author: MARCUS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Colin CLARK.
    No. 66573.
    Supreme Court of Louisiana.
    June 23, 1980.
    Dissenting Opinion July 30, 1980.
    Rehearing Denied Sept. 12, 1980.
    Concurring in Part and Dissenting Opinion Nov. 4, 1980.
    See 389 So.2d 1335.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
    M. Michelle Fournet, Asst. Public Defender, J. J. McKenzie, Baton Rouge, for defendant-appellant.
   MARCUS, Justice.

Colin Clark was indicted by the grand jury for the first degree murder of Fred Schmidt on July 15, 1978, in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The matter was submitted on the evidence of the trial on the issue of guilt without introduction of other evidence. The jury unanimously recommended that a sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with the recommendation of the jury. On appeal, defendant relies on twenty-seven assignments of error for reversal of his conviction and sentence.

FACTS

On Saturday, July 15, 1978, at 1:59 a. m., a burglar alarm was set off at the Red Lobster Inn in Baton Rouge, Louisiana. Police arrived at the Inn at 2:05 a. m. and upon entering found the body of Fred Schmidt, the assistant manager of the restaurant. Schmidt had been stabbed approximately thirty to thirty-five times and had been shot once. A pathologist testified that the knife wounds were delivered before the shooting, which produced instant death. Two of the knife wounds would otherwise have been fatal. Found next to the body was a butcher knife that according to the pathologist could have been the knife used. A ballistics expert testified that the bullet found was fired from a .38 caliber revolver. Also found at the scene were spots of blood of the same type as that of defendant, two band-aid wrappers and an entry in the manager’s log reading “Colin walked out, S.O.B.” A metal strongbox, approximately $1,800.00 and two bottles of Chivas Regal scotch were missing.

Defendant had been employed as a waiter at the Red Lobster and had quit earlier that evening. A waitress at the restaurant testified that defendant and the victim had an argument that evening. Three witnesses testified they saw defendant’s car at the restaurant or several blocks away driving toward the restaurant immediately prior to the crime. Two of these witnesses also testified they saw two persons in the car. One witness testified ■ a friend with her shouted, “Hey, Colin,” when the car passed and the passenger in the car stuck his arm out of the window and waved.

Two of defendant’s roommates, Linda Pittman and Rod Reid, testified they were in bed in their room at 4:00 or 4:30 a. m. when defendant and their other roommate, Michael Glover, returned home. Defendant shut the door to Pittman and Reid’s room, telling them he had a couple of lady friends with him. When they heard unusual shuffling noises, Pittman and Reid left their room to investigate. Defendant and Glover were packing their belongings. Defendant’s hand was badly cut and, according to Pittman, had band-aids on it. Pittman noticed an unusually large number of bills in Glover’s wallet. At about 5:30 a. m., after consuming a bottle of Chivas Regal scotch they had brought in with them, defendant and Glover departed, telling Pittman and Reid that if anyone asked, they should say that defendant and Glover left for San Francisco, California, two days before. After they left, Pittman and Reid noticed that a metal strongbox they had seen during the packing was gone. Furthermore, Pittman and Reid both testified defendant owned a knife like that found at the scene of the crime and Glover owned a .38 caliber revolver, the same type of gun as that used in the murder. Glover was arrested in New York City; defendant was arrested in San Diego, California; his car was found in Tallahassee, Florida.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his objection to the one thousand dollar limitation placed on the amount he was allowed to expend in his defense. He argues that, due to this limitation, he was unable to hire an investigator and to locate and procure for trial a certain material witness.

On August 3, 1979 (Friday), defendant filed a motion for a continuance due to the “unavailability of necessary out-of-state witnesses.” Trial was set for Monday, August 6, 1979. Defendant had been arraigned and counsel appointed some six months earlier. Attached to the motion was an affidavit of counsel which stated that, despite due diligence and effort of counsel, it had only recently come to his attention that the testimony of Dr. Francis H. Hoffman of Mobile, Alabama, was required. The affidavit continued by stating that Dr. Hoffman, a psychiatrist, “would possibly be a necessary defense witness” and that it was “believed by the defense” that he would testify that the crime charged was outside of the personality and psychological makeup of defendant. Counsel further stated that he learned of Dr. Hoffman approximately two weeks before trial.

Immediately prior to the commencement of trial, defense counsel admitted that he had not contacted Dr. Hoffman about his possible testimony. The testimony of another doctor, whose absence was also alleged as a basis for the continuance, was stipulated by agreement of counsel. The trial judge denied the motion for a continuance. Prior to the calling of the first witness, defendant lodged an objection to the dollar limitation placed on the amount he was allowed to expend in his defense. The trial judge noted his objection.

La. Code Crim.P. art. 738 provides that each defendant shall be allowed to summon twelve witnesses at the expense of the parish at the trial of a felony case. If a defendant is indigent and unable to pay for witnesses desired by him in addition to those summoned at the expense of the parish, art. 739 provides for a method by which he may apply to the court for the additional witnesses.

In the instant case, defendant called only one witness at trial. Dr. Hoffman could have been subpoenaed at the expense of the parish. Despite the fact that Dr. Hoffman’s whereabouts was known to defendant at least two weeks prior to trial, no attempt was made to subpoena him.

In State v. Madison, 345 So.2d 485 (La.1977), we stated that when an indigent defendant shows that his attorney is unable to obtain existing evidence crucial to the defense, the means to obtain it should be provided for him, and if the indigent defender system cannot defray the expense, the state ought to supply the funds. There, however, we held that defendant did not make a sufficient showing of need to justify the procurement of an investigator. Similarly, in the instant case we find defendant made an insufficient showing that the dollar limitation placed on his defense and the lack of a private investigator prevented him from obtaining existing evidence crucial to his defense. The trial judge did not err in denying defendant’s objection.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends the trial judge erred in charging the jury with the law of conspiracy, over defendant’s objection, when defendant had not been charged with the crime of conspiracy.

La.R.S. 14:26 defines the offenses of conspiracy as follows:

Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other.

A criminal conspiracy to commit any given offense is an inchoate crime, separate and distinct from the completed criminal conduct. However, when a defendant is on trial for the completed offense and the facts of the case establish the existence of a conspiracy, reference to the law of conspiracy may be relevant and permissible to allow the state to take advantage of the evidentiary rules found in La.R.S. 15:455, which provides:

Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.

Therefore, if the state did in fact establish a prima facie case of conspiracy, the trial judge’s charge to the jury as to the law of conspiracy was proper as the law applicable to the case. La. Code Crim.P. art. 802; State v. Matthews, 354 So.2d 552 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Bennett, 341 So.2d 847 (La.1976); State v, Kaufman, 331 So.2d 16 (La.), cert. denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591 (1976); State v. Carter, 326 So.2d 848 (La.1975); State v. Brown, 326 So.2d 839 (La.1975), cert. denied, 429 U.S. 918, 97 S.Ct. 310, 50 L.Ed.2d 284 (1976).

The type of proof necessary to establish a conspiracy may be direct or circumstantial evidence. State v. Sheppard, supra; State v. Kaufman, supra. In State v. Carter, supra, we held that, when the only showing of conspiracy is that two people committed a crime, and .there is no showing that defendant either committed or conspired to commit the criminal act, no prima facie case of conspiracy has been established. We further held that the fact, alone, that two or more have committed the crime charged is not sufficient to establish a prima facie case of conspiracy.

In the instant case, however, we find that there was a prima facie showing that two persons agreed or combined for the specific purpose of committing a crime. Two witnesses testified that defendant’s car was in the vicinity of the crime just before its occurrence with two passengers sitting in it. One of those witnesses testified that a friend with her at the time identified one of the passengers as defendant. At the scene of the crime, police investigators found a butcher knife next to the body. They also found spots of blood of the same type as that of defendant. Several bottles of Chivas Regal scotch were missing, as were a metal strongbox and approximately $1,800.00. Ballistics tests performed on a bullet removed from the body of the victim indicated that it had been fired from a .38 caliber revolver. Two of defendant’s roommates, Linda Pittman and Rod Reid, testified that defendant returned home several hours after the crime with their other roommate, Michael Glover. Defendant’s hand was badly cut and he and Glover began packing their belongings. Pittman noticed an unusually large number of bills in Glover’s wallet. At about 5:30 a. m., after consuming a bottle of Chivas Regal scotch they had brought in with them, defendant and Glover departed, telling Pittman and Reid that if anyone asked, they should say that defendant and Glover left two days before. After they left, Pittman and Reid noticed that a metal strongbox they had noticed during the packing was gone. The departure was about three and one-half hours after the crime. Furthermore, Pittman and Reid both testified defendant owned a knife like that found at the scene of the crime and Glover owned a .38 caliber revolver, the same type of gun as that used in the murder.

Since a prima facie case of conspiracy was established, the law of conspiracy was clearly applicable to the case. Accordingly, the trial judge did not err in charging the jury concerning the law of conspiracy.

Assignment of Error No. 13 is without merit.

ASSIGNMENT OF ERROR NO. 17

Defendant contends the trial judge erred in overruling his objection to the prosecutor’s reference to hearsay testimony during closing argument. He argues the testimony was hearsay and, despite his failure to object when it was given, the prosecutor exceeded the scope of closing argument in referring to it.

During trial, the state called Debra Richard to testify concerning defendant’s whereabouts immediately prior to the armed robbery-murder. She testified that she was an employee of the Red Lobster Inn, the scene of the crime and the former employer of defendant. On the night of the crime, she left work at about midnight and met several friends at a doughnut shop near the Inn. Sometime between 12:30 and 1:30 a. m., according to her testimony, a blue car known to her to be defendant’s and occupied by two persons drove by in the direction of the Inn. She further testified that one of her friends, Donna Bonaventure, shouted “Hey, Colin.” The person on the passenger side of the car stuck his arm out of the window and waved. Richard was unable to identify the persons in the car. During her testimony, defendant made no objection.

In his closing argument, the prosecutor stated: “The Bonaventure girl yelled, ‘Hi, Colin’ and somebody passing in the car that looked like his car, on the passenger’s side, waved back and there was another occupant in the car. Conceivably she couldn’t identify either one of them, she didn’t see them, all she did was she heard Bonaventure say ‘Hi, Colin’ and looked up.” At this point, defendant objected on the ground of hearsay. The trial judge overruled the objection.

An objection to the admissibility of testimony comes too late after the testimony has gone to the jury. State v. Richmond, 278 So.2d 17 (La.1973); State v. Foster, 164 La. 813, 114 So. 696 (1927).

La.Code Crim.P. art. 774 provides that the argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. Hearsay evidence not objected to constitutes substantive evidence. State v. Allien, 366 So.2d 1308 (La.1978). Therefore, the state may refer in argument to hearsay evidence admitted without objection. See State v. Cason, 115 La. 897, 40 So. 303 (1906).

In the instant case, defendant did not object to the introduction of the hearsay statements when they were made. Thus, his hearsay objection during closing argument was untimely. Furthermore, because the statements constituted evidence, his objection that the prosecutor exceeded the scope of closing argument is without merit. The trial judge did not err in overruling the objection.

Assignment of Error No. 17 is without merit.

ASSIGNMENTS OF ERROR NOS. 19 AND 20

Defendant contends the trial judge erred in overruling his objections to the prosecutor’s statements in closing argument that there was hostility between defendant and Fred Schmidt, the victim, and that Michael Glover had been driving defendant’s automobile. He claims that these statements were not supported by the evidence and hence were not within the proper scope of closing argument.

In argument to the jury, the prosecutor thought it necessary to show a motive in order to connect defendant to the armed robbery-murder if Fred Schmidt. The prosecutor stated: “How do we connect this defendant and Mike Glover to this crime? Well, in several ways: (1) motive, there was hostility between this defendant and the victim in this case.” Defendant objected, claiming there was no evidence in the record of hostility. The objection was overruled, and the prosecutor continued. He then stated: “We connect him [defendant] through and by his automobile, he was seen driving-he was seen going that-a-way, driving in the passenger’s side with Glover driving in his automobile by three people.” Again defendant objected, claiming there was no evidence in the record to show that Glover was driving. This objection was also overruled.

Counsel are permitted in argument to make fair and reasonable conclusions from the facts introduced in evidence. La.Code Crim.P. art. 774; State v. de la Beckwith, 344 So.2d 360 (La.1977); State v. Lockett, 332 So.2d 443 (La.1976); State v. Weathers, 320 So.2d 895 (La.1975); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). Further, counsel may properly comment on and summarize the evidence in arguing facts. State v. de la Beckwith, supra; State v. Luckett, 327 So.2d 365 (La.1975).

Brenda Rosenback testified that on the night of the murder, defendant and Fred Schmidt had had an argument. Furthermore, the manager’s log kept by Fred Schmidt and introduced into evidence by the state stated: “Colin walked out, S.O.B.” In view of this evidence, the prosecutor’s statement that there was hostility between defendant and Fred Schmidt was not improper. It was a conclusion that the state could draw from the facts introduced in evidence.

Three persons testified that they had seen defendant’s car in the vicinity of the Red Lobster Inn, the scene of the crime, just before the armed robbery-murder. Two of them further testified that two men were in the car. One testified that one of these men was defendant. Some time after the killing, defendant and Glover arrived at their apartment and packed to leave. They left together. The killing had been accomplished with a knife similar to that carried by defendant and a handgun of the same caliber as that of Glover. In view of this evidence, the prosecutor’s statement that Glover was driving the car was not improper. It was a reasonable conclusion drawn from the facts in evidence.

In sum, the trial judge did not err in overruling defendant’s objections to the prosecutor’s statements in closing argument that there was hostility between defendant and Fred Schmidt and that Michael Glover had been driving defendant’s automobile.

Assignments of Error Nos. 19 and 20 are without merit.

ASSIGNMENT OF ERROR NO. 26

Defendant contends the trial judge erred in denying his motion in arrest of judgment grounded on the claim that La.R.S. 14:30 and La.Code Crim.P. arts. 905-905.9 are unconstitutional on their face and as applied.

First, defendant argues the use of an aggravating circumstance as an element of the crime is unconstitutional because once the jury has determined guilt it has already determined the existence of an aggravating circumstance prior to the commencement of the sentencing hearing.

This argument is without merit. Notwithstanding the verdict rendered in the guilt portion of the trial, to determine that the sentence of death be imposed the jury must find beyond a reasonable doubt that at least one statutory aggravating circumstance exists after a sentencing hearing. Defendant has the opportunity to introduce evidence, including that of mitigating circumstances, not introduced at trial. The jury is not bound to find the existence of an aggravating circumstance merely because it found defendant guilty of first degree murder.

La.Code Crim.P. art. 905.4(g) provides that one of the aggravating circumstances is that the “offense was committed in an especially heinous, atrocious or cruel manner.” Defendant argues this provision is unconstitutionally vague and overbroad.

The argument is without merit. In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court answered a similar challenge to a Georgia provision authorizing imposition of the death penalty if the murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim” by stating: “It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.” We have previously construed art. 905.4(g) as incorporating some idea of torture or pitiless infliction of unnecessary pain on the victim. State v. Sonnier, 379 So.2d 1336 (La.1979) (on original hearing); State v. English, 367 So.2d 815 (La.1979). Accordingly, we hold here that the aggravating circumstance of art. 905.4(g) is not unconstitutionally vague and overbroad.

Defendant also argues that La. Code Crim.P. art. 905.8 accords too much discretion to the jury, resulting in arbitrary and capricious imposition of the death penalty. Article 905.8 provides:

The court shall sentence the defendant in accordance with the recommendation of the jury. If the jury is unable to unanimously agree on a recommendation, the court shall impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.

Defendant’s claim is without merit. Although the trial judge must sentence the defendant in accordance with the recommendation of the jury, all discretion has not been placed with the jury. Adequate safeguards have been provided against the arbitrary imposition of the death penalty. The jury’s recommendation must be based on a finding of at least one statutory aggravating circumstance and after considering any mitigating circumstances. Moreover, despite the jury’s recommendation, the trial judge has the authority to grant a new trial and this court is required to review every sentence of death to determine if it is excessive.

Additionally, we note that our capital sentence law was modeled upon the Georgia statute upheld in Gregg, supra. That statute also bound the trial judge to sentence the defendant in accordance with the recommendation of the jury.

Finally, defendant argues the sentencing provisions are unconstitutional because they allow a defendant to be sentenced to death for the type of person he is rather than for the crime he committed. Specifically, he points out that La.Code Crim.P. art. 905.2 provides that the “sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender.”

This argument is without merit. Defendant cannot be sentenced to death without a finding of the existence of a statutory aggravating circumstance, no matter what type of person he is. Moreover, it has long been accepted in this country that sentencing should be done on an individual basis. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). As the United States Supreme Court concluded in Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976):

in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

In sum, the trial judge did not err in denying defendant’s motion in arrest of judgment. ■

Assignment of Error No. 26 is without merit.

ASSIGNMENT OF ERROR NO. 27

Defendant contends the trial judge erred in denying his motion to discharge counsel, counsel’s motion to withdraw, and defendant’s motion for a new trial based on the same claims. He argues he was denied assistance of counsel because he was forced to make a choice between retaining counsel and taking the stand.

The record reveals that at the beginning of the sentencing hearing, before the jury was brought into the court, defendant moved the court to discharge Neal Wilkinson, his assistant counsel. Defendant indicated he desired to retain J. J. McKenzie as chief counsel. The court granted the motion but allowed Wilkinson to remain in the court to assist in any way he could. The jury was brought in and the prosecutor made his opening statement. Defendant then moved to discharge McKenzie. The court denied the motion and told defendant McKenzie would stay in court and advise him. Defendant then asked the judge if he could take the stand. McKenzie told the judge he had advised defendant against taking the stand and requested to withdraw. The court denied counsel's request and stated defendant could take the stand. After a recess, defendant announced he agreed with counsel not to take the stand but would argue his case. In argument, defendant told the jury he wanted to be sentenced to death. McKenzie objected, defendant concluded, and McKenzie argued mitigating circumstances to the jury.

We do not agree that defendant was forced to make a choice between retaining counsel and taking the stand. While McKenzie initially presented defendant with a choice between testifying or continued representation, counsel was never allowed to withdraw and in fact continued his vigorous assertion of defendant’s case by repeated objections to argument by the prosecution and by presenting additional argument on defendant’s behalf. Defendant was aware of his right to take the stand. The opportunity both to take the stand and to have counsel remained open at all times. The trial judge appropriately resolved the conflict between defendant and his counsel while at the same time recognizing defendant’s right to testify. Accordingly, the trial judge did not err in denying defendant’s motion to discharge counsel, counsel’s motion to withdraw, and defendant’s motion for a new trial based on the same claims.

Moreover, we note that, although defendant failed to take the stand, it appears clear from his closing argument that his sole motivation for taking the stand was to ask the jury to recommend the death sentence. This purpose having been fulfilled by his closing argument, it can hardly be argued defendant was deterred from testifying by the threat that counsel would no longer represent him.

Assignment of Error No. 27 is without merit.

SENTENCE REVIEW

Article 1, section 20 of the Louisiana Constitution prohibits cruel, excessive, or unusual punishment. La.Code Crim.P. art. 905.9 provides that this court shall review every sentence of death to determine if it is excessive. The criteria for review are established in La.Sup.Ct.R. 28, § 1, which provides:

Review Guidelines. Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine:
(a)whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
(b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and
(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

(a) Passion, prejudice or any other arbitrary factors

There is no evidence that defendant’s sentence was imposed under the influence of passion, prejudice or any other arbitrary factors. Moreover, we note both defendant and his victim are white.

(b) Statutory aggravating circumstances

The jury in its verdict found the following statutory aggravating circumstances:

(a) The offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, or armed robbery.
(b) The offense was committed in an especially heinous, atrocious or cruel manner.

Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use or force or intimidation, while armed with a dangerous weapon. In our view, the evidence amply supports the jury’s finding that the defendant was engaged in the perpetration or attempted perpetration of armed robbery.

The jury also found that the offense was committed in an especially heinous, atrocious or cruel manner. We have previously construed this statutory aggravating circumstance as incorporating some idea of torture or pitiless infliction of unnecessary pain on the victim. State v. Sonnier, 379 So.2d 1336 (La.1979) (on original hearing); State v. English, 367 So.2d 815 (La.1979).

In the instant case, defendant and Glover had a gun, yet they chose first to stab Schmidt some thirty to thirty-five times in the back, neck, head, arms, and hands. One of these wounds was made in an attempt to stab through the victim’s skull. As one of the police witnesses testified, the victim was “butchered.” Accordingly, we find substantial evidence supporting the jurys finding that the murder was committed in an especially heinous, atrocious or cruel manner.

In sum, the evidence supports the jury’s finding of two statutory aggravating circumstances.

(c) Proportionality to the penalty imposed in similar eases

Supreme Court Rule 28, § 4 provides that the district attorney shall file with this court a list of each first degree murder case in the district in which sentence was imposed after January 1, 1976. The list shall include the docket number, caption, crime convicted, sentence actually imposed and a synopsis of the facts in the record concerning the crime and the defendant. In the instant case, the list reveals that there have been twenty-eight first degree murder indictments filed in East Baton Rouge Parish. In addition, we know of two others. State v. Williams, 383 So.2d 369 (La.1980); State v. Spooner, 368 So.2d 1086 (La.1979) (reversed and remanded for new trial). Fourteen of these indictments resulted in verdicts of guilty of first degree murder. Of these fourteen, three defendants, including Colin Clark, received the death penalty. In all of these cases, the defendants were the actual killers and the killings occurred during armed robberies. Thus, in the cases most similar to defendant’s, the same penalty was imposed. A review of the other first degree murder convictions in East Baton Rouge Parish shows a dissimilarity between them and the instant case in that there were arguably no aggravating circumstances or there were present mitigating circumstances which justified the jury’s recommendation of life imprisonment.

According to a presentence investigation report and the Uniform Capital Sentence Report, defendant is a twenty-six year old white male whose parents were divorced when he was eleven. His father was an alcoholic who beat him. Although of average intelligence, defendant quit school in the tenth grade. He admitted that he started taking drugs when he was fourteen. He is divorced and has no children. Defendant’s record consists of juvenile arrests involving drugs and trespassing and criminal convictions for distribution of drugs, driving while intoxicated, obstructing an officer and driving violations. His arrest in California for a drug violation led to his return to Louisiana to stand trial on the instant charge.

After having considered the above factors, we are unable to conclude that the sentence imposed in the instant case is disproportionate to the penalty imposed in other cases, considering both the crime and the defendant.

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.

DIXON, C. J., especially concurs, not agreeing that conspiracy charge was proper, but believing it was not prejudicial.

DENNIS, J., concurs in part and dissents in part with reasons. The concurring and dissenting opinion is published separately at 389 So.2d 1335.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent from the majority’s affirmance of the conviction and sentence of this defendant because I do not believe the majority’s treatment of the conspiracy issue is correct. Rather I believe defendant’s assignment of error No. 13 has merit.

Initially, the state did not establish a prima facie case of conspiracy, a mandatory requirement prior to charging the jury on the law pertaining to conspiracy. In the evidence presented at trial there was no showing that Clark was engaged in a conspiracy to rob or to murder. There was evidence that Clark’s vehicle was seen within one hour prior to the time the burglar alarm sounded, with two occupants. There was further evidence that Clark was seen three hours after the murder with Glover, that Clark and Glover were packing their things to leave town and that Glover had a large number of bills in his wallet. This evidence hardly constitutes a prima facie showing of conspiracy to rob or murder.

Criminal conspiracy is defined as “the agreement or combination of two or more persons for the specific purpose of committing any crime . . . .” R.S. 14:26. This Court has held on numerous occasions that when the only indication of conspiracy is that two people committed a crime, and there is no showing that defendant either committed or conspired to commit the criminal act, no prima facie showing of conspiracy has been established. State v. Matthews, 354 So.2d 552 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Bennett, 341 So.2d 847 (La.1976); State v. Kaufman, 331 So.2d 16 (La.1975) and State v. Carter, 326 So.2d 848 (La.1975).

In the present case, there has been no' showing that defendant conspired with anyone to commit any crime. Unlike the cases above, all of the evidence, other than the fact that two passengers were seen in defendant’s car an hour before the crime, concerns the defendant’s activities three hours after the crime. There is simply no showing that the defendant and/or any other person agreed or combined to commit this crime.

Without making a prima facie showing of conspiracy, the state can not take advantage of R.S. 15:455, which makes a defendant who is part of a conspiracy bound by the acts and declarations of a co-conspirator if they are done in furtherance of the conspiracy. Without the advantages of this provision, for a first degree murder conviction the state must prove, by independent evidence, that defendant both killed the victim with the specific intent to kill and did so in the course of an armed robbery. State v. Payton, 361 So.2d 866 (La.1978). In the present case, the state did not make a prima facie showing of conspiracy and therefore, the charge on R.S. 15:455 should never have been given.

Since we can not now determine whether the jury, under R.S. 15:455, mistakenly attributed the acts of the other party to this defendant or found independently that defendant had himself committed the requisite elements of the crime of first degree murder, I believe that defendant’s conviction and sentence should be reversed and the case remanded for a new trial.

      . Defendant has expressly abandoned Assignments of Error Nos. 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 16, 18, 21, 22, 23, 24 and 25. Additionally, defendant has neither briefed nor argued Assignment of Error No. 15. Hence, we consider it to be abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . At the time of the commission of the instant crime, conviction of first degree murder required proof of one of four of the aggravating circumstances listed in La.Code Crim.P. art. 905.4. State v. Payton, 361 So.2d 866 (La.1978). The aggravating circumstance charged and found in the guilt phase of the instant case was that defendant was engaged in the perpetration or attempted perpetration of armed robbery.

      . State v. Clark, 387 So.2d 1124, 389 So.2d 1335. (La.1980); State v. Williams, 383 So.2d 369 (La.1980); State v. Williams, No. 64,987 (La., March 3, 1980) (rehearing granted); State v. Glover, 380 So.2d 626 (La.1980); State v. Allen, 380 So.2d 28 (La.1980); State v. Foote, 379 So.2d 1058 (La.1980); State v. Collins, 378 So.2d 928 (La.1979); State v. Howard, 377 So.2d 1226 (La.1979); State v. Gertenschloger, 377 So.2d 130 (La.1979); State v. Edwards, 375 So.2d 1365 (La.1979) (remanded for further proceedings); State v. Spooner, 368 So.2d 1086 (La.1979) (reversed and remanded for new trial); State v. Holmes, 388 So.2d 722 (La.1979); State v. Fitzpatrick, No. 66,770 (La., filed Feb. 6, 1980); State v. Gleim, No. 3-79-344 (La. 19th Jud.Dist.Ct., filed Jan. 31, 1980).

      . The two other cases in which the death penalty was imposed are State v. Williams, 383 So.2d 369 (La.1980), and State v. Williams, No. 64,987 (La., March 3, 1980) (rehearing granted).

      . Although both Michael Glover, State v. Glover, 380 So.2d 626 (La.1980), and Ralph Holmes, Jr., State v. Holmes, 388 So.2d 722 (La.1979), were parties to the same killings as were Colin Clark and Robert W. Williams and were convicted of first degree murder, neither were sentenced to death. However, neither was the actual killer in their respective crimes.

      . In State v. Edwards, 375 So.2d 1365 (La.1979) (remanded for further proceedings), defendant was the murderer and the killing occurred during an armed robbery. Defendant was sentenced to life imprisonment. There, however, defendant was seventeen years old; hence, it is possible the jury found sufficient mitigation to recommend life imprisonment rather than death.

      . State v. Allen, 380 So.2d 28 (La.1980); State v. Foote, 379 So.2d 1058 (La.1980); State v. Collins, 378 So.2d 928 (La.1979); State v. Gertenschloger, 377 So.2d 130 (La.1979); State v. Spooner, 368 So.2d 1086 (La.1979) (reversed and remanded for new trial); State v. Gleim, No. 3-79-344 (La. 19th Jud.Dist.Ct., filed Jan. 31, 1980).

      . State v. Glover, 380 So.2d 626 (La.1980); State v. Howard, 377 So.2d 1226 (La.1979); State v. Edwards, 375 So.2d 1365 (La.1979) (remanded for further proceedings); State v. Holmes, 388 So.2d 722 (La.1979); State v. Fitzpatrick, 386 So.2d 365 (La.1980).


source: Caselaw Access Project

author: DENNIS, Justice. PER CURIAM.

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. Robert D. EDWARDS.
    No. 60211.
    Supreme Court of Louisiana.
    June 23, 1980.
    On Rehearing Sept. 10, 1980.
    Thomas 0. Collins, Jr., Executive Counsel, New Orleans, Harold J. Lamy, New Orleans, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Edgar H. Lancaster, Jr., Tallulah, Alfred S. Landry, New Iberia, A. Russell Roberts, Metainie, John B. Scofield, Lake Charles, for applicant, Louisiana State Bar Ass’n.
    Milton P. Masinter, New Orleans, for respondent.
   DISCIPLINARY PROCEEDING

DENNIS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, brought this disciplinary proceeding against one of its members, Robert D. Edwards. We conclude that Edwards violated the Code of Professional Responsibility by perpetrating fraud on a court and must be publicly reprimanded. A more severe penalty would have been imposed but for the undue delay in the prosecution of this proceeding and Edwards’ lengthy suspension for a contemporaneous, although unrelated, violation.

The Commissioner found the following facts: Respondent is Robert D. Edwards, a member of the Louisiana State Bar Association. For some time prior to November 1, 1970, respondent represented Jack H. Dow-ell in various matters, one of which was a domestic dispute with his wife. In the course of this representation, respondent counseled Mr. Dowell as regards certain property owned by him to execute a mortgage note and mortgage so as to encumber his real property, in order to prevent Mr. Dowell’s wife from making a claim for equity thereon. At the time respondent knew that the transaction was a simulation and he knew that its sole purpose was to deceive Mrs. Dowell. Therefore, respondent obtained the said mortgage note from Mr. Dowell and instituted foreclosure proceedings thereon, ultimately taking same to a sheriff’s foreclosure sale wherein he bid the property in the name of another client, Mr. L. C. McCarthy. At the time of this foreclosure sale, or thereabouts (the date thereof being unclear in the record) respondent caused the execution by Mr. McCarthy of a “counter letter” acknowledging that the property which was the subject of the sale was in reality the property of Mr. Dowell. Therefore, allegedly on or about April 27, 1970, without valid consideration, respondent caused the execution of an act of cash sale from Mr. McCarthy to Mr. Dowell, which said act of cash sale was not recorded promptly. The act of sale was not recorded until after the death of Mr. McCarthy. The above acts were performed by respondent only for the purpose of depriving Mr. Dow-ell’s wife of rights she may have had to the property which was the subject of the above series of transactions.

From his findings, the Commissioner concluded that Edwards’ conduct constituted (1) the filing of a suit “merely to harass or maliciously injure another,” a violation of DR 7-102(A)(l); and (2) the counseling and assisting of his client in “conduct that the lawyer knows to be illegal or fraudulent,” a violation of DR 7-107(A)(7). The Commissioner recommended against the respondent’s disbarment, but did not make any other specific recommendation as to the appropriate discipline. The Committee on Professional Responsibility instituted this suit for the disbarment or suspension of the respondent.

There is warrant in the record for each of the Commissioner’s findings of fact except for his determination that respondent acted with an intent to deprive Mr. Dowell’s wife of rights she may have had in the immovable property mortgaged and foreclosed upon. The undisputed evidence indicates that the property was Mr. Dow-ell’s separate property in which his wife had no interest, and that the simulated transactions were made only because she had threatened to file suit claiming an interest purely to harass her husband. Accordingly, there is no basis for the Commissioner’s conclusions that respondent violated DR 7-102(A)(l) and (2). The foreclosure suit was not filed to harass or maliciously injure Mr. Dowell’s wife. The conduct which respondent counseled and aided was neither illegal nor in fraud of the wife’s rights in view of the evidence of record which shows that she had no interest in the property.

Respondent Edwards was guilty of other violations of the Code of Professional Responsibility, however. By misusing the court in a sham foreclosure suit, respondent perpetrated a fraud upon a tribunal, DR 7-102(A)(8), knowingly created and used false evidence, DR 7-102(A)(4) and (6), and knowingly made a false statement of fact, DR 7 — 102(A)(5). Furthermore, his conduct involved dishonesty, deceit and misrepresentation, DR 1-102(A)(4), and was prejudicial to the administration of justice. DR 1-102(A). Respondent was fairly put on notice of these charges by the Committee’s specifications and given an adequate opportunity to defend against them.

Respondent’s violations are serious and cannot be treated lightly. Under the circumstances of this ease, however, we conclude that disbarment or suspension is not justified.

On April 30, 1970, shortly after respondent had handled the transactions at issue herein, he was indicted for receiving stolen vehicles. Following his nolo contendere plea, respondent was sentenced on October 13, 1971 to three years’ imprisonment. Immediately thereafter, respondent was suspended from the practice of law on October 27, 1971. This suspension remained in effect until the order was rescinded on March 1,1973. Respondent began serving his prison sentence on November 15, 1971 and was released on October 16, 1972. Respondent was suspended from the practice of law for an additional two years by a decision of this Court rendered November 3, 1975. Louisiana State Bar Assn. v. Edwards, 322 So.2d 123 (La.1975). As a result of his conviction and sentence, respondent was effectively suspended from the practice of law for approximately forty months.

Respondent moved to dismiss the proceedings contending that the disciplinary action had prescribed and that the committee had been guilty of laches. This Court denied the motion and referred the defenses urged therein to the merits. We now reject the defenses insofar as they seek to defeat disciplinary action. This Court has not promulgated any rules of prescription applicable to disciplinary proceedings. See Louisiana State Bar Assn. v. Loridans, 338 So.2d 1338 (La.1976); Louisiana State Bar Assn. v. Theard, 62 So.2d 501 (La.1952). The doctrine of laches cannot be invoked to prevent disciplinary action unless the respondent has been prejudiced in his defense by the delay. See Louisiana State Bar Assn. v. Theard, supra. Respondent in this case was not prejudiced in defending against the charges upon which we find violations.

Although the prosecution of this complaint is not barred by laches, the lengthy and unwarranted delay between the time the complaint was filed (October 1, 1973) and the suit was instituted in this Court (August 5, 1977) warrants mitigation of the punishment. This delay of almost four years is aggravated by the elapse of approximately three years between the attorney’s misconduct and a complaint to the bar association. A further delay of over two and one-half years occurred between the filing of suit and the filing of the Commissioner’s report. Thus, if the penalty here is to suit the offense, we must take into consideration that respondent’s violation occurred approximately ten years ago.

Justice and professional responsibility demand that the Committee promptly and diligently prosecute each disciplinary action worthy of pursuit. Lengthy delays contribute to the loss of evidence and hinder a just determination of appropriate discipline. The disbarment or discipline of an attorney long after his misconduct has occurred does not have a salutary effect on other members of the bar; nor does it serve well to preserve the integrity of the courts — two considerations which lie as the basis for attorney discipline. Louisiana State Bar Assn. v. Shaheen, 338 So.2d 1347 (La.1976); Louisiana State Bar Assn. v. Gremillion, 320 So.2d 171 (La.1975).

The responsibility for expeditious hearings on complaints lies with the Committee. Inordinate delays are unfair and unjust to the accused attorney and create an ordeal in themselves which serves as a punishment for a disciplinary infraction.. See The Florida Bar v. Papy, 358 So.2d 4 (Fla.1978); Vaughn v. State Bar, 9 Cal.3d 698, 108 Cal.Rptr. 806, 511 P.2d 1158 (1973); In Re Zussman, 86 Ariz. 272, 344 P.2d 1021 (1959). As the Supreme Court of Florida observed:

“[Y]ears of exposure to public scrutiny and criticism supplemented by clear evidence of rehabilitation, justify a terminal penalty that otherwise perhaps would be considered inadequate, [citations omitted]. During this unduly long period of investigation and prosecution, the accused lawyer is left roaming through the fields of Limbo where dwelt what Dante called ‘the praiseless and the blameless dead.’ ” The Florida Bar v. Randolph, 238 So.2d 635 (Fla.1970).

The penalty in this case will be imposed some ten years after the attorney’s misdeeds and seven years following the filing of the complaint. It will also follow his previous suspension of almost four years for a separate violation that occurred at about the same time as the infraction at issue in this case. The Committee’s delay in the prosecution of this case was unwarranted. We find its argument that it should not be required to proceed against a suspended attorney for additional violations until he resumes the practice of law to be merit-less — nothing in the Code of Professional Responsibility or the rules for disciplinary procedure prevented the Committee from taking up this complaint sooner.

We find that the Committee’s delay has of itself operated to punish this attorney, who has been subjected to years of public scrutiny, censure, and suspension in connection with two violations of the Code occurring over ten years ago. Accordingly, we conclude that disbarment or further suspension is inappropriate and that ends of justice and professional responsibility will be served in this case by publicly reprimanding the attorney for his violations of the Code of Professional Responsibility.

Decree

For the reasons assigned, it is ordered, adjudged and decreed that Robert Douglas Edwards be publicly reprimanded for his violations of the Code of Professional Responsibility as set forth in this opinion.

ON APPLICATION FOR REHEARING

PER CURIAM.

Petitioner’s application for a rehearing is granted solely for the purpose of assessing the costs of these proceedings to the respondent Edwards. The respondent was reprimanded and not the Association. Accordingly, all costs are assessed to respondent, but petitioner’s application for a rehearing is rejected in all other respects.


author: BLANCHE, Justice. DIXON, Chief Justice

text:
    In re GRAND JURY SUBPOENAS Issued to David Lewis Graham and Eric Joseph Graham.
    No. 67382.
    Supreme Court of Louisiana.
    June 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for relator.
    Robert G. Pugh, Bobby D. Sutton, Burnett, Sutton, Walker & Callaway, Shreveport, for David Lewis Graham and Eric Joseph Graham, respondents.
   BLANCHE, Justice.

On March 31,1980, Kathleen Graham was found bludgeoned to death in her Shreveport home. Her husband and three children, David Lewis, age 16, Eric Joseph, age 12 and Kathleen Renee, age 7, were home at the time. The Caddo Parish Grand Jury convened and in order to conduct an investigation into the death of Kathleen Graham, subpoenas were issued to David and Eric Graham. A motion to quash the subpoenas were filed by Dr. Graham as the father and provisional tutor of the minors. Prior to the hearing on the motion the trial court, in order to avoid any possibility of a conflict of interest, appointed counsel to represent the minors. After argument on the motion, the court quashed the subpoenas. We granted the writ of certiorari.

Although the state, in both oral argument and brief, has consistently maintained that the children are not suspects, it has refused to grant the children immunity, and argues that the protections offered adult witnesses are sufficient safeguards to protect the children. We are urged to reinstate the subpoenas and require the attendance of the children before the grand jury. Both counsel for Dr. Graham, as provisional tutor, and the court-appointed counsel contend that State in the Interest of Dino, 359 So.2d 586 (La.1978) is controlling, and that the grand jury subpoenas were properly quashed.

Thus, this Court is faced with what appears to be a collision course between the minor’s right against self-incrimination and the state’s interest (and that of a future accused) in the integrity of the grand jury.

Both the United States Constitution and the Louisiana Constitution guarantee the accused in a capital case the right to a grand jury. U.S.Const. amend. 5; La. Const, art. 1, § 15. Under the Louisiana Constitution, the grand jury has the right to question witnesses and return bills of indictment. La.Const. art. 1, § 15; art. 5, § 34. Traditionally, the proceedings of the grand jury have been cloaked in secrecy. See State v. Revere, 232 La. 184, 94 So.2d 25 (1957). Various reasons have been given for this secrecy, including:

“(1) It promotes freedom in the disclosure of crime; (2) prevents coercion of grand jurors through outside influence and intimidation and thus permits a freedom of deliberation and opinion otherwise impossible; (3) protects the safety and freedom of witnesses and permits the greatest possible latitude in their voluntary testimony; (4) prevents perjury by all persons appearing before the grand jury; (5) prevents the subornation of perjury by withholding facts that, if known, the accused or his confederates might attempt to disprove by false evidence and testimony; (6) avoids the danger of the accused escaping and eluding arrest before the indictment can be returned; and (7) keeps the good names of the persons considered, but not indicted, from being besmirched.” State v. Revere, supra, 94 So.2d at 29; La.C.Cr.P. art. 433, comments.

In light of these sound policy considerations, a witness is not entitled to the presence of an attorney during grand jury questioning. State v. Williams, 310 So.2d 528 (La.1975). In order to enforce our statutory provisions requiring this secrecy, this Court, in State v. Revere, supra, held that the mere presence of an unauthorized person in the grand jury room required that the indictment be quashed.

As emphasized in United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), a witness has a duty to testify if called before the grand jury, conditioned only upon his privilege against self-incrimination. The witness must invoke the privilege, however, as the ‘Constitution does not forbid the asking of crimi-native questions.’ 96 S.Ct. at 1775.

As a witness also has no right to the presence of his counsel in the grand jury room, Mandujano, supra, the competing interests of grand jury secrecy and a witness’ Fifth Amendment concerns have led to a rough compromise heavily dependent upon a witness’ awareness and self-possession. The witness must grasp the implications of a question, halt his testimony, seek out his counsel at the grand jury door for his opinion, then return, either to answer the question or to assert a Fifth Amendment claim. The consequences of a failure to ask, or a misguided refusal to answer, rest with the witness.

In contrast, recent decisions of this Court and the United States Supreme Court have demonstrated an increasing awareness on the part of the judiciary to the particular problems involved with protecting the juvenile’s constitutional rights. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In Re: Dino, supra.

In Dino, supra, this Court held that before any inculpatory statements obtained during an interrogation may be used against a juvenile, the state must show that the child engaged in a meaningful consultation with an attorney, or an informed parent, guardian or other adult interested in his welfare before he waived his right to counsel and privilege against self-incrimination. The rationale behind this rule is that the general policy of the law is to protect all minors from the possible consequences of their immaturity. Considering this policy, we reiterate that:

“[6] Because most juveniles are not mature enough to understand their rights and are not competent to exercise them, the concepts of fundamental fairness embodied in the Declaration of Rights of our constitution require that juveniles not be permitted to waive constitutional rights on their own.” Dino, supra, at 594. [Footnotes omitted].

With these principles in mind, we disagree with the state’s contention that the ordinary protections offered adult witnesses are sufficient to protect a child's interest. For instance, allowing the juvenile witness to confer with his attorney outside the grand jury room offers little protection to the witness who may be too immature to accurately report the questions of the prosecutor to his attorney. Nor can we assume that the inexperienced minor unfamiliar with the self-incrimination privilege will understand when to assert the privilege. Further, we believe that a juvenile by virtue of his age and inexperience is likely to find the grand jury proceeding where he is surrounded by older authority figures a coercive experience.

For these reasons, we find that to compel a minor’s attendance at a grand jury hearing without affording him the protection of the counsel of his attorney therein, violates the concepts of fundamental, fairness embodied in our Declaration of Rights. La.Const. art. 1, § 2; § 3; § 16.

Although we agree with the trial court’s reasoning, we do not find that quashing the subpoenas is the proper remedy. La.C.Cr.P. art. 437 provides that the grand jury shall inquire into all capital offenses. Further, La.Const. art. 1, § 15 requires that all prosecutions for capital crimes and crimes punishable by life imprisonment be initiated by indictment. To require that all subpoenas to minors by the grand jury be quashed would severely limit the grand jury in its investigative duties. We conclude that the proper remedy, in order to provide both adequate safeguards for the juvenile and to protect the investigative duties of the grand jury, is to permit the subpoenas to stand and allow juveniles to be accompanied by an attorney. In order to protect the secrecy of the grand jury proceedings required by C.Cr.P. art. 434, the foreman should administer to the attorney the oath of secrecy as provided for in C.Cr.P. art. 441.

For the reasons assigned, the ruling of the trial court is reversed and the case is remanded for proceedings consistent with this opinion.

DIXON, C. J., concurs with reasons.

CALOGERO, J., concurs and joins in reasons assigned by DIXON, C. J.

LEMMON, J., dissents and will assign reasons.

DIXON, Chief Justice

(concurring).

I agree with the majority opinion, but object to the requirement that an oath of secrecy, provided in C.Cr.P. 441 for reporters and interpreters, be administered to attorneys for the children. C.Cr.P. 434 places a duty of secrecy on all persons present at a grand jury meeting, as regulated by statute and the Constitution. Stringent standards of professional conduct govern lawyers; their obligations sometimes seem to conflict. Because of the discretionary powers they are expected to exercise, they occupy a professional status in society. We should not unnecessarily confuse the exercise of that discretion with the threat of contempt proceedings for the violation of an oath of secrecy. The lawyer must be as free as possible, under the law and standards of professional conduct, to advise and protect his young clients.

      . The state argues that a child’s testimony could be used only as the basis of a perjury prosecution and that the testimony could not be used to cross-examine him. The state also argues that the presence of an attorney outside the grand jury room is adequate protection for the child against unwitting self-incrimination.

      . Note that as Justice McCaleb points out in his dissent, this Court adopted the minority view in this country. In criticizing the majority decision, he stated:
      “The majority opinion in this case is not only admittedly contrary to the prevailing view throughout this country on the question of the effect of the legality of grand jury proceedings when persons, other than the grand jurors, are present in the grand jury room-it is in discord with previous holdings of this Court, which are not mentioned in the opinion.”

      . By this decision, we do not in any way intend to change the rule of State v. Williams, supra, that an adult witness is not entitled to the presence of an attorney in the grand jury room.

      . In order to avoid a conflict of interest, each child should be represented by counsel separate from both his sibling and their father.


author: LEMMON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Claude ROBINSON, Darryl W. Hampton & George Washington Jr.
    No. 66111.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearing Denied Oct. 6, 1980.

      Jack Quarles, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Clarence E. McManus, Shirley Wimberly, Asst. Dist. Attys., for plaintiffs-appellees.
   LEMMON, Justice.

The key issue in this appeal is whether the court reporter’s inability to provide defendant with a transcript on appeal of the trial testimony of two expert witnesses (a state witness and a defense witness) requires that the matter be retried.

After a jury trial lasting several days defendants were convicted of attempted aggravated rape of a fellow inmate in the Jefferson Parish prison. The victim’s testimony describing the incident was corroborated by physical evidence, including a tear in the internal sphincter of the rectum and seminal fluid found in the underwear of the victim and of two of the defendants.

At trial the court reporter recorded the voir dire examination of jurors, the opening and closing arguments, and the testimony of all the witnesses, including counsels’ objections. Defendants’ trial counsel designated the entire record and transcript of testimony as necessary for review of the contentions of error for purposes of appeal.

La. Const. 1974, Art. 1, § 19 provides that the review under an appeal of right from a felony conviction [accorded by Art. 5, § 5(D)(2)] shall be “based upon a complete record of all evidence upon which the judgment is based”. The Supreme Court of the United States has also recognized the right to a complete transcript of the trial proceedings, particularly when (as here) counsel on appeal was not counsel at the trial. Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1963).

The purpose of the constitutional and co-dal (C.Cr.P. art. 843) requirement of recording all proceedings in felony cases is to make it possible for a party to support assignments of error on appellate review. When a portion of the trial has not been recorded, a party cannot perfect assignments of error which occurred during that portion of the trial, and the appellate court cannot review any such errors pursuant to C.Cr.P. art. 920 in order to insure that the trial was properly conducted. State v. Ford, 338 So.2d 107 (La.1976).

The Ford decision noted that a retrial may not be necessary if there is only a slight inaccuracy or an inconsequential omission in the record. The record deficiency in this case, however, constitutes a substantial omission, since the missing testimony was opinion evidence bearing on the question of whether or not a rape had occurred. The affidavit of defendant’s trial counsel establishes that objections were made and ruled upon during the missing testimony on that crucial question. Furthermore, the examining physician, while stating that the rectal tear was consistent with the forced entry of an object into the anus, noted that the absence of redness or other signs of soreness was inconsistent with involuntary anal intercourse of 45-minute duration. Moreover, three other witnesses testified that the victim stated after the incident that he had not been raped.

Defendants did not waive their constitutional right to a record of the missing testimony, and failure to provide this record constitutes constitutional and statutory error. We cannot say that the error is harmless under the circumstances of this case.

Accordingly, the judgment of the trial court is set aside, and the matter is remanded for retrial.

SET ASIDE AND REMANDED FOR RETRIAL.

BLANCHE and WATSON, JJ., dissent.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

The record fully supports defendant’s conviction of attempted aggravated rape even absent the trial testimony of two experts (a state witness and a defense witness). Accordingly, I respectfully dissent.


author: WATSON, Justice. CALOGERO, Justice,

text:
    Roy HARRIS and Sandra Harris v. Frank M. LEE and Manchester Insurance.
    No. 66684.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.

      Seale, Macaluso & Ross, Ron S. Macaluso, Hammond, for plaintiffs-applicants.
    Owen, Richardson, Taylor, Mathews & Atkinson, Richard Creed, Baton Rouge, for defendants-respondents.
   WATSON, Justice.

This is a suit for damages resulting from an automobile accident. A writ was granted to consider whether the Court of Appeal, 377 So.2d 1352 was correct in giving the Louisiana Insurance Guaranty Association a credit for medical expenses paid by plaintiffs’ group health insurer, and in reducing the award of damages.

The automobile of plaintiffs, Roy and Sandra Harris, was struck from the rear by a car owned and driven by defendant, Frank M. Lee. Lee’s attention had been diverted by a lighted cigarette which had fallen in his lap. The damages to the Harris’ vehicle exceeded its value of $700. Passenger Sandra Harris received personal injuries. Lee was insured by Manchester Insurance Company, which is insolvent; its liability was assumed by the Louisiana Insurance Guaranty Association.

LIGA’S LIABILITY

It is undisputed that LIGA is only responsible for covered claims in excess of $100. LSA-R.S. 22:1382(l)(a). Therefore, LIGA is entitled to a credit of $100 against the $5,000 limits of Manchester’s policy.

The trial court correctly found that LIGA is not entitled to a credit for the medical payments Roy Harris received under his Allstate group health policy. Manchester would not be entitled to deduct these payments under the collateral source rule, and LIGA is deemed the insurer to the extent of its obligation on covered claims. LSA-R.S. 22:1382(l)(b); Hickevson v. Protective National Insurance Company of Omaha, 383 So.2d 377 (La.,1980); and, Billeaudeau v. Lemoine, 381 So.2d 511 (La.,1980). LIGA contends that LSA-R.S. 22:1386, “non-duplication of recovery”, requires that the credit be given to LIGA even though not available to Manchester. LSA-R.S. 22:1386(1) states:

“Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this Part shall be reduced by the amount of any recovery under such insurance policy.”

However, that section of the Insurance Guaranty Association Law is limited by LSA-R.S. 22:1377 which provides:

“This Part shall apply to all kinds of direct insurance, except life, health and accident, title, disability, mortgage guaranty, and ocean marine insurance.”

Health and accident insurance is specifically excluded from the Insurance Guaranty Association Law and the nonduplication of recovery provision does not apply to payments by health and accident insurers. Because the damages exceed the limits of the Manchester policy, there is no double recovery. It is questionable whether LSA-R.S. 22:1386 is applicable in any situation where the damages exceed LIGA’s liability, because the statutory intention is to prevent duplication of recovery.

The judgment of the trial court is reinstated to award plaintiff, Sandra Harris, $5,000 and plaintiff, Roy Harris, $700 against the defendants, Louisiana Insurance Guaranty Association and Frank M. Lee, jointly, severally and in solido, but the judgment is amended to award the Louisiana Insurance Guaranty Association a credit of $100 against the award to Sandra Harris.

LEE’S LIABILITY

Sandra Harris was recovering from a hysterectomy when the accident occurred on July 26, 1975. She was first treated in the emergency room of the Seventh Ward General Hospital in Hammond by her gynecologist, Dr. Charles D. Alford. She complained primarily of abdominal and low back pain. Dr. Alford did not testify, and it was stipulated that no inferences were to be drawn from that fact. Dr. Alford subsequently referred her to Dr. Luis F. Matta, an orthopaedic surgeon. Dr. Matta did not testify but receipts show visits to him in July, August and September of 1975. On July 29, 1975, in Matta’s absence, she saw Dr. G. J. Blacker. Both Matta and Blacker diagnosed a neck sprain, a contusion of the right elbow and a lumbosacral strain. Sandra Harris was then referred to Dr. Thomas B. Flynn, a specialist in neurological surgery, who first saw her on September 22, 1976. Sandra Harris said that she went to Dr. Alford in the one year interim between her last visit to Dr. Matta and her first visit to Dr. Flynn. There are no medical bills, statements or reports to corroborate this testimony. There is a letter in evidence in which Dr. Flynn thanks Dr. Alford for his referral of Sandra Harris, but Dr. Flynn stated in deposition that his notes showed the referring doctor to be Dr. Matta. On the basis of her history, Dr. Flynn felt that Sandra Harris might have a “midline lumbar disc herniation” (J-2). He admitted her to Baton Rouge General Hospital on October 10, 1976, for conservative treatment with traction and physical therapy. Eight days of treatment were unsuccessful in ameliorating her symptoms. A myelo-gram was performed on October 18 which was within normal limits. Dr. Flynn could find no objective neurological findings of injury but stated in his hospital discharge summary on October 20 that the patient had a great deal of “functional overlay” (J-7). She was anxious and psychoneurotic, but he found nothing physically wrong with Sandra Harris. Dr. Flynn testified in deposition that Sandra Harris gave him a history of intermittent back pain prior to the accident. However, she explained at trial that the back pain she had had prior to the accident was a different type and related to female disorders. Sandra Harris went to see Dr. Eric L. Lensgraf, an expert in the field of chiropractic, on June 21, 1977. She made several visits to Dr. Lensgraf for treatment of her back and neck. Trial was on September 22, 1978. The Court of Appeal found an unexplained gap in Mrs. Harris’ medical treatment between her last visit to Dr. Flynn and her first visit to Dr. Lens-graf. The conclusion was that her disability did not extend beyond November 4,1976, when she failed to keep a follow-up appointment with Dr. Flynn. The Court of Appeal noted that Dr. Lensgraf had not recommended any limitation of physical activity to Sandra Harris and therefore reduced the award for loss of wages from $12,500 to $5,981.05. The proven medical expenses were found to total $1,612.01, slightly more than the $1,354.09 given by the trial court. The sum of $300 for future medical expenses was deleted. The Court of Appeal reduced the quantum of general damages from $45,000 to $15,000, the largest amount that could be justified for Sandra Harris’ injuries.

Defendant Lee’s defense was undertaken by the Louisiana Insurance Guaranty Association, which did not plead lack of means or introduce any evidence of his inability to respond in damages. His discovery deposition was taken by plaintiffs and reveals his occupation as a carpenter, but no other information relating to his income.

As the Court of Appeal noted, the testimony of Dr. Alford might have been helpful in explaining the gaps in Sandra Harris’ medical treatment. It might also have illuminated the source of her functional overlay of anxiety and neurosis. In the absence of any corroborating evidence from medical or lay witnesses to connect Sandra Harris’ subjective complaints with the accident, the Court of Appeal did not err in amending the awards to correct an abuse of discretion. Therefore, the judgment of the Court of Appeal is affirmed insofar as it awarded judgment to Roy Harris on behalf of the community against Frank M. Lee of $7,675. The judgment of the Court of Appeal is affirmed in its award to Sandra Harris against Frank M. Lee of $10,000 but is amended to add to that sum the $100 deductible credited against LIGA’s liability.

For the foregoing reasons, the judgment of the Court of Appeal is amended in part and affirmed in part.

AMENDED AND AFFIRMED.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I concur in the result reached by the majority because I agree with the majority’s questioning whether R.S. 22:1386 is applicable where, as here, the plaintiff’s damages, minus any recovery from other insurance, exceed LIGA’s liability; and the intent of the statute is to reduce LIGA’s exposure by denying a claimant double recovery.

However, I am not fully convinced that R.S. 22:1386(1) and its “exhaustion” provisions are not normally applicable to a health and accident policy claim of a plaintiff. Nor am I convinced that this case is controlled by Hickerson v. Protective National Insurance Co., 383 So.2d 377 (La.1980). In Hickerson, we were confronted with subro-gation considerations and circular claims. Here, there are no subrogation rights involved and thus the cases are distinguishable. Additionally, if R.S. 22:1386 does not apply to a situation like the present, involving health and accident insurance where there are no subrogation rights, then I can not perceive of any situation in which it applies.

      . The issue presented in Hickerson was whether a plaintiff, injured in a car accident, could proceed directly against LIGA, as the insurer of the defendant, or whether plaintiff had to first exhaust his claims against his own uninsured motorist insurer. If plaintiff collected from his own insurer, the insurance company would have been subrogated to the rights plaintiff had against defendant, would then have had to sue defendant, and then LIGA would ultimately have been held liable on the claim. Rather than require this multiple litigation, the Court in Hickerson held that R.S. 22:1386 did not prevent plaintiff from proceeding directly against LIGA for the damages he sustained.


author: DENNIS, Justice. LEMMON, Justice,

text:
    Henry PHILLIPS et al. v. ROLLINS-PURLE, INC.
    No. 66703.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearings Denied Oct. 6, 1980.

      Dennis R. Whalen, Baton Rouge, for plaintiff-applicant.
    Donald S. Zuber, Seale, Smith & Phelps, Baton Rouge, for defendants-respondents.
   DENNIS, Justice.

The principal issue for review in this crop damage suit is whether plaintiffs, home vegetable farmers, are entitled to damages for loss of use of their property for farming purposes in the years after their 1971 crops were destroyed by herbicide escaping from defendant’s chemical disposal plant.

Plaintiffs, Henry and Alma Goodlow Phillips, owned a 714 acre tract of land upon which they resided and grew vegetables for sale and family consumption. In 1970 the defendant corporation began operating its waste disposal plant on adjacent property. In 1971, about one-half of plaintiffs’ vegetable crops were destroyed by an herbicidal chemical which escaped and drifted from defendant’s disposal plant. Although plaintiffs were not aware of the exact nature of the chemical agent responsible, they associated the crop kill with their neighbor’s disposal operation. Therefore, plaintiffs reduced the size of their 1972 crop to cut losses in case of another crop blight. Their fears were well founded because escaping chemicals destroyed all the vegetables they had planted. In 1973, after a very small sample planting met the same fate, plaintiffs moved from the property and discontinued farming operations.

The plaintiffs sued the defendant corporation for damages resulting from the drifts of chemicals on to their property. The trial court awarded them damages for the value of the crops it found were destroyed: $2,129.88 in 1971; $627.36 in 1972. Plaintiffs appealed contending they were also entitled to compensation for loss of use of their property in 1972 and succeeding years; an additional award for crop damages; and compensation for personal injuries caused by the chemicals. The court of appeal affirmed. We granted writs to determine whether the trial court arrived at the correct measure of damages.

Plaintiffs’ argument that they should be awarded damages for loss of use of their property for farming purposes in 1972 and 1973 has merit. Both Mr. and Mrs. Phillips testified without contradiction that they had farmed their acre tract without a crop failure for 22 years before the defendant began its chemical disposal operation. Almost immediately upon the beginning of chemical incineration in late 1970 the Phil-lipses began to notice unpleasant odors and oral-nasal sensations. The first vegetables harvested the next year, 1971, had a peculiar taste, and that year one-half of the crop died. The Phillipses decided to plant a small crop early the next year-if it survived they planned to plant a complete crop; if not, they wanted to save the cost of seed, fuel and labor. The entirety of the 1972 crop died. Plaintiffs repeated the same process on an even smaller scale in 1973. They left the small farm and moved to a housing project in the city after their 1973 planting failed. Plaintiffs’ expert witnesses, pesticide-herbicide specialists, who inspected the farm in 1971 and 1972 testified without direct contradiction that the plaintiffs’ crops were killed by phenoxy chemicals which emanated from defendant’s plant. They determined this by inspecting the physical symptoms of the damaged plants, surveying the area for herbicide damage, and locating the contours of the chemical drift patterns. All of their findings indicated that the defendant’s disposal system was the source of the chemical drifts.

A plaintiff has the burden of proving by a preponderance of the evidence the damages caused by the defendant’s fault. La.C.C. art. 2315; Coleman v. Victor, 326 So.2d 344 (La.1976); Jordan v. Travelers Ins. Co., 245 So.2d 151 (La.1971). The damage caused is not always estimated at the exact value of the thing destroyed or injured; it may be reduced according to circumstances, if the owner has exposed it imprudently. La.C.C. art. 2323; Unverzagt v. Young Builders, Inc., 215 La. 1091, 315 So.2d 823 (1968); Pelloguin v. Mo. Pac. R. Co., 216 So.2d 686 (La.App. 3d Cir. 1969).

The evidence shows that despite prudent actions by the plaintiffs they were prevented from using their property in 1971-73 to harvest vegetable crops as they had done for 22 years previously. There is every reason to assume that, but for the defendant’s fault, they would have continued successfully to farm their small tract as they had done for over two decades. They acted prudently by investing only a small amount in seed, tractor fuel and labor in 1972 and 1973 to see if a crop could survive the chemical pollution. Accordingly, plaintiffs should have been awarded damages for the loss of use of their property in each of these years. Plaintiffs’ expert witness testified and submitted, without objection, an exhibit estimating the net profit that the Phillipses would have realized from their farm during 1971-77 at $2,048.16 per year. We find this to be an appropriate measure of annual damages to be awarded for loss of use of the property for farming.

We also find some merit in plaintiffs’ request for damages for their own physical injuries. Their uncontradicted testimony established that they suffered, in 1971-73, from respiratory ailments, eye irritations, and burning in the nose and mouth, which they attributed to defendant’s chemical disposal operation. Plaintiffs did not suffer any extreme illness or permanent injury, however. Accordingly, we will award $750 to each plaintiff for physical injuries during 1971, 1972 and 1973.

Despite plaintiffs’ arguments we must reject their demands for all other elements of damages. The trial judge’s award for loss of the 1971 crop is reasonable and well supporte by the evidence: he awarded the amount f.xed by plaintiffs’ own expert witness for the value of those crops. Also, the trial judge’s refusal to award damages for 1974 and following years is supported by the record. According to plaintiffs’ own experts, phenoxy chemicals are not permanently damaging to the soil and do not have a residual effect upon crops, except for some which were not in cultivation by plaintiffs. The plaintiffs adduced no evidence whatsoever pertaining to the market value of their property before and after commencement of defendant’s operations. Consequently, the evidence of permanent or continuing damage to the property after 1973 is so weak as to justify the trier of fact’s rejection of this claim.

Decree

For the reasons assigned, the principal sum of the judgment in favor of Henry Phillips and Alma Goodlow Phillips against Rollins-Purle, Inc. is increased from $2,757.23 to $7,726.20; as amended, the judgment is affirmed at the defendant’s cost.

AMENDED AND AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

In addition to those damages awarded for loss of use of the property for income production over a reasonable period of time and for personal suffering, plaintiff was perhaps entitled to damages for diminution in value of the property, with due consideration given to the property’s ability to produce income. Such damages were not awarded here solely because of absence of proof.


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

text:
    Mary Frances MULLINS et al. v. STATE of Louisiana et al.
    No. 66854.
    Supreme Court of Louisiana.
    Sept. 8, 1980.
    Rehearing Denied Oct. 6, 1980.
    Charles J. Pisano, New Orleans, for plaintiffs-applicants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Warren E. Mouledoux, Kendall L. Vick, Robert L. Danner, Asst. Attys. Gen., for respondents.
   DIXON, Chief Justice.

This declaratory judgment action was filed by seven plaintiffs against the State of Louisiana, the Coroner of Jefferson Parish and the Estate of Bennie Verdun for the stated purpose of declaring the “Status of the Coroner of the Parish of Jefferson as a State Agency to the State of Louisiana.” The object of the suit, we gather from the briefs, is to determine whether the state can be held liable in a suit for wrongful death said to have been caused by the coroner. There is no evidence in the record, and the matter was apparently submitted on memoranda filed by the parties.

The district court overruled all exceptions and rendered judgment for the plaintiffs, “declaring that the Coroner for the Parish of Jefferson is a State Agency of the State of Louisiana,” and that “this same agency relationship . . . existed on November 27th, 1972.”

The Court of Appeal affirmed the rulings of the trial court on the exceptions, but reversed the holding on the agency relationship of the coroner to the state. Writs were granted on application of plaintiffs.

The Court of Appeal opinion was based on a definition of “agency” in R.S. 36:3 and the relationship between the coroner and the parish government for expenses of the office, a report of his work and for filling a vacancy in the office.

The definition of “agency” in R.S. 36:3(1) is of no relevance to the decision of the question here presented. The first sentence in R.S. 36:3 is: “For the purposes of this Title the following terms shall have the following meanings unless the context clearly indicates otherwise:”. Title 36 of the Revised Statutes is “Organization of Executive Branch of State Government,” a reorganization statute enacted in 1977.

The proper test for determining whether an office is a state agency was first announced by this court in State v. Taylor, 44 La.Ann. 783, 11 So. 132 (1892), and has been consistently followed by the courts of this state. State v. Dark, 195 La. 139, 196 So. 47 (1940); State ex rel. Porterie v. Smith, 184 La. 263, 166 So. 72 (1935); Williams v. Guerre, 182 La. 745, 162 So. 609 (1935); State ex rel. Porterie v. Jones, 181 La. 390, 159 So. 594 (1935); State v. Titus, 152 La. 1011, 95 So. 106 (1922); State v. Rogers, 138 La. 867, 70 So. 863 (1916); Cosenza v. Aetna Insurance Co., 341 So.2d 1304 (La.App. 3d Cir. 1977); Johnson v. Northern Assurance Company of America, 193 So.2d 920 (La.App. 3d Cir. 1967).

As enunciated by the court in State v. Taylor, supra: “. . . If the office is created by the legislature, or is established in the first instance by the constitution, it is a state office . . .”11 So. at 133. This rule sets forth a reasonable and practical guide for determining whether a particular office or agency is part of the state government or is parochial or local in nature. The principle embodied in the rule is that “. . . the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government . . .” State v. Dark, 195 La. at 149, 196 So. at 50. For example, sheriffs and their deputies have been found to occupy state office, in recognition of the fact that the office of sheriff is created by the state constitution, and operates independently of the parish. Foster v. Hampton, 352 So.2d 197 (La.1977); State ex rel. Porterie v. Jones, supra; State v. Titus, supra; Johnson v. Northern Assurance Company of America, supra.

The office of the coroner, like the sheriff, is created by the constitution, and its existence has been mandated by every state constitution since 1845. See La.Const. of 1974, art. 5, § 29; La.Const. of 1921, art. 7, § 70; La.Const. of 1913, art. 119; La. Const, of 1898, art. 119; La.Const. of 1879, art. 118; La.Const. of 1868, tit. IV, art. 93; La.Const. of 1864, tit. V, art. 84; La.Const. of 1852, tit. IV, art. 80; La.Const. of 1845, tit. IV, art. 83. While it is true that the coroner enjoys only parishwide jurisdiction in the exercise of his functions, the local governing authority has no power to abolish this constitutionally created office. The 1974 constitution is representative of all prior constitutions in its declaration that “[i]n each parish a coroner shall be elected .” La.Const. of 1974, art. 5, § 29. (Emphasis added).

The nature of the coroner’s office has changed profoundly since its inception in the twelfth century. The office was initially established to safeguard “the pecuniary interests of the crown . . . arising from the administration of criminal justice.” I. W. Holdsworth, A History of English Law 84 (7th ed. 1956). For example, the coroner was invested with the power to conduct inquests when there occurred unexplained deaths in order to protect the crown’s right to the chattels of convicted felons. Id. at 85. The purpose of the coroner’s inquest was eventually transformed into a tool of the criminal justice system. Here in Louisiana, the coroner’s jury and inquest survived until the adoption of the Code of Criminal Procedure in 1966. C.Cr.P. 101; Bennett, The 1966 Code of Criminal Procedure, 27 La.L.Rev. 175, 178 (1967). It is because of its historical function that the constitutions of this state have placed the coroner’s office within the judicial branch of state government.

With the abolition of the coroner’s jury and inquest in 1966, the significance of the coroner as an instrument of the judiciary has been lessened. We find, nonetheless, that, despite this alteration of the role of the coroner, the office continues to perform state functions, and is not, as found by the Court of Appeal, parochial or local in nature.

Although the coroner has been relieved of his duty to conduct inquests, it is the state legislature, and not the local governing authority, that regulates the coroner’s duties and powers. R.S. 33:1551 et seq.; C.Cr.P. 101 et seq. Pursuant to statutory mandate, the coroner is required to “conduct an investigation concerning the manner and cause of any death when informed that death has resulted from violence or accident, or under suspicious circumstances.” C.Cr.P. 101. The legislature has carefully detailed the manner in which the coroner is to conduct an autopsy. R.S. 33:1561. The legislature has authorized each coroner to appoint assistants and other ■helpers whose qualifications' are fixed by the legislature. R.S. 33:1552. He is required by the legislature to make written reports to the district attorney concerning the commission of crimes. C.Cr.P. 105. Additionally, the coroner is empowered by the legislature to issue subpoenas. C.Cr.P. 103. Stringent regulation by the legislature, devoid of any control by the local governing authority, assists the coroner in fulfilling his primary function: “to determine the possibility of violations of criminal law or of the existence of public health hazards in certain cases of death.” Sizemore v. West Jefferson General Hospital, 260 So.2d 800, 802 (La.App. 4th Cir. 1972).

The Court of Appeal, in finding the office of the coroner to be a parochial or local office, was impressed with the fact that, under the 1974 constitution, when a vacancy occurs, the parish appoints an interim coroner until an election is held. Such a provision is a departure from the 1921 constitution, which provided for vacancies to be •filled (for the unexpired term) by the Governor. La.Const.1921, art. 7, § 72. This change does not alter the state nature of the coroner’s office. In the first place, the parish appoints an interim coroner only if no chief deputy exists. Secondly, the interim appointment by the parish is operative. only until the vacancy is filled by election-. Under the 1921 constitution, the Governor’s appointee occupied the office until the original term expired. The new system was designed to facilitate “smooth operation and continued efficiency,” by having an election as soon as possible. State of Louisiana Constitutional Convention of 1973: Verbatim Transcripts, Vol. XI, August 24, 1973, at 65.

The Court of Appeal, while acknowledging that the fees of the coroner are set by the legislature, pointed out that, pursuant to R.S. 33:1558(B), the parish pays for all “necessary or unavoidable expenses” incurred by the coroner’s office. This fact does not defeat the state nature of the office. City courts are supported by the parishes in which they exercise jurisdiction, but the office of city court judge has nonetheless been found to be a state office. Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (1952); Cosenza v. Aetna Insurance Co., supra; R.S. 13:1874. Likewise, expenses of district attorneys are paid by the parishes in which they operate. R.S. 16:6. Despite this fact, the district attorney, like the coroner, operates independently of regulation by the local governing authority. See State ex rel. Police Jury of Parish of Vernon v. Davis, 120 La. 862, 45 So. 838 (1908); Nielson v. Jefferson Parish Sheriff's Office, 242 So.2d 91 (La.App. 4th Cir. 1970).

For the reasons assigned, the judgment of the Court of Appeal is reversed, and the judgment of the trial court is reinstated; the State of Louisiana is cast for costs of this appeal.

LEMMON and MARCUS, JJ., dissent and assign reasons.

BLANCHE, J., dissents, being of the opinion that the status of Parish Coroner is that of a parochial officer performing duties in that capacity in the parish in which he was elected to serve.

LEMMON, Justice,

dissenting.

Coroners (and sheriff and their deputies, as in Foster v. Hampton, above), perform parish functions and therefore occupy an employer-employee relationship with the parish which exercises primary day-to-day control over their functions. The parish should be held answerable for the torts of such employees committed in the exercise of the functions in which they are employed.

MARCUS, Justice

(dissenting).

I agree with the court of appeal that the coroner is either parochial or local in nature; hence, the state cannot be held liable in a suit for wrongful death alleged to have been caused by the coroner. Accordingly, I respectfully dissent.

      . The coroner’s inquest in Louisiana was the process by which a jury of five laymen made a determination of the cause of death. In practice, the jury’s verdict was considered competent only to prove the fact of death, but was not even prima facie evidence of the cause of such death. See, e. g., Faulk v. Mutual Life Insurance Co., 160 La. 529, 107 So. 395 (1926), and cases cited therein.

      . The legislature has attempted to overrule Foster v. Hampton by enacting R.S. 42:1441(A), which became effective after the accident in suit. In the future a tort victim will have to attempt either to have Foster v. Hampton overruled or to have R.S. 42:1441(A) declared unconstitutional. I would overrule Foster v. Hampton now.