author:
THOMAS J. KLIEBERT, Justice Ad Hoc.
     DIXON, Chief Justice DENNIS, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. George YARBROUGH (Two cases). STATE ex rel. George YARBROUGH v. STATE of Louisiana.
    No. 81-KA-0278, 81-KA-1587 and 81-KH-1039.
    Supreme Court of Louisiana.
    June 3, 1982.
    Rehearing Denied Sept. 3, 1982.

      Chris Christofferson, Dwight Doskey, New Orleans, Orleans Indigent Defender Program, for George Yarbrough.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Thomas Chester, David Paddison, Louise Korns, Asst. Dist. Attys., for State.
   THOMAS J. KLIEBERT, Justice Ad Hoc.

The defendant, George Yarbrough, was charged by bill of information with armed robbery, plead not guilty, was tried before a twelve person jury, convicted and sentenced to hard labor for a term of twenty-five years. Defendant filed for and was granted an appeal. Thereafter, the State filed a bill of information charging the defendant as a multiple offender under La.R.S. 15:529.1. Subsequently, the State filed a motion to withdraw the multiple offense charge. This was granted by the trial court. Defendant then filed a pro se motion for a new trial. Two days later the State refiled its bill of information charging the defendant as a multiple offender.

The trial judge denied the defendant’s motion for a new trial from which ruling the defendant seeks this court’s review by writ of certiorari. Following a hearing on the multiple offender charge, the trial court found the defendant to be a third offender, vacated the single offender sentence of twenty-five years and under R. S. 15:529.1 sentenced the defendant to hard labor for a term of fifty years. The defendant has also appealed from the multiple offender proceedings.

First, we consider the defendant’s assignment of error No. 6 wherein defense counsel argues the trial court erred in denying the motion to suppress evidence obtained in a warrantless search of the apartment and car of the defendant’s girl friend, Jacqueline Scott.

Clearly the specific items (.22 caliber revolver, .38 caliber live rounds of ammunition recovered from a sofa in Ms. Scott’s apartment as well as a bank book and the book taken from Ms. Scott’s purse) which the defendant contends should not have been admitted into evidence fail to qualify under either the “plain view” or “search incident to lawful arrest” exceptions to the rule prohibiting unreasonable searches and seizure. The state, however, contends Ms. Scott consented to the search of her premises and car and signed a consent form. Defense counsel maintains Ms. Scott only acquiesced to a claim of lawful authority and her subsequently executed consent form cannot vindicate an earlier unwarranted search.

Under its contention, in addition to proving the consent was given, the State has the burden of proving it was freely and voluntarily given. State v. Wolfe, La., 398 So.2d 1171 (1981). Only by analyzing the circumstances of an individual consent can one ascertain whether it was voluntary or coerced.

In the instant case, the issue of consent turns on the credibility of the two witnesses giving contradictory testimony as well as the circumstances surrounding the consent. Officer Keating testified that Ms. Scott consented at the outset and cooperated fully. Ms. Scott, however, testified that she did not consent to a search throughout the apartment. Because consent is a question of fact involving the credibility of witnesses, the determination of the trial judge, who had an opportunity to observe and hear the witnesses, is given great weight on review. State v. Robinson, 386 So.2d 1374 (La.1980); State v. Dunbar, 356 So.2d 956 (La.1978); State v. Schouest, 351 So.2d 462 (La.1977); State v. Temple, 343 So.2d 1024 (La.1977). The fact that Ms. Scott did accompany Officer Keating throughout the apartment, admitted to showing him the revolver locked inside the trunk of her car, subsequently did sign the consent to search form, and did in fact receive the minimum five year sentence for each of four robberies she plead guilty to, all seem to indicate that she voluntarily consented to the search in anticipation of lenient treatment. We cannot say, therefor, that the trial judge abused his discretion in overruling the defendant’s motion to suppress the evidence.

In the Pro Se Assignment of Error No. 2, the defendant raises the issue of the State’s alleged failure to supply evidence favorable to the defense. Counsel for the defendant filed an interrogatory requesting the State to inform the defendant of any negative identification made by witnesses in “a physical line-up” or “mug shot” showing. The State responded to the interrogatory as follows: “all are on the witness list.”

Thereafter, during the hearing, on the motion to suppress evidence, defense counsel attempted to elicit from a police officer what person, other than the ones that identified the defendant, were shown the defendant’s picture. The trial judge sustained the State’s objection to the question on the ground of relevancy, but instructed the State to disclose to the defendant any exculpatory information it may have in its possession. The prosecutor stated that the State had already complied with the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1196, 10 L.Ed.2d 215 (1963). Defense counsel noted an objection but did not pursue the issue further. The issue present here, therefore, is whether the State on the request of the defendant must disclose to the defendant the persons who were shown but could not identify the defendant’s photographs and if so whether furnishing to defendant a list of the witnesses’ names and addresses who were shown the photographs without indicating who could or could not identify the defendant’s photograph is sufficient. The United States Supreme Court in Brady v. Maryland, supra, held that the prosecutor’s withholding of evidence favorable to an accused requesting same violates the defendant’s right to due process if the evidence is material to guilt or punishment irrespective of the good or bad faith of the prosecution. Based on the ruling in the Brady decision, supra, this Court, in State v. Landry, La., 388 So.2d 699, found error where the trial court upheld the prosecutor’s decision to deny to the defendant requesting same the names and addresses of the witnesses who were unable to identify the defendant’s picture in a photographic line-up.

In the instant case the State gave defense counsel the names and addresses of the five witnesses who were shown the pictures; but did not indicate which of the five, if any, could not identify the defendant’s picture. Thus, the defendant was relegated to discovering on his own which of the five witnesses, if any, could not identify his photograph. Although the State is required to inform the defendant of his constitutional rights and to furnish him with an attorney, it is not required to present his defense to meet the requisite of a fair trial. The defendant could have contacted the witnesses or he could have specifically raised an objection to the trial court and had the issue resolved before trial. The record does not disclose the reason the defendant did not pursue these alternatives. Thus, the defendant had the opportunity to, but did not meet the burden of showing there was an eyewitness who could not identify the defendant. Additionally, even applying the more lenient discovery standard espoused in State v. Sylvester, 388 So.2d 1155 (La.1980), the present record does not disclose the withholding of evidence by the State which could have influenced the verdict.

In his Pro Se Assignment of Error No. 5, the defendant raises as an issue the admission into evidence of the State’s “Right of Arrestee Form.” At the hearing on the motion to suppress, a police officer testified the form had been signed before the defendant made inculpatory statements, however, when the court asked the State to produce same it was unable to do so at the time; but promised to furnish the defense a copy if and when it was located. The defendant testified at his hearing that he had never been advised of his rights and had never signed a form waiving his rights. At the trial, the trial judge permitted the introduction of the form into evidence over the objection of the defendant. The prosecution contended the form had been discovered on the morning of the trial. Defense counsel did not move for a continuance or mistrial. However, defense counsel did make an objection.

The defendant did not testify at the trial and the jury was unaware of the defendant’s testimony on the motion to suppress evidence. Therefore, the conflict in the defendant’s testimony on the motion to suppress and the existence of the signed “Right of Arrestee Form” is not an issue here. The defendant, nevertheless, contends that the introduction of the statement buttresses the State’s contention as to the voluntariness of the inculpatory statements. He argues his rights were thereby violated because he was denied any opportunity to ascertain the genuineness of the signature on the inculpatory statements prior to trial.

We are not here concerned with the substance of the inculpatory statement; but rather, with the voluntariness of the statement. The waiver form is but one of the factors which can be used in determining the voluntariness of the statements. Several police officers testified the statements were voluntarily made and that the waiver form had been voluntarily signed. From this, the trial judge concluded the State proved the voluntariness of the statements and consequently denied the motion to suppress.

In State v. Fisher, 380 So.2d 1340 (La.1980), this court held the trial court did not abuse its discretion in admitting a defendant’s inculpatory statement into evidence where the defendant contended he was not timely informed of the statements and of the State’s intention to introduce same in evidence because the State had substantially complied with the requirements of Articles 716 and 729.3 of the Code of Criminal Procedure. Although the defendant is entitled to a fair trial, the State is not required to protect the defendant from his inculpatory statements, testimony or actions if wilfully and voluntarily given or taken by the defendant, even though the testimony, statements or actions subsequently result in conviction. We fail to see where the defendant sustained injury from the delay in being furnished a copy of the form until the time of trial. The trial court’s action in admitting the form was proper.

Defendant pro se complains about the identification of him in line-ups or in photographs by two witnesses. He points to various physical features of himself which were not used by the eyewitnesses to identify him and therefore argues their identification is suspect. The defendant’s attack goes to the credibility of Ms. Flucker and Ms. Williams and the weight of their testimony. The attack on Ms. Flucker’s identification is based on her testimony that she did not make a positive identification in the line-up because she wanted to verify the existence of a scar over the defendant’s eye before doing so. When she requested a closer look at the defendant, she was informed by the police officer the line-up was over. During the hearing on the motion to suppress and at the trial she made a positive identification of the defendant who did indeed have a scar over the eye.

The attack on Ms. Williams’ identification is grounded in a contention no attorney was present when Ms. Williams made the identification of the defendant and that the identification was made solely in the presence of Officer Polit. We note that Ms. Williams and the defendant’s female accomplice in the robbery also made positive identifications of the defendant during the trial.

Considering the totality of the circumstances dealing with the reliability of Ms. Flucker and Ms. Williams’ identification of the defendant, it does not appear there was any substantial likelihood of suggestiveness in the identification or in a misidentification. Officer Polit and the two witnesses testified that no threats, coercion or suggestions of any kind were made regarding who to identify. Although both witnesses had a gun pointed at them and, therefore, were casual observers they each had an ample opportunity to view the defendant and they were each positive in their identification. Further, there is no evidence of prior inconsistencies in the giving of their descriptions and less than thirty days transpired between the crime and the identification. In our view, therefore, the defendant was not denied due process and the trial court did not err in denying the defendant’s motion to suppress the identification. State v. Guillot, 353 So.2d 1005 (La.1977).

We find no merit in the defendant’s pro se argument' that the trial court erred in allowing the prosecution to introduce incul-patory statements by the defendant into evidence without complying with the notice requirements of Article 768 of the Code of Criminal Procedure. Contrary to the defendant’s contention, the record shows the filing by the State of a “Notice of Intention to Use Confession” and the clerk’s minute entry showing it was timely filed.

Defense counsel assigns error to the trial judge’s finding and sentencing of the defendant as a multiple offender. Counsel contends a 1972 plea of guilty to armed robbery and a 1969 plea of guilty to simple burglary cannot serve as the basis for a multiple offender charge because of lack of or defective Boykinization.

On June 19, 1969, ten days after the United States Supreme Court handed down its decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the defendant plead guilty to the offense of simple burglary (La. R.S. 14:62) before Judge C. William Bradley in the Twenty-ninth Judicial District.

In the multiple offender proceeding involved here, defendant admitted he was represented by counsel at the time of the 1969 plea and plead guilty because he was guilty and because his attorney advised him it would be advantageous to do so. The defendant contends he was not advised of any of his constitutional rights but admits he was not coerced into pleading guilty. There was no transcript of a colloquy between defendant and the judge in 1969; however, the clerk’s minute entry does reflect that the defendant was represented by counsel when he plead guilty.

After conferring with Judge Bradley as to the 1969 guilty plea, the prosecutor and defense counsel stipulated that Judge Bradley had no independent recollection of the defendant’s 1969 guilty plea but believed it was entered pursuant to the general procedure for entering guilty pleas employed in his courtroom at that time. The procedure was as follows: After a plea bargaining between the prosecutor and the defense counsel, they would inform the court of the bargained plea and the court would inform them of the sentence. The court would ascertain the defendant’s age and sentence him in accordance with the agreement reached between the prosecutor and the defendant on the “bargained plea”.

In Orleans Parish on October 24, 1972, the defendant pled guilty to the offense of armed robbery in violation of La. R.S. 14:64. The transcript of the colloquy shows that before the defendant pled guilty the trial judge questioned the defendant as to whether he was voluntarily pleading guilty and whether he understood the constitutional rights he was thereby waiving. After advising the defendant on the waiving of his rights to trial by jury and to confront the witnesses against him, the trial judge advised the defendant of his right to remain silent, as follows:

BY THE COURT:
You also give up your right to remain silent, your right against self-incrimination. You are waiving that because you are incriminating yourself when you plead guilty. Do you understand?
BY DEFENDANT YARBROUGH:
Yes, your Honor.

The trial judge then explained other rights of the defendant and the effects of a plea of guilty.

In State v. Lewis, 367 So.2d 1155 (La.1979), the court, based on Boykin v. Alabama, supra, held that a 1970 guilty plea in a Louisiana Court could not be used to enhance punishment as a multiple offender unless the minutes or transcript of the plea affirmatively disclosed that the accused had waived his right to a jury trial, his right to confront his accusers and his privilege against self-incrimination. Subsequently, based on the United States Supreme Court opinion in United States v. Timmerick, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), this court in State v. Holden, 375 So.2d 1372 (La.1979) re-evaluated its position in the Lewis case, supra, and upheld the use of a federal conviction in a multiple offender proceeding even though the state did not affirmatively establish compliance with this court’s three rights articulated waiver rule. Further, this case held at page 1376 that as to guilty pleas entered prior to December 8, 1971 (the effective date for Louisiana’s three rights waiver rule under State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 [1971] and LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 [1972]), a different standard of review would apply in determining the validity of the pleas as follows:

“Accordingly, as to these convictions not governed by Jackson and LeBIanc, the state is required only to prove the conviction by a plea of guilty with representation by counsel. The defendant has the burden of proving that he did not waive his constitutional rights in making the plea, if the plea was taken subsequent to Boykin’s requirement in this regard. Unless the colloquy at the time of the plea of guilty affirmatively shows substantial defect in this regard, the defendant will not be permitted to make any other collateral attack beyond the colloquy upon these otherwise-valid guilty pleas in the enhanced-punishment proceedings.”

While reiterating the holding in the Holden case, supra, in State v. Bolton, 379 So.2d 722 (La.1979), at page 723, this court said:

“In Holden we held that, when the state intends to use a plea of guilty as a prior conviction in order to enhance punishment under La. R.S. 15:529.1:
(1) If taken before the decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 23 L.Ed.2d 274 (1969), the plea is valid, if voluntary and with counsel, without any need for articulated waiver of the constitutional rights subsequently required by Boykin to be articulated and expressly waived in order that a plea be considered to be knowing and made with a full understanding of its consequences.”

Moreover, under the holding of Holden and Bolton, supra, the defendant has the burden of proving that the plea was involuntary or, if taken subsequent to Boykin, that he did not waive the Boykin rights.

The defendant here relies on State v. Martin, 382 So.2d 933 (La.1980) to support his contention the 1972 guilty plea was fatally defective because the defendant was not adequately advised of his privilege against self-incrimination. The colloquy between the defendant and the trial judge in the Martin case was as follows:

“By pleading guilty you are also waiving your right to remain silent because you are not remaining silent when you plead guilty. Do you understand that?”

From the similarity of the language present here and in the Martin case, it can be technically argued that the judge’s statements were insufficient to meet the requirements of Boykin. However, Martin dealt with a 1976 conviction. In its more recent decision, this court has moved away from its application as a rigid rule.

The defendant here is not contending his prior guilty pleas were not voluntarily entered, but rather, argues that he was not specifically informed by the trial judge at the time of entering the 1969 guilty plea of his right to trial by jury, his right to confront his accusers and his privilege against self-incrimination, therefore, these pleas cannot serve as a basis for charging him as a multiple offender.

In answer to a similar argument, Chief Justice Dixon, in State v. Halsell, 403 So.2d 688 (La.1981), said:

“While it is preferable for the trial judge to conduct a colloquy with a defendant to ascertain the validity of the plea, such a colloquy may not be indispensable as long as the record contains some other affirmative showing to support the plea.”

A similar argument based on similar facts was previously presented to this court in State v. Johnson and Kelly, 404 So.2d 239, (La.1981). In affirming the lower court’s conviction of Kelly as a third offender, this court held:

“In all recent Louisiana felony cases, the record must affirmatively show that the defendant was adequately advised of the three rights prescribed by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1971). State v. Williams, docket No. 80-K-2345, [400] So.2d [868] (La.1981). In the case of pleas entered more than six years ago, the record must show only that the defendant voluntarily pleaded guilty with a full understanding of ‘the connotation and consequences’. State v. Cusher, docket No. 80-K-2518, [400] So.2d [601] (La.1981); State v. Warren a/k/a Mason, docket No. 80-K-2375, [402] So.2d [662] (La.1981).”

As to the 1969 plea the record is clear the defendant was represented by counsel and he pled guilty because he was in fact guilty and because of the plea bargain offered, his attorney advised him it would be advantageous to do so. With respect to the 1972 plea, the defendant was advised by the trial judge of the consequences of his plea and of the constitutional rights he was waiving. From the record, it is clear the 1969 plea was voluntarily and intelligently entered. The record also shows the 1972 plea was voluntarily and intelligently given and under the more recent decision of this court the defendant was adequately advised by the trial judge of the triad of rights he was waiving when the plea of guilty was entered.

For the reasons stated, therefore, the conviction and sentence of the defendant are affirmed.

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

CALOGERO, J., dissents and assigns reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur.

The October 24, 1972 plea of guilty to armed robbery in Orleans Parish was accompanied by a colloquy between the district judge and the defendant which is more complete than might appear from the portion quoted in the opinion. The judge informed the defendant that he had a right to trial by jury which he was waiving by pleading guilty; that he had a right to confront the witnesses against him and to cross-examine them, which he waived by pleading guilty; and that he also waived his right to remain silent (“your right against self-incrimination”) by pleading guilty. The colloquy as a whole left little chance for misunderstanding concerning defendant’s right against self-incrimination extending throughout a trial.

DENNIS, Justice,

concurring.

I respectfully concur.

The record in this case demonstrates a knowing and intelligent waiver of the defendant’s privilege against self-incrimination at trial.

The colloquy between the judge and the defendant, in pertinent part, reads as follows:

“BY THE COURT:
“Do you understand that you do have the right to trial, trial by a jury. By pleading guilty you waive that right. Do you understand that?
“BY DEFENDANT YARBROUGH:
“Yes, your Honor.
“BY THE COURT:
“You also have the right to see the witnesses who will testify against you. By pleading guilty you waive that right. You and/or your lawyer has the right to cross examine the witnesses against you. By pleading guilty you give up that right. Are you satisfied to give up that right by pleading guilty?
“BY DEFENDANT YARBROUGH:
“Yes, your Honor.
“BY THE COURT:
You also give up your right to remain silent, your right against self-incrimination. You are waiving that because you are incriminating yourself when you plead guilty. Do you understand that? “BY DEFENDANT YARBROUGH:
“Yes, sir.”

The explanation of the privilege against self-incrimination followed a careful explanation of the defendant’s rights to a trial by jury and to confront and cross-examine the witnesses against him, which obviously could only have been exercised at trial. The explanation of the privilege against self-incrimination informed the defendant that, by waiving it, he was giving up not only his right to remain silent, but also “your right against self-incrimination.” Because of the context of the explanation, and the use of the words “self-incrimination” in addition to the right to remain silent, I believe that it is clear on the record that the defendant understood he was giving up his right to self-incrimination at trial as well as his right to remain silent during the guilty plea colloquy. Thus, the boykini-zation in this case is not fraught with the problems of those in State v. Martin, 382 So.2d 933 (La.1980), and State v. Robicheaux, 412 So.2d 1313 (La.1982), in which the defendants were only told that they had a “right to remain silent,” leaving a record which was silent concerning their awareness of the privilege against self-incrimination at trial.

CALOGERO, Justice,

dissenting.

I feel that I must dissent from the majority opinion because this case is indistinguishable from prior cases rendered by this Court which reach a contrary result.

The question of what constitutes a sufficient advisement of the privilege against self-incrimination in connection with entry of a defendant’s guilty plea, is not a new issue to the Court. We have addressed this issue at least four times previously. State v. Age, 417 So.2d 1183 (La.1982); State v. Robicheaux and Powell, 412 So.2d 1313 (La.1982); State v. Hayes, 412 So.2d 1323 (La.1982); State v. Martin, 382 So.2d 933 (La.1980). When these cases are considered, along with the present one, the result is conflicting jurisprudence that confounds me.

In State v. Martin, supra, the first case to consider the issue, the transcript of the colloquy between the defendant and the trial judge during the guilty plea proceedings evidenced the following advisement concerning the defendant’s privilege against self-incrimination:

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

Therein the Court noted that the privilege against self-incrimination, as opposed to the right to a jury trial and the right to confront one’s accusers, was broader in scope than the other two because it was not only a right defendant had during trial, but it also applied to the interrogation and pretrial stages as well. Thus the Court concluded that in making an intelligent choice to plead guilty and forego his right to a trial a defendant must be informed that he has a “right not to testify against himself at trial” and the record must evidence a waiver of that right. Since the transcript in Martin only established that the defendant waived his right to remain silent at the guilty plea proceedings but not at trial, the Court held that the guilty plea based on that inadequate advisement could not be used against the defendant.

We next considered this issue in State v. Robicheaux and Powell, supra, and State v. Hayes, supra, which were rendered simultaneously, with apparent inconsistent results. In Robicheaux the defendant had been advised:

You also give up the right to remain silent because by pleading guilty you’re not remaining silent.

Therein the Court, relying on State v. Martin, held that since “the defendant was not informed of his right to stand trial without being forced to testify against himself” before entering his guilty plea, the plea could not be used against him for enhancement purposes.

In State v. Hayes, the defendant was advised:

You have the right to remain silent, if you choose; do you understand that right?

However, in Hayes the Court held that the advisement was sufficient and affirmed defendant’s conviction as a multiple offender.

More recently, in State v. Age, rendered just prior to the rendition of this opinion, the defendant had been informed:

By pleading guilty waives right against self-incrimination.

Therein, relying on both Martin and Robi-cheaux, the Court held that the guilty plea conviction could not be used to enhance defendant’s punishment because, among other reasons, defendant had not been adequately advised that he could stand trial and remain silent during the trial.

Finally, in the present case, this defendant was advised only:

You also give up your right to remain silent, your right against self-incrimination. You are waiving that because you are incriminating yourself when you plead guilty. Do you understand?

Now, a majority of this Court which rendered the previous four cases within the past two years (the last three of which were rendered within the last two months) holds this advisement is sufficient, without either overruling Martin or attempting to distinguish it.

When originally confronted with this issue in State v. Martin, the Court was faced with the task of determining where to draw the line as to what constituted an adequate advisement of one’s privilege against self-incrimination. In what I thought to be a well reasoned opinion, we determined that the line would be drawn at the point that the advisement of the right did not make clear to the defendant that he could remain silent at trial I adhered to that view in Robicheaux and expressed it again in dissenting in Hayes. I then authored Age, again reaffirming that position based upon the prior jurisprudence.

It then seemed to be the consensus of the majority of the Court that Hayes was dis-tmguishable from Martin, Robicheaux and Age, because the advisement in Hayes did not contain the misleading information that the defendant was waiving his privilege against self-incrimination by pleading guilty, with the implication that the right only pertained to the plea phase of the proceedings. I dissented from that position being of the view that it was the absence of the information that defendant could remain silent at trial that rendered the advisement deficient, rather than just the addition of the comments that he was waiving his privilege against self-incrimination by pleading guilty.

In any event, whether or not Hayes is distinguishable from Martin, Robicheaux, and Age is not relevant in this case, because the advisement in this case is identical to the ones in the Martin, Robicheaux and Age cases, rather than the one in Hayes. Yet the majority reaches a contrary result.

There is an attempt, by the concurring Justices, to distinguish this case from the prior cases by pointing out that since the advice of defendant’s privilege against self-incrimination followed the advice of other trial rights, defendant was aware of the fact that his non self-incrimination privilege applied during trial. However, it should be noted that in two of the prior cases the advisement of the defendant’s privilege against self-incrimination, which was therein held defective, also followed advisements concerning the other trial rights. State v. Age, supra; State v. Martin, supra. Thus, not only do I not find this case distinguishable from Age and Martin, but I further believe that the advisement in this case is probably even more deficient than the one in Martin.

In Martin, as quoted above, as part of a single statement by the trial judge, the defendant was informed that he was waiving certain rights by not going to trial; he was advised of his right to confront the witnesses against him, and of his privilege against self-incrimination. This Court found that advisement deficient because it did not clearly inform the defendant that he had the right to remain silent during his trial. In this case, the advice concerning the defendant’s privilege against self-incrimination, although preceded by the advice of other trial rights, was separately and independently given as an individual right. Thus, it was not as clear in this case that the privilege applied at trial as well as at the guilty plea proceedings, as it was in Martin, where the advice of the privilege against self-incrimination was directly linked with that of other trial rights.

Therefore, in my view, the present case is indistinguishable from Martin, Robicheaux and Age and should be found to contain a deficient advisement of the privilege against self-incrimination or, if that is not the determination of the majority, Martin, Robicheaux and Age should be overruled. To do neither is to make it impossible for the bench and bar to discern the applicable jurisprudence in this narrow area.

Additionally, as concerns the 1969 plea, this plea was entered after the United States Supreme Court’s Boykin decision but prior to this Court’ decision in State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (La.1971). However, the majority opinion incorrectly cites and relies on the portion of the Bolton decision which relates to pre-Boykin pleas rather than post-Boykin pleas.

The majority also cites State v. Holden in support of the proposition that defendant can only show defect in his plea by a transcribed colloquy which evidences substantial deficiency in the advisement of his Boykin rights. Such a literal application of the Holden decision seems inappropriate in this case where there was no transcription of the proceedings and the defendant has introduced, in lieu of the transcript, a stipulation assented to by the state to the effect that the general procedure in that court in 1969 did not entail defendants’ being advised of the three Boykin rights prior to taking their guilty pleas. Although under State v. Holden and State v. Bolton defendant has the burden, in this instance, to prove that he was not advised of his rights prior to entering his plea, it seems to me that this defendant has met that burden by this evidence.

For the foregoing reasons I dissent from the majority opinion.

       Judges Thomas J. Kliebert and Robert J. Klees of the Court of Appeal, Fourth Circuit and Judge Ned E. Doucet, Jr. of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack C. Watson.

      . The appeal on the original trial was lodged in this court under Docket No. 81-KA-1078, the application for writs on the denial of the hearing was lodged under Docket No. 81-KA-1587 and the appeal on the hearing of the multiple offender charge was lodged under Docket No. 81-KA-15-0278. All three are consolidated here. Although more specifications of error were enumerated in his brief filed under Docket No. 81-KA-1039, defense counsel argued only assignment of error No. 6 relative to the denial of a motion to suppress evidence obtained in a warrantless search and under Docket No. 81-KA-1587 argued that the trial judge’s use of a 1972 plea to armed robbery in Orleans Parish and a 1969 plea to simple burglary in the Twenty-ninth Judicial District Court, to establish the defendant as a multiple offender was error due to improper Boykinization. Thereafter, the defendant filed a pro se motion in which he argues matters dealing with the trial court’s denial of his motion for a new trial insofar as it was based on newly discovered evidénce and also argues the validity of some of the other assignments of error.
      Under Article 916 of the Code of Criminal Procedure, the trial court may have been divested of jurisdiction at the time it adjudicated the defendant to be a multiple offender. However, defense counsel concedes the multiple bill would not have been handled better than it was and therefore urges this court to review the appeal in its proper posture. Also, defendant’s motion for a new trial may be deemed untimely under Article 853 of the Code of Criminal Procedure. However, some of his arguments are based on what he contends is newly discovered evidence, others are relative to abandoned assignments of error and yet another alleges ineffective assistance of counsel. The writ application was granted in the interest of judicial efficiency in order for the defendant to have a prompt review of all issues raised in this case. Accordingly, all three proceedings will be treated as consolidated here and the arguments which the defendant grounds in fact already in the record will be treated as properly before the Court. As to those arguments raised on facts not now in the record, i.e., the alleged supplemental facts regarding his arrest and the consent of Ms. Scott to the search of her apartment and insufficient assistance of counsel, as well as most of the alleged facts raised in the supplemental facts filed on September 15, 1981 would require an evidentiary hearing. Therefore, the defendant’s right to raise issues not dealt with in this consolidated appeal shall be preserved for a subsequent habeas corpus proceeding.

      . State v. Pomes, 376 So.2d 133 (La.1979); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

      . Justice Watson in a footnote made the following observation relative to State v. Martin, La., 382 So.2d 933 (1980). Martin was overruled in State v. Williams, 392 So.2d 448 (La.1980) which held a defendant could not collaterally attack his prior conviction in a trial under LSA-R.S. 14:95.1 for possession of a firearm by a convicted felon.

      . See also State v. Cusher, 400 So.2d 601 (1981) and State of Louisiana v. McGinnis, La., 413 So.2d 1307 in addition to Johnson & Kelly, La., 404 So.2d 239.

      . It was also determined in Age that the defendant was not adequately advised of his right to a jury trial.

      . The four Justices who are members of the panel in this case are the very same four Justices who participated in and subscribed to the majority opinions in Martin, Robicheaux and Age.

      . The trial court needs only to make it clear to a defendant, before accepting his guilty plea, that he has a right to a trial by jury and that during that trial, the defendant has a right to confront the witnesses against him and also the right to remain silent, or not incriminate himself.

      . State v. Bolton, supra, provided, for pre-Boykin pleas:
      [W]hen the state intends to use a plea of guilty as a prior conviction in order to enhance punishment under La. R.S. .15:529.1:
      (1) If taken before the decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the plea is valid, if voluntary and with counsel, without any need for articulated waiver of the constitutional right subsequently required by Boykin to be articulated and expressly waived in order that a plea be considered to be knowing and made with a full understanding of its consequences.
      If the plea was taken after Boykin but before December 8, 1971, the date of the finality of State ex rel Jackson v. Henderson, supra, Bolton provided:
      The state may prove the conviction and its date by a certified copy of the minute entry (or an equivalent contemporaneously recorded or executed document) showing the plea and that the accused was represented by counsel. (The state must, of course, prove that the defendant in the plea and the present accused are the same person.)
      The defendant has the burden of proving that the plea was involuntary or that (if taken subsequent to Boykin) he did not waive Boykin rights; he may do so in the enhancement proceedings only by the colloquy at the time of the plea of guilty, which must affirmatively show substantial defect in this regard.

      . Bolton provides that non-Louisiana guilty pleas taken before Jackson and after Boykin be treated the same way regarding the respective burdens of the state and defendant before the plea can be used for enhancement purposes, that is, that the defendant can show that “he did not waive his Boykin rights . .. only by the colloquy at the time of the piea of guilty, which must affirmatively show substantial defect in this regard.” The issue of whether that burden should be applied literally, where there is no transcript of the proceedings (either because none was made or because it has been destroyed) for a non-Louisiana guilty plea, is presently before the Court in the case of State v. Smith, 415 So.2d 930, (La.1982) on rehearing.


source: Caselaw Access Project

author: ROBERT L. LOBRANO, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. Leroy SMITH.
    No. 81-KA-2745.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Glynn Voisin, Michael J. Scurto, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Norman Mopsik, New Orleans, for defendant-appellant.
   ROBERT L. LOBRANO, Justice Ad Hoc.

Defendant Leroy Smith, was charged by amended bill of information filed June 7, 1979 with armed robbery in violation of La.R.S. 14:64. He entered a plea of not guilty and was tried by jury on January 29, 1981. Defendant was found guilty and subsequently sentenced to serve sixty years at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals his conviction and sentence asserting eighteen assignments of error.

STATEMENT OF FACTS

On March 11, 1979 at approximately 12:45 A.M. Yvette Marie Stevens and Denise Watts, employees of a Time Saver store in Schriever, La. were in the process of closing out their shift when three males wearing hats and sunglasses entered the store. They approached the counter and one of them asked Ms. Stevens where the luncheon meats were located. As he returned from the cold meat counter with a package of King Cotton Salami, the other two individuals walked around the store near the liquor area. At this time, the defendant approached the area behind the counter restricted to employees and pulled a knife on Ms. Watts. Ms. Watts immediately stepped aside and defendant took approximately $150.00 in cash from the safe and cash register. Also taken was a package of King Cotton Salami, and certain items belonging to Denise Watts, including her purse. The two ladies were then forced into the storeroom as the perpetrators fled. After watching the individuals leave, they left the storeroom, locked the door and called the police.

Ms. Stevens and Ms. Watts described the three (3) individuals as follows:

a) Black/Male, tall thin with sunglasses and hat wearing blue denim jumpsuit, carrying knife;
b) Black/Male, shorter, with sunglasses and hat;
c) Black/Male, shorter than the other two, stout, with sunglasses, hat and a pullover sweater.

According to the testimony of Detective Larose of the Terrebonne Parish Sheriff’s office, a BOLO (be on the Lookout) was sent out by his office after the initial investigation at the scene of the offense. While continuing their investigation, the officers received a call from the Thibodaux Police department advising that they had four suspects in custody. Detective Larose, Ms. Watts and Ms. Stevens then went to Thibo-daux where each clerk separately viewed the four suspects through a one way mirror. Each clerk independently picked defendant, Smith, and another individual as the perpetrators of the robbery. It was also learned that the vehicle in which the suspects were riding belonged to Frank Gray. Although Gray was one of the four detainees, he was not identified as one of the robbers. He then allowed the officers to search his vehicle after signing a consent to search. The search revealed a pack of King Cotton Salami, a butcher knife and other items, some of which belonged to Ms. Watts and which were positively identified by her.

ASSIGNMENTS OF ERROR NOS. 1 and 7

By these assignments defendant contends that the trial court erred in denying his motion to quash the indictment because the penal provisions of La.R.S. 14:64 violate his constitutional protections against cruel and unusual punishment.

Defendant’s position overlooks the substantial body of jurisprudence holding otherwise. See, e.g., State v. Johnson, 406 So.2d 569 (La.1981); State v. McCrae, 383 So.2d 388 (La.1980); State v. Victorian, 332 So.2d 220 (La.1976); State v. Stewart, 325 So.2d 828 (La.1976), cert. denied, 425 U.S. 997, 96 S.Ct. 2213, 48 L.Ed.2d 822 (1976); State v. Martin, 304 So.2d 328 (La.1974).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant asserts that the trial court erred in denying him a copy of his “Right of Arrest” form, or information related to it, and further that he was denied a list of the state’s witnesses prior to trial. Additionally he complains that the state’s answers to his various requests in his Motion for Discovery were unresponsive, including requests for physical evidence or tangible property obtained from any person.

At the Motion to Suppress hearing held on July 24, 1979, defendant’s attorney, and counsel for a co-defendant discussed their objection to the state’s responses to their discovery motions. Defendant’s attorney stated that all of the state’s responses were acceptable except those noted by the co-defendant’s counsel and denied by the trial court. La.C.Cr.P. Art. 842. Those objections are:

1. the list of witnesses that the state intended to call at trial;
2. rap sheets on any witnesses the state intended to call at trial;
3. the names and addresses of persons (other than the victims) who were involved with the identification of the defendant;
4. a copy of the exact description given to police by the victims of the suspects;

Of the above noted list of objections, only the denial of the state’s witness list is properly before this Court. Only that issue was objected to at the trial and asserted as error here in defendant’s brief. See, State v. Jones, 381 So.2d 416 (La.1980); State v. Mallett, 357 So.2d 1105 (La.1978).

However, we find it has no merit. There is no basis in either the statutory or common law to support defendant’s position. Further, unless the ruling of the trial court on a pre-trial matter is clear abuse of discretion, it will be given great weight by this Court on review. State v. Burch, 365 So.2d 1263 (La.1978); State v. Vince, 305 So.2d 916 (La.1974). We find no abuse of discretion on the part of the trial court in this instance.

ASSIGNMENT OF ERROR NO. 3

Defendant’s argument on this assignment of error is not clear as to the specific issue objected to. Apparently defendant contends that, even though the owner of the vehicle in which he was riding at the time of his arrest executed a “Consent to Search” form, no such form was ever executed by defendant. The vehicle in question, a brown Vega, belonged to and was registered in Frank Gray’s name. Gray consented in writing to the search after being advised of his rights. Gray drove the car the night of the offense and was driving when the defendants were arrested. He was allowed to drive the car to the police station with a police escort. The search of the vehicle produced several pieces of incul-patory evidence.

Clearly Gray had the authority to consent to the search of his vehicle since he was both the owner and the operator of the vehicle on the night of the offense, and (at the least) possessed common authority over the car. See State v. Bodley, 394 So.2d 584 (La.1981).. The state has the burden of proving that the consent to the search was freely, voluntarily, and knowingly given. State v. Jolla, 384 So.2d 370 (La.1980). Here the investigating officer testified that Gray was read his rights before consenting to the search, and according to the officer, he understood and signed the consent form. It thus appears that the trial court did not abuse its discretion in finding that the state has carried its burden regarding the consent for the search.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 4 and 16

Within two and one-half (2Vz) to three (3) hours after the crime, defendant was placed in a room with a one-way window with three other suspects. The victims then individually viewed the suspects, and they both identified defendant. The trial court refused to suppress this post-arrest identification. Defendant alleges this to be error as he claims his constitutional safeguards were not preserved.

The United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) concluded that reliability is the linchpin in determining the admissibility of identification testimony. In analyzing reliability the court should look at the totality of the circumstances surrounding the identification procedure. This Court discussed the Brathwaite decision in State v. Davis, 409 So.2d 268 (La.1982), wherein it was stated:

“The factors to be considered include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty displayed at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification. The court noted that the standard, after all, is that of fairness as required by the due process clause of the fourteenth amendment. In the final analysis, it must be determined whether under all the circumstances of a particular ease there is a very substantial likelihood of irreparable misidentification.” Id. at p. 270.

From Steven’s testimony it appears that she had the opportunity to view the defendant for several minutes in bright lighting at a very close distance. Her degree of attention is attested to by the accurate description she was able to give the police. She was able to pick out defendant from three other black males at the police station about three hours after the crime. Against these factors this court must weigh the minimally suggestive nature of the identification. Although the lineup took place at the station house several hours after the offense and included only four fill-ins beside defendant, the police did not talk to the victims during the lineup beyond telling them to be sure before they made the identification.

Under all of the circumstances of the instant case there was not a substantial likelihood of irreparable misidentification. State v. Stewart, 387 So.2d 1103 (La.1980). As Stewart notes, the trial judge’s determination of admissibility is to be given great weight and should not be disturbed unless a preponderance of evidence clearly mandates that this Court do so. State v. Stewart, supra; State v. Griffin, 336 So.2d 791 (La.1976). This is not the case here.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 5 and 6

By these assignments, defendant asserts that the police had no probable cause to stop the vehicle in which defendant was a passenger, and any evidence obtained in a subsequent search of the vehicle was inadmissible. Defendant filed a motion to suppress the evidence, and a motion to quash the arrest, both of which were denied.

This Court, in State v. Davis, 407 So.2d 666 (La.1981), discussed the standards governing the probable cause necessary to justify a warrantless arrest. The Court stated:

“A probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense.” Id. at 668.

If a crime has been committed the police are only required to make a determination if there is sufficient trustworthy information to justify a man of ordinary caution to believe that the person to be arrested has committed the crime.

In the instant case, the police knew from the radio broadcasts that a crime had been committed, and they had a reasonable description of the robbers and the vehicle they used. The trial court, in denying the motion to quash the arrest, stated as follows:

“As to the motion to quash based on an illegal arrest which essentially deals with the probable cause to stop and detain these defendants initially. I’m satisfied that there was enough evidence put out over the air testified to by the officers in the hearing which took, the earlier part of this hearing which took place other than today to give these officers probable cause to stop this vehicle. It was the approximate color. It had the requisite number of individuals in it. As I recall from the prior hearing, there was a string of carnival beads, as I remember, that were hanging from the rearview mirror which had been also put out over the air. There’s enough identity there to provide probable cause for this stop and arrest. So the motion to quash the illegal arrest is denied.”

We conclude that the arrest of defendant was justified, and the trial court was correct in denying defendant’s motion to quash the bill of information. In any event, it is well settled that an illegal arrest or detention of the defendant does not void his subsequent prosecution and conviction. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952).

Defendant also contends that he was not advised of the reason or nature of his arrest in violation of Article 218 of the Code of Criminal Procedure. That article requires the officer making a warrantless arrest to advise the suspect “. .. of his intention to arrest him, of his authority, and of the cause of the arrest.” La.C.Cr.P. Art. 218. The testimony of the arresting officer, as well as other officers, clearly indicates that the defendant was advised in accordance with Article 218, as well as his Miranda rights, at the time of his arrest. In addition this court has never imposed a sanction that would void a subsequent conviction if a police officer failed to comply with Article 218. This argument lacks merit.

Finally defendant contends the evidence seized from the subject vehicle should have been suppressed since it was seized pursuant to a warrantless search. This contention overlooks the fact that a valid consent to search the vehicle was given by its owner. See assignment of error No. 3.

ASSIGNMENTS OF ERROR NOS. 8, 9, 12, 14 and 15

These specifications of error all deal with the trial court’s overruling defendant’s objections to certain testimony and evidence presented at trial. Specifically, assignments 8 and 9 deal with testimony identifying physical evidence related to persons other than defendant. Assignments 12 and 14 deal with alleged hearsay testimony, and assignment 15 urges the trial court erred in refusing a mistrial because of impermissible evidence pertaining to other crimes.

The victims testified as to the clothing, hat and sunglasses worn by the other individuals involved in the robbery. They also identified the defendant’s clothing and apparel. Defendant contends that their testimony in that regard and the evidence identified was irrelevant and created a prejudicial atmosphere.

Relevancy is defined in La.R.S. 15:441 as:

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

The trial court’s ruling as to the relevancy of evidence should not be disturbed absent a clear abuse of discretion. State v. Walker, 394 So.2d 1181 (La.1981). If the evidence is relevant and otherwise admissible, the fact that it is prejudicial does not bar its admission. State v. Clift, 339 So.2d 755 (La.1976); State v. Hatch, 305 So.2d 497 (La.1975). The testimony was certainly relevant to show the depth of the victim’s memory regarding the incident and to support her identification of the defendant. We do not find that trial court’s ruling erroneous and therefore find no merit in assignments 8 and 9.

Assignment of error No. 12 lacks merit in that the trial court properly sustained defendant’s objection to hearsay testimony. Defendant objected to the alleged hearsay testimony of Officer Larose prior to any such testimony being given, and the trial court properly overruled same as being premature. At the point where Officer La-rose was asked about the phone call he received from the Lafourche Parish Sheriff’s Office, the trial court quite properly held it to be inadmissible hearsay.

The basis for assignment No. 14 is the objection made by defendant to the testimony of a police officer that he learned who owned the vehicle used in the robbery from a computer printout in response to a registration check on the car’s license plate. The printout was an out-of-court statement, introduced for the truth of its contents, and constitutes hearsay evidence. State v. Martin, 356 So.2d 1370 (La.1978). However, defendant has asserted no defense that relates to the ownership of the car. While the trial court may have erred in admitting the testimony, there has been no prejudice shown. The error was harmless, and we therefore find no merit in this assignment.

The defendant argues in assignment No. 15 that the mention of the subject vehicle in a police bulletin concerning a different robbery earlier the same evening was not only hearsay, but impermissible evidence pertaining to other crimes. Defendant’s relief in this regard is pursuant to La.C.Cr.P. Art. 771 since the statement was made by a witness, and not a court official. Mistrial under that section is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. Moreover mistrial is a drastic remedy which is only authorized where substantial prejudice will otherwise result to the accused. State v. Tribbet, 415 So.2d 182 (La.1982); State v. Governor, 331 So.2d 443 (La.1976).

In the instant case the isolated and unexplained statements of the officer regarding the automobile are not so significant or indicative of another crime that a mistrial should have been ordered. This is particularly so where the car has been mentioned several times in earlier testimony thus linking it to the instant crime in the minds of the jury. Moreover there is no evidence that the allegedly impermissible remark was deliberately obtained by design of the prosecutor to prejudice the rights of the defendant. State v. Lewis, 353 So.2d 703, 711 (La.1977).

ASSIGNMENT OF ERROR NO. 10.

Defendant complains that the testimony of Officer Larose stating that he learned the robbery was perpetrated by three black males constituted hearsay since it was based on an out of court statement. A review of the record indicates that defendant is correct with respect to that particular statement. However, the victims’ testimony is replete with references to the three black males who entered the store. Larose’s testimony, while hearsay, merely corroborates that testimony. This court has held that inadmissible hearsay which is merely cumulative or corroborative of other testimony adduced at trial is harmless. State v. Spell, 399 So.2d 551 (La.1981); State v. McIntyre, 381 So.2d 408 (La.1980); State v. Sterling, 377 So.2d 58 (La.1979). This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 11

The following colloquy is the basis for defendant’s assertion of this assignment of error:

“OFFICER LAROSE:
. .. inside the refrigerator section. Uh, on my way to the scene, I had recalled earlier that night—I had been working the four to midnight shift—and 1 had just gotten home about thirty minutes when I had gotten the call on this robbery, but we had received a robbery. . .
MR. KLEPPNER:
Your Honor, I’m going to object at this time, and I’d like to approach the bench. (CONFERENCE OFF THE RECORD) (JURY EXCUSED FROM COURTROOM)
THE COURT:
Let me mention there’s been an objection to the fact . . In fact, it’s been objected to the possibility of any other evidence of any other crime to be presented to the jury. So, I must admonish you that you must not allude to any other crime.
THE WITNESS:
Okay.
THE COURT:
If you do, it could be very highly prejudicial to the extent that I would have to order a mistrial.
THE WITNESS:
In other words, you’re speaking to the method of operation and so forth, from the previous robbery. That’s what you’re saying.
THE COURT:
What I’m trying to say is if there’s a previous robbery, you shouldn’t ..
THE WITNESS:
Okay, there’s no problem.
THE COURT:
It could be very highly prejudicial.
MR. KLEPPNER:
Your Honor, for the record, I would ask that that instruction pertain to any element or any evidence connected with any other crime, including automobiles, vehicles, anything of this sort.
THE COURT:
All right.”

The record does not indicate that counsel in fact moved for a mistrial, although he may have made the motion during the unrecorded bench conference. To the extent that the trial court agreed with his argument and sustained the objection, counsel may have no further complaint here. State v. Nicholas, 359 So.2d 965 (La.1978). In any event, the discretionary mistrial provisions of La.G.Cr.P. Art. 771(2) would apply rather than Art. 770(2) as asserted by defendant, since the allegedly prejudicial remark was made by a witness. As noted earlier mistrial is a drastic remedy and the trial court’s ruling on an Art. 771 mistrial motion should not be disturbed absent a clear abuse of its discretion. There was no abuse of discretion of the trial court in refusing to grant a mistrial.

ASSIGNMENT OF ERROR NO. 13

It appears from this assignment of error that defendant objects to his initial identification at the jail prior to his being given his Miranda rights. This position is clearly contradicted by the testimony of the arresting officers. There is no question that the state has carried its burden of showing that defendant was advised of his constitutional rights prior to lineup. Defendant has no constitutional right not to subject himself to physical inspection by witnesses in the course of a lineup. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Johnson, 255 La. 314, 230 So.2d 825 (1970). Furthermore, defendant’s proper mechanism to challenge a lineup is by way of a motion to suppress, not by objection at trial.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 16

This assignment is basically the same objection as raised in assignment No. 13. Here, defendant objects to the victim’s testimony concerning her identification of him at the police station lineup. As noted previously the state has carried its burden in proving that defendant was advised of his rights before the lineup. Accordingly this assignment also lacks merit.

ASSIGNMENT OF ERROR NO. 17

The victim, during her testimony identified various items of demonstrative evidence, and Officer Larose testified as to their chain of custody. Defendant asserts that these items were improperly admitted in evidence, although he does not state specific objections. This Court discussed demonstrative evidence in State v. Williams, 362 So.2d 530 (La.1978), where the following was stated:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. State v. King, 355 So.2d 1305 (La.1978); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case. State v. King, supra; State v. Provost, 352 So.2d 661 (La.1977); State v. Williams, 341 So.2d 370 (La.1976); State v. Collins, 328 So.2d 674 (La.1976). Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the jury. State v. King, supra; State v. Hayes, 306 So.2d 705 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Dotson, supra; State v. Wright, 254 La. 521, 225 So.2d 201 (1969).” Id. at 532 and 533.

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 18

By this assignment, defendant asserts that the trial court erred in overruling his motion for new trial. However, we find that defendant failed to raise this assignment in his formal assignments of error, and did not amend to include this argument. According to the provisions of La.C. Cr.P. Arts. 844 and 920 he is precluded from raising this issue on appeal.

For the reasons assigned herein, the conviction and sentence appealed from are affirmed.

       Judges William Norris, III. and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Defendant, by Assignment of Error No. 7, also contends that his sentence is excessive considering the offense committed and “litigating (sic) circumstances.” However, in his brief, his argument for No. 7 merely reads. “See supra Argument No. 1,” which relates only to a general claim regarding the unconstitutionality of the sentencing range of La.R.S. 14:64.

      . “In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.” La.C.Cr.P. Art. 771.

      . La.C.Cr.P. Art. 844 provides:
      “The party appealing shall designate, in writing, those errors which are to be urged on appeal. This assignment of errors shall be filed within the time specified by the trial judge, but not later than five days prior to the return date. A copy of the assignment of errors shall be furnished to the trial judge by the appealing party on the date such errors are filed. The trial judge may submit such per curiam comments as he desires.”
      La.C.Cr.P. Art. 920 provides:
      “The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”


author: DENNIS, Justice. MARCUS, Justice

text:
    Leonard B. JACKS v. BANISTER PIPELINES AMERICA, et al.
    No. 81-C-2296.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      Roy Maughan, and Elliott W. Atkinson, Maughan, Atkinson & Martin, Ltd., Baton Rouge, for plaintiff-applicant.

      L. Michael Cooper, Durrett, Hardin, Hunter, Dameron & Frithcie, Baton Rouge, for defendant-respondent.
   DENNIS, Justice.

Following the Workers’ Compensation statute’s provisions for total and partial disability, there is a schedule of specific losses accompanied by a provision for the number of weeks of compensation payable in each instance. In this case we are called upon to determine the proper mode of compensation when an employee, who suffered the loss of an eye, qualifies for both a specific loss award and a permanent partial disability judgment. The trial and appellate courts held, in effect, that the employee is entitled only to compensation for his partial disability. We modify this decision. Although the employee may not recover compensation for both his specific loss and his permanent partial disability, he is entitled to the more favorable of the two remedies. In a case in which it cannot be predicted which remedy will be more favorable, the employee should be awarded compensation for his specific loss as a minimum with reservation of his right to recover under the partial disability provision in the event it proves to be the more favorable.

The plaintiff, Leonard B. Jacks, was employed by Banister Pipelines America as an equipment mechanic and utility welder. The record reveals that on January 16, 1979, Jacks suffered an injury to his right eye which resulted in a permanent loss of vision in that eye. He missed three weeks of work for which he received temporary total disability benefits. Jacks returned to work and has continued to work as a pipeline mechanic and utility welder for Banister and other employers at the same or greater wages than he was being paid at the time of the accident.

On November 20, 1979, the plaintiff sent a written demand for further compensation to the Insurance Company of North America (INA), the employer’s compensation insurer. INA notified plaintiff of its intention to pay schedule benefits and commenced payment of those benefits on January 22, 1980.

Suit was filed on behalf of plaintiff on November 23, 1979, requesting total and permanent disability benefits, penalties, and attorney’s fees. The trial court made the following findings of fact:

“The Court finds as a fact that Mr. Jacks is unable to perform certain duties required by his job as well as he could before the accident. Those duties include climbing, walking on irregular work surfaces, working or driving at night and operating equipment. Further, Mr. Jacks is no longer able to perform precision welding, to catch tools thrown by his job helper, or to read numbers on certain parts. As a result of these handicaps, the Court finds that Mr. Jacks is unable to compete with able-bodied men in the same job market for which he was previously suited and thus is permanently, partially disabled.”

The trial court ordered defendants to pay weekly compensation benefits for permanent partial disability under La.RS. 23:1221(3) subject to a credit for compensation previously paid. The judgment, however, did not specify whether the previous payments should be deducted from future compensation on a dollar-for-dollar or a week-for-week basis. Penalties and attorney’s fees were denied. Both plaintiff and defendants appealed. The court of appeal affirmed the trial court’s judgment. 396 So.2d 604 (La.App. 1st Cir. 1981). This court granted certiorari to review the correctness of that decision.

In his application to this court, plaintiff contends that the courts below erred in not allowing recovery for a schedule loss under La.R.S. 23:1221(4) in addition to the award of benefits for partial disability under La. R.S. 23:1221(3). Plaintiff’s loss of sight in one eye would entitle him to full compensation for one hundred weeks under the schedule of specific losses, La.R.S. 23:1221(4)(i). Because he received only 72 weeks of compensation, plaintiff contends that he is entitled to twenty-eight more weeks of compensation. Additionally, he contends that he is entitled to 450 weeks of compensation under La.R.S. 23:1221(3) for permanent partial disability with no credit applied against those payments for the 100 weeks of benefits received under the schedule of specific losses. In the alternative, he argues that if a credit is allowed, it should be on a week-for-week rather than a dollar-for-dollar basis.

La.R.S. 23:1221 provides in relevant part:

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
* * * * * *
(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, .. . during the period of disability, but not beyond a maximum of . . . four hundred fifty weeks for such partial disability .. .
(4) In the following cases, the compensation shall be as follows:
* * * * * *
(i) For the loss of an eye, sixty-six and two-thirds per centum of wages during one hundred weeks.

The statute does not explicate the relationship between the specific loss schedule and the total and partial disability provisions. In a case in which a specific loss also results in total or partial disability for the worker, the act does not give either remedy priority or state whether the remedies are cumulative or optional. The interaction of judicial opinions and legislative amendments over the lifetime of the act presents a checkered pattern of interpretations on the question of disability vis a vis schedule loss provisions. W. Malone & H. Johnson, Workers’ Compensation in 13 Louisiana Civil Law Treatise, § 252 (1980); Comment, The Conflict Between the Disability and Specific Injury Clauses of the Louisiana Workmen’s Compensation Act, 11 Tul.L. Rev. 86 (1936).

The prevailing interpretation is that an employee may not recover compensation both for a total or partial disability and for a specific loss but he may recover for one or the other, the employee being permitted recovery under whichever provision affords him greater compensation. This rule is a workable one in cases which present a clear-cut choice between remedies affording fixed amounts of compensation. In the present case, however, in which the employee continued to earn wages at the same rate despite his partial disability, it cannot be predicted which provision will afford him greater compensation. Consequently, we must reexamine the statute, its history and its underlying policies to extract the precept to be applied in the present case.

Historical evidence indicates that the schedules of specific losses contained in workers’ compensation acts generally were not intended to be a departure from or an exception to the wage-loss principle. The typical schedule, limited to obvious and easily-provable losses of members, was justified on two grounds: the gravity of the impairment supported a conclusive presumption that actual wage loss would sooner or later result; and the conspicuousness of the loss guaranteed that awards could be made with no controversy whatever. 2 Larson, Workmen’s Compensation Law, § 57.14(c) p. 10-36 (1981). See also, W. Schneider, The Law of Workmen’s Compensation § 408 (2d ed. 1932); A. Honnold, Workmen’s Compensation, § 162 (1918); N. Dosker, Manual of Compensation Law § 140 (1917).

The legislative aim of the Louisiana list of specific losses is consistent with the purposes of the schedules generally. The list of specific losses serves to prevent litigation by providing for awards in definite amounts based on obvious physical mutilations. The Louisiana act establishes a conclusive presumption that victims suffering the losses set forth in the schedule will sooner or later be permanently partially disabled. See Comment, The Conflict Between the Disability and Specific Injury Clauses of the Louisiana Workmen’s Compensation Act, 11 Tul.L.Rev. 86 (1936).

The general disability provisions and the specific loss provisions, such as the award of 100 weeks of compensation for the loss of an eye, therefore, are parallel remedies designed to compensate an employee for his loss of earning capacity. The pervasive canon of statutory construction is that, where two remedies are created side by side in a statute, the claimant should have the benefit of the more favorable. 2 Larson, supra, at § 58.25 p. 10-285. See also, Farreas Tree Surgeons v. Winkles, 334 So.2d 569 (Fla.1976); Camis v. Industrial Commission, 4 Ariz.App. 312, 420 P.2d 35 (1966); Holcombe v. Fireman’s Fund Insurance Co., 102 Ga.App. 587, 116 S.E.2d 891 (1960).

Our prevailing interpretation, namely, that an employee may recover under whichever provision affords him greater compensation, therefore, is consistent with the broad historical perspective of the schedule provisions. In most cases, this precept without further interpretation, provides a ready solution in keeping with the history and purpose of the schedule and disability provisions. In the present case, however, in which the employee continued to earn wages at the same rate despite his partial disability, determination of the more favorable remedy remained problematic at the time of trial. If the employee should become unemployable because of his partial disability, the disability provision offers a greater number of weeks of compensation. On the other hand, if he continues to be able and willing to work, and his wages do not decline, greater compensation is afforded by the specific loss provision. Accordingly, in such a case, further interpretation of our jurisprudential precept is necessary to effectuate the purposes of the statute and to prevent injustice to the claimant. In order to assure that the employee is permitted to recover under whichever provision affords him greater compensation, he should be awarded compensation for the specific loss as a minimum with reservation of his right to recover under the partial disability provision in the event it proves to be the more favorable.

If the employer is later required to pay the worker compensation for his partial disability, because it proves to be the more favorable remedy, the employer will be entitled to subtract the 100 weeks of compensation paid for the specific loss from the maximum number of weeks for which partial disability compensation is payable. This method of crediting the employer with payment under the specific loss schedule is derived by analogy from several provisions of the worker’s compensation statute. The partial disability provision states that the employer is entitled to deduct one week from the maximum number of weeks for which compensation is payable for each week during which the employee is paid any partial disability compensation. La.R.S. 23:1221(3). If the employer is entitled to such a credit for each week in which he pays partial disability compensation, no matter how small the amount, he should receive comparable credit for any week during which he makes a maximum compensation payment because of the same injury under the specific loss schedule. In similar fashion, La.R.S. 23:1206 provides that any voluntary payment made by the employer which was not due and payable when made may be deducted from the payments to be made as compensation by shortening the period during which compensation shall be paid, and not by reducing the amount of the periodical payments. Analogously, if the employer in the present case should be required to pay partial disability compensation to the employee in the future because the worker has become unemployed or underemployed due to his injury, the employer should receive credit for his earlier payment due to that injury under the specific loss provision by shortening the period during which partial disability compensation is payable. The employer may not make deductions from any future disability compensation payments on a dollar for dollar basis, because such deductions are provided for only where the employer has first paid compensation under the total or partial disability provisions and compensation is later allowed under the specific loss subdivision. La.R.S. 23:1223.

The lower courts correctly refused to impose penalties and attorney fees in this case. Although the insurance company failed to pay compensation for several months after it received satisfactory proof of loss from the insured, there is no proof that the insurer failed to “make such payment within sixty days after receipt of such proofs and demand therefor. ...” [emphasis added] La.R.S. 22:658. In order to subject an insurer to penalties and attorney’s fees, a worker’s compensation plaintiff must prove that the company arbitrarily, capriciously or without probable cause failed to make timely payment after receipt of both a demand therefor and satisfactory proof of loss. Moore v. St. Paul Fire & Marine Ins. Co., 251 La. 201, 203 So.2d 548 (1967). The plaintiff in the present case offered evidence by stipulation that a demand letter was mailed to the insurer, but we have been unable to find any evidence in the record that such a demand was actually received more than sixty days prior to the commencement of compensation payments. Accordingly, we are constrained to find that the plaintiff has failed to carry his burden of proof on this issue.

Decree

The judgments of the trial arid appeals courts are amended to award the plaintiff, Leonard B. Jacks, 100 weeks of compensation according to the schedule for the specific loss of his eye and 350 weeks of partial disability compensation, subject to a credit for the portion of the compensation which has been paid. As amended, the judgments are affirmed.

AFFIRMED AS AMENDED.

MARCUS, J., dissents in part and concurs in part and assigns reasons.

MARCUS, Justice

(dissenting in part and concurring in part).

The majority correctly concludes that an employee cannot recover under both the partial disability and scheduled loss subdivisions. I do not agree, however, that there should be a week-for-week credit for benefits paid under the scheduled loss subdivision.

The workmen’s compensation act does not specifically address the issue of the type of credit that an employer or insurer who pays scheduled loss benefits is entitled to. However, it does provide for the reverse situation. That is, when compensation has been paid under the disability subdivisions and the employee is only entitled to scheduled loss benefits, the act directs that the amount of prior payments be deducted from the amount due. La.R.S. 23:1223. In my view, it is logical to apply the same dollar-for-dollar credit to the situation where the employee has been paid scheduled loss benefits and is later determined to be entitled to disability.

Moreover, a dollar-for-dollar credit is consistent with the scheme of recovery under the compensation act; that is, to permit recovery for a covered injury either under the disability subdivisions or the scheduled loss subdivision, but not both. If future payments for partial disability are at the maximum rate ($141.00), then whether the credit is on a week-for-week or dollar-for-dollar basis would be of no moment since the payments previously paid for the scheduled loss were at the same rate ($141.00). However, if the future payments for partial disability are less than the maximum rate, then a credit on a week-for-week basis would have the effect of permitting recovery under both the disability and scheduled loss subdivisions.

Additionally, I disagree with the award of scheduled loss benefits with a reservation of rights to the employee to recover under the partial disability subdivision in the event it proves to be more favorable. I consider that the majority misapplied the rule of statutory construction relied on to reach this result. Under the compensation act, when an employee suffers an injury that is described in the scheduled loss subdivision, he is not limited to those benefits if the injury produces some incapacity to work. In such a situation, he is entitled to disability benefits. The majority now extends this rule further by holding that the employee is entitled to be awarded both until it can be determined which is, ultimately, in his favor. I consider that this decision should be made at the time of trial.

I agree with the majority that plaintiff is not entitled to penalties and attorney fees under La.R.S. 22:658.

Accordingly, I respectfully dissent in part and concur in part.

      . Temporary total disability benefits were not paid for the first week of work missed by plaintiff in accordance with La.R.S. 23:1224.

      . Defendants were ordered to pay weekly compensation benefits during the period of partial disability beginning as of February 5, 1979, but not to exceed 450 weeks, at the rate of 66⅔% of the difference between the wages the plaintiff was earning at the time of the injury ($480.40) and any lesser wages which the plaintiff actually earned in any week after February 5, 1979, or may earn in the future in any gainful occupation for wages, not to exceed the maximum compensation rate of $141.00 per week, and not to be less than the minimum compensation rate of $42.00 per week.
      It was further ordered that defendants be given credit for the total compensation previously paid from February 5, 1979 through and including June 19, 1980, at the rate of $141.00 per week, said credit to be applied against all past and future benefits owed for partial disability.

      . See, Hall v. Pipeline Service Corp., 233 La. 821, 98 So.2d 202 (1957); Washington v. Independent Ice & Cold Storage Co., 211 La. 690, 30 So.2d 758 (1947); Robichaux v. Realty Operators, 195 La. 70, 196 So. 23 (1940); McGruder v. Service Drayage, 183 La. 75, 162 So. 806 (1935); Barr v. Davis Bros. Lumber Co., 183 La. 1013, 165 So. 185 (1936); Ben v. Starns-McConnell Lumber Co., 243 So.2d 77 (La.App. 1st Cir. 1970); Miller v. General Chemical Division, 128 So.2d 39 (La.App. 1st Cir. 1961); Tyler v. Great American Indem. Co., 116 So.2d 717 (La.App. 2d Cir. 1959); Jackson v. Steel Fabricators, Inc., 90 So.2d 397 (La.App. Orleans 1956); O'Connor v. American Mutual Liability Ins. Co., 87 So.2d 16 (La.App. Orleans 1956); Cooper v. Employers Liability Assurance Corp., 80 So.2d 180 (La.App. Orleans 1955); Storm v. Johnson, 23 So.2d 639 (La.App. Orleans 1945).

      . In light of our examination of other compensation statutes containing schedule of specific loss provisions, as well as the scholarly commentary cited, we acknowledge as erroneous the dicta in Barr v. Davis Bros. Lumber Co., 183 La. 1013, 165 So. 185 (1936), to the effect that the schedule serves generally as a substitute for the employee’s surrendered tort claim.
      The disfigurement subsection, La.R.S. 23:1221(4)(p), however, is difficult to square with the compensation principle, since it is not based on loss of earning capacity. See Malone & Johnson, supra, § 286 p. 664.

      . Distinguished commentators have suggested that an employee in this situation is entitled to the specific loss award as a minimum recovery. Malone & Johnson, supra, § 282 p. 651; Comment, supra, at 94.

      . The majority analogizes to two provisions of the compensation act in reaching the conclusion that a week-for-week credit should apply. In my view, neither is applicable. La.R.S. 23:1221(3), dealing with payment for partial disability, sets out the method for determining the number of weeks of benefits an employee has left. It is merely an explanation that the benefits are not calculated on a calendar basis, but rather that benefits have to be paid to obtain a credit. Nor does La.R.S. 23:1206 apply. That statute refers only to voluntary payments which, by the terms of this act, were not due and payable when made. It is inconsistent to say that an employee who loses an eye is entitled to either scheduled loss benefits or to disability, but payment under one before judgment is a voluntary payment that was not due.


author: WATSON, Justice.

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. TEXACO, INC., et al.
    No. 81-C-3285.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearings Denied Sept. 3, 1982.
    Breazeale, Sachse & Wilson, Victor A. Sachse, III, J. Wendell Clark, Baton Rouge, for applicant.
    Robert E. Peyton, Christovieh & Kearney, New Orleans, John Conery, Conery & Breaux, Franklin, Nicholas Gachassin, Jr., Gachassin & Capretz, Lafayette, David R. Dugas, Caffery, Oubre & Dugas, New Iberia, Dale H. Hayes, Morgan City, Phillip E. Henderson, Houma, for respondents.
   WATSON, Justice.

South Central Bell Telephone Company brought this suit against Texaco, Inc., and other defendants because gasoline damaged some of its underground cables in Morgan City, Louisiana. The trial court sustained exceptions of prescription and dismissed the suit. The Court of Appeal affirmed. 407 So.2d 430 (La.App. 1 Cir. 1981). A writ was granted to review the judgment. 410 So.2d 1131 (La., 1982).

The issue is when the last damage to the cables was apparent.

LAW

LSA-C.C. art. 3536 provides a one year prescriptive period for damages resulting from offenses or quasi-offenses and C.C. art. 3537 provides in pertinent part as follows:

“The prescription mentioned in the preceding article runs: ... from the day . . . on which the injurious words, disturbance or damage were sustained.
“And where land, timber or property has been injured, cut, damaged or destroyed from the date knowledge of such damage is received by the owner thereof.”

Generally, the prescriptive period for damage to adjacent land commences when the damage becomes apparent and the injured party discovers who or what caused it. LSA-C.C. arts. 3537, 667; Dean v. Hercules, Incorporated, 328 So.2d 69 (La., 1976). However, Dean did not consider the question of “continuing damages”. 328 So.2d at 73. See Di Carlo v. Landry & Dry Cleaning Service, 178 La. 676, 152 So. 327 (1934); Devoke v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816 (1947); Craig v. Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (1968); and Wilson v. Hartzman, 373 So.2d 204 (4 Cir. La.App.1979) writ refused 376 So.2d 961 (La.). When the damaging conduct continues, prescription runs from the date of the last harmful act.

FACTS

The South Central Bell telephone cables which were damaged and eventually replaced run underground on the south side of Brashear Avenue in Morgan City, Louisiana. Cable conduit is approximately eighteen inches in diameter and has from six to twelve holes. Each cable has its own hole or duct run. In 1969, Bell employees became aware of gasoline in the manhole at the intersection of Brashear Avenue and Sixth Street.

Telephone cables remain operative after being saturated with gasoline for a long time. The gasoline does not damage the cable itself, but destroys the polyethylene sheath which protects the cable from water damage. The polyethylene sheath softens, expands, and finally completely deteriorates under the action of petroleum products. The polyethylene will sustain gasoline damage for a period of time before it breaks down. Without exposure to gasoline, the polyethylene cable will last for forty or more years.

Brashear Avenue or Highway 90 runs roughly east and west and Sixth Street runs roughly north and south. Billups is on the northwest corner and Dragna’s Shell Station is on the northeast corner of the intersection. Lucien’s Texaco Station is on the southeast corner and is on the same side of the avenue as the Bell cables. The conduit runs under that station. Because of the proximity of the Texaco station, that station was first pinpointed as the source of the gasoline in the manhole. The station’s tanks are owned and maintained by Texaco. The operator at the Texaco station admitted that he was losing a lot of gasoline and the Texaco tanks were replaced in January of 1971. Between 1971 and 1976, Lucien’s Texaco had no problems with gasoline leakage. After the Texaco tanks were replaced, it was believed that the gasoline was draining from the shell underneath Brashear Avenue and the problem would subside when all the gasoline had been drained.

There continued to be gasoline in three of Bell’s manholes, one at Sixth and Brashear, one at Federal and Brashear, and another inbetween. In 1974, the damage reached a peak. The manhole at Sixth and Brashear was pumped out once a month. On October 7, 1974, Leonard Chauvin, construction manager of South Central Bell, made an inspection of that manhole with the fire marshal’s office. The company was trying to detect the source of the gasoline and prevent continuation of the damage. The gasoline presented a hazard to Bell’s employees as well as its cables. The crime lab reported on August 27, 1975, that the gasoline in the drainage system was similar to Shell super regular. Suit was filed on October 16, 1975.

The Bell system continued to function, although some cables had to be spliced and repaired. The problem fluctuated with the weather and was worse after heavy rains. According to Ellis Trosclair, in charge of cable repair, “the gasoline never did put the cable out completely.” (Depo., p. 70)

Gilbert Hicks, a contract supervisor for Bell, found an abandoned storm drain or catch basin running under the street into the manhole. From the angle of the drain, Hicks felt that there was a strong possibility that the gasoline was coming from the Shell station on the other side of the street. Test holes were drilled on November 7, 1975, which showed a hundred percent gasoline reading on the side of the road where Dragna’s Shell station is located.

Shell changed out three of its old tanks with new tanks in December of 1975. According to Gerald A. Price, now chief of the Morgan City Fire Department, two of the old Shell tanks “leaked pretty good and the third one had a couple of leaks”. (Depo., p. 27) After the Shell tanks were replaced, the problem subsided.

The trial court relied on the testimony of Herbert Stanislaus Leitz, who was in charge of the Morgan City office of South Central Bell from September 1, 1974 through February 16, 1977. Leitz’s said: “Well, I knew we had trouble in September of ’74. I did not derive that we had to replace every cable in there in September of ’74.” (Depo., p. 9) According to Leitz, Bell would “[E]ventually” have to replace all the cable but “[N]ot then”. (Depo., p. 9) The damage was scattered and the sheaths on some of the cables were worse than others. Some time in the latter part of 1974 or 1975, Leitz decided that all of the cables should be replaced, “even the ones that weren’t giving us trouble yet. I could see that they were going to give us trouble.” (Depo., p. 24) Leitz said that “the damage” to the cables occurred before he got to Morgan City, but it is clear that the damage continued after that date. (Depo., p. 44) South Central Bell continued to pump gasoline out of the manhole at Sixth and Brashear. On November 14, 1975, four or five hundred gallons were removed from that manhole. Because of the continued presence of the gasoline, Bell was forced to use specially manufactured lead sheathed cable in the area. Replacement of the cables was not completed until October 8, 1976.

CONCLUSION

The trial court acknowledged that the tort was a continuing one but found that the final damage was done to the Bell telephone cables in September of 1974; that the damage “was consummated” at that time. (Tr. 365) There was substantial damage to the cables as early as September of 1974 but the trial court was clearly wrong in finding the damage completed at that time. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978), on remand 370 So.2d 1262 (La. App. 3 Cir. 1979), writ denied 374 So.2d 660 (La., 1979). The cables remained usable until their replacement with lead sheathed cable after suit was filed.

In September of 1974, some of the cable was not giving any trouble and the system was functioning. Leitz decided that the cable had to be replaced because of the gasoline in the manhole, but the damage to the cable continued. While the cables were operative, they were clearly susceptible to further damage. The trial court erred in finding that no further damage was done because Southern Bell had made a business decision to replace its cable. The cable continued to be damaged and the manholes remained dangerous until the Shell tanks were replaced in December of 1975. There were no more complaints after that date and prescription on that cause of action runs from December, 1975.

The suit, filed October 16, 1975, is timely as to the Shell defendants. The suit has prescribed as to the Texaco defendants, since the Texaco tanks were replaced in 1971 and there is no indication of leakage thereafter.

When the tortious conduct and resulting damages continue, prescription does not begin until the conduct causing the damage is abated. The damage did not end merely because South Central Bell decided that all of its cables would eventually have to be replaced. Where the cause of the injury is a continuous one giving rise to successive damages, prescription dates from cessation of the wrongful conduct causing the damage.

For the foregoing reasons, the judgment of the trial court on the exceptions of prescription is affirmed as to Texaco, Inc., Lucien Cutrera, Sam Siracusa and Joseph Siracusa. The judgment of the trial court on the exceptions of prescription as to Ma-tile Dragna, Mrs. Mary Dragna, and McKe-rall Oil Company, Inc., is reversed, and the matter is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . Remaining as defendants in addition to Texaco, Inc. are Sam Siracusa, Joseph Siracusa, and Lucien Cutrera (the Texaco defendants); McKerall Oil Company, Inc., the Shell distributor in Morgan City, Matile Dragna and Mrs. Mary Dragna (the Shell defendants).