author: DENNIS, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Alfred LUDWIG.
    No. 81-KA-1318.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 7, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Louise S. Korns, Kenneth L. Sanders, William Credo, Asst. Dist. Attys., for plaintiff-appellee.
    David R. Katner, George E. Escher, Kat-ner & Escher, New Orleans, for defendant-appellant.
   DENNIS, Justice.

On December 7, 1979, the body of Stephen Harr was found on a street in Jefferson Parish. He had been shot four times in the head and neck. The investigating police officers found a key to Room 31 of the nearby Holiday Motel in the victim’s pocket. One of the officers, Detective Hidding, proceeded to the manager’s office at the motel. The manager informed Hidding of an altercation earlier in the evening at a local lounge between the victim and a man named Ludwig, who lived in Room 11. Hidding went to Room 31, but got no response. In front of Room 11 he saw blood on the porch and in the parking lot. A spent .25 caliber casing lay on the ground nearby. Hidding knocked on the door of Room 11, but received no response, although he could hear the sound of a television inside the room.

The officer had the manager open the door with a pass key. When Hidding and other police officers entered, they observed beer cans, .25 caliber shells and spent casings scattered about the room. There was a spot of blood on one piece of furniture. A cedar chest had been shot several times. After finding that no one was there, the officers left without touching anything, and secured the door.

The manager informed Detective Hidding that the occupant of Room 11 was Alfred Ludwig. A short time later, Hidding observed a man get out of a pickup camper parked in the motel parking lot. The officer approached the man who identified himself as Alfred Ludwig and who confirmed that he was the occupant of Room 11. Detective Hidding then advised Ludwig of his constitutional rights. Although he appeared to have been drinking, Ludwig responded coherently to Hidding’s questions. He said he did not know where his car was and that he was not acquainted with Stephen Harr, the victim.

Hidding asked for Ludwig’s consent to reenter and search his motel room. Ludwig assented and signed a consent form. Ludwig accompanied Hidding and another officer to the room. He was at a loss to explain the blood, shell casings, and bullet riddled cedar chest. Ludwig was placed under arrest.

Just before being transported to the Jefferson Parish Correctional Center, Ludwig informed the officers that his automobile was parked in front of the motel. He handed them the car keys, gave them consent to search the vehicle, and signed another consent to search form. The officers noticed blood on the rear bumper of the automobile. Inside the trunk they discovered a substantial amount of blood.

Under interrogation at the Correctional Center, Ludwig made several incriminating remarks. He stated that he had gotten rid of the weapon where no one would find it. He also stated that the victim’s wife had killed Harr in Ludwig’s room with Ludwig’s gun and then told Ludwig to dispose of the victim’s body.

Ludwig’s first trial for first degree murder ended in a mistrial. However, he was subsequently indicted for second degree murder and in September, 1980 was found guilty as charged. He was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. In this appeal he urges two assignments of error. Because each assignment is without merit, we affirm the conviction and sentence.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the defendant contends that the trial court erred when it failed to suppress evidence obtained from the defendant’s motel room and automobile and an oral inculpatory statement given by the defendant. Specifically, the defendant makes three arguments. First, he contends that the initial, warrantless search of his motel room was violative of the United States and Louisiana Constitutions. Second, he contends that his consent to the search of his automobile and to the second search of his room was invalid because the permission was given while he was intoxicated. Finally, the defendant argues that his oral inculpatory statements must be suppressed because they are tainted products of these illegalities.

A. The Initial Search of the Motel Room.

Both the Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect persons from unreasonable searches and seizures. Except in certain narrowly defined classes of cases, a search of private property without proper consent is “unreasonable” unless it has been authorized by a valid search warrant. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

One carefully defined exception to the warrant requirement, recognized throughout the United States, is the so-called “emergency exception.” See, Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290, 300 (1978); LaFave, Search and Seizure — A Treatise on The Fourth Amendment, § 6.6 (1978). Under this exception, police officers may enter a dwelling without a warrant to render emergency assistance to a person they reasonably believe to be in distress and in need of such assistance. Root v. Gauper, 438 F.2d 361 (8th Cir.1971); See also, Mascólo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buff.L.Rev. 419 (1973). The burden of showing that the entry fell within the narrow confines of the emergency exception is upon the state. See, La-Fave, supra, and the cases cited therein.

This court has recognized that the emergency exception has validity in Louisiana. In State v. White, 399 So.2d 172 (La.1981), we approved a warrantless search made because of exigent circumstances. In White, police officers received a report of a shooting in a specified neighborhood late at night. Although the officers did not know the address of the incident, they observed a house with lights on, the stereo playing, and the front door open. When the officers drew near the house, they saw blood on the wall and the floor through a screen door. After learning that the house belonged to the man suspected of the shooting, the officers entered the house and made a limited search of the premises to determine whether participants in the shooting incident were still present. In White, we approved the warrantless entry and limited search as reasonable under the applicable constitutional provisions.

In the instant case, the police officers found in the victim’s pocket a key to Room 31 of the nearby Holiday Motel. At the motel, the officers learned that the occupants of Rooms 31 and 11 had been in a recent altercation. When the officers investigated Room 11, they observed blood and a shell casing outside. They knocked on the door and, although the TV set was on, no one answered. The officers directed the motel manager to open the door with a pass key and made a limited search of the room to determine whether anyone was present.

Under these circumstances, the officers were justified in their warrantless entry and search. Objectively viewed, the facts in the instant case create the inference that an injured, bleeding individual was present in the defendant’s motel room. The apparent need for emergency action was reasonable, given the information available to the police officers. Therefore, the search was valid as an emergency exception to the warrant requirement.

B. The Validity of the Consent.

Defendant asserts that his consent to search his room and his automobile was produced by intoxication. Therefore, he argues that the consent was invalid and that the searches yielded inadmissible evidence.

A consent search is a recognized exception to both the warrant and probable cause requirements. State v. Johnson, 380 So.2d 32 (La.1980). When asserting that a search was made with consent, the state has the burden of proving that the consent was freely and voluntarily given, as shown by the facts and circumstances of the individual case. State v. Robinson, 386 So.2d 1374 (La.1980).

The United States Supreme Court has held that the test for the voluntariness of a consent to search is a “totality of circumstances” test. Schneekloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Thus, courts must examine all the surrounding circumstances to determine whether the consent was indeed voluntary. Id. The fact that an accused has been using alcohol, though certainly a relevant factor to the determination, will not alone render the consent involuntary. State v. Strange, 334 So.2d 182, 184 (La.1976).

In the present case, it is clear that the defendant had been drinking prior to his giving the officers consent to search his automobile and motel room. However, testimony at the suppression hearing indicated that the defendant was able to move about and to respond to questions. The defendant was able to identify himself and the room in which he resided. He was read the Miranda warnings, and testimony at the suppression hearing indicates that he understood them.

The suppression hearing raised questions of credibility. The defendant claimed to remember only some of the events. He denied signing the consent forms, although the officers testified that they witnessed his signature. Given the conflict in testimony at the suppression hearing, we are not persuaded that the trial court’s decision that the consent was voluntarily given was manifest error.

C. The Oral Inculpatory Statements.

The defendant contends that his oral in-culpatory statements were products of the searches of his room and his car.

Since we previously decided that the searches of the vehicle and the room pass constitutional muster, the oral inculpatory statements were not tainted by an illegal search.

Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error the defendant contends that the trial court erred in denying him an opportunity to present evidence that the victim’s wife had shot the victim in his foot or leg some six months prior to the night of the murder with which the defendant was charged. In his proffer, the defense lawyer did not specify if the evidence would indicate whether the shooting had been intentional or accidental or any other circumstances of the incident.

The defendant attempted to present evidence of the prior shooting several times during the trial. He first sought to elicit the evidence during the cross-examination of Detective Hidding concerning his investigation of Mrs. Harr’s possible implication in the charged offense. The trial court sustained the state’s objection on the ground that the evidence was not relevant. The defendant next called the victim’s wife as a witness, and, outside the jury’s presence, requested permission to question her on redirect examination about the prior shooting. After objection by the state, the trial judge ruled that the evidence was irrelevant and constituted impermissible impeachment by the defendant of his own witness. Finally, the defendant attempted to introduce the written police report of the earlier shooting and testimony of the police officer who investigated the prior incident. However, the trial court ruled that this evidence was irrelevant and hearsay.

All evidence which is relevant to a material issue, necessary to be known to explain a relevant fact, or which supports an inference raised by such a fact, is admissible, La.R.S. 15:435, 441, except as otherwise provided by the constitution of the United States or this state, by law or by rule of this court. See, e.g. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (exclusion based on Fourth Amendment); State v. Kinnemann, 337 So.2d 441 (La.1976) (applying La. Const, art. I, § 5,); State v. Dawson, 392 So.2d 445 (La.1980) (Louisiana’s “rape shield” statute); State v. Prieur, 277 So.2d 126 (La.1973) (rule of court). Cf. Fed.R.Evid. 402. Relevant evidence is defined by our law as “that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.” La. R.S. 15:441. Relevancy of evidence is determined by the purpose for which it is offered. La.R.S. 15:442.

The standard of relevancy adopted by our statutory evidence rules is based on logic and experience as opposed to a theory of a legal minimum of probative value adopted by some courts and championed by Wigmore. The latter standard generally requires that evidence submitted to a jury have “something more than a minimum of probative value. Each single piece of evidence must have a plus value.” 1 Wigmore, Evidence § 28 (3rd Ed. 1940). This legal minimum of probative value standard, or any standard requiring more than an apparent altering of probabilities, has been rejected as “unworkable and unrealistic” by the FRE, most commentators, revisers and some courts. See generally, Wein-stein’s Evidence, § 401[06](1982). As the Advisory Committee notes, “a brick is not a wall,” and “... [I]t is not to be supposed that every witness can make a home run.” See Advisory Committee Note, Rule 401. So long as the proffered evidence has a tendency to make a consequential fact more or less probable the “logical” relevancy test is satisfied. Our statutes require that evidence must be relevant to a “material issue,” La.R.S. 15:435, but that evidence which “explain[s] a relevant fact” or “support[s] an inference” therefrom is admissible, and that relevant evidence is that which has a tendency to further the inquiry as to the commission of the offense and the intent. La.R.S. 15:441. Accordingly, we conclude that a fair reading of our statutory evidence rules as a whole indicates that the term “material issue” must be read in ordinary usage to mean of solid or weighty character, of consequence, or importance, rather than in an artificial or legalistic sense.

Consequently, the sum and substance of our statutory relevancy rules, is essentially identical in concept to FRE 401, which provides: “ 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Applying these precepts to the present case, we conclude that the trial court was in error in finding that the evidence was not relevant. The evidence does have a slight tendency to make the fact that Mrs. Harr fatally shot her husband more probable than it would be without the evidence. Nevertheless, we think that he properly excluded the evidence because its slight probative value was substantially outweighed by the risk that its admission would consume too much time, unnecessarily confuse the jury concerning the issues to be determined, and tend to excite the emotions of the jury to the undue prejudice of the opponent. See State v. Moore, 278 So.2d 781 (1973).

In this case in which the contested proposition is whether the defendant is the person who killed Stephen Harr, and the evidence proffered is that six months before the homicide, Harr’s wife had shot him in the leg or foot, the inferences which the defendant sought to invite from the jury were that (1) because Harr’s wife shot him on the previous occasion and was a beneficiary of his life insurance policy, (2) she intended to kill him at that time, (3) she continued in her desire to get rid of him for the next six months, (4) she formulated a plan to kill her husband and blame it on another person, (5) she in fact executed her plan by killing him in defendant’s motel room with defendant’s gun after a quarrel between the two men, and (6) she persuaded the defendant to use his own car to dispose of the body and the murder weapon. The unarticulated premises conjoined with and supposed to justify the inferential steps are: (1) a woman who shoots her husband in the leg or foot, whether the injury appears to have been intentional or accidental, is more likely to have intended to kill him for his life insurance than a person of whom nothing is known; (2) it is also more likely that she would persist in her intention to kill her husband for six months after the shooting; (3) it is similarly more likely that she would conceive a plan to kill her husband that would place the guilt on the defendant, (4) and the fact that she had either accidentally or intentionally shot her husband six months before makes it more likely that she would execute her plan by shooting her husband to death in the defendant’s room after the two men had quarreled and persuade the defendant to use his car to dispose of the body and the weapon. Obviously, the value of the first item of evidence as probative of the fact that Harr’s wife, and not the defendant, killed Harr, varies inversely with the number and dubiousness of the intervening inferences. The reasoning is progressively attenuated and is fractionalized at several successive points. See, Weinstein’s Evidence § 401[09]. Trautman, Logical or Legal Relevancy — A Conflict in Theory 5 Vand.L. Rev. 385, 388-98 (1952).

It is generally accepted that the trial judge should exclude circumstantial evidence, even though logically relevant, if its probative value is outweighed by the risk that its admission will consume too much time, unnecessarily confuse the jury concerning the issues to be determined, tend to excite the emotions of the jury to the undue prejudice of the opponent, or unfairly surprise the opponent. See, e.g., State v. Prieur, 277 So.2d 126 (La.1973); State v. Morris, 362 So.2d 1379 (La.1978); United States v. Hearst, 563 F.2d 1331, 1348-49 (9th Cir.1977) cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978). See also Fed.R.Evid. 403; Weinstein’s Evidence, § 403[06]. The probative value of evidence of a possibly accidental shooting six months before the charged offense was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, and undue delay or waste of time. Accordingly, the evidence was properly excluded by the trial court despite the fact that it was relevant and of some slight probative value.

Defendant argues that the trial court’s exclusion of the evidence violated his federal and state constitutional rights to present a defense and to confront and cross-examine his accusers. These constitutional guarantees do not, however, require a trial court to permit the introduction of evidence that is irrelevant or which has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. For example, in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), upon which defendant relies primarily, the evidence which the high court held had been unconstitutionally excluded was highly relevant and “critical to Chambers’ defense.” 410 U.S. at 302, 93 S.Ct. at 1049. The proffered evidence included: (a) The cross-examination of trial witness McDonald concerning his confession to the very crime for which defendant Chambers was on trial and (b) the examination of three other witnesses who would testify to McDonald’s confessions to the crime on separate occasions and to corroborating circumstances. The evidence was, of course, extremely relevant, because it related to the crime for which the defendant was on trial and tended to completely exculpate him. The fact that the evidence was highly probative of a very consequential fact was an essential ingredient in the high court’s determination that Mississippi deprived Chambers of a fair trial by excluding critical evidence under its voucher and hearsay rules. In the present case, the evidence which the defendant sought to introduce was at most of only slight probative value because it concerned a shooting which occurred six months before the charged offense involving a leg or foot wound which may have been unintentional under the terms of the proffer.

Other states allow the introduction of evidence incriminating a third person only when such third person has been closely linked to the commission of the crime. See Wharton, Criminal Evidence § 195 (1972). One early Louisiana case stated a broad rule which allows evidence incriminating a third person when such evidence would establish a reasonable hypothesis of that person’s guilt or a reasonable doubt of the guilt of the defendant. State v. Jenkins, 134 La. 185, 63 So. 869 (1913). This early expressed, less vigorous, rule of Louisiana arguably has validity in Louisiana today through the constitutionally guaranteed “right to represent a defense” of Art. I, § 16 of the Louisiana Constitution of 1974. However, even this test is not met in the present case because the mere evidence of the earlier incident between the victim and his wife does not establish a reasonable hypothesis of her guilt nor does it create a reasonable doubt as to the defendant’s guilt.

Accordingly, this assignment of error lacks merit.

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

AFFIRMED.

LEMMON, J., dissents, believing that the refusal to allow questioning of the wife about her earlier shooting of her husband constituted reversible error.

LEMMON, Justice,

dissenting from denial of rehearing.

Because the prior shooting, although not directly linked to this crime, involved the same victim, and because the evidence points to either defendant or the victim’s wife as the perpetrator of this crime, the evidence that the victim’s wife had shot her husband six months earlier bears substantially on the probability of the truthfulness of defendant’s testimony that she committed this crime. Exclusion of the evidence was reversible error.

      . FRE, See Advisory Committee Note, Rule 401.

      . See, e.g., McCormick, Evidence § 184 (2d ed. 1972); Slough, Relevancy Unraveled, 5 Kan.L. Rev. 1, 10 (1956); Trautman, Logical or Legal Relevancy — A Conflict in Theory, 5 Vand.L. Rev. 385 (1951).

      . See, e.g., Model Code of Evidence, Comment on Rule 1; Uniform Rules of Evidence, Commissioner’s Note to Rule 1(d).

      . See, e.g., North American Philips Co. v. Church, 375 F.2d 93, 96 (2d Cir.1967).

      . This fact assumes more significance when one considers that the victim’s wife was 18 years older than the victim, was married only one year, and collected life insurance after his death.

      . Before excluding the evidence, the trial court should have at least required the defendant, out of the presence of the jury, to show the circumstances surrounding the prior shooting.


source: Caselaw Access Project

author: DENNIS, Justice. MARCUS, Justice

license: Public Domain

text:
    Naomi CARTER and William E. Carter v. The CITY PARISH GOVERNMENT OF EAST BATON ROUGE, et al.
    No. 82-C-0594.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Dec. 17, 1982.

      Rhett R. Ryland, Baton Rouge, for applicants.
    Owen M. Goudelocke, Mengis, Durant & Carpenter, Anthony J. Clesi, Lane & Clesi, Frank J. Gremillion, John T. Bennett, Baton Rouge, for respondents.
   DENNIS, Justice.

We granted writs in this case to determine whether an automobile operator’s careless act in driving his car into water near a flooded underpass, after ignoring a barricade closing the highway, was a legal cause of the drowning of his ten year old female passenger, and whether the driver’s liability for her death “arises out of the ... use” of the vehicle under the insuring clauses of certain automobile insurance policies. The previous courts rejected the parents’ wrongful death suit against two insurance companies because the circumstantial evidence was insufficient to prove that the death of the child, whose body was found beneath the underpass 300 to 450 feet from the car, arose out of the driver’s negligent use of the vehicle as required by the companies’ policies. We reverse and remand to the court of appeal for an award of damages. The circumstantial evidence excludes every reasonable hypothesis with a fair amount of certainty except those under which the driver’s negligent use of his vehicle would have been a legal cause of the child’s death. The conduct of the driver of which the plaintiffs complain, his negligent driving, was both a legal cause of the passenger’s death and a use of the automobile; therefore, his liability for the victim’s death arises out of his use of the vehicle.

The tragic incident occurred at the end of a three-day storm in Baton Rouge that left many streets and some homes flooded, including an underpass on highway 1-110 near the Governor’s Mansion. The pumps which usually drained the dip in the highway at the underpass were shut off to prevent an overflow of Capitol Lake and surrounding populated areas. Highway officials prudently stationed police roadblocks or wooden barricades on the highway and all its entrances in order to prevent access to the flooded underpass.

On the night of the third day of rain, Larry Davis, his ten year old niece, Greta Carter, and his girlfriend returned to Baton Rouge from Mississippi. At 9:55 p.m., Davis dropped off his girlfriend downtown and started to take Greta to her home in North Baton Rouge. This was the last time any witness saw them alive. The evidence indicates that Larry probably set out on his customary route toward Greta’s home, drove to the Tenth Street ramp to Interstate-110, bypassed the barricade blocking the ramp, and proceeded along the interstate until his car encountered the flood waters of the underpass.

Davis’ abandoned car was discovered the next morning with its doors locked and water halfway up the seats. The bodies of Larry Davis and Greta Carter were found the next day 300 to 450 feet from the car in deeper water directly beneath the underpass. One of Greta’s shoes was found in a mesh fence on the elevated median leading to the underpass. Tests revealed that Davis was intoxicated when he died. His blood alcohol content was .14.

Suits for damages resulting from these deaths were filed by Larry Davis’ wife for herself and her children, and by Greta’s parents, Mr. and Mrs. Carter, against the Baton Rouge local governing authorities and the State Department of Transportation and Development. Based on Larry Davis’ negligence, the Carters brought a direct action against State Farm Mutual Automobile Insurance Company, as Davis’ liability insurer, and a separate action against the same company, as Mr. Carter’s uninsured motorist carrier. The Carters elected not to include the Succession of Larry Davis as a defendant in their suit.

After a consolidated trial, the trial judge dismissed the actions by Davis’ wife and Greta’s parents against the local and state authorities upon finding that the highway was properly designed and closed under the circumstances. The trial judge also dismissed the actions by Greta’s parents against State Farm on the theory that her death did not arise out of the ownership, maintenance or use of the automobile, as required by the liability and uninsured motorist coverages. He reasoned that the victims’ deaths did not arise out of use of the automobile, because they were not using the vehicle when they drowned. The court of appeal affirmed these findings by the trial court. 409 So.2d 345 (La.App.1981). We granted writs only to review whether Greta’s drowning was legally caused by and arose out of Larry Davis’ negligent use of his automobile. 412 So.2d 1113 (La.1982). The other issues were correctly decided by the court of appeal.

The State Farm basic automobile liability policy issued to Larry Davis provides that the insurer will pay “all sums which the insured shall become legally obligated to pay as damages because of: A. bodily injury, sickness or disease, including death . .. arising out of the ownership, maintenance or use of the owned automobile ... . ”

Similarly, Mr. Carter’s State Farm uninsured motorist coverage states that the insurer is obligated to pay any sums an uninsured or underinsured motorist is obligated to pay because of bodily injury including death “arising out of the ownership, maintenance, or use of such uninsured automobile ....”

Thus, Larry Davis’ liability insurance affords coverage for Greta’s drowning if two conditions are satisfied:

(1) that Larry Davis or his estate is legally responsible for Greta’s death, and
(2) that Greta’s death arose out of Larry Davis’ ownership, maintenance or use of the automobile.

If these conditions are met, coverage is also available under Mr. Carter’s uninsured motorist policy if Davis’ policy does not fully compensate the loss.

I

The previous courts, perhaps understandably, avoided tackling the question of whether Davis’ duties as a driver afforded any protection against the risk of Greta’s drowning. As Professor Malone observed, of all the substantive tort problems with which a judge must contend, “the most exasperating and elusive is that of determining how far legal protection should extend.” Malone, Ruminations on Dixie Drive It Yourself v. American Beverage Company, 30 La.L.Rev. 363 (1970). Yet, we believe this job must be undertaken in order to correctly resolve the case. Indeed, we think our trial and appellate brethren reached an incorrect result because they tried to decide the insurance coverage question without resolving the underlying scope of duty problem.

In deciding the issue of whether the risk resulting in a person’s harm was within a duty imposed on an alleged tortfeasor we have adopted an approach which first requires us to answer two principal questions: (1) was the conduct complained of a cause in fact of the harm? (2) was the alleged tortfeasor under a duty to protect against the particular risk involved? LeBlanc v. Department of Highways, 419 So.2d 853 (La.1982); Hill v. Lundin Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). There are other approaches, but we think this one most clearly reveals the judicial decisionmaking process in a negligence case. See, Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin and Associates, Inc., 34 La.L.Rev. 1 (1973); Green, The Duty Problem in Negligence Cases, 28 Colum.L.Rev. 1014 (1928).

The accident in this case occurred because Larry Davis, who was operating his vehicle while under the influence of alcohol, drove his vehicle around or through a barricade placed by authorities on a closed highway and into the floodwaters of a submerged underpass. But for Larry’s conduct in ignoring the barricade’s prohibitive warning and driving his automobile into the floodwaters of the underpass, Greta probably would not have drowned that evening. The preponderance of the evidence therefore indicates that Larry’s combined acts of negligent vehicle operation were a cause in fact of the accident which led to Greta’s death.

If the actor’s conduct of which the plaintiff complains is a cause in fact of the harm, we are then required in a negligence action to ascertain whether the actor breached a legal duty imposed to protect against the particular risk involved. Le-Blanc v. Department of Highways, supra; Jones v. Robbins, 289 So.2d 104 (La.1974); Hill v. Lundin Associates, Inc., supra. The legal duties relevant to our inquiry may be derived from La.R.S. 32:64, which requires operators to drive in a reasonable and prudent manner under the conditions and potential hazards then existing, and La.R.S. 32:237, 261-62, which mandate the observance of warnings or instructions to automobile drivers by highway authorities pertaining to roadway usage and conditions. The focal question, therefore, is whether these statutes provide rules for judicial decision offering protection against the risk of death by drowning to a ten year old female passenger produced by the automobile operator’s negligence in driving his car around or through a barricade and into the floodwa-ters of which it gave warning.

When the rule upon which a plaintiff relies for imposing a duty is based upon a statute, the court must attempt to interpret the legislative intent as to the risk contemplated by the legal duty, often resorting to the court’s own judgment of the scope of protection intended by the Legislature. Hill v. Lundin, supra, 256 So.2d at p. 622; Dixie Drive It Yourself System v. American Beverage Co., supra; Pierre v. Allstate, 257 La. 471, 242 So.2d 821 (1970). The same policy considerations which would motivate a legislative body to impose duties to protect from certain risks are applied by the court in making its determination. Hill v. Lundin, supra 256 So.2d at pp. 622, 623; Robertson, supra, at p. 8.

We are of the opinion that in times of flooded highways and underpasses, the risk of drowning by a passenger is contemplated by the legal duty of a motorist to obey the warning and prohibition of a highway department barricade closing a road and his duty to drive in a reasonable and prudent manner under hazardous conditions. The department is authorized to prohibit the operation of vehicles upon any highway when its use is dangerous due to rain or other climatic conditions. La.R.S. 32:261. The department is specifically empowered to place barricades upon any closed highway, and any person is expressly prohibited from driving through or around any such barrier. La.R.S. 32:237(A). Moreover, any driver who violates this law shall be prima facie at fault and responsible for any damage to any person resulting from the violation, La.R.S. 32:237(B), and may be punished by a fine of up to $500 and by imprisonment for 30 days or both. La.R.S. 32:237(E). Applying these laws as guidelines, we conclude that a driver is under a heavy duty to obey barricades and other orders of the authorities closing a highway because of dangerous conditions due to excessive rainfall. Plainly, the risk of drowning in low flooded areas at such times is not unfamiliar to Louisianians and is within the ambit of a driver’s duty to obey barricades and road closures resulting from such climatic conditions.

A driver also has an independent duty to operate his vehicle at a speed that is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the condition of the weather. La.R.S. 32:64. By analogy, a driver has a duty to reduce his speed and proceed with extra caution along a highway where extreme weather conditions such as flooding are known to exist, and this duty is imposed to protect the occupants of his vehicle from the risk of drowning and other hazards.

State Farm does not seriously contest that the duties which Larry Davis breached were imposed to protect against Greta’s drowning while inside or near the car. The insurer points out, however, that her body was discovered 300 to 450 feet from the car and that plaintiffs’ case is based largely on circumstantial evidence. State Farm contends that it can be reasonably inferred therefore, that Greta’s drowning resulted from other risks which should not be included within the scope of the driver’s duties. The company argues that Greta could have drowned because she knowingly assumed the risk by walking into deeper water although she knew safety lay a short distance in the opposite direction, or because she negligently failed to take the safer route, or because she was led or forced in the wrong direction by Larry Davis who either negligently or knowingly took her toward the deeper water beneath the underpass where their bodies were found.

In a civil case, the plaintiff’s burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct, or as in this case, by circumstantial evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation. DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981); Jordan v. Travelers Ins. Co. 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963). Further analyzing the duties imposed on Larry Davis and applying the circumstantial evidence precepts, we conclude that each of the risks hypothesized by State Farm is within the ambit of protection, except for one which cannot be considered as a reasonable hypothesis under the evidence in this case.

The duties of a driver to obey barricades and to avoid placing himself or the occupants of his car in a dangerous predicament are especially onerous when his passenger has a debility of youth, age or infirmity. His duty is heavier not merely because there are additional foreseeable risks due to the natural weakness of the passenger but also because common sense informs any reasonable person that the vicissitudes of such a situation increase the odds against a child or aged person safely escaping any calamity. Consequently, we conclude that, if Greta unknowingly failed to select the safest path in her exit from the partially submerged vehicle, this risk was within the scope of duty. Considering that she was a ten year old girl forced to abandon a vehicle stranded in water at night in surroundings with which she was unfamiliar as a pedestrian, we do not think it is unforeseeable that she would fail to react to the emergency with deliberate calculation and efficiency. Our courts recognize that a child is not held to the same degree of care as an adult. The test is whether the particular child, considering her age, background, and inherent intelligence, indulged in gross disregard of her own safety in the face of a known risk, understood and perceived the danger. Simmons v. Beauregard Parish School Board, 315 So.2d 883 (La.App. 3d Cir.1975), writ denied, 320 So.2d 207 (La.1975).

Furthermore, a risk is not excluded from the scope of duty simply because it is individually unforeseeable. A particular unforeseeable risk may be includr ed if the injury is easily associated with the rule relied upon and with other risks of the same type that are foreseeable and clearly within the ambit of protection. Cf. Hill v. Lundin, supra. Even if the risk of Greta’s poor judgment was unforeseeable, her drowning by this means is easily associated with the rule relied upon and other risks of the same type that are clearly within the ambit of protection. Davis’ duty of careful operation was obviously imposed, for example, to protect against the closely related risks that Greta would drown because she panicked and could not get out of the swamped vehicle or because she slipped and fell after disembarking.

For similar reasons, we conclude that the risk that Greta would be led in the wrong direction by Larry Davis is also within the scope of duty. Although this risk may have been individually unforeseeable, it was of a sort easily associated with those against which the duty clearly protects. Furthermore, as a matter of policy, the negligence and poor judgment of a would-be rescuer, even though unforeseeable, is within the scope of duty. Under the “rescue doctrine” efforts to protect the personal safety of another, even if negligently executed, do not supersede the liability for the original negligence which created the need for rescue. Lynch v. Fisher, 34 So.2d 513 (La.App. 2d Cir.1948), modified, 41 So.2d 692 (La.App. 2d Cir.1949); Restatement Second of Torts, Sec. 445; Prosser, Law of Torts, p. 277. The rule is not limited to spontaneous or instinctive action, but applies even when there is time for thought. Lynch v. Fisher, supra, Prosser, supra. Since the negligent intervention of even a stranger could not prevent Davis’ careless operation of the vehicle from being a legal cause of Greta’s death, neither could Davis’ own faulty rescue attempt.

The hypothesis that Greta knowingly and voluntarily chose to brave the deeper waters instead of taking a safer route is simply not reasonable. There is no direct evidence to this effect and no indication that she did not possess an ordinarily strong instinct for self-preservation. Under similar circumstances, our courts of appeal have stated that there is a rebuttable presumption that a deceased exercised due care under the circumstances, in conformity with the instinct of self-preservation and the love of life. Callahan v. Town of Bunkie, 287 So.2d 629 (La.App. 3d Cir.1973); Ebarb v. Southern Farm Bureau Cas. Ins. Co., 251 So.2d 124 (La.App. 3d Cir.1971), writ denied, 259 La. 881, 253 So.2d 215 (1971); Gant v. Aetna Casualty & Surety Co., 234 So.2d 776 (La.App. 1st Cir.1969), writ denied, 256 La. 376, 236 So.2d 503 (1970).

Consequently, we conclude that Larry Davis breached legal duties in the operation of his vehicle which were imposed to protect against the risk which caused her drowning. All reasonable hypotheses leading to a different conclusion are excluded by the circumstantial evidence with a fair amount of certainty. Larry Davis’ estate became legally obligated to pay damages because of Greta’s death due to his negligent automobile operation.

II

By the insuring agreements in its policies, State Farm is obliged to pay, within certain limits and conditions, sums which Larry Davis became legally obligated to pay as damages because of his negligent acts “arising out of the ownership, maintenance or use” of his automobile. The arising-out-of-use provision is designed to limit coverage to liability resulting from conduct of the insured which constitutes both a use of the vehicle and a legal cause of the injury. Accordingly, we believe that the limitation requires a court to answer two separate questions: (1) was the conduct of the insured of which the plaintiff complains a legal cause of the injury? (2) was it a use of the automobile? In the present case, we have previously determined that Larry Davis’ negligent operation of the vehicle was a legal cause of Greta’s death, and, since the conduct of which the plaintiffs complain was Davis’ driving, it is obvious that this conduct also constituted a use of the automobile.

Failure to recognize that two distinct issues are raised by the arising-out-of-use provision has caused many courts to formulate unwieldy and inconsistent rules of interpretation that do not assist greatly in answering either question. See Sherville v. National Union Fire Ins. Co., 387 So.2d 1181 (La.App. 1st Cir.1980); U.S. Fidelity & Guaranty Co. v. Burris, 240 So.2d 408 (La. App. 2d Cir.1970); Baudin v. Traders & General Ins. Co., 201 So.2d 379 (La.App. 3d Cir.1967). Many of these rules rely heavily on proximate cause concepts which are not very helpful to the legal cause inquiry and not relevant to the use of the automobile question. Tillman v. Canal Ins. Co., 305 So.2d 602 (La.App. 1st Cir.1974); Ramsey v. Continental Ins. Co., 286 So.2d 371 (La.App. 2d Cir.1973); Baudin v. Traders & General Ins. Co., supra. Such misguided approaches may also prevent a court from concentrating its attention on the more significant question in a particular case. In the present case, the court of appeal fell into error because it failed to address the complex legal cause question and applied, as if it were a statute, a list of proximate cause type factors, to the simple question of whether Larry Davis’ negligent driving constituted a use of his automobile. On the other hand, if the insured’s conduct of which plaintiff complains, is not the actual operation of the vehicle, whether it constitutes use of the vehicle may be a much more difficult question than whether it was a legal cause of plaintiff’s injury. LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978) (a police escort to a funeral procession negligently failed to block a crossing highway); Fertitta v. Palmer, 252 La. 336, 211 So.2d 282 (1968) (a sign was unloaded from the insured vehicle and negligently placed in a store); Curry v. Iberville Parish Sheriff’s Office, 405 So.2d 1387 (La.App. 1st Cir.1981) (a police car caused an accident and the officer failed to clear the road before another car struck them). A separate analysis of each question helps to clarify the decisive issue and avoid the misapplication of irrelevant criteria. For these reasons, we disapprove of the elaborate arising-out-of-use formula set forth in the court of appeal opinion in this case, 409 So.2d 345, in Sherville v. National Union Fire Ins. Co., supra, and in Baudin v. Traders & General Ins. Co., supra. Instead, we recommend approaching the automobile use issue and legal cause questions separately, avoiding traditional proximate cause concepts, and utilizing a duty-risk analysis to decide the legal cause question.

Because the court of appeal did not reach the issue of quantum in its previous reviews, we will remand the case to it for a proper award of damages. Gonzales v. Xe rox Corporation, 320 So.2d 163 (La.1975). The judgment of the court of appeal is reversed and the case is remanded to it for an award for damages.

REVERSED AND REMANDED.

MARCUS, J., concurs and assigns reasons.

DIXON, J., concurs.

MARCUS, Justice

(concurring).

The sole issue is whether or not Greta Carter’s death arose out of the use of Larry Davis’ vehicle. The evidence shows that Davis negligently used his vehicle when he bypassed barricades and drove his car into flood waters halfway up to the seats. Davis’ negligence was a cause-in-fact of Greta’s (his 10-year-old niece’s) subsequent drowning in the flood waters. The question remains whether the risk of abandoning a car in flood waters and then drowning in the course of doing so was with the scope of Davis’ duty not to use his vehicle in a negligent manner. I consider that Davis’ duty did encompass this risk and that, therefore, Davis’ insurance coverage extended to Greta Carter’s death. For these reasons, I respectfully concur.

      . The trial court rendered judgment against Davis’ succession in favor of the Carters in the amount of $25,000 for each plaintiff. The court of appeal correctly reversed this part of the judgment because the Carters did not include Davis or his succession as a defendant in their suit.

      . It should be noted that the court of appeal which introduced this formula expressly warned against using it as a rule of law to decide cases. Baudin v. Traders & General Ins. Co., supra, at p. 384.


author: DENNIS, Justice.

text:
    Pauline MARTINEZ v. UNITED STATES FIDELITY AND GUARANTY COMPANY and Darrell Ford.
    No. 82-C-1187.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      James L. Donovan, Donovan & Lawler, Metairie, for applicant.
    Wayne W. Yuspeh, Metairie, R. Ray Or-rill, Jr., New Orleans, for respondents.
   DENNIS, Justice.

This is an executive officer suit by Pauline Martinez against Darrell Ford, vice president-treasurer of Waterbury Drugs, Inc. and his liability insurer, United States Fidelity and Guaranty Company. Plaintiff’s cause of action arose prior to passage of Louisiana Acts 1976, No. 147, § 1, which amended La.R.S. 23:1032 by restricting executive officer liability to responsibility for intentional torts. She alleged that Ford breached a duty to provide her with a safe working environment, resulting in a chain of events which percipitated a serious nervous and mental breakdown. After trial, a jury awarded Martinez $485,000. On appeal, the award was reduced to $465,240. La.App., 412 So.2d 109. We granted certio-rari, and further reduce the award to $318,-761.73. The judgment in all other regards is affirmed.

On February 25, 1975, plaintiff was seated at her desk at Waterbury’s when Darrell Ford, her office manager, asked her to go to the bank. As she arose from her desk, she tripped over the cord of a ten-key adding machine which was extended across the only passageway from Mrs. Martinez’s work area. As a result of this fall, Mrs. Martinez was away from her job for approximately two months. During that time, she was under the care of Dr. Courtney Russo, an orthopedist, and Dr. Millard Jensen, a psychiatrist.

When she returned to work, on April 19, 1975, her first assignment from Mr. Ford was to go to the storage room at Waterbury’s and separate records of Waterbury’s that were stored in large packing boxes from those of another company. Several co-employees volunteered to go in Martinez’s place. They had noticed that she was visibly distressed by the assignment, and that she was trembling and extremely nervous. Despite these volunteers, and although the task of searching for records in the storage room was usually performed by two co-employees, or by one and an office handyman, Ford sent Martinez alone. Upon her return from the storage room several hours later, Martinez was so emotionally upset that she had to call her son to come and take her home. Her clothes were soiled by dust. She has not returned to work since.

These two incidents form the basis of the plaintiff’s complaint. She alleged that Ford breached a duty to provide a safe working environment by allowing the electrical cords to stretch' across walkways, causing her fall, and by sending her in to perform the strenuous task in the records room, aggravating her mental condition.

The court of appeal refused to upset the findings of the jury that Mr. Ford was liable to Martinez because of his conduct in both incidents, and that Mrs. Martinez was not guilty of contributory negligence. The court of appeal also declined to reduce the award of $147,000 general damages, finding that it was not an abuse of discretion, and the award of $232,000 medical expenses. The appeals court reduced the amount awarded for lost past wages and loss of future wages by $19,760.

To this result, the defendants assign five errors: (1) The court of appeal erred in not finding Pauline Martinez negligent or con-tributorily negligent in the incident on February 25, 1975; (2) The court of appeal erred in finding the defendant liable for the incident on April 19, 1975 since he had no knowledge that her assignment to the records room would contribute to an emotional breakdown; (3) The court of appeal erred in not reducing the award for general damages; (4) The court of appeal erred in not reducing further the award for lost wages; and (5) the court of appeal erred in not reducing the award for medical expenses, past and future.

We find no merit in any of these conditions save the last.

CONTRIBUTORY NEGLIGENCE

The jury by interrogatory found that the plaintiff was not guilty of contributory negligence. We agree with the court of appeal that this finding was not manifestly erroneous. Soileau v. South Central Bell, 406 So.2d 182 (La.1981).

The standard for contributory negligence in employee executive officer suits was correctly set forth in Miller v. Employers Mutual Liability Insurance Co., 349 So.2d 1353 (La.App. 2nd Cir.1977):

Emerging as criteria for determining an employee’s contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.

The record supports the jury’s finding that Pauline Martinez had not failed to observe or do something that she ought to have observed or seen, and would have done with ordinary care. Siau v. Rapides Parish School Board, 264 So.2d 372, 375 (La.App. 3d Cir.), writ refused 262 La. 1148, 266 So.2d 440 (1972). Mr. Ford had been informed on several occasions, although admittedly on some of these by the plaintiff herself, of the dangers presented by the electric cords extending across walkways in the office. In fact, on several occasions, employees had stumbled, although none had received serious injuries. Ford testified that there were measures that could have been taken, with minimal cost to Waterbury’s, to eliminate the hazards presented by these cords. Because of the configuration of the office furniture, the plaintiff was forced, when requested to leave her desk for the bank, to cross the wire extending from the adding machine. Defendant asserts that this fact proves the plaintiff must have been aware of the wire. However, the cord was brown and matched the floor, and no one could explain how or when the adding machine was put on her desk. The position of it indicated that she could not have used it since it was on the left side of her desk and she is right handed.

After weighing the relative knowledge of the danger of each party, the officer’s relative control over the employee’s situation, the degree to which the employee’s conduct was voluntary, the lack of alternatives available to her, the obscurity of the danger, and the officer’s superior ability to eliminate the danger, we conclude the plaintiff was not guilty of contributory negligence.

LIABILITY

Defendants contend that they should not be held liable for plaintiff’s mental, emotional and physical disorders which developed after the April 19, 1975 “storage room” incident because Darrell Ford, her office manager did not assign her to the record sorting detail with the intention of injuring her. Our review of the unrebutted testimony of the plaintiff’s psychiatrist, Dr. Millard Jenson, reflects, however, that all of the plaintiff’s problems stem from her fall in which she injured her head on February 25,1975. In Dr. Jensen’s opinion, the plaintiff regressed after this trauma and developed a multisymptomatic psychosis, which has caused her to suffer actual organic injury and illness from time to time, and from which she probably will never recover. It is clear from the doctor’s testimony that he related all of plaintiff’s ailments to her original head injury and did not think that she had recovered from her underlying psychosis at the time of her mental breakdown following the “storage room” incident. Consequently, defendants are liable in damages for any harm suffered by the plaintiff as a result of her fall on February 25, 1975 after tripping over the adding machine cord. Cf. W. Prosser, Law of Torts 320 (1971).

QUANTUM

The third assignment of error involves the award of $147,000 for general damages. The defendants claim that this figure is too high, but they do not present any argument or authority to substantiate their claim. The plaintiff’s damages are summarized as follows: (1) physical symptoms of an emotional breakdown including double vision, fainting, severe headaches, weak spells, nausea and vomiting; (2) frequent depression and anxiety, leading to an inability to cope with the daily activities of life; (3) orthopedic problems requiring the use of a wedge in one shoe to compensate for a pelvic tilt and a back corset; (4) activation of a dormant arthritic condition; (5) cervical pain requiring treatment in traction. Under these circumstances, and without some reason given to require a contrary finding, the award was not clearly shown to be an abuse of discretion, and will not be disturbed. Anderson v. Welding Testing Lab, Inc., 304 So.2d 351, 352 (La.1974).

The fourth assignment of error complains of a failure to deduct from the plaintiff’s award for lost earnings her expected income taxes. The defendants assert that the payroll records of the plaintiff which were introduced in evidence set forth with-holdings from plaintiff’s wages for income taxes. These exhibits reflect:

EARNINGS WITHHOLDINGS
1972 $5,089.87 $670.30
1973 4,965.00 655.50
1974 4,113.75 672.40
1975 1,558.00 285.11

However, these figures do not prove the level of the plaintiff’s tax liability. The plaintiff asserts in brief that due to the small income of the plaintiff, her withhold-ings are customarily returned to her. Without any additional information regarding the tax liability of the plaintiff, we find that we are unable to do more than speculate about the level of her liability, and we decline to do so. Moreover, it is evident to us that if the plaintiff is liable for income taxes, the amount is de minimus, and in a case such as this, the confusion that would be introduced by the calculation outweighs any real increase to equity that would be realized. Cf. Norfolk & Western R. Co. v. Liepelt, 444 U.S. 490, 494, 100 S.Ct. 755, 758 n. 7, 62 L.Ed.2d 689, 694 (1980). Since the defendants have not presented us with any assistance in the calculation of the plaintiff’s true tax burden, we will not expend valuable judicial resources in speculation upon what is surely an insignificant amount.

In passing, we note that this court has never decided whether income taxes may be considered at all in formulating damage awards, and that our courts of appeal are divided on the issue. Reeves v. Louisiana & Arkansas Railway Co., 304 So.2d 370 (La. App. 1st Cir.) cert. denied, 305 So.2d 123 (La.1974); Menard v. Travelers Ins. Co., 240 So.2d 390 (La.App. 3rd Cir.1970); Teal v. Allstate Ins. Co., 348 So.2d 83 (La.App. 4th Cir.) cert. denied, 351 So.2d 164 (La.1977); Annot., 16 A.L.R. 4th 589, 614 (1982). The parties in this case have not argued the merits of this question, however, and we decline to consider this important issue on the record and briefs before us, since we have found that in the context of this case it is unnecessary for us to do so.

The final assignment of error involves the award of $232,000 for medical expenses. Of this amount, $23,521.73 was stipulated as past medical expenses, and is therefore not in dispute. Of the remainder, $62,000 is fully supported by the uncontradicted testimony of Dr. Jensen who feels that the plaintiff will expend $200 a month for psychiatric support for the remainder of her 26 year life expectancy. Dr. Jensen also testified that it is possible that the plaintiff may require future hospitalizations, and that, if so, each period of confinement would cost between $2000 and $4000. The doctor did not say that her future hospitalizations are a probability and he did not hazard a guess as to how many times she would need in-patient care in her lifetime. Indeed, at one point, Dr. Jensen testified that there is a possibility that plaintiff’s condition may improve when she is relieved of the stress of this litigation. Dr. Russo has not seen the plaintiff in at least six months prior to trial, and his testimony revealed no indication that the plaintiff will have to undergo any future medical expenses for her orthopedic or cervical problems.

Thus, it is plain on the record that the plaintiff has failed to carry her burden of proving that there is a probability that she will undergo future hospitalizations because of her psychiatric illness caused by the negligence attributable to the defendants. The evidence does not support an award of $166,489 for such hospitalizations. Spillers v. Montgomery Ward & Co., Inc., 294 So.2d 803, 809 (La.1974). Accordingly, we reduce the plaintiff’s award of $232,000 for future medical expenses to $85,521.73, a sum which provides for her past medical expenses, and future expenses for psychiatric support.

DECREE

The judgment of the court of appeal is affirmed with regard to the liability of these defendants. The judgment is amended to reduce the award to $318,761.73.

AMENDED AND AFFIRMED.


author: WILLIAMS, Justice Pro Tem.

text:
    STATE of Louisiana v. Gregory CHANEY. STATE of Louisiana v. Johnny HERMAN.
    Nos. 81-KA-3297, 82-KA-0014.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 7, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee in both cases.
    John Diguilio, Asst. Dist. Atty., for plaintiff-appellee in No. 81-KA-3297.
    Ralph Roy, Asst. Dist. Atty., for plaintiff-appellee in No. 82-KA-0014.
    David R. Buckley, Baton Rouge, for defendant-appellant in both cases.

      Bonnie P. Jackson, Michele Fourne, Public Defenders Office, Baton Rouge, for defendant-appellant in No. 81-KA-3297.
    John Cornish, Office of the Indigent Defender, Baton Rouge, for defendant-appellant in No. 82-KA-0014.
   WILLIAMS, Justice Pro Tem.

Defendants Gregory Chaney and Johnny Herman were charged by bills of information with two counts each of armed robbery in violation of La.R.S. 14:64. After joint trial by jury, defendants were found guilty of two counts of simple robbery. Defendant Chaney was sentenced to serve five years at hard labor on each count. The sentences were to run consecutively. The state filed a multiple offender bill against defendant Herman, and he was found to be a second felony offender. He was sentenced to serve seven years at hard labor on each count, the sentences to run consecutively. On appeal, defendant Chaney urges fourteen assignments of error; defendant Herman urges nineteen assignments of error.

FACTS

Donald Franklin was robbed between 11:15 and 11:20 p.m. on March 27,1980. He was a clerk at a convenience store in East Baton Rouge Parish. Franklin was alone when a black male, whom he later identified as defendant Herman, entered the store. Defendant was wearing gray pants and a black shirt. Franklin asked Herman if he needed help, and defendant said that he wanted a pack of cigarettes. When Franklin went behind the counter to get the cigarettes, Herman told him to hand over all of the money. The victim gave defendant twenty-seven dollars, including a two dollar bill that was used by the store as “bait money.” It had been photocopied on both sides. Herman then left the store. He had kept his left hand over his face and his right hand in his pocket while he was in the store. Franklin called the police, and, as he was talking on the telephone, observed a 1970 or 1971 tan or dull green car pull up to a stop sign across the street from the store. The headlights were not on at that time, but Franklin noticed that they were turned on as the car headed toward Sherwood Boulevard where the second robbery occurred.

At approximately 11:30 p.m., Rita Corn-well, the cashier at another convenience store in East Baton Rouge Parish, was robbed. A black male wearing gray pants and a black shirt entered the store and asked her for a pack of cigarettes. She identified the man as defendant Herman. Herman paid for the cigarettes with a two-dollar bill. When Cornwell tried to give defendant change from the two-dollar bill, he demanded the money from the cash register and from the safe. She gave him the money from the register, but explained to him that the safe was locked. He instructed her to give him money from a change box. Defendant took approximately one hundred and ninety dollars in bills and rolled coins along with the two-dollar bill. He took a white plastic change box from the store. The change box was a plastic bucket that had been taped closed. Corn-well stated that defendant threatened to shoot her if she did not give him the money. She saw Herman leave the store and enter the passenger side of a car. She was unable to identify the driver of the car, but did notice that newspaper had been taped over the license plate and that the headlights were not turned on.

The police stopped defendants in their car a short time later. The white plastic change box, rolls of coins, and currency were seized. Both men were arrested and each was charged with two counts of armed robbery.

ARGUMENT NUMBER 1 (Assignments of Error Number 1 and 10)

Defendants argue that the trial court erred in not suppressing evidence seized from their car and from themselves.

At the hearing on the motion to suppress, Officer Gary Starkey of the Baton Rouge City Police Department, testified as follows. At about 11:30 p.m. on March 27, 1980, he received a broadcast over his radio that an armed robbery had taken place at the first convenience store. The broadcast described the suspect as a black male wearing a black shirt and gray pants. About ten minutes later, he received another broadcast that an armed robbery had taken place at the second convenience store. Once again, the suspect was described as a black male wearing a black shirt and gray pants. The broadcast also stated that the suspect was a passenger in a dark-colored or green car being driven by another black male. The car left the scene of the second crime with a newspaper taped over its license plate. Starkey testified that he and his partner drove to a parking lot on Greenwell Springs Road because it was a logical place for the robbers to pass. After ten minutes, a green car passed by, proceeding away from the area where the robberies occurred. The officers, in an unmarked car, began to follow. There were two black males in the ear. The officer testified that both the passenger and driver were staring at something in the passenger’s lap. The police followed the car and asked headquarters for a more complete description. The men in the vehicles, the defendants, began shuffling something under the seat. Both men were moving their arms, as the driver continued to look in the direction of the passenger’s lap. The officer testified that as they followed defendants’ car, the driver ran a red light, speeded up, and skidded. At that time the officer turned on the sirens and lights in order to stop defendants. The driver, defendant Herman, got out of his car at the same time the officers got out of the police car. He was wearing a black shirt and gray pants and fit the descriptions given to the police. Defendant Chaney was ordered to get out of the car, and both men were frisked. Looking into the car, Officer Sharkey observed a taped plastic bowl on the floorboard; the bowl contained rolls of coins. He also saw money sticking out of the glove compartment. The police then radioed headquarters and were told that a taped bowl of coins was taken during the second robbery. Defendants were informed of their constitutional rights and arrested. The police seized the money, the plastic bucket, a steak knife, and a whiskey bottle from the car.

Defendants assert three reasons for the suppression of the evidence seized: (1) that the police did not have reasonable cause to stop defendants’ vehicle, and any evidence seized from the car, therefore, is “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); (2) the police did not have probable cause to arrest defendants; and (3) the search of defendants’ car was unconstitutional.

INVESTIGATORY STOP

Article 215.1 of the Louisiana Code of Criminal Procedure provides in part:

“A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or misdemeanor and may demand of him his name, address and an explanation of his actions.”

See also Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Such a stop is based on reasonable cause, a somewhat lesser standard than probable cause. State v. Rodriguez, 396 So.2d 1312 (La.1981). Reasonable cause to stop a suspect is determined on a case by case basis by assessing whether the police had sufficient knowledge of facts and circumstances to justify an infringement upon an individual’s right to be free from government interference. State v. Rodriguez, supra; State v. Frisch, 393 So.2d 1220 (La.1981).

In this case, the police officers clearly would have had reasonable cause to stop defendants had they actually run a red light. The trial judge, however, in denying the motion to suppress, stated that he would assume for the purpose of his ruling, that defendants had not run a red light. Our examination of the evidence leads us to conclude that the police had reasonable cause to stop defendants’ car had it not run the red light. Defendants were travelling in a car that was the same color as the radioed description. The car was travelling on a road that led out of the area where the robberies occurred, and arrived where the police officers were staked out at approximately the time that it would have taken the robbers to reach the police. There were two black males in the car; the officers knew that the robber had an accomplice. The defendants were engaged in somewhat erratic behavior; moving their arms around, staring at something in Chaney’s lap, and trying to stuff something under the seat. Although it is unlikely that any one of these facts would have supplied reasonable cause for the police to stop defendants, the totality of circumstances clearly provided reasonable cause for police to stop defendants.

DEFENDANTS’ ARREST

Defendants were placed under arrest after their car was stopped by the police and the police discovered that defendant Herman fit the description of the robber and that he was wearing clothing similar to that described by the victims.

An arrest can be made without a warrant provided that it is based on probable cause. E.g., State v. Finklea, 313 So.2d 224 (La.1975). Probable cause to arrest exists when the officer has reasonable and trustworthy information about facts and circumstances sufficient to sustain the belief of a reasonable man that the person has committed or is committing a crime. La.C. Cr.P. art. 213; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Thomas, 349 So.2d 270 (La. 1977); State v. Phillips, 347 So.2d 206 (La.1977).

After the police stopped defendants, one of the officers shone a flashlight in the car and looked through the window. He observed the money and plastic bowl taken in the robberies. At that point, defendants were arrested.

It is clear that at this time the police had probable cause to arrest defendants. The car matched the description of the automobile used in the robberies; defendants and their clothing matched the descriptions of the robbers given to the police by the victims; and money and a white plastic bucket, taken in the robberies, were discovered in plain view in defendants’ car.

SEARCH OF CAR

After defendant’s arrests, the police searched defendants’ car without first obtaining a search warrant.

In order for a warrantless search of a vehicle to be constitutional, two conditions must be met: (1) there must be probable cause to believe that the vehicle contains contraband or evidence of a crime, and (2) there must be exigent circumstances requiring an immediate search. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1971); State v. Guzman, 362 So.2d 744 (La.1978). “Exigent circumstances” have been defined as:

“[T]he impracticability of obtaining a warrant due to the possibility that the car could be moved either by its occupants, if not arrested or by someone else. An immediate warrantless search is, therefore, constitutionally permissible when ‘the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ ”

Guzman, supra at 74.

In this case, the police knew that evidence was contained in the car because it had been seen through the window. The car could be moved, and the exigent circumstances requirement was met. The war-rantless search was constitutional.

ARGUMENT NUMBER 2 (Assignment of Error Number 5)

Defendant Herman contends that the trial court erred in not suppressing the in-court identifications of him by his robbery victims. He claims that the in-court identifications were tained by earlier identification during the preliminary examination when defendant was wearing an orange prison jumpsuit.

A defendant attempting to suppress an identification must prove two things: (1) that the identification was “suggestive,” and (2) that there was a likelihood of mis-identification in the identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Doucet, 380 So.2d 605 (La.1979). There are five factors which the court considers in determining whether the identification was suggestive: (1) the witness’s opportunity to view defendant at the time the crime was committed; (2) the degree of attention paid by the witness during the commission of the crime; (3) the accuracy of any prior description; (4) the level of the witness’s certainty displayed at the time of identification; and (5) the length of time elapsed between the crime and the identification. State v. Guillot, 353 So.2d 1005 (La.1977).

Donald Franklin testified that he saw defendant for approximately one minute during the commission of the robbery, and that defendant had covered his face with his left hand. He stated that he was standing about two feet from defendant, the area was well-lighted, and he was able to get a good look at defendant. He identified defendant at the preliminary examination and testified at trial that he was fairly positive that defendant was the man who robbed him. Franklin also identified the clothing defendant wore on the night of the robbery and testified that he remembered the zipper on the shirt.

Rita Cornwell testified that she was able to observe defendant for about one minute on the night of the robbery. She stated that she had seen defendant during the preliminary examination, but did not remember what he was wearing. She testified that she immediately recognized defendant at trial.

Cornwell also testified that the store was well-lighted and that she was able to get a close look at defendant. She was positive of her identification of defendant. She also was able to identify the clothing defendant wore when the crime was committed.

Furthermore, on the night of the robbery, both Franklin and Cornwell were able to give the police a description of defendant’s clothing and his approximate weight and height.

It is clear that no substantial likelihood existed of misidentification. This argument lacks merit.

ARGUMENT NUMBER 3 (Assignments of Error Number 7 and 8)

Defendant Herman argues that the trial court was in error in allowing the admission of a knife seized from his car, a photograph of the knife, and testimony about the weapon.

At trial, Officer Thompson testified that he observed a steak knife in defendant’s car. The defense objected and moved for a mistrial on the ground that evidence about the knife was prejudicial and irrelevant. The trial court denied the motion stating that the knife was part of the res gestae.

It is clear that defendant was not prejudiced by the introduction of this evidence. Although its relevancy is questionable, the jury nevertheless returned a verdict of simple, not armed, robbery. The simple robbery verdict demonstrates that the jury did not believe defendant to have been armed with the knife at the time that the robberies were committed. The introduction of this evidence did not prejudice defendant. La.C.Cr.P. art. 921.

ARGUMENT NUMBER 4 (Assignments of Error Number 6,11,12,14, 17 and 19)

Defendants argue that the trial court was in error in allowing the admission into evidence of ten exhibits introduced by the State.

The exhibits to which defendant directs his argument are items of evidence seized from defendants’ car and photographs taken immediately after the robbery of the vehicle and its contents. Defendant urges that these items should not have been introduced into evidence because the State had not informed the defense of the items in response to discovery motions.

On May 23, 1980, the defense filed a Motion for Discovery in which it requested, among other information, any tangible evidence which the State intended to use at trial. The State answered, stating that it had $233.05 in currency, clothing, a white plastic bowl and coins and that these items were intended to be used as evidence at trial. At trial, however, the State introduced a number of other exhibits into evidence: a photocopy of the two-dollar bill; photographs of the first convenience store that was robbed; a knife, wallet and liquor bottle seized from defendants’ car; photographs of the car and the seized items.

If the State fails to comply with a Motion for Discovery and the defendant is thereby prejudiced, then reversible error has been committed. E.g., State v. Davis, 399 So.2d 1168 (La.1981). In the case now before the court, however, defendants cannot claim that they were prejudiced by the State’s failure to respond adequately to the defense discovery motion. A preliminary examination in this case was held on August 19,1980, more than ten months before trial. During the preliminary examination, the same exhibits introduced at trial were introduced into evidence. The defense could not have been surprised by the evidence. Furthermore, on the date of the preliminary examination, defense counsel informed the trial court that it was satisfied with the State’s answers to its discovery motion. For these reasons, defendants could not have been prejudiced by the introduction of the evidence in question.

ARGUMENT NUMBER 5 (Assignments of Error Number 9 and 18)

Defendant Herman argues that the trial court erred in admitting irrelevant hearsay testimony.

At trial, the State asked one of the arresting officers whether he knew if defendants were related. The defense objected on the ground that the question was irrelevant. The objection was overruled, and the witness answered the question by stating that defendants told him that they were brothers. The prosecutor later asked the officer the address of the defendants. The defense objected on the ground that the question required a hearsay answer. The trial court overruled the objection, and the witness testified that defendants had the same address and gave the address. The officer testified that this address was eight to ten miles away from the area where the robberies occurred.

Hearsay is an out-of-court statement introduced to prove the truth of its content. State v. Spell, 399 So.2d 551 (La.1981); State v. Weedon, 342 So.2d 642 (La.1977); State v. Sheppard, 371 So.2d 1135 (La.1979). Except for certain exceptions, hearsay is inadmissible. La.R.S. 15:434.

The first question to which the defense objected did not require a hearsay answer. The Assistant District Attorney simply asked whether the witness knew if defendants were related; it required a “yes” or “no” answer. The trial court was correct in its ruling that the question did not require a hearsay response.

The second question, however, did require a hearsay answer. No foundation had been established that would prove that the police officer had personal knowledge of defendants’ address. See La.R.S. 15:463. The defense asserts that the answer given by the witness is prejudicial to defendant because defendant’s reason for being in the area was that he was giving his brother a ride home. Although the question did require a hearsay answer, it nevertheless does not require a reversal. The information is not so highly prejudicial as to negate or even seriously bring into question defendant’s explanation of his presence in the area. Furthermore, defendant and his mother were able to testify as to his address.

The defense also objected to both questions on the ground of relevancy. La. R.S. 15:441 provides:

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negate the commission of the offense and the intent. Pacts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

Whether evidence is relevant is within the discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear abuse of this discretion. E.g., State v. Bates, 397 So.2d 1331 (La.1981).

The relevancy of the first question concerning defendants’ relationship is clear. The State had to establish some connexity between defendant Herman and defendant Chaney because Herman was the one to actually rob the convenience stores. Furthermore, Herman testified that Chaney was his brother.

The relevancy of defendants’ addresses is not as clear as information about their relationships. Nevertheless, the information is not so prejudicial as to merit reversal. La.C.Cr.P. art. 921.

ARGUMENT NUMBER 6

(Assignments of Error Number 21, 22 and 23)

By these assignments of error, defendant Herman argues the trial court was in error in allowing the prosecutor to cross examine him as to a conviction which had been overturned on appeal.

On direct examination, the defendant Herman testified that he was convicted of simple burglary in 1967. He also stated that he was convicted of two other offenses, but this court later reversed those convictions. During cross examination, the Assistant District Attorney attempted to question defendant concerning the reversed convictions. The pertinent convictions are ones which occurred in Jefferson Parish in 1973 and which were reversed by this court in 1974. State v. Herman, 304 So.2d 322 (La.1974). He was also convicted for a 1976 armed robbery in Jefferson Parish and was found guilty of simple robbery and sentenced to serve five years in jail. That conviction was reversed in State v. Herman, 358 So.2d 1282 (La.1978).

This court has held in State v. Jackson, 307 So.2d 604 (La.1975) that the prosecution may not only establish prior convictions of a witness, but may also cross examine that witness about the details of the prior convictions in order to show the true nature of the offenses. This rule has been extended also to defendants who take the stand in their own behalf. State v. Connor, 403 So.2d 678 (La.1981). This rule is not, however, without limits. This court has held that the extent into which this inquiry into past convictions can be permitted is dependent upon each individual case. The trial judge has great discretion in determining the type of inquiry which will be allowed and his discretion will not be disturbed on appeal absent a showing of abuse. State v. Brown, 371 So.2d 751 (La.1979).

Defendant’s previous court history is rather convoluted. Defendant, himself, brought up this Court’s reversals. Because defendant himself first mentioned the reversed convictions on direct examination and the scope of the prosecutor’s questioning on cross examination was limited, defendant suffered no prejudice.

The questioning as to the other convictions which were not reversed by this court was also proper. The questioning did not go into the specific details about the commission of each offense, but rather attempted to place defendant’s criminal history in perspective for the jury.

This assignment of error is without merit. ARGUMENT NUMBER 7 (Assignment of Error Number 24)

Defendant Herman argues that the trial court committed reversible error when it refused to grant a mistrial.

During trial, the prosecutor made notes for his closing argument on the back of a copy of defendant Herman’s “rap sheet”. The defense requested a bench conference and called this to the trial judge’s attention. The judge stapled a blank sheet of paper onto the prosecutor’s notes to cover the rap sheet. After the jury retired, the trial judge allowed the defense to make an objection into the record. Defense counsel moved for mistrial based on the prejudicial effect the prosecutor’s display of defendant’s rap sheet had on the jury. The trial judge denied the motion for mistrial. The judge stated that it was impossible for the jury to read the rap sheet. He further reasoned that because defendant had failed to prove that the prosecutor had intended to prejudice defendant, the drastic remedy of mistrial was not warranted.

Based on the record before us, we conclude that the trial court correctly refused to grant defendant’s motion for mistrial. The defense failed to prove that the jury was able to understand the rap sheet or that the Assistant District Attorney intentionally attempted to prejudice defendant. The judge did not abuse his discretion by refusing to grant defendant’s motion for mistrial.

ARGUMENT NUMBER 8 (Assignment of Error Number 25)

Defendants argue that the trial court erred in permitting the jury to view the knife that was introduced into evidence.

During deliberation, the foreman of the jury requested that the jury be allowed to view the knife that was found in defendants’ car. The defense objected on two grounds: (1) the State had not complied with the previously discussed Motion for Discovery, and (2) there was no evidence introduced connecting the knife with the commission of the crimes. The trial court overruled the objection and allowed the jury to view the knife.

Article 798 of the Louisiana Code of Criminal Procedure provides:

“A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.”

Because, as we decided above, introduction of the knife into evidence was not prejudicial, the trial court’s decision to allow the jury to view the weapon was not in error.

ARGUMENT NUMBER 9 (Assignment of Error Number 4)

Defendant Chaney argues that his sentence is excessive and that the trial judge failed to give adequate reasons for the sentence that was imposed.

Defendant was sentenced to serve five years at hard labor for each of the two counts of robbery. The sentences are to run consecutively. The maximum sentence that can be imposed for a violation of La. R.S. 14:65 is seven years at hard labor.

At the sentencing hearing, the judge stated that defendants had criminal states of mind and had carefully picked the targets prior to committing the robberies. He emphasized the serious nature of the crimes. He noted some of defendant’s extensive record. As a juvenile, defendant was arrested for purse snatching and released after a warning; less than a month later, he was arrested for simple burglary. Again, defendant was released with a warning. He was sentenced to the State Industrial School on the basis of two counts of simple burglary, but the commitment was suspended. Defendant had eight misdemeanor convictions as an adult. Based on defendant’s adult and juvenile records, the trial court concluded that defendant had developed no respect for the rights of others.

The defendant argues that the trial judge did not give adequate reasons for the sentence, specifically because he did not take into consideration defendant’s good employment record and his minimal involvement in the crimes charged.

It is not necessary for the trial court to articulate every factor to be taken into consideration as directed by La.C.Cr.Pr. art. 894.1. It is sufficient that the record reflect that the court adequately considered the guideline when sentencing that particular defendant. State v. Gulden, 399 So.2d 194 (La.1981). In this case, it is clear that the trial judge complied with Article 894.1, although he did not specifically mention all of the provisions contained in the article. Although he did not specifically mention defendant’s employment record, the omission does not require reversal, especially in light of the information about defendant’s employment contained in the Pre-Sentence Report reviewed by the judge and discussed below. Because the trial court adequately considered the guidelines contained in Article 894.1 in sentencing defendant, our review is limited to whether defendant’s sentence is excessive. See State v. Cox, 369 So.2d 118 (La.1979).

Defendant is thirty years old. This is not his first felony offense. In addition to his eight misdemeanor arrests, defendant has several felony arrests including one for first degree murder (a no true bill was returned by’ the grand jury) and one for attempted murder (the charge was reduced to aggravated battery).

Defendant’s education ended after he completed the ninth grade; he was seventeen. Defendant’s employer considered defendant to be undependable. He had been fired for theft, but was rehired a year before the robberies were committed. Defendant is unmarried and has two children that he supports somewhat. He could not remember the name of the mother of his oldest child, but sent her money occasionally. He was planning to support his other son, but was arrested.

Defendant’s extensive record indicates that he has little regard for the law. The circumstances clearly warrant the imposition of the sentence.

ARGUMENT NUMBER 10 (Assignment of Error Number 2)

By this assignment of error, defendant Herman contends that the evidence establishing his status as a multiple offender was insufficient. Specifically, he argues that court records introduced into evidence at the multiple offender were ambiguous, hearsay, and improperly authenticated.

After sentencing, the State filed a multiple offender bill against defendant alleging that he had been convicted in 1977 of simple robbery. The State introduced copies of records of the Nineteenth Judicial District Court, including a certified copy of the bill of information charging defendant with simple robbery and a certified copy of the minutes of court showing defendant’s guilty plea to the charge. The defense objected to this evidence on the ground that the minute entry did not show an ultimate disposition of the case, but rather indicated only that the defendant had entered a guilty plea and had been properly Boykin ¡zed. Defense counsel argued that the record was ambiguous as to the final disposition of the charges because the rap sheet, which also showed that the defendant had entered a guilty plea and was sentenced, and reflected a discharge date that was impossible unless an error had occurred or the conviction was reversed.

The trial court overruled this objection stating that apparently an error had been made in defendant’s favor and explained that the time the defendant entered that 1977 plea in the Nineteenth Judicial District he was also serving a five year sentence imposed in 1976 on a conviction in the Twenty-Fourth Judicial District on the same charges. Defendant apparently was mistakenly released from the Department of Corrections because the conviction from the Twenty-Fourth Judicial District Court was overruled by this court. See State v. Herman, 358 So.2d 1282 (La.1978). Defense counsel agreed that the defendant was probably released for both convictions, but still maintained that the court records were ambiguous.

Sybil Guidry, the latent fingerprint examiner for the Louisiana State Police, was then called by the State. She testified that she is the custodian of criminal records received by the Department of Public Safety. She said that the criminal records contain the fingerprint card of an arrestee, his date of arrest, the reason for such arrest, the person’s name, date of birth and the date of conviction. She then identified the criminal records of Herman which showed an arrest card out of East Baton Rouge for simple robbery in 1976 and an arrest card for armed robbery in 1980 (the present offense). She identified the fingerprints from the fingerprint cards as belonging to the same person. She then fingerprinted the defendant and testified that his were the same prints as appearing on the arrest card. On cross examination, she testified that she had a final disposition report on the simple robbery arrest conviction sentence in East Baton Rouge, but the disposition report did not contain the defendant’s fingerprints. She did testify that all the other pertinent information contained in the 1976 arrest card and the 1977 final disposition report matched exactly, proving that the Herman arrested in 1976 was the same Herman convicted in 1977 and later charged, convicted and sentenced in the instant case. The State sought to admit this final disposition report, but the defendant objected on the ground that it was hearsay. The judge stated the document was admissible as a business record exception and held that the defendant was a second felony offender.

In order to prove a defendant is an habitual offender, the State need only establish by competent evidence that there is a prior felony conviction and that the defendant is the same person who was convicted of the prior felony. See, e.g. State v. Bernard, 366 So.2d 1294 (La.1978). Although it is questionable whether the final disposition report was available for introduction into evidence under the business document exception to the hearsay rule, the State nevertheless introduced sufficient evidence to prove defendant’s status as a second offender. La.R.S. 15:529.1 does not require that the State prove that deiendant was sentenced; only that he was convicted. See State v. Martin, 356 So.2d 1370 (La.1978).

In State v. Barrow, 352 So.2d 635 (La.1977), this Court found that the following information was sufficient to establish multiple offender status:

“[T]he court minutes reflecting a guilty plea on the true copy of the bill of information. His identification was proven by his fingerprints taken in open court and compared by an expert with those on the arrest record of the previous felony corresponding together with the bill of information forming the basis of the conviction.”

Id. at 637.

The trial court, therefore, was correct in sentencing defendant as a multiple offender on the basis of the evidence of defendant’s conviction and the fingerprint evidence connecting defendant with that felony and the instant offense.

This assignment of error is without merit.

For the foregoing reasons, the defendants’ convictions and sentences are upheld.

AFFIRMED.

DIXON, C.J., and DENNIS, J., concur.

CALOGERO, J., concurs agreeing with the result but not the treatment of assignments of errors 1 & 10.

WATSON, J., concurs in the result.

       Judges David R.M. Williams, Charles R. Ward and William H. Byrnes, III of the Court of Appeal, Fourth Circuit, participated in this opinion as Associate Justices Pro Tempore with Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.