author: DENNIS, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Alvin Scott LOYD.
    No. 82-K-0747.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Feb. 11, 1983.

      Gordon Hackman, Randy Lewis, Boutte, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Morel, Jr., Dist. Atty., John Crum, Abbott J. Reeves, Jr., Asst. Dist. Attys., for respondent.
   DENNIS, Justice.

The defendant, Alvin Scott Loyd, who has been indicted for first-degree murder and aggravated rape, unsuccessfully moved the trial court for suppression of evidence, discovery and Brady orders. We granted the defendant’s application for review of these pre-trial rulings. 414 So.2d 780 (La. 1982).

On the evening of April 26, 1981, Tina Giovanetti and her three year old daughter were walking home after attending a fair in Terrebonne Parish. They accepted defendant’s offer of a ride in his pick-up truck. When he reached the Giovanetti home, the defendant asked if he could come in. The woman refused his request and stepped out of the truck. Before she could remove her daughter, however, the defendant drove off with the little girl inside the cab. The defendant traveled to the Mississippi River, crossed into St. John the Baptist Parish on the Lutcher ferry, and continued down a desolate dirt road near a pipeline. At a remote spot, he raped the child, drowned her in a ditch, carried her body into an adjacent swamp, and covered it with leaves.

Ms. Giovanetti reported the kidnapping of her daughter to the police and described the offender and his truck. Armed with this and other information, the St. John the Baptist Parish police contacted the defendant at his home early the next morning and requested that he accompany them to the sheriff’s office. ' He willingly got dressed and drove his truck to the stationhouse. Interrogation and other events ultimately culminated in the defendant leading the sheriff to the victim’s body and giving a written confession.

The defendant initially assigns as error the trial judge’s failure to suppress the defendant’s statements, certain items of physical evidence and the identification of the defendant by other witnesses.

ASSIGNMENT OF ERROR NUMBER ONE

The first statement that the defendant moved to suppress was one he made to two St. James Parish deputies who stopped him just after midnight on April 27, 1981, and conducted a field sobriety test because he had been driving to the left of the center line. The defendant passed the test, informed the deputies that he was tired and was trying to catch the 12:15 Lutcher ferry. He added that his little girl was in the truck with him and that they were returning home from the fair. Unaware of the reported kidnapping in Terrebonne Parish, the deputies allowed the defendant to continue.

The deputies did not give the defendant his Miranda warnings upon stopping him. However, in State v. Badon, 401 So.2d 1178 (La.1981), we held that these warnings are not required before the administration of a field sobriety test. Furthermore, there is no suggestion that defendant’s remarks were solicited by the deputies; rather the evidence indicates that defendant’s statement that he had his young daughter with him was a spontaneous statement and is independently admissible. State v. Robinson, 384 So.2d 332 (La.1980); State v. George, 371 So.2d 762 (La.1979); State v. Thornton, 351 So.2d 480 (La.1977).

The second statement at issue was evoked by the identification of him as the kidnapper by Mrs. Giovanetti, the victim’s mother, in St. John the Baptist Parish Sheriff’s Office around 4:30 a.m. after the defendant voluntarily came there for questioning. The defendant seeks the suppression of the testimony concerning the woman’s identification and his exculpatory response to her accusation.

Mrs. Giovanetti accompanied the Houma police officers to the St. John the Baptist Sheriff’s Office to see if the defendant resembled her child’s abductor, but the evidence is devoid of any hint that her identification of him as the kidnapper was suggested by the officers. She entered the Sheriff’s Office through the back door and spotted the defendant sitting in the officer’s lounge through an open door. No one drew any attention to the defendant or the room where he was sitting. The encounter was brief and accidental; her identification was definite and immediate. In these circumstances, because there is no indication of police suggestions, and because the witness made a positive identification upon spotting the suspect, the out-of-court identification was reliable and properly admissible. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Mrs. Giovanetti was escorted away by Detectives Vito and Duplantis from Houma, who immediately returned to introduce themselves to defendant and give him the Miranda warnings. They testified that defendant acknowledged his understanding of these rights, did not invoke his right to silence, but instead stated that he did not know what the “crazy lady” was talking about. We need not resolve the question of whether defendant was in “custody” at the time of his statement, because the remark was made after defendant had received, apparently comprehended, and decided not to invoke his Miranda rights. In any event, this particular statement by the defendant was not incriminating in any way. Beyond the Miranda question, the evidence clearly reflects, contrary to defendant’s contention, that his unsolicited spontaneous response to the accusation was freely and voluntarily made and thus is admissible.

The most serious questions raised by defendant’s motion to suppress concern statements made by the defendant to the authorities after he invoked his right to silence. Before discussing these issues, we will set forth in detail the factual context within which they arise.

Deputy Fuselier of the St. John the Baptist Parish Sheriff’s Department testified that he arrived at the office early in the morning of April 27, 1981. The policemen from Houma were with defendant when Fuselier entered the room. Fuselier gave defendant his Miranda rights and at approximately 5:00 a.m. defendant informed Fuselier that he did not wish to speak to him. Fuselier said that he called defendant’s mother to the office so that she could talk with him. According to Fuselier, the mother spoke with defendant alone for approximately 30 to 40 minutes, perhaps as long as an hour. An officer testified that Mrs. Loyd left her son sitting in the lounge and related to the police that defendant said he would take the police officers to the place where he had dropped off the child near Lutcher. Mrs. Loyd disagrees that defendant made such an offer; she testified that defendant only told her that he had dropped the child off near the Lutcher ferry landing.

Immediately, Oubre, Duplantis (from Houma), defendant and his mother went to Lutcher to locate the child. Before they left at approximately 6:15-6:30 a.m., Fuse-lier read the Miranda rights to defendant and his mother. Defendant refused to sign the form. Oubre testified that enroute to Lutcher, which is in St. James Parish, he advised St. James officials of the situation and requested assistance in searching for the child. When the group arrived in St. James Parish, they were met by the two St. James deputies who had stopped defendant earlier in the morning. These two men identified defendant as the man they had stopped and who told them that he had his little girl in the truck. Oubre stated that the meeting was a coincidence, that he had not requested these specific men to meet them. Defendant directed the group to the location where he asserted that he had left the girl and the search began by knocking on doors to inquire whether anyone had seen her. A State Police helicopter was also used in the search, but to no avail.

Oubre returned the group to the St. John sheriff’s office at around 7:30 a.m. At this time, Fuselier placed defendant under arrest on a fugitive warrant from Terrebonne Parish which Vito had obtained while defendant was on the trip to Lutcher. Vito had explained that he did not effect the arrest because he was out of his jurisdiction. When Fuselier arrested defendant, Oubre gave defendant his Miranda rights. Fuselier repeated the rights and defendant stated that he did not understand. When questioned about what he did not understand, defendant did not respond.

Defendant remained alone in custody until shortly before 11 a.m. that morning when his mother sought permission to talk to defendant from Lloyd Johnson, Sheriff of St. John Parish. The sheriff allowed the visit, asking only that Mrs. Loyd try to elicit from defendant the whereabouts of the missing child. Mrs. Loyd talked with defendant a while. When she left the room where defendant was sitting, Sheriff Johnson asked whether defendant had said anything about the location of the girl and Mrs. Loyd replied that he had not. Mr. Crump, a friend of Mrs. Loyd, requested permission to speak with defendant and the sheriff granted the permission, hoping that defendant might tell him something he had not told his mother. When Crump came out, Mrs. Loyd went back into the room. The sheriff requested that she ask her son if he would talk to him and Deputy Rome. According to Sheriff Johnson and Deputy Rome, Mrs. Loyd returned and said that defendant had consented to speak to them. Mrs. Loyd testified that her son manifested no willingness to speak to the officers, and that she had not indicated any such willingness to Sheriff Johnson.

Sheriff Johnson and Deputy Rome entered the room and Johnson gave defendant the Miranda rights. Defendant said that he did not understand the rights. The sheriff told defendant that he would read each right slowly. After reading the first one— the right to remain silent and that anything said could be used in court — the sheriff again asked defendant if he understood. Defendant said he did not. The sheriff asked defendant what it was he did not understand. According to Johnson, defendant said “okay”, he “kind of smiled” and said “I understand.” Although defendant did not wish to sign the form, he did say that he would answer questions. The sheriff asked defendant whether it was possible that the little girl was still alive and defendant responded by asking for a piece of paper. Deputy Rome handed defendant paper and defendant began drawing lines on it. When asked the meaning of the lines, defendant explained that “this is the map of where the little girl is” and identified landmarks. Rome left to search for the child in the hope that she might be found alive. After Rome left, defendant indicated to Johnson that the child was dead and Johnson asked defendant whether he had raped her. Defendant answered that he had.

Rome called from the field to report that he and others were unable to locate the child and to ask whether it might be possible for defendant to show him the location. At Fuselier’s request, defendant consented to lead the police to the child’s body. Johnson testified that he had instructed Fuselier to be certain to give defendant his rights when asking him to go to the scene, but stated that he did not know whether Fuselier had done so. However, enroute to the scene, Fuselier, in Johnson’s presence, did give defendant his rights. Fuselier then asked defendant whether he was sure the little girl was dead and defendant responded that there was no way she could still be alive. Defendant explained that he had held her face under water in a ditch until the bubbles stopped coming to the surface and then continued to hold her down until she stopped moving completely. In response to Fuselier’s inquiry whether he had raped the child, defendant replied that he had “jugged her twice.”

At the scene, defendant got out of the patrol car and walked to where Rome and Oubre were standing beside a drainage ditch. Defendant, handcuffed to the rear, made a gesture with his foot toward the canal and said that “this is where I drowned her at.” Defendant then turned around and walked into a wooded area to a place where there was palmetto on the ground. Again he made a gesture with his foot and said “she is right there” and then turned around.

Later in the afternoon, after defendant had been returned to the jail, Fuselier and Oubre interviewed defendant and obtained a written statement. Fuselier advised defendant of his Miranda rights and asked defendant if he understood. Defendant replied that he did not and Fuselier went over the rights slowly. Again defendant said that he did not understand. Fuselier asked defendant what it was he did not understand and offered to have someone else explain the rights. Fuselier testified that defendant “kind of laughed and said ‘yes> I understand, it’s all right.’ ” Fuselier gave the form to defendant, who appeared to be reading it and indicated that he understood. Fuselier filled in the top of the form. Defendant said that he was nervous and asked that the police write the statement. Fuselier received a phone call; so Oubre continued the interview, writing the statement while Fuselier remained in the room talking on the phone. At the end of the statement, defendant read it and signed each page. Both Fuselier and Oubre testified that defendant was not coerced or threatened nor promised anything to make the statement and both said that he appeared calm.

At the time of these events, the defendant was 25 years old and had one and one-half or two years of college while making good grades. He had attended “Storekeepers’ School” in the Navy and he was a foreman at the Godcheaux sugar plant. He was married and the father of a child.

The trial judge accepted the version of these events recited by the police where it differed from the testimony of Mrs. Loyd. When we review a ruling of the trial court based upon a finding of fact, great weight is placed upon the determination of the court below because the trial judge had the opportunity to observe the witnesses and weigh the relative credibility of their testimony. State v. Alford, 384 So.2d 761 (La.1980); State v. Sullivan, 352 So.2d 649 (La.1977); State v. Cobb, 350 So.2d 168 (La.1977). These findings will not be disturbed unless they are not supported by the evidence. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Castillo, 389 So.2d 1307 (La.1980) cert. denied 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1004 (1981); State v. Williams, 386 So.2d 1342 (La.1980). The consistent testimony of the investigating officers provides ample support for the trial judge’s factual findings.

These events, during which defendant made incriminating statements shortly after having asserted his right to silence or professed ignorance of such right, indicate a possible violation of the prophylactic rules established in Miranda v. Arizona. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Miranda guidelines were adopted because without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and compel him.to speak where he would not otherwise do so freely. Miranda v. Arizona, supra, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). To assure safeguards that promised to dispel the “inherently compelling pressures” of police custodial interrogation, a prophylactic rule was fashioned to supplement the traditional determination of voluntariness on the facts of each case. Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321, at 330, 46 L.Ed.2d 313 at 327 (1975) (Brennan, J., dissenting).

Resolution of the questions in this case depends on the interpretation of a single passage of the Miranda opinion:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at a time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege: any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. 384 U.S. at 473-474, 16 L.Ed.2d 694, 86 S.Ct. 1602.

Subsequently, the high court observed that the critical safeguard identified in this passage is a person’s right to cut off questioning. Although the passage could be read to mean that a person who has invoked his right to silence can never again be subjected to custodial interrogation, or interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite, the court chose a middle course. It concluded that the admissibility of statements obtained after the person in custody has decided to remain silent depends on whether his “right to cut off questioning” was “scrupulously honored.” Through the exercise of his option to terminate questioning, he can control the time of when questioning occurs, the subjects discussed, and the duration of questioning. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. Michigan v. Mosley, 96 S.Ct. at 326, 46 L.Ed.2d at 321.

The restraints placed upon the interrogator when the suspect invokes his right to silence are to be contrasted with the more stringent safeguard called forth by his request for an attorney. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the high court expressly held that an accused, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. 101 S.Ct. at 1884, 68 L.Ed.2d at 386.

Consequently, when the accused invokes his right to silence, Miranda does not erect a complete bar to further police initiative in communications as it does after a request for an attorney. Nevertheless, the police must scrupulously honor the right to cut off questioning by the person in custody. Apparently, courts must look to the facts of each case and the precepts underlying Miranda to determine if the police engaged in conduct in obtaining a confession which destroyed the accused’s confidence in his right to cut off questioning.

Although the Supreme Court has not clearly resolved the issue, it appears that defendant Loyd is unable to invoke Miranda. Professor Kamisar has persuasively demonstrated that even though a person is in custody, “surreptitious interrogation” is insufficient to bring Miranda into play. For unless a person realizes he is dealing with the police, their efforts to elicit incriminating statements from him do not constitute “police interrogation” within the meaning of Miranda. It is the impact on the suspect’s mind of the interplay between police interrogation and police custody— each condition reinforcing the pressures and anxieties produced by the other which creates “custodial interrogation” within the meaning of Miranda. It is the suspect’s realization that the same persons who have cut him off from the outside world, and have him in their power and control, want him to confess, and are determined to get him to do so, that makes the “interrogation” more menacing than it would be without the custody and the “custody” more intimidating than it would be without the interrogation. Miranda recognizes that the Fifth Amendment only protects against some kind of compulsion — and not the kind produced by custody alone. In the absence of police interrogation, the coercion of arrest and detention does not rise to the level of “compulsion” within the meaning of the privilege. Kamisar, Brewer v. Williams, Massiah and Miranda: What is “Interrogation”? When Does it Matter?, 67 Georgetown L.J. 1, 50-53, 63-69 (1978).

The Supreme Court apparently confirmed the validity of this analysis by implying that Miranda could not be applied to suppress an accused’s incriminating custodial statement to a fellow inmate because Miranda is “limited to custodial police interrogation.” See U.S. v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (emphasis added); W.S. White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 Mich.L.Rev. 1209, 1247 (1980). Similarly, the Fifth Amendment has been held not to be implicated by the use of undercover government agents before charges are filed because of the absence of the potential for compulsion. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

In the present case, during the times that defendant Loyd exercised his right to cut off questioning, he was not subjected to the interplay between police custody and police interrogation which is necessary to constitute “custodial interrogation” within the meaning of Miranda. When the defendant invoked his right to silence, the police ceased their interrogation immediately and did not resume questioning until they were invited to do so by the defendant. While police interrogation was. cut off, the defendant was questioned by his mother out of the officers’ presence, and she elicited incriminating statements from him. She was not a police officer or agent, however, and there was no reason for the defendant to think that he was dealing with the police in talking to his own mother. Because the defendant was a mature adult of 25 years with substantial education, apparent intelligence and lived separately from his mother with a wife and child of his own, we do not think his mother’s entreaties to reveal the child’s location caused him to believe that his right to control or cut off questioning would not be honored by police. Consequently, in the absence of any interplay between police custody and police interrogation, the mere fact that the defendant was in custody was not so intimidating, nor his mother’s questioning so menacing, as to bring Miranda into play. Similarly, Mrs. Loyd’s request that defendant talk to Sheriff Johnson later that morning was not an impermissible resumption of custodial interrogation. The inherent pressures of the custodial environment, without the companion pressures of police interrogation, are not a sufficient compulsion on which to conclude that the police did not scrupulously honor defendant’s right to silence. State v. Rebstock, 418 So.2d 1306 (La.1982). In both instances, defendant made his decision to initiate renewed contact with the police without receiving custodial interrogation or pressure from them. When an accused initiates communication on the subject with police after earlier invoking his right to silence, the police may permissibly resume the interrogation. Michigan v. Mosley, 96 S.Ct. at 327, 46 L.Ed.2d at 322.

Although the police scrupulously honored defendant’s right to silence, the resulting statements are only admissible if made freely and voluntarily by the defendant. The State bears the burden of proving beyond a reasonable doubt the voluntariness of a confession which the defendant has moved to suppress as evidence at the trial on the merits. La.R.S. 15:451; State v. Rodrigue, 409 So.2d 556 (La.1982); State v. Dewey, 408 So.2d 1255 (La.1982); State v. Jones, 376 So.2d 125 (La.1979); State v. Volk, 369 So.2d 128 (La.1979). In reviewing the trial judge’s rulings as to the admissibility of a confession, his conclusions on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Rodrigue, supra, State v. Bouffanie, 364 So.2d 971 (La.1978).

From our review of the record, we conclude that the trial judge’s finding that the defendant’s statements were freely and voluntarily given is adequately supported by the consistent testimony of the sheriff deputies and Houma detectives. Accordingly, this statement is properly admissible at the trial on the merits.

The defendant also seeks the suppression of items of physical evidence taken from his truck pursuant to a warrantless search by the police. When the defendant was taken into the sheriff’s office in the early morning of April 27,1981, he parked his truck beside the sheriff’s office building. At 9:30 that morning, a Jefferson Parish crime scene technician arrived at the sheriff’s office to assist in the investigation. Soon after arriving, this technician undertook a warrant-less search of the interior of defendant’s pick-up truck. This search produced a face cloth, a paper tower and T-shirt on the floor of the truck, and a face cloth on the passenger seat.

The constitutional prohibitions against unreasonable searches and seizures encompass protection against unreasonable intrusions into a person’s automobile. U.S. Constitution, Art. IV; La. Const. Art. I, § 5; Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). A warrantless search is per se unreasonable unless it falls within certain limited, well-delineated exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1974); Coolidge v. New Hampshire, supra; State v. Hernandez, 410 So.2d 1381 (La.1982); State v. Zito, 406 So.2d 167 (La.1981).

At the time the truck was searched, the police had reasonable cause to believe that the kidnapped child was still alive and in imminent and serious danger. The facts then known to the police gave the police probable cause to believe that the defendant had kidnapped the girl in the truck and that it held possible clues to the location of the victim. We believe that this search was permissible under the exigent circumstances presented by the pressing need to rescue the victim. The warrant requirement must yield to the overriding interest in protecting or rescuing individuals reasonably thought to be in imminent danger of death or serious bodily harm. United States v. McKinney, 477 F.2d 1184 (D.C.Cir.1973); United States v. Perez, 440 F.Supp. 272 (N.D.Ohio 1977); People v. Sirhan, 1 Cal.3d 710, 102 Cal.Rptr. 385, 497 P.2d 1121 (1972); LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 1978. This warrantless entry into the defendant’s truck was authorized under these circumstances, and accordingly, the fruits of this search are properly admissible into evidence.

Finally, the defendant seeks the exclusion of a pubic hair taken from the defendant after he was incarcerated. A detective approached the defendant and informed him that he needed a sample of pubic hair for the investigation. He further told defendant that a search warrant could be obtained if necessary. The defendant replied that he would willingly cooperate and then removed a sample himself.

Consent is an exception to the necessity of obtaining a warrant to seize evidence. State v. Winn, 412 So.2d 1337 (La.1982); State v. Packard, 389 So.2d 56 (La.1980). The record lends substantial support to the trial court’s determination that the defendant consented to the procurement of this evidence. This evidence is therefore admissible.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment, the defendant complains that the trial judge did not order the state to comply with the usual discovery procedure followed in St. John Parish. The defendant contends that it is customary practice of the prosecution in St. John Parish to make its entire file available to the defense attorney. In his motion for discovery, defendant requested the ñames of all witnesses the state intends to use at trial.

The state is not required to allow the defendant to inspect its entire file. La.C.Cr.P. art. 723. Moreover, this court has consistently held that the defendant is not usually entitled to the names of state witnesses. State v. Lane, 414 So.2d 1223 (La.1982); State v. Marks, 337 So.2d 1177 (La.1976); State v. Thomas, 306 So.2d 696 (La.1975); c.f. State v. Walters, 408 So.2d 1337 (La.1982). We find no merit in this assignment.

ASSIGNMENT OF ERROR NUMBER THREE

By this final assignment, the defendant contends that the trial judge erred in failing to compel the state to produce Brady material. In brief, the defendant asserts that the failure of the state to allow him to inspect its entire file prejudices his rights to discover Brady material. The defendant does not assert that the state is withholding such material, but only that its failure to open its files precludes the verification that no such material in fact exists. The mere chance that a full inspection of the file will reveal Brady material does not justify a fishing expedition through the state’s file in the face of the clear language of La.C.Cr.P. art. 723. We find no merit in this assignment.

DECREE

For the reasons assigned, the ruling of the trial court on the motion to suppress statements and physical evidence is affirmed. The ruling on the motions for discovery and Brady materials is also affirmed.

MARCUS, J., concurs in the result only.

WATSON, J., concurs in the result.

LEMMON, J., assigns additional concurring reasons.

LEMMON, Justice,

assigning additional concurring reasons.

I fully subscribe to the reasoning and result of the majority opinion. I additionally point out that the prophylactic rules of Miranda (designed to protect against “overzealous police practices”) were not designed to regulate police interrogation which (as in this case) was undertaken primarily for the purpose of discovering information necessary to preserve the life of an innocent victim (such as the missing three-year old in this case) or to insure the safety of the investigating police officer and others on the scene. See U.S. v. Castellana, 500 F.2d 325 (5th Cir.1974); State v. Levy, 292 So.2d 220 (La.1974); People v. Dean, 39 Cal.App.3d 875, 114 Cal.Rptr. 555 (1974); People v. Riddle, 83 Cal.App.3d 563, 148 Cal. Rptr. 170 (1978).

      . The trial judge erroneously decided that these items fell within the “plain view” exception to the warrant requirement. The “plain view” doctrine properly provides a means of securing probable cause; it does not excuse the necessity of securing a warrant based on a showing of probable cause to effect an entry into a protected area. Coolidge v. New Hampshire, supra, State v. Parker, 355 So.2d 900 (La.1978). The failure of the police to obtain a warrant to enter the truck was not excused by the “plain view” doctrine.

      . La.C.Cr.P. art. 723 provides: “Except as provided in Articles 716, 718, 721, and 722, this Chapter does not authorize the discovery or inspection of reports, memoranda or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of the statements made by witnesses or prospective witnesses, other than the defendant, to the district attorney, or to agents of the state.” The exceptions to this article entitle defendant to specific statements and tangible evidence, but not access to the entire file.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    Freddie WILLIAMS v. Cornelius BERNARD, Sr., Cornelius Bernard, Jr. and Allstate Insurance Company.
    No. 82-C-1531.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Rehearing Denied Feb. 11, 1983.

      E. Kelleher Simon, Murphy & Simon, Covington, for applicant.
    Darleen M. Jacobs, New Orleans, for respondents.
   DENNIS, Justice.

The question presented is whether the court of appeal, 413 So.2d 198, and the trial court misused their discretion by refusing defendant Allstate Insurance Company a new trial for the purpose of proving its policy limits. Allstate contends that it failed to introduce evidence of its policy limits because of its trial attorney’s impression that the limits had been stipulated or because of his excusable neglect, and consequently the jury rendered a verdict in favor of the plaintiff for $8,000, $3,000 in excess of its policy limits. We affirm. The evidence fully supports the findings by the previous courts that there was no stipulation as to policy limits and that defendant’s failure to introduce evidence of its policy limits at trial resulted from its attorney’s deliberate choice and not from his inadvertence or excusable neglect. Under these circumstances, the previous courts did not misuse their discretion in refusing to grant a new trial.

During the trial of this suit by an injured motorist against his uninsured motorist insurer, the parties stipulated that Allstate Insurance Company had issued uninsured motorist coverage to the plaintiff which was in effect at the time of the accident. Although Allstate’s attorney said he had the policy with him, he did not introduce it or any other evidence of policy limits at trial. The parties did not stipulate to any exclusions or limitations to Allstate’s coverage.

Defendant Allstate contends that it was prevented by law from introducing evidence of its policy limits during the jury trial. We are aware of no law which prevents an insurer which has been sued on its policy from introducing evidence of its policy limits, particularly after evidence or a stipulation of its coverage is introduced at trial. Since Allstate, the party which demanded the jury trial, did not specify particular issues to be tried by jury, it was considered to have demanded trial by jury of all issues so triable, including whether and to what extent its coverage was limited. La.C.C.P. art. 1734. The cases relied upon by Allstate for the proposition it urges are inapposite. They hold only that a plaintiff may introduce evidence of the defendant’s liability insurance policy and its limits when the defendant raises his inability to pay as a defense or in mitigation. Suhor v. Gusse, 388 So.2d 755 (La.1980); Guy v. Tonglet, 379 So.2d 744 (La.1980).

Allstate contends that its trial attorney failed to introduce evidence or policy limits because of inadvertence or excusable neglect. The trial judge specifically found to the contrary that “it was not an inexcusable error or neglect, but a definite trial tactic by Allstate not to introduce the policy.” The record fully supports the trial judge’s finding. Allstate’s attorney had the policy in his possession at trial yet chose not to introduce it. During his colloquy with plaintiff’s attorney in which they stipulated the coverage, Allstate’s attorney informed the court he had the policy with him, but did not offer it or request a stipulation as to policy limits. When the plaintiff’s counsel in her closing argument asked the jury to return a verdict in an amount which defendant now contends exceeded its policy limits, Allstate’s attorney did not object, seek to introduce evidence of policy limits or present argument as to coverage restriction. Although Allstate now contends that its trial attorney intended for the judge to decide the issue of coverage limitation separately, there is no warrant in the record for finding that he so intended. Indeed, since Allstate’s general demand for a jury trial precluded the judge from deciding any of the issues, there is no basis in law for such an expectation either.

Under these circumstances, the trial and appeals courts did not misuse their discretion by failing to grant a new trial. This is not a case in which justice was thwarted by the excusable neglect or inadvertence of trial counsel by his failure to introduce a crucial item of evidence. Allstate’s trial attorney deliberately chose to withhold evidence of the policy limits as a trial tactic to avoid the possibility that the jury’s determination of liability or quantum would be influenced by its knowledge of the amount of coverage. Whether a new trial should be granted in such situations requires the trial judge to weigh a variety of considerations for which a clear cut rule of law cannot easily be formulated. Against the opportunity to correct a probable $3000 error in the amount of the judgment must be weighed the great inconvenience and delay of a new trial to a plaintiff who deserves a substantial majority of his jury verdict, the undeserved relief of a litigant from a risk it knowingly assumed, and the encouragement of similar trial tactics by other litigants that will tend to proliferate new trials in jury cases. It is a situation in which an appellate court ought not substitute its judgment unless the trial judge’s decision is unmistakably erroneous. On the basis of the record in the present case, the trial judge’s decision appears to have been correct.

The judgment of the court of appeal is affirmed.

AFFIRMED.

MARCUS and LEMMON, JJ., dissent.

      . Q: Ms. Jacobs: (Plaintiffs Attorney)
      At the time of the accident did you have in effect and were you paying on a policy of uninsured motorist coverage with the Allstate Insurance Company?
      A: Mr. Williams: (Plaintiff) Right.
      Q: Ms. Jacobs:
      And would you please tell the jury the number of that policy?

        The Court:

      I don’t think that’s necessary.
      Ms. Jacobs:

      Okay. The policy has not been stipulated. The policy has not been stipulated to, your Honor.
      Mr. Burvant: (Insurer’s Attorney)
      Nobody has requested it. I have the policy here. We stipulated coverage.
      Ms. Jacobs:

      But it’s not yet stipulated coverage.

        The Court:

      Well, I thought I saw an admission of coverage. Just one second. Let’s check and see.

        Ms. Jacobs:

      Judge, if counsel is willing to stipulate there was a policy of uninsured motorist coverage in effect with Allstate Insurance Company, that ends it as far as I am concerned. I don’t have to go into ...

        The Court:

      Do you wish to do that, Mr. Burvant?
      Mr. Burvant:

      Yes your honor, sure.

        The Court:

      The Court accepts the stipulation that Allstate did have in full force and does admit in its answer that it has a policy of insurance covering [sic] Mr. Williams for uninsured motorist at the time of the accident.”

      . Id. The trial judge, in explaining his reasons for denying Allstate’s motion for new trial observed that its attorney failed to introduce the policy despite numerous opportunities to do so.

      . Defendant Allstate argues that the stipulation as to coverage referred to in footnote 1, supra, included a stipulation as to the policy itself. However, by its clear terms, the stipulation encompassed only the single issue of coverage.

      .The parties did not stipulate that the jury trial shall be as to certain issues only, and the existence and amount of policy limits are issues which are triable by a jury. La.C.C.P. arts. 1733, 1735. Moreover, Allstate did not attempt to introduce evidence of the policy limit for separate consideration by the judge or request his separate adjudication of the issue.


author: BLANCHE, Justice. DIXON, Chief Justice CALOGERO, Justice,

text:
    COLONIAL BANK v. MARINA SEAFOOD MARKET, INC., et al.
    No. 82-C-1243.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Concurring Opinion Feb. 9, 1983.
    Rehearing Denied Feb. 11, 1983.
    Robert A. Mathis, Newman & Drolla, New Orleans, for applicant.

      Thomas J. Toranto, Jr., New Orleans, for respondents.
   BLANCHE, Justice.

In this ease, we are asked to determine whether a collateral mortgage is invalid because neither the hand note nor the collateral mortgage note were ever executed by the purported maker. Our original purpose in granting writs was to determine the validity of a collateral mortgage executed by a mortgagor to secure a true and existing debt where it appeared that the mortgagor had inadvertently failed to execute the collateral mortgage note. We do not reach that issue because we find, as did the trial court, that the mortgagor never intended that the mortgage secure any existing debt.

This suit was occasioned by the following circumstances: Colonial Bank, the plaintiff, filed a petition in executory process against Marina Seafood Market and various other defendants to collect on a $136,745 hand note allegedly secured by the pledge of a $75,000 collateral mortgage note, of which Colonial was the holder. The collateral mortgage note was secured by a collateral mortgage allegedly executed by the defendants on March 30,1979. The note had been paraphed “ne varietur” for identification with the mortgage.

On October 8, 1980, Dolorerdeen Pomes and Philip Robin, two of the defendants and purported co-makers of the hand note and collateral mortgage note, respectively, sought to enjoin the seizure and sale of their homes under the executory proceedings brought by the plaintiff. Their petition alleged that the signatures appearing on the notes were not theirs. A preliminary injunction was issued to arrest the proceedings. Subsequently, Colonial amended its petition to convert the proceeding to one via ordinaria and asked that the court recognize the validity of its mortgage in the amount of $75,000 over the residential home of only one of the defendants, Philip Robin.

The trial court rendered judgment in favor of the defendant, holding that the collateral mortgage over his property was void. The court found that the collateral mortgage note had never in fact been signed by Philip Robin nor had he authorized anyone to sign it for him. The trial court reasoned that the mortgage was an obligation accessory to the principal obligation, and since the principal obligation was nonexistent, the mortgage was unenforceable. The court of appeal, 413 So.2d 1001 affirmed. We agree with the lower courts that the collateral mortgage is invalid. In our opinion, Colonial never established that Philip Robin had executed any note to establish the existence of any debt which could be secured by the mortgage. The accessory obligation, the mortgage, depends for its enforceability on the existence of a valid principal obligation. Since there is no principal obligation, the accessory obligation is unenforceable. Accordingly, we affirm.

The defendant testified that he did sign the collateral mortgage dated March 30, 1979. However, he believed the document to be a release granting to Bertrand Pomes and Ronnie Tardo the right to use his oyster properties during the off-season. Apparently, Pomes and Tardo, the owners of Marina Seafood Market, wanted these rights because “this would be a good piece of property ... so the bank would loan them ‘X’ amount of dollars.” All evidence indicates that Robin believed the collateral mortgage to be the document effecting that transaction for Pomes and Tardo.

The defendant unequivocally denied that the signature on the $75,000 collateral mortgage note was his and asserted that he never intended to be bound for the payment of such a sum at the penalty of losing his home. Additionally, he never received any of the proceeds and never executed or guaranteed the hand note for $136,745, the default of which precipitated this lawsuit. Handwriting specimens entered into the record showed that signatures known to be those of the defendant did not match that alleged to be his signature on the collateral mortgage note. A handwriting expert testified that, in his opinion, the signature on the collateral mortgage note was not that of Philip Robin.

Further, the great weight of the evidence indicates that the defendant had absolutely nothing to do with the corporate defendant in this action, Marina Market Seafood, Inc., the principal maker of the hand note. Despite the claims of Colonial, it was never established that the defendant owned any shares of Marina Seafood. The testimony of Bertrand Pomes indicated that the defendant never intended to mortgage his home to secure the loan to the company. Robin only intended to help Pomes and Tardo obtain a loan from Colonial for oyster boats by leasing to them his oyster beds. It was never clearly established whether the defendant had prepared a disclosure statement for Colonial; however, it was clearly established that the defendant did not sign as guarantor on the hand note, the proceeds of which were ultimately used to procure the boats for Marina Seafood.

In sum, Colonial has failed to prove the existence of a principal obligation owed by the defendant, Philip Robin. No person may be held liable on a negotiable instrument unless his signature appears thereon. LSA-R.S. 10:3-401, 3-404; cf. Personal Finance, Inc. v. Simms, 123 So.2d 646 (La.App. 1st Cir.1961). Since the evidence was uncontroverted that the defendant did not sign the collateral mortgage note or empower anyone to do so for him, he owed no obligation. LSA-R.S. 10:3-403; Associates Financial Services of America, Inc. v. Lennix, 308 So.2d 878 (La.App. 4th Cir.1975). Colonial did not establish that Robin ratified the forgery of his signature, and we find that the defendant established the fraud by a preponderance of the evidence. LSA-R.S. 10:3-404; United Credit Plan of New Orleans, Inc. v. Franklin, 221 So.2d 334 (La.App. 4th Cir.1969). We find unpersuasive the argument of Colonial that La.Civ.Code art. 3299 renders the mortgage valid even if the principal obligation is declared null because the defendant gave the mortgage for the benefit of the principal debtor, Marina Seafood. All evidence indicates that Robin had no intention of mortgaging his home to secure the debt for the benefit of Pomes, Tardo, and/or Marina Seafood.

Therefore, since there exists no principal obligation owed by the defendant, the accessory obligation, the mortgage, must be invalid and unenforceable. La.Civ.Code arts. 3284, 3285; Thrift Funds Canal, Inc., v. Foy, 261 La. 573, 260 So.2d 628 (1972); see generally Nathan, Collateral Mortgage, 33 La.L.Rev. 497 (1973). The accessory obligation created by the act of mortgage cannot serve as a foundation for a demand separate and distinct from the principal obligation. Li Rochi v. Keen, 242 La. Ill, 134 So.2d 893 (1961).

DECREE

For the foregoing reasons, the judgments of the lower courts in favor of the defendant, Philip Robin, declaring invalid the collateral mortgage over his property are affirmed.

AFFIRMED.

LEMMON, J., dissents.

DIXON, C.J., dissents with reasons.

DENNIS, J., dissents for the reasons assigned by DIXON, C.J.

CALOGERO, J., concurs with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

This writ was granted to determine whether the mortgage on Robin’s home was a valid mortgage to secure the debt of a third person. C.C. 3295-3299. Robin admitted his signature on the mortgage, but claimed that he was mistaken as to the character of the document; nevertheless, he said he knew the document would help his friends obtain a loan.

CALOGERO, Justice,

concurring.

I concur in the majority opinion since'it was not established that Robin’s intention was to secure the debt of a third party. It is well settled that one may execute a mortgage to secure the debt of a third party. La.C.C. arts. 3295-3299. Thus, the absence of the mortgagor’s signature from the note representing the indebtedness is not always fatal to the validity of the mortgage. However, in the instant case, the mortgage, which Robin signed, shows no such intention. To the contrary, the mortgage specifically provides that it was intended to secure a note executed by Robin. Since Robin did not sign that note, the majority is correct in its conclusion that there was no principal obligation owed by the defendant to which the accessory obligation might attach. For these reasons, I concur.

      . Art. 3299. Mortgage for debt of third person, absolute or relative nullity of principal obligation.
      Although the nullity of the principal obligation includes that of the mortgage, that is to be understood, with respect to a person giving a mortgage for another, only insofar as the principal obligation is rescinded by an absolute nullity; for if the principal debtor has only obtained a recission by a plea merely personal, such as minority the mortgage given for him by a third person is not less valid and shall have its full and entire effect.


author: DIXON, Chief Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Dinty Warmington WHITING.
    No. 82-B-0089.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Thomas 0. Collins, Jr., Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick E. Inabett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Phillippi P. St. Pee, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Jr., Natchitoches, Richard A. Deas, New Orleans, for relator.
    Thomas B. Wheeler, New Orleans, for Dinty Warmington Whiting.
   DIXON, Chief Justice.

The basis of these disciplinary proceedings against Dinty Warmington Whiting is his conviction of violations of Title 18, Sections 2, 1343 and 371 of the United States Code (mail fraud) in the United States District Court for the Southern District of New York on March 30, 1961. Respondent was sentenced to serve four years and seven months on each of four counts, to run concurrently. He completed his sentence through a combination of time served in federal penal institutions and time on parole.

As the respondent was not a resident of this state at the time of his crime and had had only a brief Louisiana practice, the conviction did not come to the attention of the Louisiana State Bar Association until 1972. On October 3,1972 the Committee on Professional Responsibility filed with this court a “Motion and Order for Suspension from the Practice of Law.” This court’s order issued on October 4, 1972 suspending Dinty Warmington Whiting from the practice of law and ordering the Committee on Professional Responsibility to proceed with necessary disciplinary proceedings.

A petition for disciplinary aetion was filed by the Committee on Professional Responsibility on February 20, 1974, but was never served on the respondent; he could not be located by the committee.

These proceedings lay dormant until Whiting, for personal and business reasons, decided to return permanently to Louisiana with hopes of reviving a law book publishing company whose operations had been suspended after the publication of its first volume. In connection with his return to Louisiana, respondent engaged the services of an attorney in this matter and an answer to the committee’s petition was filed on January 13, 1982. A commissioner was appointed and a hearing was conducted. A report was prepared containing the commissioner’s findings of fact and conclusions of law, including specifically the commissioner’s findings that the crime of which the respondent was convicted is a serious crime and warrants discipline. It was the commissioner’s recommendation that the respondent be disbarred.

The committee filed a concurrence to the report of the commissioner agreeing with the commissioner’s findings, conclusions and recommendation. The respondent has not filed any exceptions to the report.

The commissioner’s report indicates that respondent was found guilty of “unlawfully, willfully and knowingly transmitting and causing to be transmitted by means of wire and radio in foreign commerce certain writings, signals and sounds, to wit, cables, for the purpose of executing a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses, representations and promises from the Bank of America and the Banco do Brasil and conspiracy so to do.” Respondent’s appeal and application for writs were unsuccessful, and his conviction became final. The commissioner found that the felony violations of which the respondent was convicted reflected on respondent’s moral fitness to practice law.

The report also states that no mitigating circumstances were offered in respondent’s favor. To the contrary, the commissioner found that Whiting was again (in 1971) indicted for mail fraud and conspiracy to sell unregistered stock, but was granted immunity. Whiting’s own testimony concerning his activities since does not inspire confidence in his moral fitness to practice law. The delay in these proceedings has been caused by his own conduct.

A lawyer owes a professional duty to refrain from illegal conduct involving moral turpitude, conduct involving dishonesty, fraud, deceit, or misrepresentations, conduct that is prejudicial to the administration of justice, and conduct that adversely reflects on his fitness to practice law. DR l-102(A)(3)-(6). A serious breach of law warrants discipline when it indicates that the lawyer is unable to discharge his professional duties, Louisiana State Bar Association v. O’Halloran, 412 So.2d 523 (La.1982); Louisiana State Bar Association v. Levy, 400 So.2d 1355 (La.1981); Louisiana State Bar Association v. Bensabat, 378 So.2d 380 (La.1979), since the purpose of lawyer discipline is to protect the public by maintaining appropriate standards of professional conduct. Louisiana State Bar Association v. O’Halloran, supra; Louisiana State Bar Association v. Levy, supra. The discipline to be imposed in a particular case depends on the seriousness of the offense, the circumstances of the offense and the extent of aggravating and mitigating circumstances. Louisiana State Bar Association v. O’Halloran, supra; Louisiana State Bar Association v. Bensabat, supra.

The Committee on Professional Responsibility introduced into the record of these proceedings the certified copy of the certificate of conviction. The respondent’s answer in this proceeding admits the conviction and relates in detail the circumstances of the crime with a view to showing that the acts of which he was convicted are not connotative of a moral unfitness to practice law. The essence of respondent’s argument is that he had no knowledge of the scheme to defraud. Since this is inconsistent with an essential element of the crime, respondent may not seek a redeter-mination of this issue in these proceedings. Louisiana State Bar Association v. Hamilton, 343 So.2d 985, 991-92 (La.), cert. den. 434 U.S. 835, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977); Articles of Incorporation of the Louisiana State Bar Association, Art. 15, Section 8, Paragraphs 7(c) and 7(d).

Whiting was convicted of mail fraud, a serious crime involving moral turpitude, along with five codefendants, with respondent’s sentence being the most severe given. He was also convicted on each of the four counts charged. This court has previously ordered disbarment in proceedings based on convictions involving mail fraud. See Louisiana State Bar Association v. Tunis, 352 So.2d 623 (La.1977); Louisiana State Bar Association v. Hamilton, supra; Louisiana State Bar Association v. Hennigan, 340 So.2d 264 (La.1976), appeal dismissed, 430 U.S. 925, 97 S.Ct. 1540, 51 L.Ed.2d 769 (1977); Louisiana State Bar Association v. Shaheen, 338 So.2d 1347 (La.1976); Louisiana State Bar Association v. Loridans, 338 So.2d 1338 (La.1976). Contra, Louisiana State Bar Association v. Heymann, 405 So.2d 826 (La.1981) (substantial mitigating circumstance of compulsive gambling).

Respondent suggests that the conviction underlying these proceedings was over twenty years ago with the release from sentence being over sixteen years ago. Further, respondent has been suspended from the practice of law for the past ten years. While these factors could certainly be considered among mitigating circumstances, in this case the respondent’s activities and involvements since his conviction confirm that he is morally unfit to enjoy the privilege of practicing law. Disbarment is required in order to protect the public and the administration of justice.

Accordingly, for the reasons assigned, it is ordered, adjudged and decreed that the name of Dinty Warmington Whiting be stricken from the roll of attorneys and his license to practice law in the State of Louisiana be revoked effective October 4, 1972, the date of this court’s order suspending him from the practice of law.


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

text:
    STATE of Louisiana v. Larry WISE.
    No. 82-KA-0350.
    Supreme Court of Louisiana.
    Jan. 10, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., for plaintiff-appellee.
    Steven L. Porter, Colvin, Hunter, Brown, Plummer & Means, Mansfield, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Larry Wise was charged by bill of information with aggravated burglary in violation of R.S. 14:60. After a preliminary hearing the prosecutor agreed to accept a plea of guilty to a lesser offense, and the defendant withdrew his plea of not guilty and entered a plea of guilty to simple burglary of an inhabited dwelling. R.S. 14:62.2. The trial court ordered a presen-tence report, and on May 27,1981 sentenced the defendant to three years at hard labor without benefit of parole, probation or suspension of sentence.

The trial court based its sentence upon the factual considerations that the defendant (1) appeared to be the principal actor in the crime; (2) took a firearm from the residence; (3) fled from apprehension by going to the State of Texas; and (4) remained in Texas for five months. Defendant filed for post conviction relief on the ground that his sentence of three years without benefit of parole, probation or suspension of sentence was illegal.

R.S. 14:62.2 provides a minimum sentence of one year at hard labor without benefit of parole, probation or suspension of sentence with a maximum sentence of twelve years at hard labor. At the hearing on November 24, 1981 the trial court vacated the original sentence and resentenced the defendant to six years at hard labor, the first year to be served without benefit of parole, probation or suspension of sentence. Defendant now appeals his sentence urging three assignments of error.

On January 26, 1981 Larry Wise and James Morrison broke into the isolated home of Jack Gamble. While the burglary was in progress, Gamble arrived home and observed the two intruders attempting to escape out of the back of his home. Gamble pursued the two men with his pistol, apprehended Morrison, and returned with him to his home. Defendant escaped with a .22 caliber rifle, but dropped it while running through the woods near Gamble’s home. Morrison told Gamble the name of the other man and Gamble called the police with this information. Several items in his home had been set aside in preparation to be carried away, but they were left behind when the men fled in haste. Five months later defendant surrendered himself for arrest after a fugitive warrant had been issued.

Assignment of Error No. 1

Defendant contends that the trial court on resentencing erred when it imposed an increased sentence of six years at hard labor. Defendant argues that the trial court did not articulate sufficient facts to justify the imposition of a greater sentence upon resentencing, and that the trial court’s reliance on the previously enumerated reasons for sentencing fails to support the increase. This, the defendant contends, is in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

During the resentencing hearing the trial court found that there had been no plea bargain as to any particular sentence originally, and held that all the defendant was entitled to on resentencing was a legal sentence. The trial court did not provide any new reasons for imposing an increased sentence, but merely relied upon the reasons previously stated when the original illegal sentence was imposed.

North Carolina v. Pearce, supra, held that although there is no absolute constitutional bar to the imposition of a more severe sentence upon retrial, the due process clause of the Fourteenth Amendment does have an impact when a greater sentence is given. 395 U.S. at 723-725, 89 S.Ct. at 2079-2080. The major concern of the United States Supreme Court in that case was avoiding the possibility of vindictiveness upon the defendant for a successful attack of his conviction or sentence upon retrial or resen-tencing. The due process clause of the Fourteenth Amendment was found by the United States Supreme Court to require that defendants be free from even the suspicion of a retaliatory motive, for “... the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to ‘chill the exercise of basic constitutional rights.’ ” 395 U.S. at 724, 89 S.Ct. at 2080. To avoid the possibility of this vindictive motive the Court established the following device, which it felt was mandated by the Fourteenth Amendment:

“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” North Carolina v. Pearce, supra 395 U.S. at 726, 89 S.Ct. at 2081.

Although the six year sentence was apparently imposed to subject the defendant to the same amount of time he might have actually served under the initial sentence, the entire six year sentence is still a real possibility. It appears that a greater sentence was imposed without new and additional justifications required by North Carolina v. Pearce. The sentence must be vacated and the case must be remanded for resentencing, for to do otherwise would penalize the defendant for having successfully exercised his right of review. In Re Clyde D. Merritt, 391 So.2d 440, 445 (La.1980); State v. Cook, 372 So.2d 1202, 1205 (La. 1979). The record contains no evidence of defendant’s behavior since the original sentencing on May 27, 1981 which would justify the increased sentence following the granting of his application for post conviction relief. State v. Franks, 391 So.2d 1133, 1137 (La.1980), U.S. cert. den. 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818 (1981). Upon resentencing, the trial court must, in accordance with North Carolina v. Pearce, supra, give the defendant credit for the time he has already served.

We need not review Assignment of Error No. 2, which complains that the six year sentence is excessive, since it will be vacated.

There is no merit to Assignment of Error No. 3, which complains of ineffective assistance of counsel. The record does not support the claim. Nor is there merit to defendant’s claim that simple burglary of an inhabited dwelling is not a lesser offense included in aggravated burglary. Further, defendant’s plea of guilty is not deficient, and there is no error in the denial of defendant’s request to vacate the plea.

For the reasons discussed above, the sentence is vacated and the case is remanded for resentencing in accordance with this opinion.

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

LEMMON, Justice,

dissenting.

I agree that a trial judge cannot resen-tence a defendant to a more severe penalty than the original sentence without demonstrating that the new sentence is not imposed in retaliation for the defendant’s exercise of the constitutional right of review. However, the trial judge in this case clearly was not being vindictive because defendant sought postconviction review of the original sentence. The judge simply attempted in good faith to impose a new sentence of approximately equal severity, but without the illegal limitation on parole eligibility. I would therefore affirm the sentence.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The trial judge originally believed that punishment under Article 62.2 of the Criminal Code provided for “a mandatory hard labor sentence without benefit of parole, probation or suspension of sentence for up to twelve (12) years.” A reading of the sentencing record reveals that the judge, because of the aggravating circumstances surrounding commission of the offense, unquestionably wanted the defendant to serve three years in prison without benefit of parole, probation or suspension of sentence.

On resentencing, the defendant failed to show any vindictiveness or retaliation on the part of the trial judge. In my opinion, the sentence is no more severe than the first because it would be possible for the defendant to be paroled in two years if he were a good prisoner. If he stayed “straight” thereafter, he would not have to worry about a parole revocation.

      . It is doubtful that the second sentence is more severe than the first. Under the second sentence defendant will be eligible for parole in 24 months, while under the first sentence defendant will be eligible for release with good time in 24 months. Since defendant is a first offender, there is a substantial probability that he will receive approval either of release on parole or good time release. While the majority points out that defendant might have to serve as much as 72 months, he will not probably have to do so unless his future behavior warrants parole revocation, which is a factor entirely in defendant’s control.


author: CALOGERO, Justice. MARCUS, Justice

text:
    AETNA CASUALTY AND SURETY COMPANY v. Jeanne S. NERO, et al. and Christopher KNIGHTEN and Kenneth Knighten v. Jeanne S. NERO, et al.
    No. 82-C-1431.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Catherine Estopinal, Anne Goodman, Billy J. Guin, Jr., Asst. Dist. Attys., for plaintiffs-appellees.
    Roland V. McKneely, Jr., Bossier City, for defendant-appellant.
   CALOGERO, Justice.

In these lawsuits arising out of a motor vehicle-pedestrian collision, the trial judge at the close of plaintiffs’ case dismissed with prejudice the claims against the defendant vehicle operator. On appeal by the deceased victim’s two purported illegitimate children and an uninsured motorist insurer subrogated to two other children’s wrongful death claims, the Court of Appeal, 415 So.2d 390 (La.1982), reversed the trial court ruling, rendered a $6,000.00 judgment in favor of the UM carrier against the defendant vehicle operator, and remanded the claim of the two illegitimates to the trial court.

We granted writs on application of the defendant motor vehicle operator, one Jeanne S. Nero, impressed by her contentions that the trial judge correctly decided that she was not liable, and that in any event the Court of Appeal should not have rendered judgment against her on appeal (upon reviewing the trial judge’s ruling on a motion to dismiss under La.C.C.P. art. 1810(B)), when she had not been afforded an opportunity to present defense evidence.

Our resolution of the case obviates the need to address the latter meritorious contention. As to defendant’s principal assignment of error, we agree that the Court of Appeal erred in reversing the trial court ruling. The trial judge properly dismissed plaintiff’s action upon concluding that “upon the facts and law, the plaintiff ha[d] shown no right to relief.” La.C.Cr.P. art. 1810(B).

In the lawsuits brought by the subrogat-ed UM carrier, Aetna Casualty and Surety Company, and the two illegitimate children of the deceased victim, Christopher and Kenneth Knighten, there were variously included as defendants and/or third party defendants additional parties, namely: Arthur Rankin as the proprietor of the bar from which the victim left moments before the accident; Gulf States Utilities Company, City of Baton Rouge and Parish of East Baton Rouge as the owners and/or custodians of two inoperative street lights. These parties, like Jeanne Nero, were exonerated in the district court. Their judgments of dismissal, however, went unchallenged in the Court of Appeal, and the issues presented as related to these defendants have passed out of the case.

From testimony at trial the following facts emerged. On Sunday, January 1, 1978, at approximately 8:00 p.m. Mack Knighten, a fifty-four year old male pedestrian wearing dark clothing was struck and killed by an automobile in about the 4800 block of Gus Young Avenue, a four lane undivided street in Baton Rouge, Louisiana. The pedestrian was intoxicated at the time of the accident. He had entered Arthur’s Lounge on Gus Young Avenue prior to 5:00 p.m. in an intoxicated condition. After sleeping slumped over one of the tables for several hours, Knighten left the lounge, still intoxicated, but under his own power, and was subsequently hit by the automobile driven by Ms. Nero. The street was level and dry; it was a clear, dark January night. Two street lights in the block in which the accident occurred were inoperative at the time; the accident did not occur at a crosswalk. The driver of the automobile, Jeanne Nero, a South Central Bell operator on her way home from work, was completely sober. She was driving at a speed of about 25 m.p.h. in a 35 m.p.h. zone in the outside lane. Right before the accident a car passed Ms. Nero on the left side. She did not see Knighten; she knew of his presence only upon impact. Her car was functioning properly and the headlights were on, but she “didn’t know where he came from.” She did not see Knighten before she hit him; her car left fifty feet of skid marks in a straight line from the point of the collision only. Mr. Knighten seemed to bounce off the hood in the center of the car. There were no eyewitnesses; it was not clear whether or not there had been cars parked to the right next to the curb. It could not be determined how Mr. Knighten made his way into the path of Ms. Nero’s ear.

After considering all the facts as presented in the plaintiff’s case, the trial judge stated in his oral reasons for judgment that he felt that there had not been any evidence to prove Ms. Nero guilty of any negligence in the operation of her vehicle. The judge was influenced by factual and legal considerations. Factually he noted: Ms. Nero was driving at 25 m.p.h.; she did not see the victim until impact; it could not even be determined from which direction the victim tried to cross the street; the victim, Mr. Knighten, was not in a crosswalk; the victim was intoxicated. The trial judge discounted the plaintiff’s contention that Baumgartner v. State Farm Mutual Insurance Company, 356 So.2d 400 (La. 1978), should control and prompt denial of Ms. Nero’s motion to dismiss. Correctly interpreting Baumgartner as only a bar to the use of contributory negligence in accidents involving a pedestrian and a motor vehicle, the trial court accurately noted that Baumgartner does not impose absolute liability on the driver of the vehicle. The court required proof of negligence on the part of Ms. Nero, proof that the judge did not find in the plaintiff’s presentation of the evidence.

The Court of Appeal reversed, finding in the facts negligence on the part of the driver of the car. The court evidently concluded that Ms. Nero was inattentive, perhaps diverted by a passing motorist, and that she was familiar with the area and the presence of drunks. The Court of Appeal also seems to have misplaced reliance upon Baumgartner. On the facts the record does not support that Ms. Nero momentarily moved her attention away from the roadway to the passing car. At trial on cross-examination she stated that a car passed her on the left immediately before the accident, but she clearly testified that her attention had not been diverted, that she “was looking ahead trying to watch, you know — look ahead.”

There are other facts favorable to the defendant. Ms. Nero was sober; her car was functioning properly; she was driving well within the speed limit. The night was dark; the inoperative street lights made the location even darker; the black male victim wore dark clothing. Even the investigating police officer testified that he could not see the pedestrian upon arrival at the accident scene because of the darkness. The pedestrian was crossing in the middle of a block, not at an intersection. Ms. Nero did not see the pedestrian until impact; she had no opportunity to stop.

The Court of Appeal appears to have misapplied Baumgartner in the instant case. In Baumgartner this Court stated that in motor vehicle/pedestrian collisions, contributory negligence is not available as a defense and thus the last clear chance doctrine, used to avoid the harsh results of contributory negligence, is not at issue. That ruling was designed to compensate for the lack of mutuality of risks involved between motor vehicles and pedestrians. However, we did not impose absolute liability on a driver of an automobile simply when there is a collision between a car and a person. Nor did we say that the motorist is to be held liable irrespective of fault on his part. In fact, in Baumgartner we clearly stated “that a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault.” 356 So.2d at 406. The operator of a motor vehicle must therefore be at fault in order to be held liable. This requisite was not eliminated by Baumgartner.

Under the facts in Baumgartner the driver could and should have discovered the pedestrian’s danger soon enough to avoid hitting him. Factually the instant case is distinguishable. In Baumgartner the pedestrian was crossing Canal Street in a marked crosswalk at a corner on a well-lighted street. The driver saw the pedestrian, applied her brakes in an attempt to stop, and sounded the horn. Experts testified that the victim could have been seen by a motorist at about 200 feet distance; thus the driver could have avoided the accident by slowing down. This Court clearly emphasized the importance of the position of the pedestrian in a crosswalk and the fact that the driver in that case could have avoided the injury to the pedestrian by exercising care which would have been reasonable under the circumstances. The Court of Appeal erred in relying upon Baumgartner under these facts.

As the trial court correctly noted, in order to recover, the plaintiff must prove the negligence of the driver. The trial judge found no fault proven after hearing all the plaintiffs evidence. We agree with him. In any event, the trial judge was not clearly wrong. Canter v. Koehring, 283 So.2d 716 (La.1973).

Decree

For the foregoing reasons the judgment of the Court of Appeal is reversed ánd the judgment of the district court in all respects is reinstated.

JUDGMENT OF COURT OF APPEAL REVERSED; JUDGMENT OF TRIAL COURT REINSTATED.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I agree with the result but disagree with the majority’s interpretation of Baumgartner v. State Farm Mutual Insurance Company, 356 So.2d 400 (La.1978). Accordingly, I respectfully concur.

      . The accident gave rise to two lawsuits: one was initiated by Aetna, the UM carrier which paid $6,000.00 to Richard and Mack Knighten, Jr., two of the victim’s children; the other suit was brought by two purported illegitimate children, Christopher and Kenneth Knighten, not compensated by Aetna, who sought $104,-500.00 in damages. The parties involved in the suit by the Knighten children stipulated that they would be bound by the findings of fact with respect to liability in the Aetna case. In both actions the plaintiffs were thus bound by the trial court’s determination that Ms. Nero was not liable.

      . The remand was prompted by the fact that the only issue involved in the illegitimate children’s case which had been determined in the district court was liability. Since this issue was resolved in the Court of Appeal favorably to these plaintiffs, the case was remanded for the resolution of all additional issues, including quantum.

      . Procedurally, plaintiffs appealed from the granting of defendants’ motions for dismissal after the close of the plaintiff’s case. La.C.C.P. art. 1810(B) clearly states that “any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief” (emphasis provided). In the event that the motion is granted by the trial court and later reversed by the Court of Appeal, the defendant who made the motion has certainly not waived her right to present evidence in her defense. Had the Court of Appeal correctly found the trial court’s granting of the motion erroneous, they should have remanded the case in order to allow the defendant, Ms. Nero, to present her defense.

      . The other defendants were brought into the suit under various theories. The claim against Arthur Rankin d/b/a Arthur’s Lounge involved an alleged violation of La.R.S. 26:88(2), which prohibits a retail dealer from selling or serving alcoholic beverages to any intoxicated person. The claims against Gulf States Utilities Co., Parish of East Baton Rouge, and City of Baton Rouge stemmed from two inoperative street lights near the intersection of the accident which allegedly contributed to the accident.

      . The chemical analysis of the decedent’s blood indicated that he had a blood-alcohol level of .47% by weight at his death.

      . There was conflicting testimony as to whether Knighten was awakened and asked to leave or whether he awoke and left by himself. Both accounts agree that Knighten walked out of the lounge under his own power.

      . This Court has never held that a driver is strictly liable in all automobile-pedestrian accidents. In discussing such accidents, the U.S. Fifth Circuit Court of Appeals in Marcum v. United States, 621 F.2d 142, 145 (5th Cir.1980), stated: “Louisiana law is clear that for a pedestrian to recover against a motorist there must be fault on the part of, the motorist which brings about the injury.” See also Shank v. Government Employees Ins. Co., 390 So.2d 903 (La.App. 3rd Cir.1980), writ refused 396 So.2d 901-02 (La.1981); Osby v. Harris, 375 So.2d 181 (La.App.2d Cir.1979); Mathews v. Allstate Ins. Co., 370 So.2d 1331 (La.App.2d Cir.1979), writ refused 373 So.2d 526-27 (La.1979).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Ronson Joe NOBLE.
    No. 81-KA-2089.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., for plaintiff-appellee.
    C. Allen Bradley, David L. Wallace, Evans, Bradley & Wallace, DeRidder, for defendant-appellant.
   MARCUS, Justice.

Ronson Joe Noble was indicted by the grand jury for second degree murder in violation of La.R.S. 14:30.1. At arraignment, defendant entered a plea of not guilty and not guilty by reason of insanity. After trial by jury, defendant was found guilty as charged and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in allowing the state on redirect examination to introduce in evidence the shotgun used in the commission of the crime. He argues that he suffered prejudice as a result thereof.

On direct examination, Deputy Diane Childress testified that, after the body of the victim had been removed from the scene of the crime, she and another officer found a shotgun in a rack in one of the back bedrooms of the house. The gun was photographed in its original position, removed from the rack and taken to the police station. On cross-examination, defendant questioned Childress as to where she had observed the gun and if it was on the rack. He also questioned her about fingerprints on the gun. She replied that she had removed prints but they were only smudges. Prior to trial, the state and defendant had agreed that Childress could bring the gun into the courtroom. She held the gun in plain view of the jury during her entire testimony. On redirect, the state asked the witness whether she had with her the gun taken from defendant’s house. Defendant objected on the ground that the inquiry was beyond the scope of cross-examination. The trial judge overruled the objection. The gun was received in evidence and displayed to the jury. No further questions were asked by the state. Defendant was then permitted to recross the witness but chose to ask no questions with regard to the gun.

La.R.S. 15:281 provides:

The redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided that the opportunity be not denied to recross on the new matter brought out on the redirect. (Emphasis added.)

The state’s inquiry and subsequent introduction in evidence of the shotgun on redirect examination would appear to be within the scope of defendant’s cross-examination. In any event, we find no abuse of discretion by the trial judge. Defendant was permitted to recross-examine the witness as to the matter in question. Nor do we find that defendant suffered any prejudice. State v. Eathorn, 395 So.2d 783 (La.1981).

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO.' 3

Defendant contends the trial judge erred in denying his motion for a new trial on the ground that the state failed to introduce any evidence of specific intent, an essential element of the crime of second degree murder.

On review of the sufficiency of the evidence to support a criminal conviction, it must be determined whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Buxton, 416 So.2d 71 (La.1982). Our review of the record reveals the following facts.

On November 27,1979, defendant left his home early in the morning. When he returned, his two sisters were seated in the living room watching television along with the victim, Donald Ray Monroe. Upon entering the house, defendant asked his sisters what they had cooked for the day. When they replied nothing, he appeared to be upset and “hostile.” Defendant watched television for a short time, then went outside and ran around the house two or three times. Defendant repeated this act several times and then went into his parents’ bedroom. He removed from a gun rack a shotgun which his father had unloaded pri- or to storage several months earlier. He then returned to the living room and shot and killed Monroe. Neither of defendant’s sisters saw him actually shoot the victim. However, one of them testified that after the shooting she observed defendant holding the gun close to the victim’s neck. Defendant returned to the bedroom and placed the shotgun back in the gun rack. After his sisters fled the house, defendant kicked out a window in the living room, left the house and rode his sister’s bicycle to a neighborhood grocery store about seven blocks away. Speaking in a normal manner, he told the lady who ran the store, Mrs. Handy, that someone had been shot. He then sat down and smoked a cigarette. When asked, defendant told her that he had shot the victim. When asked why, he said, “I don’t know.” Mrs. Handy sent someone to find out what had happened. When she was informed that the victim was dead, she told defendant that the police were at his house and he should return home. Defendant went outside the store, smoked another cigarette, and then rode off on the bicycle. At no time did defendant request help for the victim. He was apprehended by the police several blocks away and was taken to the parish jail. He appeared to the officers as being calm and collected.

Defendant gave a statement to the police which can be summarized as follows: Defendant went into his parents’ bedroom and saw the gun. He took it off the rack and started “fooling around” with it. He broke the gun down and did not see anything in the barrel. He knew that the shells for the gun were located in a drawer by the bed, but he did not load the gun. He started walking toward the living room and was playing with the gun waving it around trying to scare the victim and the gun went off. He then returned to the bedroom and put the gun back on the rack. At this time he looked in the drawer and saw some shells. He stated that he had previously been looking in the drawer for a photo album. He told the victim he was going for help, kicked the living room window out and rode off on his bicycle to the store.

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La.R.S. 14:30.1(1). Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). Although intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction. La. R.S. 15:445.

In the instant case, defendant’s sister testified that after the gun went off she looked up and defendant was holding the gun to the victim’s neck. It can be inferred from the fact that defendant shot the victim in the head from close range that he actively desired his death to follow. State v. Boyer, 406 So.2d 143 (La.1981). Additionally, she testified that when defendant returned home and asked what they had cooked to eat he appeared to be upset and was hostile. Defendant’s father testified that the gun was unloaded when he placed it on the gun rack several months before the shooting. The police discovered that the drawer where the shells were kept was open immediately after the shooting. Finally, defendant left the scene and went to a local grocery. At no time did he ever request help for the victim.

Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have determined that defendant had the specific intent to kill or inflict great bodily harm. Hence, the trial judge did not err in denying defendant’s motion for a new trial on this ground.

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant contends the trial judge erred in denying his motion for a new trial in finding that he failed to establish the defense of insanity by a preponderance of the evidence and in finding defendant guilty beyond a reasonable doubt.

At arraignment, defendant entered a plea of not guilty and not guilty by reason of insanity. Thereafter, pursuant to La. Code Crim.P. art. 644, a sanity commission was appointed by the trial judge to determine whether defendant had the mental capacity to proceed as well as his mental condition at the time of the offense. Upon receipt of the reports of the members of the commission, a contradictory hearing was held in which it was determined that defendant lacked the mental capacity to proceed. The trial judge ordered defendant committed to the Feliciana Forensic Facility to receive treatment. He was subsequently returned to the parish jail six months later. He was re-examined by the sanity commission and at a later contradictory hearing, it was determined that defendant had the capacity to proceed to trial.

At trial, defendant elicited the testimony of three doctors, Drs. Keith Nabours and Etienne R. Brown of the original sanity commission, and Dr. David S. Post, a practicing clinical psychologist who administered tests to defendant the night before the trial. Additionally, defendant introduced into evidence his medical records pri- or to the commission of the crime. All three of the doctors as well as defendant’s medical records indicated that defendant was schizophrenic, either a paranoid or undifferentiated chronic type. The testimony was generally to the effect that schizophrenia is a psychotic disorder characteristically marked by a retreat from reality. While not curable, it gets better or worse from time to time. Remission, meaning a lessening of the symptoms, can be brought about with medication sometimes to a point “approaching a normal state.” Dr. Brown noted that “about one percent of the population of the United States is schizophrenic or has schizophrenic tendencies but yet they are able to function.” None of the doctors testified that defendant’s mental condition at the time of the offense was such that he was incapable of distinguishing between right and wrong with reference to the conduct in question. Dr. Jiminez, a staff psychiatrist at the Feliciana Forensic Facility where defendant had been confined, testifying as a state rebuttal witness, stated that she had examined defendant while he was confined at the facility and as a member of a subsequent sanity commission. She diagnosed defendant as having a personality disorder of the antisocial type and that he was suffering from no major mental illness. She further testified that defendant did not suffer from any schizophrenic problem and that whatever action he does, he does it out of meanness and that he does not show any signs of being sorry for his actions.

A legal presumption exists that the defendant is sane and responsible for his actions. La.R.S. 15:432. The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence. La.Code Crim.P. art. 652. If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility. La.R.S. 14:14.

The evidence indicates that the defendant may have been ill both before and after the criminal act took place. However, defendant presented no evidence, neither lay nor professional, that he could not distinguish between right and wrong with reference to the shooting which took place, the standard for insanity in this state. On cross-examination, defense witness Dr. Nabours admitted that it was entirely possible that a person suffering from schizophrenia could distinguish right from wrong and that it would not be unusual for him to be able to do that. In addition to the expert testimony, the jury had the benefit of the lay testimony as to defendant’s actions and attitude both before and after the crime.

Viewing the evidence in the light most favorable to the prosecution, we conclude that defendant did not establish the affirmative defense of insanity by a preponderance of the evidence, and we find that any rational trier of fact could have found defendant guilty beyond a reasonable doubt. Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hathorn, 395 So.2d 783 (La.1981). Hence, the trial judge did not err in denying defendant’s motion for a new trial on this ground.

Assignments of Error Nos. 4 and 5 are without merit.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

      . Defendant has expressly abandoned Assignments of Error Nos. 2 and 6.

      . No finding was made by the commission as to defendant’s mental condition at the time of the offense,