author: SUMMERS, Chief Justice. TATE, J., CALOGERO, J.,

text:
    STATE of Louisiana v. Donald Lee DANIEL.
    No. 63515.
    Supreme Court of Louisiana.
    Sept. 4, 1979.

      George H. Tyson, Jr., Michael Ramsey, Houston, Tex., Robert F. DeJean, Sr., Opel-ousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Chief Justice.

The Grand Jury of St. Landry Parish charged that Donald Lee Daniel committed first degree murder of David Hargroder and Brenda Rash on April 30, 1976. La. Rev.Stat. 14:30. Subsequently the State filed an amended indictment charging Daniel with two counts of second degree murder under Section 30.1 of Title 14 of the Revised Statutes, which at the time, provided for specific intent killings. See Act 380 of 1975.

Daniel was tried by a jury, found guilty on both counts, and sentenced to imprisonment at hard labor for life on each count, without the benefit of parole, probation or suspension of sentence for forty years, the sentences to run concurrently.

Assignments 1, 2 and 3: These assignments are grouped for argument in brief and relate to alleged juror misconduct. The first assignment of error, which the defense brief characterizes as “by far the most prejudicial”, is based upon the fact that during the trial, while they were in the hall of the courthouse during a recess, two of the jurors, Walter Kimble and Jeff Bou-dreaux, were approached by Flossie Har-groder, a State witness who was the mother of David Hargroder, one of the victims. She asked Boudreaux if he knew her son. Boudreaux replied that he did not, at which time the victim’s mother “flashed” a photograph of the victim and said “this is him.” Both Kimble and Boudreaux were unable to avoid looking at the photograph, but walked away, at which time Flossie Hargro-der hastily returned the photograph to her purse.

On the basis of this encounter, and the assertion that neither Kimbel nor Bou-dreaux reported the incident tó the trial judge, although they had been admonished to report any such contact, and the fact that the photograph had not been introduced into evidence, the defense charges Kimble and Boudreaux with misconduct as jurors. As a result, the defense contends defendant was denied his constitutional right to a trial by a fair and impartial jury. Accordingly defendant moved for a new trial.

At the hearing on the motion Kimble testified that viewing the photograph had no effect on his judgment and that he only considered the evidence presented in court. He did acknowledge, however, that during the course of the trial he may have had short conversations with Flossie Hargroder in the hall near the courtroom. These conversations, however, were in the presence of many other people in the hall and did not pertain to the case.

Jeff Boudreaux corroborated Kimble’s version of the incident involving the photograph. He described it as a “school picture”, a bust photograph of the victim prior to his death.

It is noted that the jury in this case was not sequestered during the trial until they received the judge’s charge. La.Code Crim. Pro. art. 791. They were permitted to return home at night and to converse with others in the hall during recesses while the trial was in progress. They were admonished, however, not to talk to anyone about the case. Kimble and Boudreaux testified that they heeded this admonition, and there is no showing that there was any conversation with anyone about the case.

In his per curiam to this assignment the trial judge stated that the contacts between Kimble, Boudreaux and Flossie Hargroder were chance encounters of no moment. He did consider the exhibition of the photograph in a more serious light, concluding, however, that it worked no injustice to defendant and did not deny him a fair trial by an impartial jury. He based his conclusion on the fact that the photograph depicted the victim prior to his death and it was not gruesome; it was not of an evidentiary nature; the jury had no discretion in the punishment imposed in this case; the evidence of guilt was “extremely strong”; and Acadian people customarily preserve and exhibit photographs to revere their dead and console themselves. The trial judge was aware that Flossie Hargroder was in the habit of showing her son’s photograph, and he felt quite certain that she had “nothing other than an innocent intent in exhibiting it as she did.” These findings are consonant with the record in this case and the ruling of the trial judge is entitled to great weight.

Thus we have for consideration casual communications between a witness and two unsequestered jurors. In State v. Dotson, 260 La. 471, 256 So.2d 594 (1972), cert. denied 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173, this Court stated that communications between jurors and a witness in a criminal trial without a showing that the defendant was prejudiced furnishes no ground for upsetting a conviction. This was recognized as the majority rule and these authorities were cited to support the Court’s adherence to the rule. State v. Nails, 255 La. 1070, 234 So.2d 184 (1970); State v. Johnson, 149 La. 922, 90 So. 257 (1921); State v. Miles, 364 S.W.2d 532 (Mo.1963); 9 A.L.R.3d 1275, Prejudicial Effect, In Criminal Case, of Communications Between Witnesses and Jurors.

The rule that prejudice must be shown to upset a conviction because of juror misconduct was again restated in our decision in State v. Cooper, 334 So.2d 211 (La.1976).

Representative of defendant’s claim of prejudice is the statement that the display of the photograph by Flossie Hargroder had a “subtle, albeit substantial, effect . on Boudreaux and Kimble.” Another is that the frequency of contacts between the two jurors “indicates at least suspicious circumstances and probably a substantial bias on the part of the jurors.” There is no showing of prejudice in this record only the general and unsubstantiated assertions of the defense. Nor does the defense intimate that these encounters were motivated by a desire to prejudice the defendant by influencing the jurors’ verdict; to the contrary, defense counsel in brief disclaims such a contention. In these matters we do not deal in speculation and conjecture. Rules of law and facts are the best guarantee of fairness and justice for the accused and for the State.

In brief the defense argues that the failure of the juror Boudreaux to inform defense counsel on voir dire that he had a casual acquaintance with Flossie Hargroder demonstrates Boudreaux’s partiality.' Although Boudreaux’s alleged misconduct in this respect is not alleged as a ground for a new trial as required by Articles 851(4) and 855 of the Code of Criminal Procedure, the State meets the issue, citing State v. Hall, 255 La. 854, 233 So.2d 541 (1970), for the holding that where an accused relies upon the disqualification of a juror as a basis for a new trial, he must show he questioned the juror on voir dire examination concerning the subject and the juror failed to disclose the relevant facts. Such a showing is essential to satisfy the requirement of reasonable diligence contained in Article 851(4) which mandates a new trial when

“The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; . . . .”

While he was being cross-examined at the hearing on the motion for a new trial by defense counsel, Boudreaux admitted that he had been to Flossie’s place “off and on, a few times.” Counsel immediately challenged Boudreaux with his failure to disclose that fact in response to counsel’s inquiry on voir dire whether he knew Flossie Hargroder, one of the persons named on the State’s witness list, a list from which counsel read quickly. The juror explained, “. . .1 don’t know her you know. I mean I just know her because I’d stop in and get a beer. That’s it [on voir dire] you told us if we knew her real personally.” The confusion is cleared up when it is known that Flossie Hargroder was the proprietor of “Flossie’s Place”, a bar and lounge in the community which Boudreaux had patronized several times.

While Boudreaux’s explanation appears from the record to be a reasonable misunderstanding of defense counsel’s hurried probing of the State’s witness list, it is also obvious that a disclosure that he was acquainted with Flossie Hargroder would not ipso facto disqualify him from serving as a juror. The connection must be such that one might reasonably conclude that it would influence the juror in arriving at a verdict. Article 797(3) of the Code of Criminal Procedure so provides when it prescribes the grounds for challenge for cause. One of the grounds being that:

“(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict,”

See also State v. Crochet, 354 So.2d 1288 (La.1977); State v. Robinson, 353 So.2d 1001 (La.1977); State v. Gray, 351 So.2d 448 (La.1977); State v. Anthony, 347 So.2d 483 (La.1977); State v. Jones, 345 So.2d 1157 (La.1977); State v. Madison, 345 So.2d 485 (La.1977) and the cases cited in these decisions.

Here Boudreaux made clear that his acquaintance with Flossie Hargroder was of the most casual sort, and there was no testimony to the contrary. Even if counsel had properly presented the issue in the motion for a new trial, there is no merit to his contention that Boudreaux’s casual acquaintance with Flossie Hargroder was such that he could not act impartially.

Assignment 4: In a motion to quash defendant asserts that Section 30.1 of Title 14 of the Revised Statutes, the statute under which he stands charged, is unconstitutional. The motion alleges that the statute violates the Eighth Amendment to the Constitution of the United States and Section 20 of Article I of the Louisiana Constitution, because the mandatory sentence for conviction of murder in the second degree is life imprisonment and no discretion is permitted in the imposition of that sentence. For these reasons defendant’s motion to quash asserts the imposition of such a sentence is cruel and unusual punishment.

Although conceding that this Court has upheld the constitutionality of this statute in State v. Brooks, 350 So.2d 1174 (La.1977), defendant urges the Court to overrule that decision. It is suggested that this Court require a method of punishment whereby mitigating circumstances and unusual factors in a case would be given consideration in imposing sentence. No support is offered for this position. Brooks therefore remains dispositive.

Assignments 5, 6 and 8: Not argued. Not briefed.

Assignments 7, 14, 17 and 18: As a result of a confession by defendant, the State obtained information relating to a gun and shells which were introduced into evidence. Defendant filed a motion to suppress the confession because the police failed to administer the Miranda warning and to heed defendant’s refusal to talk to them. The motion to suppress was sustained, except that, according to defendant the trial judge orally permitted the use of the confession by the State for impeachment purposes. Defense counsel concedes that the confession was made voluntarily in the traditional sense, but defendant’s Miranda rights were violated. The State takes the position that the confession was voluntary and failing in this, no prejudice to the defendant occurred as a result of the confession. It was never used in evidence and no mention was ever made that defendant gave a confession or that the shotgun and shells were found because of the information revealed in the confession.

During the early morning hours on May 1, 1976 defendant was brought to the Opel-ousas Police Department to give a statement in connection with the investigation of the killing of David Hargroder and Brenda Rash. At that time the investigation centered on one Danny Thrasher, a juvenile. As the investigation progressed statements of other witnesses disclosed that defendant was the killer.

About 7:30 that morning defendant was brought into a detective’s office where several police and Assistant District Attorney Robert Brinkman were present. Defendant was read his Miranda warnings from a written document by Officer Mallet. Reading from the document Mallet further asked defendant, “Having these rights in mind, do you wish to talk to us now?” Defendant responded with a “weak mild no.” Mallet then entered the response in a blank space on the document and the document was signed by defendant and witnessed by three of the officers present.

Because of defendant’s indecisive negative response, Brinkman then told defendant: “[BJefore you make up your mind one way or the other as to whether or not you want to talk to us, let me tell you what we’ve got.” He then informed the defendant that Doucas and Thrower (an eyewitness to the crime) had pointed to defendant as the perpetrator of the double murder. Brinkman’s adjuration was not overbearing. Confronted with this information defendant then related the story of the killings to the officers. He later led them to the Boagni Swamp where shells and the murder weapon, a shotgun, were found. Defendant’s election to confess was neither forced nor induced.

On these facts we believe the trial judge should have denied the motion to suppress. Nothing in Miranda prevents an accused party from changing his mind and giving a statement after he has previously declined to do so, so long as the statement is voluntary and intelligently made. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Nash v. Estelle, 560 F.2d 652 (5th Cir. 1977); State v. Strahan, 348 So.2d 79 (La.1977); State v. Peevy, 321 So.2d 324 (La.1975). In Mosley the Court said:

“. . . [A] blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.”

The Mosley decision has been understood to mean that Miranda should not be construed to create a per se proscription of an indefinite duration upon further custodial interrogation of a defendant who asserts his right to remain silent. And an unrealistic approach to the concept of waiver of these rights can produce anomalous results; therefore, a pragmatic approach is dictated on a case-by-case basis: United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. 1978).

Added to our conviction that the confession was admissible is our further persuasion that notwithstanding the confession’s inadmissibility it is not error to admit the evidence obtained as a result of the confession. The taint which may have attached to the gun and shells and other physical objects obtained and introduced into evidence from information derived from the confession was attenuated by other evidence at the trial.

The shotgun was a .410 gauge. Thomas Newton Andrus, Jr., testified that before the killings on the night of April 30, 1976, defendant borrowed a .410 shotgun and shells from him. Spent .410 caliber shells were recovered at the site where the dead Rash girl was found. Spent .410 shells were also found at the Andrus residence. He testified they were fired from the gun borrowed by defendant. Expert testimony established that all of these spent shells were fired from the same gun. This cumulative evidence relegated the introduction of the gun and shells to the position of corroborative evidence. In view of the “strong” evidence of guilt otherwise properly admitted, this corroborative evidence was greatly attenuated. No substantial rights of the accused were denied and reversal is not warranted. La.Code Crim.Pro. art. 921. In addition, as already mentioned no reference to the confession was made at the trial.

Assignment 8: Not argued or briefed.

Assignments 9, 10, and 15: After three persons had testified as witnesses for the State, defense counsel requested in each instance that the trial judge order the State to furnish defense counsel with their previously recorded statements for use in cross-examination. Alternatively, he requested that the judge conduct an in-camera inspection of the statements to ascertain if the statements contained exculpatory material or material useful for cross-examination. The defense relies upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny. The request was denied.

Regardless of other issues presented by these assignments, reference to the statements which have been submitted by defendant as sealed documents for inspection by this Court disclose that there are no inconsistencies with the trial testimony of the witnesses. There are no statements which are exculpatory and material to guilt or punishment. See State v. Johnson, 261 La. 620, 260 So.2d 645 (1972).

These assignments are without merit.

Assignments 11 and 16: In cross-examining the State’s witness Danny Thrower the defense established that he was then on probation for an offense as a juvenile. Also defense counsel was permitted to elicit testimony that the State had granted Thrower immunity from prosecution in exchange for his testimony. Defense counsel then attempted to delve into Thrower’s juvenile record and to have that record admitted into evidence. The declared intention of defense counsel was to use the information obtained from the juvenile record to impeach the credibility of the witness by showing a “propensity to violence” if such were disclosed by an inquiry into the juvenile record. The trial judge ruled that the details of the offense could not be obtained from the juvenile record and the record could not be introduced into evidence.

At the outset it is relevant to observe that no adjudication by the court upon the status of any child shall be deemed to make the child a criminal, nor shall such adjudication be deemed a conviction. La.Rev.Stat. 13:1580.

Also pertinent to the ruling of the trial judge is the statute which provides that all information obtained by the court in cases of children shall be privileged and not subject to public inspection. La.Rev.Stat. 13:1586.

In his per curiam the trial judge stated that he declined to allow a detailed inquiry into Thrower’s juvenile record as an accommodation between this State’s requirement of confidentiality of juvenile records and defendant’s right to confront and cross-examine the witnesses against him as set forth in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Having permitted the defense to establish that the juvenile was on probation and that immunity had been granted by the State, in order to enable the defense to support a claim of probable bias, the trial judge felt that further inquiry into the juvenile record would have unnecessarily violated confidentiality. He was also of the opinion that such a disclosure would have created confusion and prejudice without further serving the constitutional value enunciated in the Davis case. In his view, because a juvenile adjudication does not operate as a conviction, there was no right to impeach this witness by a showing of adjudication, citing State v. Roberts, 331 So.2d 11 (La.1976), rev’d. on other grounds, Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977). This case decided that juvenile adjudication may not be used to impeach a witness’ general credibility under R.S. 15:495, although under Davis the results of the offense remain available for use on cross-examination.

Davis v. Alaska stands for the proposition that the Sixth Amendment’s right to confrontation of witnesses requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecuting witness by cross-examination directed at possible bias arising from the witness’ probationary status as a juvenile delinquent, notwithstanding that such impeachment would conflict with the State’s asserted interest in preserving the confidentiality of juvenile delinquency adjudications.

The ruling of the trial judge recognized this limited right to disclose the witness’ probationary status and permitted defense counsel to make that showing. The request to delve further into the juvenile record to show a propensity to violence would have been unavailing because the juvenile record sent to this Court under seal discloses no such propensity. Thus, no prejudice to the defense resulted from the ruling.

These assignments are without merit.

Assignment 12: A claim that defendant was unduly restricted in his right to cross-examine a state witness is asserted here.

On recross-examination defense counsel sought to ascertain from the state’s witness Thrower whether he had run away when a trial date in the case was previously scheduled and had to be called off when he failed to report. The prosecutor objected that the subject had not been brought out on direct, and the objection was sustained. Thereafter, out of the presence of the jury, defense counsel examined the witness to record an offer of proof.

It developed from this interrogation that Thrower had received no summons to appear as a witness on that occasion. Notwithstanding this explanation of Thrower’s failure to appear at the prior fixing, counsel elicited from Thrower the fact that he had traveled to Oklahoma during that time with the judge’s approval to live with his grandmother. While he was there he received several calls from the authorities in Louisiana advising him of trial dates and calls letting him know that the trial date had been set aside. However, he received no notice of the fixing of the case on the occasion when he did not appear to testify.

Defense counsel contends that he should have been permitted to question Thrower before the jury about what he termed Thrower’s “run away”. Evidence of the so-called “run away”, it is argued, would tend to show bias, interest or corruption of the witness. Section 492 of Title 15 of the Revised Statutes and State v. Kellogg, 350 So.2d 656 (La.1977) are cited in support of the defense contention.

Section 492 permits the questioning of a witness as to any particular fact tending to show bias, interest or corruption. The Kellogg Case, relying upon Section 492, the statutory right to full cross-examination, La.Rev.Stat. 15:280, and the constitutional right of confrontation, La.Const. art. I, § 16, stated that the jurisprudence permits full cross-examination in order to expose any bias or interest of the witness which might influence his perceptions or color his testimony.

Aside from the failure of the defense to point out how this claimed “run away” testimony would disclose bias, interest or corruption in the witness against this defendant, the offer of proof does not show that Thrower ran away. To the contrary, according to his testimony while he was on probation he traveled to Oklahoma with the judge’s permission to visit his grandmother. Furthermore, the offer of proof does not contradict Thrower’s statement that he had no notice of the aborted trial date. Failure to permit this evidence, therefore, did not prejudice defendant and its denial was permissible in the trial judge’s discretion under Section 281 of Title 15 of the Revised Statutes, requiring that recross-examination be confined to matters brought out on redirect. This assignment has no merit.

Assignment 13: Refusal of the trial judge to allow defense counsel to examine the prior statement of the witness George Doucas, even though Doucas admitted that he made a statement to the police which contradicted his testimony at trial, is assigned as error.

The statement has been submitted to this court under seal for review. It discloses that Doucas at first denied any knowledge of the crime but later, after questioning, related a story in keeping with his testimony at trial. There was no obligation of the State to surrender the witness’ pretrial statement under these circumstances. State v. Breaux, 366 So.2d 1375 (La.1978); State v. Lovett, 359 So.2d 163 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977).

For the reasons assigned the conviction and sentence are affirmed.

TATE, J.,

is of the opinion that the trial court correctly suppressed the confession, but that the fruits of it may have been admissible as discoverable without the confession. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and he therefore concurs.

DIXON and DENNIS, JJ., concur in the result.

CALOGERO, J.,

concurs being concerned with majority’s treatment of Assignment of Error # 5.


source: Caselaw Access Project

author: SUMMERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. James DAZET.
    No. 64566.
    Supreme Court of Louisiana.
    Dec. 13, 1979.
    Rehearing Denied Jan. 28, 1980.

      Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Jacob J. Amato, Jr., Asst. Dist. Attys., Gretna, for plaintiff-appellee.
   SUMMERS, Chief Justice.

Defendant James Dazet was charged by bill of information in two counts with possession of marijuana with intent to distribute and that he did knowingly and intentionally possess cocaine with intent to distribute, violations of La.Rev.Stat. 40:966 and 40:967, respectively. Dazet initially pled not guilty and filed a motion to suppress the evidence, which was denied. Relying on a plea bargain he then withdrew his guilty plea and tendered a plea of guilty to possession of cocaine with intent to distribute on the condition that he retain the right to contest the trial judge’s adverse ruling on the motion to suppress. With this understanding the charge of possession of marijuana was dismissed. After ascertaining that Dazet’s plea was free and voluntary, the trial judge sentenced him to imprisonment at hard labor for five years. On this appeal defendant contends that 1) the trial judge erred in denying his motion to suppress the evidence, and 2) the sentence of five years was excessive.

Assignment 1: Here the defense claims the trial judge committed reversible error by refusing to grant defendant’s motion to suppress evidence alleged to have been illegally seized as a result of an unconstitutional search of defendant’s apartment. The gravamen of this motion rests in the allegation that the affidavit submitted to support the search warrant was based upon information furnished by a confidential informant without setting forth facts to establish the reliability of the informant; consequently the accuracy of the information furnished by the informant was also in question.

The contested affidavit set forth that on April 1, 1977, while working in illegal drug traffic on the east bank of Jefferson Parish in an undercover capacity, Agent Grannan met Frank Torres. Torres stated that a friend of his had a large quantity of cocaine and marijuana and that he could sell Gran-nan any amount he wanted. It was then arranged that Grannan would meet Torres at the parking lot of Kaleb’s Lounge at approximately six o’clock that night.

Grannan conveyed this information to Agent J. Nelson, who made arrangements for Grannan to give $450 in recorded bills to Torres at the rendezvous. Other agents would then follow Torres to his source of supply.

At six o’clock that night seven narcotic agents established a surveillance of the parking lot. Shortly thereafter Grannan met Torres and gave him the money, and Torres told Grannan he was going to his source and would meet Grannan at 6:45 at the same location with the drugs. Accordingly Torres departed in a 1975 Pontiac Grand Prix with no license plate.

Agents on surveillance followed the vehicle as it proceeded to 1525 Aztec Street in Metairie, Louisiana, where the driver left the vehicle and entered the building. At approximately 7:05 Torres was seen to leave the apartment, enter his vehicle, and proceed to Kaleb’s parking lot. There he met Grannan and sold him one-quarter ounce of cocaine, after which Torres informed Grannan that his “connection” had a quantity of Thai-Sticks (Thailand Marijuana) in addition to large amounts of cocaine. They then parted company.

Shortly thereafter narcotic agents began an investigation into the activity of the occupant of Apartment A at the 1525 Aztec Street address. They learned from a confidential source that this apartment was occupied by Dorothy Gardner, a white female, and was frequented by James Dazet. .Agents then checked the Jefferson Parish Sheriff’s Office Record Section. That source disclosed that Dazet had been arrested in the past for five felony offenses and was then on probation until 1979 as a result of a conviction for distribution of marijuana.

The next day, April 2,1977, Agent Nelson ascertained from Agent Renton of the Jefferson Parish Sheriff’s Office Narcotics Division that Renton had a reliable confidential informant whose information had been proven reliable through independent investigation, who was familiar with the activity in Apartment A of the apartment house at 1525 Aztec Street. The confidential informant had stated to Renton that on numerous occasions while in that apartment he had observed large amounts of marijuana and cocaine there, and his most recent visit to the apartment was the preceding evening — April 1,1977. He further stated that on several occasions he had purchased drugs from Dazet there, but he did not wish to purchase drugs from Dazet for evidence purposes because he • feared for his own safety and well-being as well as that of his family.

On this information the trial judge issued the search warrant on April 2, 1977. The search of Dazet’s apartment followed. Marked bills used in the purchase by Gran-nan, a quantity of marijuana, cocaine and various drug paraphernalia were seized.

At a pretrial hearing on the motion to suppress, Agent Nelson of the Sheriff’s Narcotic Squad was called as a defense witness. He testified that the 1525 Aztec Street address was an apartment building with a common entrance to three apartments designated respectively as A, B and C. Previously a warrant was obtained on April 1, 1977, he said, to search apartment “C” occupied by Tom Lee. Lee, he said, was the confidential informer referred to in the affidavit supporting the warrant issued for the search of Apartment A, occupied by Defendant Dazet. Nelson was in and out of Lee’s apartment when Lee informed on Dazet, but relied principally on Renton’s version of Lee’s statement because Renton was present at all times while Lee divulged his narcotic transactions with Dazet. Defense counsel’s interrogation was designed to establish that Lee’s reliability as an informer had not previously been verified. And the surveillance team which had followed Torres the previous day did not enter the apartment at that time or see which apartment Torres entered to obtain the narcotics from his “connections”.

Nelson also restated the facts set forth in the affidavit concerning the check of the records on Dazet whereby it was learned that he had previously been arrested for narcotic offenses and that Dazet was then on probation for distribution of marijuana.

Thereafter Renton was called as a defense witness. He corroborated the testimony of Nelson and verified the information contained in the affidavit. Renton also said that after furnishing the information concerning Dazet, Lee called him and said that Dazet told him he had seen the Drug Enforcement Administration files which indicated that he was an informant. As a result Lee “became petrified” and had since refused to cooperate with the narcotic agents.

In Lee’s testimony as a defense witness he repudiated the testimony of the agents and the information contained in the affidavit to the effect that he, the confidential informant, had purchased narcotics from Dazet and had seen large amounts of marijuana and cocaine in Apartment “A” at 1525 Aztec Street. While admitting that he had been charged with possession of marijuana, that he knew Dazet, and that the officers offered not to charge his wife, he denied that any “deal” was made to furnish law enforcement with information about Dazet. Nevertheless he did admit on cross-examination that he told the officers that someone was staying in Apartment A with Dazet, that he had been in Dazet’s apartment and had seen marijuana there, while steadfastly denying that he said Dazet had sold drugs to him. He also denied that Dazet had threatened him.

The motion to suppress was denied.

In his per curiam to this assignment the trial judge wrote:

“The affidavit stated that there existed ‘a reliable confidential informant whose information had been proven reliable through independent investigation and who was familiar with the activity in the apartment’ in question. The affidavit then recited the factual foundation for believing the informant. It seems that the language quoted above does imply that the informant had supplied reliable information in the past, but even assuming that it does not, such a statement is not necessary. The United States Supreme Court in United States v. Howard [Harris], [403 U.S. 573,] 91 S.Ct. 2075 [, 29 L.Ed.2d 723] (1971) held that though an affidavit ‘did not aver that the informant had previously given correct information, an averment of previous reliability is not essential when supported, as here, by other information.’ The affidavit at hand supplied such other information by containing ample factual foundation for believing the informant.
“Secondly the defendant complains that the search was unannounced. The transcript on the hearing on the motion to suppress makes no mention of the fact that the agents did not announce their presence. But even the assumption that they have not would not invalidate the search because the defendant was with the agents at the time of the entrance and in fact opened the door from the outside for them. In addition, according to State v. Christiana [249 La. 247,] 186 So.2d 580 (Sup.1966), a search is still legal even though officers do not announce their presence where officers have reason to fear that the announcement would give an occupant time to dispose or to hide evidence and to escape. Here the agents knew the defendant had a live-in girlfriend and had reason to fear a disposable of the drugs upon knocking.”

We agree with the ruling of the trial judge. The reliability of the information furnished by Lee concerning Dazet’s possession and distribution of drugs is made manifest by the facts and circumstances set forth in the affidavit.

While it does not appear from the affidavit that the confidential informant (Lee) has furnished reliable information in the past, details of the events leading to a drug transaction took place in plain view of the narcotic agents. Those details do supply evidence of reliability. The affidavit set forth that Torres arranged to make the sale, set up the meeting place, and asserted his “connection” had ample stocks of marijuana and cocaine. Following this disclosure he proceeded to the “source” at 1525 Aztec Street under surveillance. He entered the three-apartment building and exited with the drug, proceeded to the prearranged meeting place and sold the drug to an undercover agent, all under strict surveillance of a number of narcotic agents. One of them signed the affidavit.

These facts do establish that contraband drugs were located in one of the three apartments at 1525 Aztec Street. A search and seizure of Apartment C that very night eliminated that apartment as a possible repository of “a quantity of Thai-Sticks (Thailand Marijuana) in addition to a large amount of cocaine.” Only Apartments A and B remained, therefore, as possible sources of the drugs.

On the basis of information obtained from the confidential informant, the agents began an investigation' into the activity of the occupant of Apartment A. They found that Dazet was a frequent visitor at that apartment, he had been arrested in the past for five felony offenses and was currently on probation for a distribution of marijuana conviction. All of this appears in the affidavit.

While the conclusion that Dazet’s apartment was the source of Torres’ illicit source of narcotics, arrived at by the investigating officers, the affiant and the issuing magistrate, may not be infallible, the conclusion is nevertheless based upon sound and reasonable probabilities. Only the fact that Apartment B had not been checked out as a repository of drugs remained to establish with certainty that Apartment A was the repository. A process of elimination requires such a conclusion. The issuing magistrate’s finding of probable cause is also well-founded because the information received from the confidential informant that Dazet lived in Apartment A and dealt in narcotics there was verified and considered reliable when the investigators ascertained that Dazet lived in Apartment A, he was on probation as a result of a conviction for distributing marijuana, and he had also been arrested several times in the past.

Other support for the informant’s reliability is the underlying facts he disclosed to the agents. He said Dazet had sold drugs to him and he had seen a large quantity of cocaine and marijuana in Apartment A. (While the informant Lee later denied this in part, at the hearing the trial judge obviously did not accept the denial as credible.) In- any event these underlying facts upon which the informant based his disclosure were such that they did add reliability to his statement when the occupant of Apartment A was known by the issuing magistrate to be a convict and dope peddler.

In addition, the affidavit does state that a search warrant was executed on Lee’s apartment and the confidential informant was arrested by the Jefferson Parish Sheriff’s Office, Narcotic Division agents within 24 hours prior to the seizure in Dazet’s apartment. The fact of the informant’s arrest by the agents and that he was not a mere “tipster” creates an even stronger presumption of reliability. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

A magistrate needs only a substantial basis to determine that evidence was probably located where the informant said it was, it need not be “an open and shut case,” only reasonable probabilities are required to support the issuance of the warrant. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). As an example, the Fifth Circuit in Bastida v. Henderson, 487 F.2d 860 (1973) approved a magistrate’s warrant based on “the entire picture disclosed to him,” stating that he was entitled to use common sense to support his actions.

This attitude harks back to the fundamental principles of reason enshrined in the constitution’s Fourth Amendment and the decision of the United States Supreme Court in Ventresca v. U. S., 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). As Spinelli observed

“. .in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, [13 L.Ed.2d 684] (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 735-736 [4 L.Ed.2d 697].” Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 591, 21 L.Ed.2d 637.

Further, where the law enforcement officers have respected the constitutional mandate to secure a warrant before searching, although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

The law encourages officers to go to a magistrate before a search is made if feasible, and they must not be held to the rigid technical legalities to which judges and lawyers are held in the preparation of their affidavits.

We decide, therefore, that the ruling of the trial judge was correct when he denied the motion to suppress.

Assignment 2: A sentence to imprisonment to five years is not excessive or cruel and unusual punishment in derogation of a convicted defendant’s rights. The legislature’s authority is plenary and its determinations on punishment for crime is vested with a presumption of constitutionality. State v. Mallery, 364 So.2d 1283 (La.1978). Here the sentence did not exceed that permitted by statute; it was, to the contrary, the minimum permissible sentence in such cases. La.Rev.Stat. 40:967.

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

DIXON, DENNIS and CALOGERO, JJ., concur.

      The Honorable Paul B. Landry served as Justice ad hoc in this case.


text:
    SOUTHWESTERN ELECTRIC POWER COMPANY v. Barbara Jean Johnson TALLEY et al.
    No. 66303.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Southwestern Electric Power Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 377 So.2d 364.

Denied.

MARCUS, J., would grant the writ.


text:
    Willie M. JOHNSON v. OUACHITA PARISH POLICE JURY et al.
    No. 66235.
    Supreme Court of Louisiana.
    Dec. 13, 1979.
   In re Willie M. Johnson, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 377 So.2d 397.

Denied.

SUMMERS, C. J., and DENNIS and WATSON, JJ., would grant the writ.


text:
    Danny Knight DARNEL, Robin Lynn Darnel, Stanley Joseph Hoover, Don C. Caspary and Robert Oneal Levine v. Charlton P. ROZANDS, Sheriff, Parish of Terrebonne.
    No. 66424.
    Supreme Court of Louisiana.
    Dec. 24, 1979.
   In re Danny Knight Darnel et al., applying for writ of mandamus. Parish of Terrebonne.

This application is moot, considering advice received from respondent sheriff that relators’ bond will be accepted.


author: SUMMERS, C. J.,

text:
    STATE of Louisiana v. Wayne Robert FELDE.
    No. 66482.
    Supreme Court of Louisiana.
    Jan. 3, 1980.
   In re Wayne Robert Felde, applying for remedial writs of certiorari, prohibition, mandamus, and stay order. Parish of Caddo. No. 109,803.

Writ granted.

SUMMERS, C. J.,

is of the opinion relator has an adequate remedy by appeal in the event of conviction. This is the appropriate disposition in light of relator’s repeated and belated motions which result in repeated continuance of this trial. State v. Bell, 346 So.2d 1090 (La.1977).


text:
    STATE of Louisiana v. T. C. SLAVEN.
    No. 66484.
    Supreme Court of Louisiana.
    Jan. 4, 1980.
   In re T. C. Slaven applying for writs of certiorari, mandamus, and review. Parish of Washington. Number unknown.

Granted. The trial judge is ordered to grant a preliminary hearing and bail hearing forthwith.


text:
    STATE of Louisiana v. Frank GREENTREE.
    No. 66509.
    Supreme Court of Louisiana.
    Jan. 4, 1980.
   In re Frank Greentree, applying for writ of certiorari, bond reduction. Parish of Lafourche. No. 93301.

Bail reduced to $100,000.

SUMMERS, C. J., dissents from reduction of the bond.


text:
    STATE of Louisiana ex rel. Frank GLODE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65806.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Frank Glode, applying for writ of mandamus. Parish of St. Bernard. Number unknown.

Writ denied. The application is moot. The trial judge has ordered that relator be provided with the transcript he seeks.


author: DENNIS and CALOGERO, JJ.,

text:
    STATE of Louisiana v. James L. WILLIAMS.
    No. 66304.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re James L. Williams, applying for writs of certiorari, prohibition, and mandamus. Parish of Richland. No. 31,450.

Denied!

DENNIS and CALOGERO, JJ.,

would grant and remand for resentencing in accordance with C.Cr.P. Art. 894.1 and to allow reconsideration of possible excessive sentence for first offender.


text:
    STATE of Louisiana ex rel. Thomas PHILLIPS, Sr. v. Charles C. FOTI, Jr., Orleans Parish Sheriff.
    No. 65835.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Thomas Phillips, Sr., applying for remedial writs. Parish of Orleans. Number unknown.

Writ denied. Appeal pending.


text:
    CITY OF WEST MONROE v. Charles R. BRAY.
    No. 65910.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Charles R. Bray, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. 292.

Writ denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. John E. PIERRE v. Hayden J. DEES, Warden, Dixon Correctional Institution.
    No. 65939.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re John E. Pierre, applying for writ of certiorari. Parish of Orleans. Nos. 211,713 and 211,714.

Writ denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Edward E. PARR v. Honorable Frank SHEA, Judge, Orleans Parish Criminal Judicial District Court.
    No. 65942.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Edward E. Parr, applying for writ of mandamus. Parish of Orleans. Number unknown.

Writ denied. The application is moot. The district court has acted.


text:
    STATE of Louisiana ex rel. Harold J. VINCENT v. JUDGE, 30TH JUDICIAL DISTRICT COURT et al.
    No. 65951.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Harold J. Vincent, applying for writ of mandamus. Parish of Vernon. Number unknown.

Writ denied. The application is moot. The District Court has complied.


text:
    STATE of Louisiana v. Joseph SPENCER.
    No. 65968.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Joseph Spencer, applying for writ of certiorari and stay order. Parish of Orleans. No. 271-132.

Writ denied. Stay order lifted.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Gregory SOCKWELL v. COURT REPORTER, ORLEANS PARISH CRIMINAL JUDICIAL DISTRICT COURT, SECTION “A”.
    No. 66006.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Gregory Sockwell, applying for writ of mandamus. Parish of Orleans.

Writ denied. The application is moot. The trial judge has ordered that relator be provided with the transcript he seeks.


text:
    STATE of Louisiana ex rel. Willis Joseph RICHARDS v. Douglas NEHRBASS, Judge, 15th Judicial District Court, Lafayette, Louisiana.
    No. 66037.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Willis Joseph Richards, applying for writ of mandamus. Lafayette Parish. Number unknown.

Writ denied. The application is moot. A transcript has been sent to petitioner by this Court.


text:
    STATE of Louisiana ex rel. Karl DAVIS v. Hon. Rudolph BECKER, III, Judge, Orleans Criminal Judicial District Court.
    No. 66208.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Karl Davis, applying for writ of mandamus. Parish of Orleans. No. 244-290.

Granted. The trial judge is ordered to grant relator a transcript of his Boykin examination.


text:
    STATE of Louisiana ex rel. Howard L. PETE v. CLERK OF COURT, 9th JUDICIAL DISTRICT COURT, PARISH OF RAPIDES.
    No. 66319.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Howard L. Pete, applying for writ of mandamus. Parish of Rapides. No. 180533.

Writ granted. The trial judge is ordered to grant relator the transcript of his Boykin examination.


text:
    STATE of Louisiana ex rel. Charles E. BELGARD v. Alfred A. MANSOUR, District Judge, 9th Judicial District Court, Parish of Rapides, and Clerk of Court, et al.
    No. 66358.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Charles E. Belgard, applying for writs of mandamus, habeas corpus and remedial writs. Parish of Rapides. No. 170,-651.

Writ granted. The trial judge is ordered to grant the relator the transcript of his Boykin examination.


text:
    STATE of Louisiana v. George ASHBY.
    No. 66419.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari, prohibition and mandamus. Parish of Orleans. No. 273-039.

On the showing made the application is denied.


text:
    STATE of Louisiana ex rel. Quenton N. BROWN v. 19TH JUDICIAL DISTRICT COURT, BATON ROUGE, LOUISIANA.
    No. 65733.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Quenton N. Brown, applying for writ of mandamus. East Baton Rouge Parish. No. 228,189

Writ granted. Applicant shall be permitted to proceed in the district court in forma pauperis.

SUMMERS, C. J., MARCUS and BLANCHE, JJ., dissent from the writ grant.


text:
    STATE of Louisiana ex rel. John L. ROBERTS, Sr. v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66026.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re John Roberts, Sr., applying for writ of habeas corpus. Parish of Tangipahoa. No. 41944.

Writ granted. It is ordered that the trial court hold an evidentiary hearing to determine whether the petitioner knowingly entered his plea of guilty, in light of his allegations that he thought he could serve his sentence in Tangipahoa on work-release.

SUMMERS, C. J., and BLANCHE, J., dissent.


text:
    STATE of Louisiana ex rel. James WILKEN. v. The Honorable Judge Frank J. SHEA, Criminal District Court, Parish of Orleans.
    No. 65579.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re James Wilken, applying for writ of mandamus. Orleans Parish. No. 205-80,4.

Writ denied. Relator must first file ha-beas application in the District Court.


text:
    STATE of Louisiana ex rel. Marshall HUGHES v. Frank SHEA, Judge, Criminal District Court, Section “G”, Parish of Orleans.
    No. 65664.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Marshall Hughes, applying for writ of mandamus. Orleans Parish. Number unknown.

Denied. Moot. District court has acted.


text:
    STATE of Louisiana ex rel. Warren WALKER v. Frank J. SHEA, Judge, Criminal District Court, Section “G”, Parish of Orleans, State of Louisiana.
    No. 65568.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Warren Walker, applying for writ of mandamus. Orleans Parish. Nos. 269-776, 269-777, 269-778, and 269-827.

Granted. The trial judge is ordered to furnish applicant with Boykin transcripts in Nos. 269776, 269777, 269778 and 269827.

SUMMERS, C. J.,

dissents. No particularization has been shown and no application has been filed in the trial court.


text:
    STATE of Louisiana v. Brienda BOUDREAUX.
    No. 66329.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Brienda Boudreaux, applying for writs of certiorari, prohibition, mandamus and stay order. Sixth Ward Court for City of Morgan City, Parish of St. Mary. No. 79-3357.

Writ denied.


text:
    Mary C. SMITH, widow of Joe Smith, Joseph L. Smith, Richard W. Smith, Penny Fox Smith, Mary Ella Smith, Cynthia M. Smith, Deborah A. Smith, Pamela Smith and Glynn E. Smith v. Mary BRUMFIELD, Canal Indemnity Co., and Oliver Payton.
    No. 66522.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Mary C. Smith et al., applying for writs of certiorari and review. Parish of Washington. No. 45,111.

Writ denied.


text:
    STATE of Louisiana v. Lenzie SIBLEY.
    No. 66270.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Lenzie Sibley, applying for writs of certiorari, prohibition, and mandamus. Parish of East Baton Rouge. No. 8-79-124.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Theresa HOUILLON, wife of/and Ronald Houillon v. JO ELLEN SMITH MEMORIAL HOSPITAL et al.
    No. 66296.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Theresa Houillon, wife of/and Ronald Houillon, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 10445. Parish of Orleans.

Denied.

DIXON, CALOGERO and WATSON, JJ., would grant the writ.


text:
    Mrs. Jerrye Crawford RODGERS, as Natural Tutrix of the minor, Curtis Dayton Rodgers v. STATE of Louisiana DEPARTMENT OF HIGHWAYS et al.
    No. 66300.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Mrs. Jerrye Crawford Rodgers, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bossier. No. 66,300.

Writ denied.


text:
    William BURANDT v. SLICKY'S PIZZA PARLOR.
    No. 66325.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Slicky’s Pizza Parlor, Kleo Blue and James Parker applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 377 So.2d 905.

Denied.


text:
    John Robert REED v. ALLSTATE INSURANCE COMPANY et al.
    No. 66291.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re John Robert Reed, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 376 So.2d 1303.

Writ denied.


author: DIXON, J.,

text:
    Robert G. HAIK v. Harold L. ROWLEY and Stephen J. Rowley.
    No. 66163.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Robert G. Haik, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 377 So.2d 391.

Writ denied. The showing made does not warrant the exercise of this Court’s jurisdiction.

DIXON, J.,

concurs in the denial. If what relator says is true, the court of appeal was in error in dismissing the suit against the endorser, but relator has not furnished us with the reasons for the lower court’s judgment.


text:
    HIBERNIA NATIONAL BANK OF NEW ORLEANS v. Thomas BOLLETER, a/k/a Thomas W. Bolleter and Wanda T. Bolleter.
    No. 66157.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Wanda T. Bolleter, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 375 So.2d 690.

Granted.


text:
    Dr. Doyle F. PHILIPPE v. BROWNING ARMS COMPANY et al.
    No. 66001.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Browning Arms Company, Browning, Fabrique Nationale, and Liberty Mutual Insurance Company, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Franklin. 375 So.2d 151.

Writ granted as to assignments of error I and IV.

SUMMERS, C. J., would grant as to all assignments of error.


text:
    James L. WALL et al. v. AMERICAN EMPLOYERS INSURANCE CO. et al. Jeff L. BUTLER et al. v. AMERICAN EMPLOYERS INSURANCE CO. et al.
    No. 66276.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Claiborne Parish Police Jury, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Claiborne.

Writ denied.

SUMMERS, C. J., would grant the writ.


text:
    James L. WALL et al. v. AMERICAN EMPLOYERS INSURANCE COMPANY et al. Jeff L. BUTLER et al. v. AMERICAN EMPLOYERS INSURANCE COMPANY et al.
    No. 66301.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re James L. Wall, and his wife, Betty Wall, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Claiborne. 377 So.2d 369.

Writ granted.


text:
    HMC MANAGEMENT CORPORATION, the Louisiana Stadium and Exposition District and the State of Louisiana v. The NEW ORLEANS BASKETBALL CLUB (The Jazz) et al.
    No. 65769.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re The City of New Orleans, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 375 So.2d 700.

Writ denied.


text:
    STATE of Louisiana ex rel. Carl SANGER v. 1ST JUDICIAL DISTRICT COURT.
    No. 66531.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Carl Sanger, applying for remedial writs. Parish of Caddo. No. 109,527.

Writ denied. Relator has access to a transcript through his counsel.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Kimmie BATISTE v. Warden Hayden DEES, Dixon Correctional Institute.
    No. 65946.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Kimmie Batiste, applying for writ of certiorari. Parish of Orleans. No. 264— 640.

Denied.


text:
    STATE of Louisiana ex rel. Jerry Lynn PECK v. Mr. C. Paul PHELPS, Secretary, Louisiana Department of Corrections.
    No. 65995.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Jerry Lynn Peck, applying for writs of habeas corpus, certiorari, and mandamus. Parish of Caddo. No. 112,080.

Denied. Relator’s inmate prison record shows he has lost only 180 days good time. To that extent the application is moot. Otherwise, it is denied.


text:
    STATE of Louisiana ex rel. Harvy S. FIELDS v. H. N. NOX, Ouachita Parish Prison.
    No. 66028.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Harvy S. Fields, applying for remedial writs of mandamus, prohibition, injunc-tive relief and/or habeas corpus. Parish of Ouachita. Number Unknown.

Denied. Relator must first apply in the trial court.


text:
    HAAS & HAINE-TUDOR CONSTRUCTION CO. et al. v. CABOT, CABOT & FORBES, CO.
    No. 66335.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Cabot, Cabot & Forbes, Co., applying for writ of certiorari or review. Parish of East Baton Rouge. No. 173-243.

Writ denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Norma KING.
    No. 66359.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari, prohibition and mandamus. Orleans Parish. No. 269-700.

Writ denied.

CALOGERO, J., would grant the writ.

MARCUS, J., concurs; application is premature.


text:
    MATHIEU DRILLING COMPANY, INC. v. SKYTOP RIG COMPANY.
    No. 66361.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Mathieu Drilling Company, Inc., applying for writ of review and certiorari. Parish of Lafayette. No. 794,107.

Denied, reserving to relator the right to proceed via ordinaria.

DIXON, J.,

concurs only because a majority of this court seems to hold that the district court has jurisdiction of the person and subject matter jurisdiction, but does not agree to the use of summary proceedings.

CALOGERO, J., would grant the writ.


text:
    Louis M. RAY v. Mary Ann ST. JOHN RAY.
    No. 66363.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Louis M. Ray, applying for writ of mandamus, certiorari and stay order. Parish of Ouachita. No. 115,973.

Writ denied. Stay order vacated.

DIXON, J., would grant the writ.


text:
    Clara Bailey, wife of and Clinton WRIGHT v. Joseph A. NAVARRO.
    No. 66405.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Joseph A. Navarro, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 10331.

Denied.


text:
    BEL-AIR DEVELOPMENTS, INC., H and C Development Co., Inc., and H. H. Burstein Enterprises, Inc. v. Francis J. DEMAREST, Jr., Recorder of Mortgages and Carole Hyman Burstein.
    No. 66420.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Bel-Air Developments, Inc., H and C Development Co., Inc., and H. H. Burstein Enterprises, Inc., applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 79-16407.

Denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Michael WEBER v. Hon. William BRADLEY, Judge of the 29th Judicial District Court, Parish of St. Charles.
    No. 66467.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Michael Weber, applying for writ of mandamus. Parish of St. Charles. No. 76-030.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Lamont Kieth JOHNSON v. Warden Frank C. BLACKBURN, Louisiana State Penitentiary.
    No. 65966.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Lamont Kieth Johnson, applying for remedial writs. Parish of Lafayette. No. 37,469.

Writ granted.


text:
    STATE of Louisiana ex rel. Lorenzo CARPENTER v. STATE of Louisiana.
    No. 66586.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Lorenzo Carpenter, applying for remedial writs. Parish of Rapides. Number unknown.

Granted. This application is transferred to the trial court to determine the merits of a claim for appeal or out of time appeal. The trial judge shall appoint counsel to represent relator in this connection.


text:
    STATE of Louisiana ex rel. Charles A. HUNTER v. G. Evans REINHARD, Warden, House of Detention.
    No. 66417.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re State of Louisiana ex rel. Charles A. Hunter, applying for writ of habeas corpus. Orleans Parish Criminal District Court.

Not considered. Relator must first file his application in the district court.


text:
    STATE of Louisiana ex rel. Donald WILSON v. Frank SHEA, Judge, Orleans Parish Criminal Judicial District Court.
    No. 65460.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Donald Wilson, applying for supervisory and remedial writ. Parish of Orleans. No. 244-459.

Denied. On the showing made the defendant would not be entitled to a new trial.

CALOGERO, J., would transfer to the district court.


text:
    STATE of Louisiana ex rel. Arthur C. YOUNGBLOOD v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 65943.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Arthur C. Youngblood, applying for writ of certiorari, prohibition, mandamus or habeas corpus. Parish of Orleans. No. 246-518.

Denied.

CALOGERO and DENNIS, JJ., would grant an evidentiary hearing.


author: DIXON, CALOGERO and DENNIS, JJ.,

text:
    STATE of Louisiana ex rel. Early LAVERNE, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65945.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Early Laverne, Jr., applying for writ of certiorari, and/or supervisory writs. Iberia Parish. No. 23502.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ.,

would grant a hearing because of the misinformation given applicant at time of sentencing (Life — IOV2 years).


text:
    STATE of Louisiana ex rel. Will FORD v. COURT REPORTER, ORLEANS CRIMINAL JUDICIAL DISTRICT COURT, SECTION “C”.
    No. 66008.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Will Ford, applying for writ of mandamus. Parish of Orleans. Number unknown.

Writ granted. Trial judge ordered to furnish relator with copy of Boykin transcript.


text:
    STATE of Louisiana ex rel. Jessie ARMSTEAD v. Matthew S. BRANIFF, Judge, Division “B” Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 66500.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Jessie Armstead, applying for writ of mandamus. Parish of Orleans. No. 268-517.

Writ granted. Trial judge ordered to grant relator the transcript of his Boykin examination.


text:
    William E. STILLEY v. STATE of Louisiana, etc.
    No. 66408.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re State of Louisiana, through the Department of Corrections, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 376 So.2d 1007.

Writ denied.


text:
    Robert K. ACKEL v. MID SOUTH UNDERWRITERS INC. and Michael Tassin.
    No. 66338.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Robert K. Ackel, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 377 So.2d 496.

Denied.

WATSON, J., recused.


text:
    Louis IRVINE v. SCHWEGMANN BROS. GIANT SUPER MARKETS, INC.
    No. 66384.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Schwegmann Bros. Giant Super Markets, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 376 So.2d 1308.

Denied.


text:
    Gloria Campo, wife of Frank J. CAMPO, Jr. v. Frank J. CAMPO, Jr.
    No. 66390.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Gloria Campo, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 376 So.2d 519.

Denied.

WATSON, J., would grant the writ.


text:
    AUTHEMENT’S ORNAMENTAL IRON WORKS, INC. v. Robert REISFELD et al.
    No. 66391.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Ann E. Reisfeld, wife of Andre Boutte, and Robert I. Reisfeld, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 376 So.2d 1061.

Denied.


text:
    William G. HINSON, Robert F. Hudson, Inc. and Henry W. Kinney, III v. James E. MILLER and Michael Grabish.
    No. 66393.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re William G. Hinson, Robert F. Hudson, Inc. and Henry W. Kinney, III, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 376 So.2d 523.

Denied.


text:
    Adam DUFRENE v. DIXIE AUTO INSURANCE et al.
    No. 66407.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Adam Dufrene et al. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Charles. 376 So.2d 507. Parish of St.

Denied.

WATSON, J., would grant the writ.


text:
    Voncelle T. KLUMP v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC., et al.
    No. 66403.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Voncelle T. Klump, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 376 So.2d 514.

Writ denied. Result is correct.


text:
    Edward G. FRANCIS v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and Roberta B. Brown.
    No. 66396.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Edward G. Francis, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 376 So.2d 609.

Writ denied.


text:
    Lucian PERNICIARO, Jr., et al. v. Anders K. BRINCH et al.
    No. 66176.
    Supreme Court of Louisiana.
    Dec. 7, 1979.
   In re Lucian Perniciaro, Jr., and Gertrude Perniciaro, applying for certiorari, or writ of review, to the Court ‘of Appeal, Fourth Circuit. Parish of Jefferson. 377 So.2d 394.

Granted.


text:
    STATE of Louisiana v. Morris ALBOHAIRE, Jr.
    No. 65080.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Morris Albohaire, Jr., applying for remedial writs. Orleans Parish. Number unknown.

Writ denied. The district court has acted on the relator’s petition for probation.


text:
    STATE of Louisiana v. Wayne Robert FELDE.
    No. 66433.
    Supreme Court of Louisiana.
    Dec. 27, 1979.
   In re State of Louisiana, applying for writs of certiorari, mandamus and prohibition through D. A. Paul J. Carmouche. Caddo Parish. No. 109,803.

Writ denied.


text:
    STATE of Louisiana v. Terry EDWARDS and William H. McNabb.
    No. 66472.
    Supreme Court of Louisiana.
    Dec. 28, 1979.
   In re Terry Edwards and William H. McNabb, applying for writs of prohibition, mandamus and certiorari. Parish of Orleans. No. 271 — 536.

Denied.


text:
    STATE of Louisiana v. Aaron SINGLETON.
    No. 66422.
    Supreme Court of Louisiana.
    Jan. 4, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari, and stay order. Parish of Orleans. No. 273-179.

Granted.


text:
    STATE of Louisiana v. Suzanne ANDERSON.
    No. 66517.
    Supreme Court of Louisiana.
    Jan. 7, 1980.
   In re Suzanne Anderson, applying for writ of habeas corpus. Parish of Jefferson. No. 157-973.

Writ granted. Trial court is ordered to conduct an evidentiary hearing forthwith on the contentions alleged in habeas corpus application.


text:
    STATE of Louisiana v. Robert D. HICKS.
    No. 66513.
    Supreme Court of Louisiana.
    Jan. 7, 1980.
   In re Robert D. Hicks, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Jefferson. No. 79-2495.

Denied.


text:
    STATE of Louisiana v. Sylvester SMITH.
    No. 65790.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Sylvester Smith, applying for writ of certiorari, prohibition, mandamus and/or review. Parish of Terrebonne. No. 81,495.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ.,

would grant the writ. The mere voluntary failure of the defendant to appear at a preliminary hearing in the absence of a subpoena or court order does not waive the constitutional right to a preliminary hearing.


text:
    STATE of Louisiana ex rel. Ronald SMITH v. Hon. Frank A. MARULLO, Judge, Criminal District Court, Section “D”, Parish of Orleans, State of Louisiana.
    No. 65825.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Ronald Smith, applying for writ of mandamus. Orleans Parish. Number unknown.

Denied. The application is moot. The trial court has acted.


text:
    STATE of Louisiana ex rel. Paul C. WEATHERS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65933.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Paul C. Weathers, applying for writs of habeas corpus, certiorari and mandamus. Parish of Terrebonne. Nos. 50,414 and 50,621.

Writ denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. George E. EVANS v. Fred A. BLANCHE, Jr., Judge, 19th Judicial District Court.
    No. 65940.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re George E. Evans, applying for writ of mandamus. Parish of East Baton Rouge. No. 3-76-961.

Writ denied. The application is moot. The district court has acted.

BLANCHE, J., recused.


text:
    STATE of Louisiana ex rel. Roosevelt McCORMICK v. STATE of Louisiana, PARISH OF ST. CHARLES, ST. CHARLES PARISH DISTRICT ATTORNEY’S OFFICE.
    No. 65950.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Roosevelt McCormick, applying for writ of habeas corpus. Parish of St. Charles. No. 78 — 264.

Writ denied. An appeal is pending.


text:
    STATE of Louisiana ex rel. Lionel McGRUDER, Jr. v. Alvin V. OSER, Judge, Orleans Parish Criminal District Court, Section “J”, State of Louisiana.
    No. 65955.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Lionel McGruder, Jr., applying for writ of mandamus. Orleans Parish. No. 255-056.

Writ denied. The application is moot.


text:
    William H. LEBLANC, Jr. et al. v. Patricia MILLER.
    No. 66002.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Patricia Miller, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. No. 12,735. Parish of East Baton Rouge.

Denied.

BLANCHE, J., recused.


text:
    STATE of Louisiana ex rel. Roosevelt McCORMICK v. Attorney William H. SLAUGHTER.
    No. 66013.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Roosevelt McCormick, applying for writ of habeas corpus. Parish of St. Charles. Number unknown.

Writ denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Junious JONES v. Rudolph F. BECKER, III, Judge, Criminal District Court, Parish of Orleans.
    No. 66015.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Junious Jones, applying for writ of mandamus. Orleans Parish. No. 169-998.

Writ denied. The application is moot.


text:
    STATE of Louisiana v. Anthony DOUGLAS.
    No. 66022.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re State of Louisiana, applying for supervisory writs. Parish of East Baton Rouge. Number unknown.

Denied.

MARCUS and WATSON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. John F. WILLIAMS v. Hayden J. DEES, Warden of Dixon Correctional Institute.
    No. 66067.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re John F. Williams, applying for writ of mandamus. Parish of Terrebonne. Number unknown.

Writ denied. The application is moot.


text:
    STATE of Louisiana v. Thomas S. HARRIS.
    No. 66192.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 268-297 I.

Writ denied.


text:
    STATE of Louisiana ex rel. Bryan A. THOMAS v. Hayden J. DEES, Warden, Dixon Correctional Institution.
    No. 66209.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Bryan A. Thomas, applying for writ of mandamus. Orleans Parish. Number unknown.

Writ denied. The application is moot. The district court has acted.


text:
    STATE of Louisiana ex rel. Russell H. CORRALES v. Honorable Fred C. SEXTON, Judge, 1st Judicial District Court IN AND FOR the PARISH OF CADDO.
    No. 66317.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Russell H. Corrales, applying for writ of mandamus. Caddo Parish. No. 102,101.

Writ granted. The trial judge is ordered to grant relator the transcript of his Boykin examination.


text:
    STATE of Louisiana ex rel. Robert STEWART v. CLERK OF COURT, SECTION A, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 66320.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Robert Stewart, applying for writ of mandamus. Orleans Parish. Nos. 206-570; 206-571.

Writ granted. Trial judge ordered to grant relator the transcript of his Boykin examination.


text:
    STATE of Louisiana v. George ASHBY.
    No. 66409.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re George Ashby, applying for writs of certiorari, mandamus and for a stay order. Orleans Parish. No. 273-039.

Writ denied. No error in denial of motion to quash.


text:
    STATE of Louisiana v. Sybil M. ALFORD.
    No. 65617.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Sybil M. Alford, applying for writ of certiorari. Parish of St. Tammany. No. 71,481.

Writ granted.

SUMMERS, C. J., MARCUS and WATSON, JJ., would not grant the writ.


text:
    STATE of Louisiana ex rel. Arthur MITCHELL v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 65888.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Arthur Mitchell, applying for. writ of habeas corpus, certiorari, and coram no-bis. Parish of Orleans. No. 249-486.

Granted. Evidentiary hearing ordered on whether relator is entitled to an out-of-time appeal.

SUMMERS, C. J., dissents from. the grant.


text:
    STATE of Louisiana v. George O. REESE.
    No. 66287.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, mandamus and prohibition. Orleans Parish. No. 273-127.

Writ granted.


text:
    Kathryn Lynn Roberts VON BECHMAN v. Franklin B. VON BECHMAN.
    No. 66327.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Franklin B. Von Bechman, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. No. 12,858. East Baton Rouge Parish.

Writ granted.


text:
    STATE of Louisiana ex rel. Frankie MORRISON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, et al.
    No. 65866.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Frankie Morrison, applying for writ of habeas corpus. Parish of Orleans. No. 220-567.

Not considered. Relator must first file his application for post-conviction relief in the district court.


text:
    STATE of Louisiana ex rel. David DORSEY, Jr. v. Frank C. BLACKBURN, Warden.
    No. 64939.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re David Dorsey, Jr. applying for writ of habeas corpus and certiorari. Parish of Ouachita. No. 37,307.

Writ denied.


text:
    STATE of Louisiana ex rel. Sidney BIENEMY v. Hon. Frank J. SHEA, Judge, Orleans Parish, Criminal Judicial District Court.
    No. 65521.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Sidney Bienemy, applying for writ of mandamus. Parish of Orleans. No. 252-712.

Denied. Moot.


text:
    STATE of Louisiana ex rel. William JACKSON v. Hon. Frank J. SHEA, Judge, Orleans Parish Criminal Judicial District Court.
    No. 65600.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re William Jackson, applying for writ of mandamus. Parish of Orleans. No. 254-847.

Denied. Moot.


text:
    STATE of Louisiana ex rel. James TYLER v. CLERK OF CRIMINAL DISTRICT COURT OF ORLEANS.
    No. 65701.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re James Tyler, applying for writ of mandamus. Orleans Parish. No. 266-494.

Writ denied. Premature.


text:
    STATE of Louisiana ex rel. Joseph ROSENTHAL v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66005.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Joe Rosenthal, applying for writ of mandamus. Parish of Orleans. Nos. 258-944 and 234-685.

Writ granted. Trial judge is ordered to grant relator the transcript of his Boykin examination in case No. 258-944, Sec. “E”.


text:
    STATE of Louisiana v. James MILLER.
    No. 66389.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re James Miller, applying for supervisory writs. East Baton Rouge Parish. No. 7-79-521.

Denied. Adequate remedy by review in the event of conviction.


author: DIXON, DENNIS and WATSON, JJ.,

text:
    Gilda WASHINGTON v. GREEN GIANT COMPANY et al.
    No. 66269.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Gilda Washington, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 10678.

Denied.

DIXON, DENNIS and WATSON, JJ.,

would grant, believing there to be a misapplication of the assumption of risk doctrine, which requires a finding that the injured person subjectively assumed the risk.


text:
    Floydzell TRENT v. CENTRAL CITY ECONOMIC OPPORTUNITY CORPORATION and Travelers Insurance Company.
    No. 66286.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Floydzell Trent, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 10542. Parish of Orleans.

Writ denied.


text:
    Cleola BROWN v. STATE MUTUAL LIFE ASSURANCE COMPANY.
    No. 66299.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re State Mutual Life Assurance Company of America, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Vernon. No. 7157.

Denied.


text:
    Margie Vanderwater LACHNEY v. BAKER MANUFACTURING COMPANY, INC.
    No. 66316.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Margie Vanderwater Lachney, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 377 So.2d 504.

Writ denied.

WATSON, J., recused.


text:
    Rodney HALL v. HOUSTON GENERAL INSURANCE COMPANY et al.
    No. 66314.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Rodney Hall, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 377 So.2d 561.

Denied.

DIXON, CALOGERO and DENNIS, JJ., would grant the writ.


text:
    TOURO INFIRMARY v. Viola JOHNSON and Home Health Services of Louisiana and Highlands Insurance Co.
    No. 66288.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Viola Johnson, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 377 So.2d 898.

Denied.


text:
    Jules VICKNAIR v. T. L. JAMES & COMPANY et al.
    No. 66113.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re T. L. James & Company et al. applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist. 375 So.2d 960.

Denied.

SUMMERS, C. J., and MARCUS, J., would grant the writ.


text:
    Adoption of Rachel Marie LATIOLAIS.
    No. 66078.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re Kenneth James Guidry, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia. 376 So.2d 555.

Granted.


text:
    HMC MANAGEMENT CORPORATION, the Louisiana Stadium and Exposition District, and the State of Louisiana v. The NEW ORLEANS BASKETBALL CLUB (The Jazz) et al.
    No. 65771.
    Supreme Court of Louisiana.
    Jan. 11, 1980.
   In re The State of Louisiana and Louisiana Stadium and Exposition District, through the Attorney General, William J. Guste, Jr., and HMC Management Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 375 So.2d 700.

Writ denied.


text:
    STATE of Louisiana ex rel. Maurice ROBINSON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 65947.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Maurice Robinson, applying for writs of certiorari and mandamus. Parish of Orleans. No. 192-880.

Writ denied.


text:
    STATE of Louisiana v. Bobby BULCHER.
    No. 65949.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Bobby Bulcher, applying for remedial writs. Parish of Rapides. No. 190-640.

Writ denied. Moot.


text:
    STATE of Louisiana v. Lionel TOLBERT.
    No. 65954.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Lionel Tolbert, applying for remedial writs. Parish of East Baton Rouge. Number unknown.

Denied. Adequate remedy by appeal in event of conviction.


text:
    STATE of Louisiana v. Laymon MITCHELL.
    No. 65979.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Laymon Mitchell, applying for supervisory writs. Parish of Orleans. No 265-979 C.

Writ denied.


text:
    STATE of Louisiana v. Charles W. EZEB, Jr.
    No. 65982.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Charles W. Ezeb, Jr., applying for supervisory writs. ■ Parish of East Baton Rouge. No. 11-73-7244.

Denied.


text:
    STATE of Louisiana v. Arthur TURNER.
    No. 65986.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Arthur Turner, applying for writ of mandamus and remedial writs. Parish of Orleans. No. 267-391.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Floyd J. GARRETT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66010.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Floyd J. Garrett, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish óf St. Landry. Number unknown.

Writ denied.


text:
    STATE of Louisiana v. Michael A. WEBER.
    No. 66202.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Michael A. Weber, applying for remedial writs. Parish of St. Charles. No. 76-030.

Writ denied.


text:
    STATE of Louisiana ex rel. Roy A. DOCKENS v. Frank C. BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 66345.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Roy A. Dockens applying for remedial writs. Parish of Sabine. Number unknown.

Denied. Moot.


text:
    FIRST GUARANTY BANK v. Carl THOMPSON et al.
    No. 66372.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Carl Thompson and Ella Mae Thompson, applying for certiorari, or writ or review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. No. 12,778.

Denied.


text:
    STATE of Louisiana v. Lee MALLAHAN, Jr.
    No. 66475.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Lee Mallahan, Jr. applying for writs of certiorari, mandamus, and prohibition. Jefferson Parish. No. 79-1744.

Writ denied. On the showing made, we will not exercise our supervisory jurisdiction at this time.


text:
    STATE of Louisiana ex rel. John Norman MACKEY v. Judge Hiriam WRIGHT, 8th Judicial District Court, Parish of Winn.
    No. 65994.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re John Mackey, applying for writ of mandamus. Parish of Winn. Number unknown.

Writ granted. Speedy trial ordered; otherwise dismiss the charge and detainer.


text:
    STATE of Louisiana v. Neely CALDWELL.
    No. 66370.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Orleans Parish. No. 273-109.

Granted.


text:
    STATE of Louisiana v. Eric E. TRICHE.
    No. 66375.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Eric E. Triche, applying for supervisory writs of certiorari, prohibition and mandamus. Parish of Calcasieu. No. 50,-978.

Granted.


text:
    STATE of Louisiana v. Jerry EWINS.
    No. 66236.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Jerry Ewins, applying for supervisory writs, and remedial writs. Parish of Orleans. Number unknown.

Not considered. Relator must first file by.application for post conviction relief in the district court.


text:
    STATE of Louisiana v. James W. SIMMONS.
    No. 65678.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re James W. Simmons, applying for remedial writs. Orleans Parish. No. 267— 071.

Denied. Appeal pending.


text:
    STATE of Louisiana v. Warren HARRIS, Jr.
    No. 65836.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Warren Harris, Jr., applying for writ of mandamus. Parish of Orleans. No. 259-534.

Denied. Moot.


text:
    Michael D. SHAW v. STATE of Louisiana Through the DEPARTMENT OF EDUCATION and the department of employment security.
    No. 66336.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re State of Louisiana et al., applying for writ of review. Parish of Allen. 366 So.2d 1070.

Writ denied.


text:
    SUCCESSION OF Oliver Gordon COLLINS, Jr., Sue Collins Peyton and Anne Collins Jackson v. Louney Suire HEBERT, Jules Hebert and Davis Craig Brignac.
    No. 66341.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Mrs. Sue Collins Peyton and Mrs. Anne T. Jackson, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 377 So.2d 516.

Denied.

MARCUS, J., would grant the writ.

WATSON, J., recused.


text:
    Perry H. COLEMAN v. Mrs. Edna Zeringue EGLE et al.
    No. 66380.
    Supreme Court of Louisiana.
    Jan. 18, 1980.
   In re Perry H. Coleman, applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of Assumption. 376 So.2d 983.

Writ denied.


text:
    STATE of Louisiana v. Wayne Robert FELDE.
    No. 66433.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
   In re State of Louisiana, applying for reconsideration. Caddo Parish. No. 109,-803.

Denied.


author: BIGBY, Judge.

text:
    Clyde HAY, Plaintiff-Appellee, v. S. Leo GRICE, Defendant-Appellant.
    No. 13992.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 3, 1979.
    En Banc. Rehearing Denied Jan. 9, 1980.
    Baker, Culpepper & Brunson by J. Michael McDonald, Jonesboro, for defendant-appellant.
    Evans, Feist & Auer, a Professional Law Corporation by Frank M. Auer, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and BIGBY, JJ.
   BIGBY, Judge.

Defendant appeals from a judgment permanently enjoining him from using a private road on plaintiff’s property, contending that the road has become public because of the tacit statutory dedication. Louisiana Revised Statutes 48:491. We affirm.

The evidence conflicted, but the preponderance of the evidence and the testimony of disinterested witnesses supports the trial court’s conclusion that the road has never been considered as a parish road or routinely and regularly maintained by the Police Jury. See Rowe v. Harvey, 307 So.2d 103 (La.App. 1st Cir. 1974); Jackson v. Logansport, 322 So.2d 281 (La.App. 2d Cir. 1975). See also Robinson v. Beauregard Parish Police Jury, 351 So.2d 113 (La.1977).

The ownership of the property of plaintiff and defendant and the location of the road in question are depicted on this reproduction from a plat in the record:

Defendant’s property lies northwest of plaintiff’s. Both Road B and Road A are located on plaintiff’s property but it is admitted by the defendant that Road A is private, leaving Road B the only one in dispute. Defendant wants to use Road B as this would allow him the convenience of a circular driveway.

The lower court concluded:

“The only significant work ever done by the Police Jury on Road B was the dumping, and leveling, of gravel thereon in 1973. The latter was an exceptional act by the Police Jury and was done to accommodate the defendant and his tenants at a time of unusually wet weather. The accommodation would have been given, at that time, to any parishioner in the same situation.”

At best, the record shows that public maintenance on the road in question was performed only three times during an 18-year period.

For the reasons assigned by the trial court and summarized here, the judgment is affirmed at appellant’s cost..