction and sentence should be reversed. The application is multi-faceted and, we determine, without merit. Nonetheless, we do note that our expression in the opinion should be clarified. When we said that Roy had proved his insanity by a preponderance of the evidence and that no rational fact finder could have found him sane on the record evidence, we meant simply that, applying Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we determined, under the facts and circumstances of the case, that a rationale fact finder, viewing the evidence in the light most favorable to the prosecution, could not have concluded that defendant had failed to prove by a preponderance of the evidence that he was insane at the time of the offense. See also: State v. Hathorn, 395 So.2d 783 (La.1981); State v. Claibon, 395 So.2d 770 (La.1981), both decided this same day.

REHEARING DENIED.

DIXON, C. J., concurs in the denial.

BLANCHE and LEMMON, JJ., not participating.

       Judges Cecil C. Cutrer, Jimmy M. Stoker and Ned E. Doucet, Jr. of the Third Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . At trial it was brought out that the defendant was taking 80 milligrams of Navane daily, almost triple the recommended normal dose. Navane was described as an antipsychotic medication used to calm aggressive behavior and clear confused thinking.

      . R.S. 15:432 reads in pertinent part:
      “A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption ... that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions ...”

      . C.Cr.P. 652 states:
      The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence.” The official comment to the article indicates that it codifies a well settled jurisprudential rule. The appropriate standard was explained in State v. Scott, 49 La.Ann. 253, 254, 21 So. 271, 272 (La.1897):
      “... The preponderance of proof is recognized as that of a character to satisfy the mind, though it be not free from reasonable doubt. This preponderating proof is enough in civil cases to authorize a finding in favor of the party-”
      Louisiana is one of twenty-two states which require the defendant to persuade the jury of his insanity by a preponderance of the evidence. In the remaining twenty-eight states and in the federal system, the burden of persuasion rests with the prosecution. Once the defendant presents some evidence of insanity, the prosecution must prove his sanity beyond a reasonable doubt. If upon the whole evidence there is reasonable doubt as to the defendant’s sanity, he must be acquitted. LaFave and Scott, Criminal Law, 312-313 (1972).
      The Louisiana procedure has been criticized as impractical in that it requires the jury to juggle two different standards of proof, one for determining guilt or innocence, and another for determining sanity. See Comment, Insanity— The Burden of Proof, 30 La.L.Rev. 117 (1969). The author also questions the constitutionality of the Louisiana rule. However, in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), the United States Supreme Court held that an Oregon statute requiring the accused to prove his sanity beyond a reasonable doubt was constitutional and did not violate due process because the state still bore the burden of proving all the elements of the crime beyond a reasonable doubt.
      More recently, in Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976), the court confirmed that it was not unconstitutional to burden the defendant with proving his insanity defense by dismissing, as not raising a substantial federal question, a case in which the appellant specifically challenged the continuing validity of Leland. In Rivera the Delaware Supreme Court relied on Leland in affirming the constitutionality of a state statute requiring the defendant to prove his affirmative defense of insanity by a preponderance of the evidence.
      And in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the court refused to overrule Leland and Rivera and upheld a New York law requiring the defendant to carry the burden of persuasion on the affirmative defense of extreme emotional disturbance. Stating that:
      “... the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged ...” but “... [pjroof of the nonexistence of all affirmative defenses has never been constitutionally required ...” the court declined “... to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused....” 432 U.S. at 210, 97 S.Ct. at 2327, 53 L.Ed.2d at 292.

      . R.S. 14:14 states:
      “If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.”
      This statute restates the legal test of insanity, the M’Naghten rule, which prevails in a majority of American jurisdictions. The test has been widely criticized for distorting psychiatric testimony, for relying on outmoded psychological concepts and for ineffectively selecting persons who need treatment. Nevertheless, this court has declined to substitute another test, believing that any modification or liberalization should come from the legislature. State v. Andrews, 369 So.2d 1049 (La.1979); State v. Weber, 364 So.2d 952 (La.1978); State v. Berry, 324 So.2d 822 (La.1975).
      For a full discussion of the M’Naghten rule (the right-wrong test) and other tests of insanity in current use, see LaFave and Scott, Criminal Law, 268-295 (1972).

      . Article 5, § 5(C) reads:
      “Except as otherwise provided by this constitution, the jurisdiction of the supreme court in civil cases extends to both law and facts. In criminal matters, its appellate jurisdiction extends only to questions of law.”

      . C.Cr.P. 858 states:
      “Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.”

      . See for example, State v. Mathews, 375 So.2d 1165 (La.1979); State v. Custard, 384 So.2d 428 (La.1980) and State v. Boutte, 384 So.2d 773 (La.1980), cases in which the court used both standards of review.

      . 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).


source: Caselaw Access Project

author:
CUTRER, Justice Ad Hoc.
     CALOGERO, Justice, DIXON, Chief Justice LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Andre J. HAYNIE.
    No. 80-K-2098.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 20, 1981.
    Concurring Opinion March 31, 1981.

      Wellborn Jack, Jr., Jack, Jack, Cary & Cary, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Billy G. Lutes, Dist. Atty., Joseph Beck, Gregory Wample, Asst. Dist. Attys., Colfax, for plaintiff-respondent.
   CUTRER, Justice Ad Hoc.

Defendant, Andre J. Haynie, was charged with forcible rape, a violation of La.R.S. 14:42.1. Defendant, present with counsel, was formally arraigned and entered a plea of not guilty. By motion filed July 10, 1980, counsel for the defendant moved to suppress defendant’s confession. This motion was denied following a hearing on September 8, 1980. The defendant now appears before this court on a grant of supervisory writs.

Evidence adduced at the hearing on the motion to suppress showed the following:

On January 28, 1980, Deputy Nugent of the Grant Parish Sheriff’s Department swore out an affidavit alleging that defendant, Andre Haynie, “did feloniously violate and commit Aggravated Burglary and Aggravated Rape” on January 25, 1980, in Grant Parish. A justice of the peace signed the arrest warrant which was then brought to the Shreveport police. Shreveport officers took the warrant to the home of Ms. Nettis McCray, an aunt of Andre Haynie. At approximately 4:00 A.M., defendant answered the door and was arrested for aggravated burglary and aggravated rape. He was handcuffed and taken back to Grant Parish. At the Grant Parish Sheriff’s office defendant gave a recorded statement wherein he admitted to entering the home of a Ms. Snyder through a window, to having sex with her and taking approximately four hundred ($400.00) dollars from her purse.

The assignment of error number 1 contends that the trial court erred by overruling defendant’s motion to suppress the confession. This assignment brings up several issues.

The defendant first urges that the arrest warrant was invalid. The defense further argues that without a valid arrest warrant the arrest was illegal, according to 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), which held that a valid arrest warrant is necessary to arrest an individual in a private residence absent exigent circumstances.

Defense argues that even if the arrest warrant is held valid, a search warrant is necessary to arrest a suspect in the home of a third party.

The defense also asserts that the confession is tainted by the illegal arrest, and that, in any event, the state has failed to prove that the confession was voluntary. We will address these issues in the order set forth.

VALIDITY OF ARREST WARRANT

The defense contends that the arrest warrant issued herein was invalid as the affidavit did not recite any of the facts and circumstances which led the affiant to the conclusion that a crime had been committed by defendant. It is contended that the affidavit requirements for an arrest warrant must substantially meet the same tests as a search warrant; i. e., to establish probable cause for the issuance of an arrest warrant such affidavit must set forth facts • and circumstances within the knowledge of the affiant, based upon reasonably trustworthy information, which would support a reasonable belief that the accused person committed the offense. It is contended that the magistrate’s determination of probable cause must be based solely upon the information contained within the “four corners” of the affidavit.

The affidavit by Deputy Nugent recites no facts or circumstances in support of the officer’s complaint that:

“Andre Haynie late of the Parish of Grant, Louisiana, on or about the 25 day of January 1980 in the parish and state aforesaid did feloniously violate and commit Aggravated Burglary and Aggravated Rape.”

The requirements for an arrest warrant affidavit are set forth in the Louisiana Code of Criminal Procedure, article 202, which provides:

“A warrant of arrest may be issued by any magistrate, and, except where a summons is issued under Article 209, shall be issued when:
(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any; and
(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.”

The terms of this article do not require that the facts and circumstances surrounding the commission of the offense be set forth in the affidavit. The affiant only needs to specify the nature, date and place of the offense along with the name of the offender. The nature of the offense refers to the type of offense committed; in this case, “Aggravated burglary and Aggravated rape.”

The magistrate who issues the warrant must be supplied with facts and circumstances which would reflect probable cause for the issuance of the arrest warrant. The statute cited above does not require that such be incorporated into the affidavit, but may be supplied verbally to the magistrate. If such information reflects the necessary probable cause, the magistrate is authorized to issue the arrest warrant.

The question then arises as to whether Officer Nugent had sufficient information to support a finding of probable cause and whether he supplied such to the justice of the peace who issued the arrest warrant.

The record reflects that Officer Nugent had been investigating the offense for two days. During this time he had obtained the following information:

(1) The night that Mrs. Snyder was raped, approximately five hundred ($500.00) dollars [three (3) one hundred dollar bills and some twenties] had been taken from Mrs. Snyder;
(2) A former deputy, Dan Fletcher, had told Deputy Nugent that he (Fletcher) had seen Haynie with a large sum of money. Also, a juvenile, Dennis Holmes, was accompanying Haynie when Fletcher saw the money;
(3) Dennis Holmes told Deputy Nugent that Haynie had stated that he had been at the home of Mrs. Snyder on the night of the offense and that she had given him the money, and that the money was in denominations of three (3) one hundred dollar bills and several twenty dollar bills.

The standard to establish probable cause to arrest in such a situation was set forth in State v. Collins, 378 So.2d 928, 930 (La.1980), cert. den. 447 U.S. 928, 100 S.Ct. 3025, 65 L.Ed.2d 1122 (1980).

“Probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Wilkens, 364 So.2d 934 (La.1978); State v. Johnson, 363 So.2d 684 (La.1978); State v. Marks, 337 So.2d 1177 (La.1976). Although mere suspicion cannot justify an arrest, State v. Thomas, 349 So.2d 270 (La.1977), the officer does not need sufficient proof to convict. State v. Randolph, 337 So.2d 498 (La.1976).”

In applying these principles to the information had by Officer Nugent, probable cause existed for the arrest of defendant.

Officer Nugent testified at the hearing that he relayed all of this information to the magistrate. Upon being supplied with this information, the justice of the peace had probable cause to issue the arrest warrant. We hold that the arrest warrant complied with the requirements of La.C. Cr.P. art. 202.

The defendant relies heavily on the case of Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), for support of its position that the affidavit for the arrest warrant must contain all the facts and circumstances to support probable cause for the issuance of the warrant.

The affidavit set forth in Whiteley is very similar to the affidavit in the case at bar. That case, however, is distinguishable from the case at bar. In Whiteley, the only information supplied to the magistrate at the time of the issuance of the warrant was that set forth in the affidavit. The court clearly indicates that no further information was supplied to the magistrate at the time of the warrant issuance, thus, the magistrate clearly had no probable cause to issue the arrest warrant. We do not interpret Whiteley to require that all the facts and circumstances, reflecting probable cause, be set forth in the affidavit. We interpret that case to mean simply that an arrest warrant cannot issue unless the magistrate has probable cause from facts and circumstances presented to him by the officer, either incorporated in the affidavit or by the officer supplying such information verbally at the time the complaint is filed.

We conclude that the arrest warrant issued in this case was issued by a proper official who possessed knowledge of facts and circumstances that reflected a probable cause to believe that defendant committed the offense complained of.

We may add, in conclusion of this issue, that, while the affidavit for an arrest warrant does not require that the facts and circumstances reflecting probable cause be recited therein, the law certainly does not prohibit such inclusion. The inclusion of such information would establish a clearer record and obviate possible issues which would otherwise arise.

Having concluded that the arrest warrant was valid we do not need to address the second issue of whether the arrest of defendant at a private residence without a warrant was valid.

ARREST OF DEFENDANT

Our next issue for determination is whether a search warrant, in addition to an arrest warrant, was necessary in order to make a valid arrest of defendant at the residence of a third party.

The facts surrounding the arrest of defendant are as follows:

Deputy Nugent stated that he had received information that defendant was at his aunt’s house in Shreveport. After obtaining the arrest warrant, Deputy Nugent, two other deputies and the sheriff of Grant Parish, traveled to Shreveport, during the night of January 28-29, to apprehend defendant. Upon arrival, the arrest warrant was given to the Shreveport police for the purpose of making the arrest. The Shreveport officers went to the residence of defendant’s aunt. They knocked upon the front door. Defendant testified that he was alone in the house when the officers knocked on the door. Defendant stated that he was fully clothed and asleep on a couch in the living room. He testified that the knock on the door awakened him and he went to the window and saw police and police cars outside. He asked who was outside and was told that it was the police. Defendant opened the door. The police placed him under arrest. Defendant was taken to the police station where he was turned over to the Grant Parish authorities.

In the recent case of State v. Ragsdale, 381 So.2d 492, 496 (La.1980), this court held that, without reasonable belief that defendant could be found in the third party’s home as required by La.C.Cr.P. art. 224, search of such' residence for the defendant was constitutionally prohibited. In Ragsdale, the third party answered the door. When it was opened, the police entered with guns drawn and began a search of the house, finding defendant in the shower in the bathroom. This court stated as follows:

“. .. Any other result raises the possibility of police use of the arrest warrant, with no limitation, as carte blanche to search any residence in which they may believe a suspect is hiding. Such arbitrary invasion of the privacy of a person’s home is exactly what the constitutional prohibitions of unreasonable searches seeks to prevent. State v. Jones, 358 So.2d 1257 (La.1978).”

The question then arises as to whether Ragsdale renders the arrest invalid under the facts presented herein. We conclude, for the reasons set forth below, that the Ragsdale rule does not prohibit the arrest in the case at bar.

Defendant was alone in the residence of his aunt. He opened the front door after ascertaining that the persons outside were police officers. No search of the premises was conducted in order to apprehend defendant and to make an arrest. Such a procedure does not violate the constitutional prohibitions of unreasonable searches. No search warrant is required to effectuate the arrest under these circumstances.

In the case of United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), the arresting officers, without an arrest warrant but with probable cause, went to arrest defendant on a drug related charge. Upon arriving at Santana’s residence the officers saw her standing in the doorway of the house. After she saw the officers, she retreated into the house. The officer pursued her into the house, making the arrest. In upholding the arrest the court held as follows:

“In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), we held that the warrantless arrest of an individual in a public place upon probable cause did not violate the Fourth Amendment. Thus the first question we must decide is whether, when the police first sought to arrest Santana, she was in a public place.
“While it may be true that under the common law of property the threshold of one’s dwelling is ‘private’ as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment Santana was in a ‘public’ place. She was not in an area where she had any expectation of privacy. ‘What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.’ Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). She was not merely visible to the public but was as exposed to the public view, speech, hearing, and touch as if she had been standing completely outside her house. Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924). Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in Watson.”

The court also held that the officers had the right to pursue Santana into the house for the arrest since the arrest began by Santana’s appearance in a doorway which was classified as a “public” place.

The principles enunciated in Santana are applicable to the facts herein. The Shreveport officers proceeded to the residence of Haynie’s aunt as a result of information supplied to them by Deputy Nugent. They had a warrant for the arrest of defendant. Upon their knocking on the door, defendant, knowing that officers were at the door, opened same. When he did so, he, being in a doorway or threshold, was standing in a place that has been classified as a “public” place which place is not amenable to the restrictions of the Fourth Amendment. An arrest made in such a “public” place, pursuant to an arrest warrant, does not violate the Fourth Amendment. The fact that he may have retreated into the house would not otherwise thwart a valid arrest. United States v. Santana, supra.

The basis of this “threshold” rule is that an open doorway is a “public” place, thus, no distinction is to be drawn between a doorway of a person’s own house or that of a third person (as was the case here). The rule is applicable to both situations.

VOLUNTARINESS OF CONFESSION

The defendant argues that his confession was not voluntary and thus inadmissible. Defendant testified at the hearing of the motion to suppress that the sheriff hit him several times on the head and told him if he did not cooperate he would “have the judge come down hard” on him. This allegedly took place during the trip from Shreveport to Colfax. Defendant further testified that when they reached Grant Parish the sheriff talked to him alone in the sheriff’s office. In relating his version of the conversation between himself and the sheriff in the sheriff’s office, defendant testified as follows:

“Q. Did the Sh ... Did he say anything to you v/hile in that off icé about his being able to held you?
“A. Yes, he did.
“Q. What did he say to you about his being able to help you?
“A. Okay, he told me, he say, he say, listen, he say, you know, I know what you are charged with, and he say, I have certain circumstantial evidence showing that you didn’t rape Mrs. Snyder, he say, I know this for a fact, he say, but you have no other alternative but to give a statement because you are charged with raping a white woman, and you know a judge and jury won’t believe you here in Grant Parish, and then you know, he told me to give a statement and he said that he would talk to the judge. Said he would talk to the judge.
* * * * * *
“Q. Mr. Haynie, did the sheriff tell you how giving a statement would help you?
“A. He said that it would show that I cooperated and that the judge would go easier on me.
“Q. Did he explain to you how cooperating might cause the judge to go easy on you?
“A. He didn’t exactly explain it, you know, that is just the way he said it, and and then he told me he would try to have me out of here in no time.”

Defendant further stated that he would not have given the statement had it not been for the sheriff’s threats and promises.

The defense urges that the state has failed in establishing the voluntariness of the confession in failing to rebut these specific allegations of threats and promises. The two officers accompanying the sheriff and defendant on the trip to Colfax both testified that no threats or promises were made to the defendant during the trip to Colfax and that the sheriff did not strike the defendant. Both officers admit to having dozed off periodically during the trip. The driver, however, testified that he heard the entire conversation between the defendant and the sheriff and that defendant’s allegations were false.

The law is clear that before a confession can be introduced into evidence, the state is required to affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. State v. Robinson, 384 So.2d 332 (La.1980); State v. Jackson, 381 So.2d 485 (La.1980); La.R.S. 15:451. The admission of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Gaines, 354 So.2d 548 (La.1978); State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977).

However, as set forth in State v. Bouffanie, 364 So.2d 971, at 973 (La.1978), due to the state’s burden of proving volun-tariness, it must:

“rebut specific testimony introduced by the defendant concerning factual circumstances which indicate coercive measures or intimidation, [citations omitted].”

In addition, this court has repeatedly warned that the state cannot simply rely on general testimony of officers not present that they witnessed no coercion, intimidation or other undue influence. State v. Franklin, 381 So.2d 826 (La.1980); State v. Monroe, 305 So.2d 902 (La.1974).

In light of the testimony of three officers accompanying the defendant and the sheriff to Colfax, there has been sufficient rebuttal of the defendant’s allegations concerning the events which took place on the trip to Colfax. However, there is no rebuttal of the allegations made by the defendant concerning alleged promises and inducements by the sheriff during the private interview in the sheriff’s office.

We are particularly concerned with the failure of the state to call the sheriff for any rebuttal of the promises to which defendant testified as having occurred in the sheriff’s office.

In the recent case of State v. Jackson, 381 So.2d 485,486 (La.1980), this court stated as follows:

“The United States Supreme Court has held that confessions obtained by ‘any direct or implied promises, however slight, or by the exertion of any improper influence’ is involuntary and inadmissible as a matter of constitutional law. Bram v. United States ... 168 U.S. 532, 542-543, 18 S.Ct. 183 [186-187], 42 L.Ed. 568 (1897). The rationale of Bram is that even slight inducements held out by a person in authority such as a police officer or prosecuting attorney may render a confession involuntary because the person accused would believe that such an authoritative person is credible and in a position to give effect to the inducement

Due to the serious nature of any possible inducement we must conclude that the trial judge erred in his denial of the motion to suppress the confession without testimony to rebut the defendant’s allegations of inducement. We will remand the case for a new trial of the Motion to Suppress.

Accordingly, the ruling of the trial court, denying the defendant’s Motion to Suppress is set aside and the case is remanded for a new trial of the Motion to Suppress.

REVERSED AND REMANDED.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs with reasons.

DIXON, C. J., dissents and assigns reasons.

CALOGERO, Justice,

concurring.

I agree with the majority opinion that C.Cr.P. art. 202 does not require that the facts and circumstances establishing probable cause for the issuance of an arrest warrant must appear in a written affidavit. Nor do I feel that such a presentation of the facts (by affidavit) is constitutionally required, for Article 1, Section 5 of the Louisiana Constitution of 1974 merely provides, in pertinent part, that “No warrant shall issue without probable cause supported by oath or affirmation.. .. ”

While the facts establishing probable cause may be presented by written affidavit, and as pointed out by the majority that is certainly the preferred method, they may also be orally presented to the judge, provided they are presented to him prior to the issuance of the warrant. It would not suffice for the officer to possess the facts establishing probable cause and to obtain an arrest warrant without first, whether by written affidavit or through oral presentation, giving those facts to the judge.

As pointed out in the majority opinion, C.Cr.P. art. 202 does not mandate the use of a written affidavit to obtain an arrest warrant as is the case under C.Cr.P. art. 162, for search warrants. Certainly inclusion of the facts in a written affidavit is preferred to minimize after the fact evidentiary disputes. However, unless the Legislature sees fit to amend C.Cr.P. art. 202 to require that the facts be presented by affidavit, as is the requirement for search warrants, such a requirement cannot be read into the statute.

As noted in the majority opinion, our holding on this issue is further supported by the recent United States Supreme Court decision in Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). In Whiteiey, after concluding that the affidavit was insufficient, the Court considered what other information the officer had at the time he obtained the warrant and held that the facts were insufficient to support the “independent finding of probable cause by a disinterested magistrate.” The Court did not find that it was constitutionally required that the facts establishing probable cause for an arrest warrant appear within the four corners of a written affidavit.

In the present case, the state met its burden by calling the officer who obtained the warrant to testify as to what facts he told the magistrate to establish probable cause for the issuance of the warrant. I suggest that because we find it constitutionally and statutorily permissible to present the facts and circumstances establishing probable cause orally rather than by written affidavit, the defense will be free to dispute the police officer’s testimony in a similar manner, including the calling of the issuing magistrate as a witness.

Furthermore, while I agree with the majority that the issue of whether a search warrant is necessary in addition to an arrest warrant to perfect an arrest in a third party’s home is not before us in this case because the subject of the arrest warrant answered the door making a search of the premises unnecessary, I disagree with the majority opinion that a person in the doorway of his home, because summoned there by the call of a visitor, is in a “public place”.

Rather than justify the arrest without a search warrant because the defendant was in a “public place”, i. e., the open doorway, I would find that the absence of the search warrant was of no consequence because the officers did not search the third party’s home.

For the above reasons, I respectfully concur.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Under the Louisiana Constitution (Art. 1, § 5), no distinction is made between search warrants and arrest warrants. Neither “... shall issue without probable cause supported by oath or affirmation, ... particularly describing the place to be searched, the persons or things to be seized, ...” The Fourth Amendment of the United States Constitution is almost identical. The oath or affirmation must be in writing.

LEMMON, Justice,

concurring in denial of application for rehearing.

I concur in the denial of the application for rehearing, for the reasons stated by Justice Calogero on original hearing.

       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 Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack C. Watson.

      . A copy of the bill does not appear in the record. Defendant was arrested pursuant to a warrant alleging aggravated burglary and aggravated rape. A minute entry dated March 10, 1980 states that the grand jury returned a bill of forcible rape.

      . The requirements for an affidavit for the issuance of a search warrant are set forth in Louisiana Code of Criminal Procedure art. 162 which provides as follows:
      “A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

      “A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.”

      . A search of the house for evidence was made by these police but none was recovered. We are not called upon to pass upon this search.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Patricia J. KNOWLES.
    No. 81-K-0260.
    Supreme Court of Louisiana.
    Jan. 28, 1981.
   In re Patricia J. Knowles, applying for writs of certiorari, review and mandamus, Parish of Ouachita, Nos. 39,274, 39,177 (392 So.2d 651).

Granted. Relator is ordered released. When the sentence was imposed and made consecutive on June 24,1980, she was under no previous sentence, having been acquitted by the jury of the murder charge. She was ordered discharged by this Court from the conspiracy charge in a judgment which became final on January 26, 1981. Since she has not been under any other sentence since June 24, 1980, there was nothing to which the June 24 sentence could be consecutive, and the sentence has now been served.

DENNIS, J.,

dissenting in part and concurring in part.

I would grant this writ and order up the entire record in the case. On the showing made I am unable to determine that the trial judge did not properly delay the commencement of the sentence for contempt until the termination of the criminal prosecution proceedings.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Patricia J. KNOWLES.
    No. 80-K-1766.
    Supreme Court of Louisiana.
    March 2, 1981.

      Diehlmann C. Bernhardt, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Lavalle Salomon, Asst. Dist. Attys., for plaintiff-respondents.
   WATSON, Justice.

This matter involves the privilege against self-incrimination guaranteed in the Fifth Amendment to the United States Constitution and Article 1, Section 16, of the Louisiana Constitution of 1974. The trial court convicted defendant, Patricia J. Knowles, of contempt of court when she claimed that privilege, and a writ was granted to review the judgment.

Defendant’s sister, Sherri Littleton, pled guilty to negligent homicide in connection with the fatal shooting of her husband. Patricia Knowles later implicated herself in the killing and was indicted for first degree murder and conspiracy to commit murder. She was acquitted of the murder charge after taking the stand in her own defense at trial.

Subsequently, Littleton was tried for perjury and the State subpoenaed Knowles as a witness. Knowles invoked the Fifth Amendment. The State indicated that it intended to ask the same questions which she had answered at her murder trial. The trial court ordered her to testify and convicted her of contempt of court when she refused, ruling that she could not assert the privilege after her prior waiver. The conspiracy to murder charge was still pending against Knowles. That indictment was later quashed because of her acquittal on the murder charge arising from the same facts. See State v. Knowles; writ granted, 389 So.2d 393 (La., 1980); ruling reversed, 392 So.2d 651 (La., 1980).

The federal privilege against self-incrimination was made applicable to the states in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). It protects a witness as fully as a defendant. State v. Doran, 215 La. 151, 39 So.2d 894 (1949). When a witness refuses to testify on Fifth Amendment grounds, a contempt citation is only justified when it is clear there is no possibility of self-incrimination. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); United States v. Yurasovich, 580 F.2d 1212 (3 Cir. 1978).

Knowles had been acquitted of first degree murder but was still facing prosecution for conspiracy to commit murder. The subsequent quashing of that indictment is irrelevant to the threat of incrimination facing defendant at the time of this trial.

The State’s assurance that it would ask the same questions Knowles had answered at her murder trial did not insure that the answers would not incriminate. Repetition under oath of the same facts might have added weight to the government’s evidence at a subsequent trial. United States v. Malone, 111 F.Supp. 37 (1953); United States v. Steffen, 103 F.Supp. 415 (1951); United States v. Miranti, 253 F.2d 135 (2 Cir. 1958). If Knowles had refused to testify at a later trial, the transcript from this proceeding would have been admissible evidence. State v. Dotch, 298 So.2d 742 (La., 1974); State v. Ghoram, 328 So.2d 91 (La., 1976). See also LSA-C.Cr.P. art. 295.

Even if the State had limited its questions to those asked at the prior trial, Knowles would have been subject to cross-examination on the entire case by her sister’s counsel. United States v. Wilcox, 450 F.2d 1131 (5 Cir. 1971); LSA-R.S. 15:280. Further admissions might have been obtained under cross-examination.

One can waive silence at one trial and assert the right as to same matter in a subsequent trial. In Re Neff, 206 F.2d 149 (3 Cir. 1953).

Since Knowles had not waived her right to claim the privilege at a later proceeding and her answers to the State’s questions might have been incriminating, her conviction and sentence must be reversed.

REVERSED.

       Judges Frederick Stephen Ellis, Luther F. Cole, and J. Louis Watkins, Jr., of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson and Lemmon.

      .U.S.C.A.Const. Amend. 5 provides in pertinent part that:
      “No person ... shall be compelled in any criminal case to be a witness against himself,

      . LSA-Const. Art. 1 § 16 provides in pertinent part that:
      “... No person shall be compelled to give evidence against himself....”

      . The sentence was five months in jail plus $500, or 30 days in jail.

      . See e. g., United States v. James, 609 F.2d 36 (2 Cir. 1979) [unindicted co-conspirator called as government witness, had not waived his privilege by making statements to the FBI and grand jury in unrelated case]; United States v. Licavoli, 604 F.2d 613 (9 Cir. 1979) [voluntary testimony before a grand jury does not waive the privilege at trial; United States v. Yurasovich, supra [guilty plea to two of four counts in indictment did not amount to a waiver with respect to testimony sought against an accomplice in a subsequent proceeding]; United States v. Cain, 544 F.2d 1113 (1 Cir. 1976) [submission to deposition in proceeding against co-defendant was not waiver of witness’ privilege as to testimony in later trial]; United States v. Johnson, 488 F.2d 1206 (1 Cir. 1973) and United States v. Ward, 314 F.Supp. 261 (E.D.La., N.O.Div.,1970) [witness’ guilty plea and disclosures at hearing to establish basis of plea did not waive his right to claim privilege at co-defendant’s trial where he remained subject to prosecution on state and federal offenses stemming from the same set of circumstances]. See also Ottomano v. United States, 468 F.2d 269 (1 Cir. 1972) [witness previously convicted on same indictment could claim privilege in trial of co-defendant where witness had motion to vacate sentence pending]; United States v. Goodman, 289 F.2d 256 (4 Cir. 1961) [prior disclosure to investigatory officials is not a waiver of the privilege with respect to the sanie matter in a subsequent proceeding]; United States v. Seavers, 472 F.2d 607 (6 Cir. 1973) and Krogmann v. United States, 225 F.2d 220 (6 Cir. 1955) [a guilty plea waives the privilege with respect to the offenses, but is not a blanket waiver with respect to other charges which might later be brought against the witness].


author: DENNIS, Justice,

text:
    Robert M. McHALE v. LAKE CHARLES AMERICAN PRESS et al.
    No. 81-C002.
    Supreme Court of Louisiana.
    Jan. 29, 1981.
   In Re Lake Charles American Press, Inc., Applying for Stay of Execution and Enforcement of Judgment, Court of Appeal, Third Circuit. Parish of Calcasieu. No. 77-3089.

Denied.

DENNIS, J., would grant and assigns reasons dissenting to denial of stay order (attached).

LEMMON, J., would grant a stay order.

WATSON, J., recused.

DENNIS, Justice,

dissenting to denial of stay order.

I respectfully dissent and would grant a stay of execution of judgment for 60 days to allow application for certiorari from the Supreme Court, conditioned upon the posting of adequate additional security to ensure payment of the judgment in the event writs are denied or other action unfavorable to the defendant. Whether the alleged libelous statement was the mere expression of an opinion about the worth of a public official’s services fully protected by the First Amendment is clearly a substantial question deserving of the high court’s attention. There would be no irreparable injury to the plaintiff caused by a 60 day suspension of execution of the judgment. He can be fully protected by security required by the law and this Court. This Court has the authority both under federal law and our state constitution to stay the execution of judgment. 28 U.S.C.A. § 2101(f); La.Const. Art. 5 §§ 2, 5; see State ex rel. Muslow v. La. Oil Ref. Corp., 117 So. 476 (La.App. 2d Cir. 1937). This Court should exercise that power when a litigant raises a substantial federal question and a stay of execution will not cause irreparable injury. See Annotation, Stay of Execution or Enforcement of Judgment, 2 A.L.R.Fed. 657 (1969). This has been our past practice in both civil and criminal cases and there is nothing peculiar about this case which should cause us to deny the stay of execution. See, e.g., Norris v. King, No. 61,924.


author: PER CURIAM.

text:
    STATE of Louisiana v. Douglas KNIGHTEN.
    No. 80-KA-2079.
    Supreme Court of Louisiana.
    Feb. 4, 1981.
    Rehearing Denied April 6, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Ralph Roy, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet, Asst. Public Defender, for defendant-appellant.
   PER CURIAM.

Affirmed.

DENNIS, J., dissents as to assignments number 3 and 4.


author: LEMMON, J., DIXON, C. J.,

text:
    UNITED PENTECOSTAL CHURCH INTERNATIONAL, INC. et al. v. Clarence Emery SANDERSON et al.
    No. 81-C-0051.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In Re United Pentecostal Church International, Inc., et al. Applying for Certiora-ri, or Writ of Review, to the Court of Appeal, Second Circuit, Parish of Caddo, No. 14301, 391 So.2d 1293.

Denied. The result is correct.

LEMMON, J.,

concurs. The petition which seeks injunctive relief, but does not allege breach of a contract between the parties or violation of Louisiana corporation law, does not state a cause of action.

DIXON, C. J.,

would grant and reverse the judgment on the exception to the jurisdiction; however, the result is probably correct, because an exception of no cause or no right of action probably should be sustained.


text:
    Ross E. COX v. Claude KIRKPATRICK et al. Ross E. COX v. SOUTHERN COLONIAL INVESTMENT, INC. et al.
    No. 81-C-0265.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In Re Ross E. Cox, applying for reconsideration of Writ of Action of February 6, 1981, La., — So.2d —, 1st Circuit Court of Appeal # 14,005, E. Baton Rouge Parish, 19th JDC # 167,170, 393 So.2d 1284.

Denied.

LEMMON, J., concurs.

The appropriate court to test the sufficiency or the validity of the bond is the trial court. C.C.P. Art. 5123.


author: CALOGERO, J.,

text:
    AMERICAN GENERAL INVESTMENT CORPORATION v. ST. ELMO LANDS et al.
    No. 81-C-0141.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In re Francipane, Regan & St. Peé through Chester Francipane, Esq. and Richard Regan, Esq. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of St. James, 391 So.2d 570.

Denied.

CALOGERO, J.,

concurring.

I would be inclined to grant the writ to consider reinstating the trial court judgment which among other things would permit relators’ litigating in these proceedings the intervention claim against plaintiff and defendant for attorney’s fees, rather than requiring institution of a new lawsuit. I concur in the denial, however, because relator in his assignments of error and arguments does not complain of that feature of the Court of Appeal’s judgment.


author: MARCUS, Justice. CALOGERO, Justice, LEMMON, Justice,

text:
    C. B. DUTTON v. William J. GUSTE, Jr.
    No. 80-C-1560.
    Supreme Court of Louisiana.
    March 2, 1981.
    Dissenting Opinion March 27, 1981.
    Frank M. Coates, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, A. Justin Ourso, III, Stephen B. Lemann, Monroe & Lemann, New Orleans, Alan H. Goldstein, for plaintiff-applicant.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Bruce P. Anderson, Staff Atty., New Orleans, Robert E. Redmann, Asst. Atty. Gen., for defendant-respondent.
   MARCUS, Justice.

C. B. Dutton, a resident of the State of Indiana, instituted this action against William J. Guste, Jr., Attorney General of the State of Louisiana, seeking the issuance of a writ of mandamus ordering production of all documents concerning a settlement of the claims between the State of Louisiana and/or the Louisiana Stadium and Exposition District (LSED) and a group of architects and engineers with respect to liability for the design or construction of the Louisiana Superdome. Plaintiff also sought attorney’s fees.

The trial judge refused to order production of the documents, finding that the documents were exempt from the requirements of the Louisiana Public Records Law (La. R.S. 44:1-430). The court of appeal affirmed. On plaintiff’s application, we granted certiorari to review the correctness of that judgment.

On July 15, 1978, Attorney General Guste called a press conference to announce the out-of-court settlement of state claims against a joint venture design team of architects and engineers (A/E) consisting of Curtis and Davis Associated Architects, Edward B. Silverstein and Associates, Sverdr-up and Parcel and Associates, and the firm of Nolan, Norman and Nolan. These claims arose out of the design and construction of the Louisiana Superdome. Guste announced that the state had agreed to dismiss legal proceedings against the A/E group in consideration of the payment by said group to the state through their bonding companies (CNA Insurance Co. and Continental Casualty Co.) of the sum of 3.6 million dollars and the relinquishment of the group’s rights to $679,000 withheld by the state in architectural fees, or a total settlement figure of about 4.2 million dollars. It was also announced that the A/E group had agreed to cooperate with the state in its pending litigation between LSED and the contractors of the building, Huber, Hunt and Nichols, Inc. and Blount Brothers, Inc. On July 6, 1979, plaintiff requested by letter to the Attorney General copies of documents, including all escrow and settlement agreements and contracts, relating to the settlement between LSED and the A/E group announced by the Attorney General on July 15, 1978. Subsequently, the Attorney General’s office denied the request. Plaintiff instituted this action.

La.Const. art. 12, § 3 (1974) provides in pertinent part: “No person shall be denied the right to .. . examine public documents, except in cases established by law.” A “public record” is defined by La.R.S. 44:1(A)(2) as follows:

All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are “public records,” except as otherwise provided in this Chapter or as otherwise specifically provided by law.

La.R.S. 44:31 provides that any person of the age of majority may inspect, copy or reproduce or obtain a reproduction of any public record, except as otherwise provided in this chapter or as otherwise specifically provided by law. Moreover, any person who has been denied the right to inspect or copy a public record may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages as provided for by this section. La. R.S. 44:35(A). Also, the burden is on the custodian to sustain his action and the court may view the documents in controversy in camera before reaching a decision. La.R.S. 44:35(B).

The Public Records Law itself described a number of documents which are exempt from disclosure, including the records involved in legislative investigations (La.R.S. 44:2); records of prosecutive, investigative and law enforcement agencies (La.R.S. 44:3); tax returns and records relating to old age assistance, dependent children, liquidation proceedings, banks, insurance ratings, medical licensing, and mineral reserves (La.R.S. 44:4); records in custody of the governor (La.R.S. 44:5); and hospital records (La.R.S. 44:7). Another specific exception is provided under Title 44’s General Provisions (see La.R.S. 44:31), Section 2 of Acts 1978, No. 686, which provides that the provisions of the Act do not apply to any writings or records that reflect the mental impressions, conclusions, opinions or theories of an attorney or an expert obtained or prepared in anticipation of litigation or in preparation for trial. There are other statutory exemptions “as otherwise specifically provided by law” which by their language exempt certain types of records from the Public Records Law. See generally La.R.S. 23:1660 (records of the Department of Employment Security); La.R.S. 17:391.4 (educational test scores); and La.R.S. 48:255.1 (information submitted to Department of Highways by contractors).

Louisiana courts have held that the Public Records Law must be liberally interpreted so as to extend rather than restrict access to public records by the public. Webb v. City of Shreveport, 371 So.2d 316 (La. App. 2d Cir. 1979); Bartels v. Roussel, 303 So.2d 833 (La.App. 1st Cir. 1974), writ denied, 307 So.2d 372 (La.1975).

The only issues presented for our determination are whether the documents in question are in fact “public records” and, if so, whether they are excepted from disclosure under the Public Records Law or as otherwise specifically provided by law.

After having viewed the documents in controversy in camera, we find: (1) an “Escrow Agreement” between the insurers of the A/E group, State of Louisiana, LSED and a named escrow agent; (2) a “Letter of Agreement” between the A/E group and LSED; (3) a “Complete Release of all Claims” executed by the State of Louisiana, LSED and the A/E group and their insurers; and (4) a partially-executed “Agreement of Release and Indemnity.” Generally, these documents provide for a final settlement of all claims between the A/E group and the state conditioned on the execution of the “Agreement of Release and Indemnity” by third parties, the contractors, Huber, Hunt and Nichols, Inc. and Blount Brothers, Inc. While certain obligations contained in the settlement have been acted upon, other remain executory pending execution of the release by the contractors.

First, we conclude that the documents comprising the settlement agreement between the State of Louisiana, LSED and the A/E group are public records as contemplated by La.R.S. 44:1(A)(2). Having so concluded, the only possible exception provided by law called to our attention is that established by Section 2 of Acts 1978, No. 686, which provides:

The provisions of this Act shall not apply to any writings, records or other accounts that reflect the mental impressions, conclusions, opinions or theories of an attorney or an expert, obtained or prepared in anticipation of litigation or in preparation for trial.

We do not find that any of the provisions of the agreements in question reflect the mental impressions, conclusions, opinions or theories of the attorneys relative to the merits of this case. Moreover, while prepared in connection with the litigation pending between these parties and while certain of the obligations are not yet executory pending the execution of the release by the contractors, we are unable to say that the agreements are of the type obtained or prepared in anticipation of litigation or in preparation for trial. On the contrary, we consider that the documents were prepared in an attempt to conclude the litigation between these parties by settlement.

Hence, we find that the documents in controversy are public records and that they are not exempt from the public’s right of inspection under any of the exceptions established by law. The courts below erred in ruling otherwise.

Since plaintiff has prevailed in this suit, he is entitled to an award of reasonable attorney’s fees under La.R.S. 44:35(D). However, the record does not contain sufficient evidence to allow us to fix these fees. Accordingly, we must remand the case to the district court for presentation of evidence on this issue and a determination of the amount.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. It is ordered that there be judgment making the writ of mandamus peremptory directing the proper custodian of the following public records to produce them for inspection, copy or reproduction: (1) an “Escrow Agreement” between the insurers of the A/E group, State of Louisiana, LSED and a named escrow agent; (2) a “Letter of Agreement” between the A/E group and LSED; (3) a “Complete Release of all Claims” executed by the State of Louisiana, LSED and the A/E group and their insurers; and (4) a partially-executed “Agreement of Release and Indemnity,” in accordance with law.

It is further order that the case be remanded to the district court for the purpose of fixing reasonable attorney’s fees.

CALOGERO, J., concurs and assigns reasons.

LEMMON, J., dissents and assigns reasons.

CALOGERO, Justice,

concurring.

I agree that the Public Records Statute requires that the State disclose the contents of the agreement to compromise with the A/E group, even though such disclosure is prejudicial to the State. (See dissent of Lemmon, J.). I express my view, however, that it should be otherwise. A disclosure of this type ought not be required by the Public Records Statute, but rather only if in conformance with the Code of Civil Procedure. Article 1424 of that code prohibits discovery of “any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, expert, or agent in anticipation of litigation or in preparation for trial.” In my view this agreement meets that test because it has been prepared in the course of ongoing litigation. The Code of Civil Procedure contains an exception to the prohibition of discovery of writing where the court is satisfied that denial of discovery will unfairly prejudice the party seeking discovery or cause him undue hardship or injustice. C.Civ.P. art. 1424. This article thus provides reasonable reciprocal rights for the parties litigant, and indeed at the proper time in litigation the trial judge can order the writing produced. Nonetheless, it is not the Code of Civil Procedure but the Public Records Statute which is applicable in the instant case.

The Public Records Statute, being the later and more direct expression of the Legislature, must be applied to this ease. As I read that statute (see Acts 1978, No. 686, § 2), the agreement must be shown to the plaintiff: the only exception to disclosure being mental impressions, which is not what is sought here. The Public Records Statute does not except writings “obtained or prepared ... in anticipation of litigation or in preparation for trial” as does the Code of Civil Procedure. It is unfortunate that the State is placed in such an untenable position by this law, but any redress must come from the Legislature.

For the foregoing reasons, I respectfully concur.

LEMMON, Justice,

dissenting.

Under R.S. 44:1 plaintiff would be entitled to inspect a document setting forth a compromise of litigation in which the State of Louisiana was a party. However, the document which plaintiff seeks to inspect is not a compromise and has not terminated the litigation between the State and the Architect/Engineers (A/E) group, despite the release to the press of contrary information. The litigation is still pending, and the document, prepared in the course of (and in the attempted settlement of) the pending and continuing litigation, constitutes the work product of the State’s attorneys, to which the Public Records Law does not apply. Acts 1978, No. 686, § 2.

Public records disclosure, like discovery, is oriented toward revelation of relevant facts to aid in the search for truth. But the work product exception in the Public Record Law, like, the similar exception in the discovery articles of the Code of Civil Procedure, is designed to prevent prejudice which might occur when a party’s strategy is revealed during the course of litigation. A completed compromise by the State of all or a part of a dispute in litigation would be subject to the Public Records Law and to the discovery articles, but neither law is intended to apply to a proposal which may or may not ripen into a compromise.

      . 387 So.2d 630 (La.App. 1st Cir. 1980).

      . 392 So.2d 694 (La.1980).

      .That litigation is presently pending as No. 71-10-0036-77 on the docket of the American Arbitration Association, Dallas Region.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Curtis PALREAN and Terry Palrean.
    No. 65784.
    Supreme Court of Louisiana.
    March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John Craft, Brian G. Meissner, Asst. Dist. Attys., for plaintiff-appellee.
    William Noland, New Orleans, for defendant-appellant.
   LEMMON, Justice.

On appeal from their conviction of attempted armed robbery and sentence as multiple offenders, defendants raise two assignments of error pertaining to their conviction and one pertaining to the habitual offender hearing.

I.

Defendants first complain the trial court erred in not setting aside the jury verdict because a minute clerk communicated with a juror after the court’s charge, in violation of C.Cr.P. art. 791’s requirement that the jury be secluded from outside communications.

After the guilty verdict was read in open court, defense counsel moved to set aside the verdict because of jury misconduct. The trial judge then questioned the jury and determined that a juror, after all deliberations were completed, knocked on the door and requested information from the minute clerk as to how to complete the verdict form for each particular defendant. The clerk did not tell the juror anything other than the mechanics of writing the verdict (which the jury had already reached) on the paper.

The purpose of C.Cr.P. art. 791 is to protect jurors from outside communications which might influence them to base their verdict on something other than the evidence introduced at the trial. State v. Hunter, 340 So.2d 226 (La.1976). Reversal is required when an outside communication occurs which is prejudicial to the accused. State v. Marchand, 362 So.2d 1090 (La.1978).

In the Marchand case a jury, which had been deliberating for five hours, was told by the bailiff that defense counsel was responsible for preventing them from obtaining access to defendant’s confession which they had requested. The jury returned a guilty verdict 15 minutes later. The court held that the improper communication was clearly prejudicial to the defendant and presumptively influential on the verdict.

The facts in this case are more similar to those in State v. Ahrens, 250 La. 391, 196 So.2d 250 (1967), in which a bailiff, upon request by the jury after the verdict had been reached, obtained information from the judge as to how to fill out the verdict on the bill of information and relayed the information to the jury. The court held that the communication did not subject the jurors to outside influences during their deliberations.

In the present case the jury was not subjected to any communication prejudicial to the defendants. Moreover, because the verdict had been agreed upon prior to the communication, it cannot be said that the communication influenced the verdict.

II.

Defendants next contend that the trial court erred in denying their motion to suppress evidence, confessions and identification. As to this assignment defendants point out that the record does not contain a transcript of the testimony given at the pretrial hearing on their motion, and they argue that without a complete record they are unable to support their assignments of error or their subsequent objections to the introduction of evidence, confessions and identifications at trial.

Although defendants were convicted in May, 1974 and filed their appeal through newly retained counsel the following month, the record on appeal was not filed in this court until October, 1979. Shortly thereafter this court requested the trial court to supplement the record with transcripts of the hearing on the motion to suppress (if any) and with all exhibits introduced at the habitual offender hearing. When the trial court failed to respond to the request, the matter was scheduled for argument on October 14, 1980. Neither side was able to present complete arguments, however, because of the record deficiencies.

On October 20, 1980 this court issued an order to the trial court, directing that the record be supplemented as previously requested within 60 days or that the motion to suppress and habitual offender proceeding be retried. On December 19, 1980 the court reporter of the district court filed a transcript of the testimony from the habitual offender hearing with the clerk of that court, and that transcript (a copy of which was already in the record) was filed in this court in due course. However, the district court has neither furnished, the exhibits filed at that hearing and the transcript of the hearing on the motion to suppress nor explained its failure to do so.

III.

As to the assignments pertaining to the motion to suppress, the record lodged in this court does not contain a motion to suppress or a minute entry of a hearing on such a motion. While defendants are entitled under La.Const. art. I, § 19 (1974) to a judicial review based upon a complete record of all evidence upon which the judgment is based, they have the burden to establish that the record on appeal is not complete.

Appellate counsel has not furnished this court with an affidavit of defendants’ trial counsel that a motion to suppress was filed and heard, or with file copies of either the motion or the ruling on the motion. In the absence of any suggestion in the record that a motion to suppress was filed or heard, and in the absence of an attempt by present counsel to establish that such a motion was filed and heard, we are simply unable to conclude that defendants have not been accorded their right of judicial review based upon a complete record.

IV.

Finally, defendants contend that the evidence of prior convictions introduced at the habitual offender hearing did not establish that they either were accompanied by counsel or waived their right to counsel in entering guilty pleas. Citing State v. Hoffman, 345 So.2d 1 (La.1977), defendants argue that these prior convictions could not be used to enhance their sentences in this case.

The transcript of the habitual offender hearing establishes that the prosecution filed certified copies of the prior judgments of convictions into the record. However, as noted above, these exhibits are not included in the record on appeal, despite this court’s requests and orders. It can only be assumed that the certified copies of the previous convictions either were not originally made part of the record or were subsequently lost. Since defendants are entitled to a right of review based upon a complete record of all evidence upon which the judgment is based, and since the incomplete record does not establish defendants were proved to be habitual offenders, this court has no alternative than to remand for another habitual offender hearing.

Accordingly, the convictions are affirmed, but the sentences as habitual offenders are set aside, and the matter is remanded to the trial court for resentencing after another habitual offender hearing.

      . Since no confession was introduced at trial, defendants’ argument in respect to any suppression of confessions is moot.

      . The assignments of error, filed by appellate counsel for defendants in September, 1978 (after the transcript of testimony had been completed, but long before the record was lodged in this court), listed the errors relative to the motion to suppress and the habitual offender proceeding, as well as those relative to the missing transcripts and exhibits.

      . We have nevertheless received the record on the search and identification issues. The trial record contains the search warrant and accompanying affidavit. The affidavit asserted that a reliable confidential informant, who had provided information Reading to arrests and convictions in the past, stated he had witnessed the crime perpetrated by a Negro male named Curtis or “Poonie”, who he knew lived with Anita Bright in the Florida Avenue Housing Project; that the informant had seen the subject flee the scene with a shotgun wrapped in a coat, enter an apartment house in the project, and exit the building about ten minutes later without the gun or the coat; that the informant’s description of the subject was identical to that of other witnesses to the crime; and that an inquiry at the project office revealed Anita Bright leased Apartment 3508. Thus, the affidavit established the reliability of the informant and the information, and the warrant was apparently issued upon probable cause properly established.
      As to the identification issue, a review of the record does not reveal any suggestiveness used in securing photographic identification of defendants by the victim. Furthermore, the victim’s positive and emphatic in-court identification, based on face-to-face observation for several minutes prior to and during the robbery, had a source independent of any pretrial suggestiveness, so that there appears to have been no significant chance of misidentiflcation. State v. Guillot, 353 So.2d 1005 (La.1977).

      . The Hoffman decision was rendered after the sentencing in this case.


author: MARCUS, Justice. LEMMON, Justice, DENNIS, Justice,

text:
    Mose LATTIN v. The HICA CORPORATION.
    No. 80-C-1574.
    Supreme Court of Louisiana.
    March 2, 1981.

      Blanchard, Walker, O’Quin & Roberts, Jerald L. Perlman, Shreveport, for defendant-applicant.
    George T. Anderson, Shreveport, for plaintiff-respondent.
   MARCUS, Justice.

Plaintiff, Mose Lattin, suffered an injury to his right foot as a result of an accident arising out of and in the course of his employment as a general maintenance helper with Hica Corporation. He was paid disability benefits for fifty-four weeks until his doctor released him to return to work. Plaintiff contended that he was unable to perform his employment duties without pain and instituted this action against Hica for workmen’s compensation benefits alleging permanent and total disability. He also sought penalties and attorney’s fees.

The trial judge, finding that plaintiff had not established his claim of “pain and disability” and had already been paid all sums to which he was entitled under the compensation law, rendered judgment in favor of defendant and against plaintiff, dismissing plaintiff’s suit at his cost. The court of appeal reversed, finding that the totality of the evidence, lay and medical, preponderated in favor of a conclusion that the pain suffered by plaintiff was disabling. The court held that plaintiff, a common laborer, was totally and permanently disabled because his “injury substantially decreased his ability to compete with able-bodied workers in the flexible general labor market.” Considering that the court of appeal may have applied the law and jurisprudence as it existed prior to the amendment to La.R.S. 23:1221 by Acts 1975, No. 583, § 9, eff. Sept. 1, 1975, we granted defendant’s application for certiorari to review the correctness of that decision.

The record reflects that plaintiff, Mose Lattin, a twenty-eight-year-old high school graduate, was employed as a general maintenance worker with Hica Corporation. While at work on October 6, 1975, he slipped and caught his foot in the turning parts of a Wheelabarator, a machine used to abrade and clean steel. Flesh and skin were torn from the top of his foot leaving bone and tendons exposed. Additionally, nerves and extensor tendons to some of his toes were severed. He was hospitalized that day and on October 24, 1975, a skin graft was applied to the injured foot. He was released from the hospital on November 25, 1975, but returned on January 26, 1976 for surgery to remove three neuromas from the nerves on the top of his foot and to insert these nerves into adjacent veins. Plaintiff continued to see his doctor for treatment. On October 20, 1976, his treating physician advised defendant that it would be safe for plaintiff to return to work wearing a special soft safety shoe. Compensation payments were stopped. When plaintiff refused to return to work due to pain throughout the top of his foot, Hica terminated his employment.

When this case came to trial in June of 1979, plaintiff still was not working. He testified that the pain in his foot becomes sharper upon exertion, standing for 15 to 20 minutes or walking short distances. In 1977, he worked for two days painting homes and laying rugs but quit because he experienced pain and swelling around his toes. Friends and relatives of plaintiff testified that he was an active person and a good worker before his accident but after his injury he became inactive and constantly complained about pain and throbbing in his foot.

The medical reports of Dr. W. W. Fox, the orthopedic surgeon who treated plaintiff and performed the initial surgery, were introduced in evidence in lieu of his testimony. These reports indicate that plaintiff complained of pain in his foot and Dr. Fox was of the opinion that the pain was due to nerve injury. Nonetheless, on October 20, 1976, Dr. Fox addressed a letter to defendant stating that since it was his understanding that defendant had safety toe shoes that were as soft as Hush Puppies, he felt that “it would be safe for Mose Lattin to return to work wearing some type of shoe.” On November 22, 1976, Dr. Fox estimated that plaintiff had thirty percent partial permanent disability of his right foot or twenty percent partial permanent disability of the right lower extremity. One year later, he noted that plaintiff still complained of pain in his foot and had tenderness over the scar but believed the foot looked good and confirmed his earlier findings regarding plaintiff's disability rating and work status.

The deposition of Dr. Baer I. Rambach, another orthopedist who examined plaintiff, was introduced in evidence at trial. He examined plaintiff on November 15, 1976 and twice in 1977. On all three occasions, plaintiff complained of pain in his right foot and that he could not wear his shoe without discomfort. Dr. Rambach believed that the pain was due to some residual hypersensitivity in the skin graft on his foot. He further stated that he gave plaintiff a disability rating of twenty-five percent of his right foot and that he would not be surprised if he still had a painful scar. Dr. Rambach was also of the opinion that Lat-tin could return to work provided he wore a Hush-Puppie-type shoe equipped with additional padding over the scar. He considered that this would help the tenderness and sensitivity caused by the scar.

The deposition of Dr. Lewell Butler, a plastic surgeon who treated plaintiff several times between October 15, 1975 and November 17, 1977 and performed the surgery on plaintiff’s foot on January 26, 1976, was also introduced in evidence at trial. He stated that plaintiff complained of pain during these visits but that he had observed plaintiff walk without a limp and put a shoe on his injured foot without any apparent discomfort. He further stated that it was possible there was no organic basis for his pain but admitted that it was likewise possible there could be some residual sensitivity over the course of the veins in his foot due to nerves growing up into the veins. He was also of the opinion that plaintiff could return to his job if he wore a special safety shoe.

Dr. William Osborne, a specialist in the treatment of pain, testified regarding his treatment of plaintiff.. His examination of plaintiff’s foot revealed a hypersensitivity to touch and a difference in the skin temperature from the right foot and the left foot indicating a decrease in blood flow in the injured foot. Plaintiff was diagnosed to have a mild or moderate reflex dystrophy complicated by rather severe anxiety. Dr. Osborne was of the opinion that plaintiff’s anxiety was due to his personality rather than his injury but did believe that his anxiety was real and not feigned. He believed that plaintiff had an injury and had pain but that he overreacted to it and was not motivated to engage in physical therapy necessary to improve his condition. He further stated that had plaintiff returned to work, he would have been in pain but that such activity would have been beneficial to his recovery. Although he believed plaintiff exaggerated his condition, he did not believe plaintiff was a malingerer.

In order to recover benefits under the Louisiana Workmen’s Compensation Law, an employee must establish that he received a personal injury by accident arising out of and in the course of his employment. Disability is compensable only if it results from a work-related accident. La.R.S. 23:1031; Simpson v. S. S. Kresge Co., 389 So.2d 65 (La.1980). It was stipulated that plaintiff’s injury was work-related. Hence, the sole issue presented for our review is whether the court of appeal erred in finding that plaintiff was totally and permanently disabled.

La.R.S. 23:1221 (Temporary, permanent, or partial disability; schedule of payments) was amended by Acts 1975, No. 583, § 9, eff. Sept. 1, 1975. The accident in the instant case occurred on October 6, 1975. Hence, our determination of the extent of disability must be governed by the new amendment and recent decisions of this court interpreting same, particularly those cases involving disability caused by substantial pain.

A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980). Substantial pain cases may also be analyzed within the framework of the odd lot doctrine which was adopted by this court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). See Wilson v. Ebasco Services, Inc., supra; Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980); Dusang v. Henry C. Beck Builders, Inc., supra.

Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence.

The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him. On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled. Dusang v. Henry C. Beck Builders, Inc., supra.

In the instant case, plaintiff testified that the pain in his foot increases upon exertion, standing for short periods of time or walking short distances. Although compensation payments were terminated in October 1976, he had only worked for two days since his injury due to the pain. His friends and relatives testified that he was an active person and a good worker before the accident but after his injury he became inactive and constantly complained about pain and throbbing in his foot. Although all four doctors believed that plaintiff could return to work provided he wore a special Hush-Puppie-type safety shoe, they all found objective medical findings to support his claim of pain. One orthopedist gave plaintiff a disability rating of thirty percent of his right foot or twenty percent of his right lower extremity, and the other gave him a disability rating of twenty-five percent of his right foot. The pain specialist diagnosed plaintiff to have a mild to moderate reflex dystrophy complicated by rather severe anxiety. Although he believed plaintiff overreacted to his pain and was not motivated to engage in the physical therapy necessary to improve his condition, he did not feel that plaintiff was a malingerer.

We consider the evidence clearly establishes a prima facie case for classification in the odd lot category, as plaintiff’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market. However, under the odd lot doctrine standards adopted by this court in Oster and Calogero, defendant should be given the opportunity to reduce the award of plaintiff’s benefits from permanent and total disability to permanent and partial disability by presenting evidence that some form of gainful occupation is-regularly and continuously available to plaintiff within a reasonable proximity to his residence. Accordingly, the judgment of the court of appeal awarding compensation benefits for permanent and total disability must be set aside and the case remanded to the district court to allow both parties to present additional evidence in light of the newly-adopted standards.

DECREE

For the reasons assigned, the judgment of the court of appeal is set aside and the case is remanded to the district court for further proceedings consistent with this opinion.

DENNIS, J., concurs with reasons.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

I disagree that plaintiff established a pri-ma facie case of entitlement to odd lot status.

Every doctor opined that plaintiff could return to work, attributing sensitivity from scarring as the cause of the pain which would lessen with activity as the scarring became more flexible. Plaintiff was simply not motivated to undertake the activity necessary to lessen the pain. He has not proved the physical disability or lack of mental capacity and education to qualify for odd lot status.

DENNIS, Justice,

concurring.

I join in the majority opinion and advance these additional reasons for remanding the case.

The odd lot doctrine as applied to substantial pain cases was adopted after the trial and appeal of this case. It is therefore understandable that such factors as the injured worker’s education, mental abilities, work experience and vocational training were not developed at trial sufficiently to allow us to avoid remanding. Although a remand is not always necessary, see Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), there is some reason to believe that this plaintiff could engage in gainful employment if available though perhaps dissimilar in nature from plaintiffs former job. As in Turner v. American Mut. Ins. Co., 390 So.2d 1330 (La.1980), upon remand the trial judge must determine whether the employer is successful in rebutting the plaintiff’s prima facie showing of odd lot status, and if so, whether permanent, partial disability benefits should be awarded.

      . 384 So.2d 479 (La.App. 2d Cir. 1980).

      . 393 So.2d 104 (La.1980).