author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Allen D. MORRISON.
    No. 67324.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Albert W. Block, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Walter Lee Perkins, Asst. Dist. Attys., for plaintiff-respondent.
   CALOGERO, Justice.

This case presents two issues, namely, whether the prosecution failed to provide evidence as to the certification of the Auto-Intoximeter maintenance technicians where blood alcohol test results were introduced to prove defendant’s driving under the influence of alcohol, and whether the arresting officer possessed the requisite reasonable cause to have made an investigatory stop of defendant’s vehicle. For the reasons set out below, we find that the state did in fact fail to establish the technicians’ certifications and that the officer’s stop of defendant’s automobile was reasonably justified. The conviction is therefore reversed and the defendant ordered retried.

On the night of Friday, January 18,1980, Louisiana State Trooper Malcolm G. Ward had stopped his unmarked police unit on the improved shoulder of Highway 165 in Oua-chita Parish, Louisiana. Upon his entering the unit on the side closest to the traffic, Trooper Ward’s suspicions were aroused by a passing vehicle which had come, in his words, “very, very close” to his person. The trooper, in deciding to investigate, entered the highway, and after following the defendant for a short period of time, observed the auto to be weaving from shoulder to centerline. With lights and siren, Ward signaled for the vehicle to pull to the side.

After stopping, defendant Allen D. Morrison emerged from the car and was observed by Trooper Ward to be unsteady in his balance and to have breath smelling “moderately strong of alcoholic beverage.” After advising Morrison of his rights, the trooper administered a sobriety test which, in this case, consisted of having the suspect touch the tip of his nose with each hand while his head was tilted back and his feet were together. Mr. Morrison’s reaction to the test was what Ward termed hesitant, prompting the trooper to place him under arrest for driving while intoxicated.

Defendant was then transported to State Police Troop F Headquarters where, after signing the standard form, he was administered the Auto-Intoximeter test by Trooper Ward, who holds a valid operator’s permit for such machine. The results of the test, indicating that the defendant’s blood contained 0.161 gram percent of alcohol, were introduced at the trial at which defendant was convicted of violating R.S. 14:98, driving while intoxicated. Morrison was sentenced to pay a fine of $300.00 and court costs or, in default thereof, to spend ninety days in jail.

Defendant assigns three errors, the first two challenging the admission of the Auto-Intoximeter test results, the third asserting that Trooper Ward made an investigatory stop of the defendant’s vehicle without having the requisite reasonable cause.

Before considering the admissibility of the test result, we must first determine whether use of such result at trial affected or should be construed as having affected the verdict. The trial judge said that he considered the testimony of Trooper Ward alone as sufficient proof of the defendant’s drunkenness. In reasons for judgment, he stated, after admitting the results of the Auto-Intoximeter, that “... I am convinced there was sufficient evidence even without regard to the intoximeter to warrant a conviction and so I am going to so rule. However, if you need any comment on the intoximeter and want to appeal on it, I think there is sufficient evidence without it.”

In the case of State v. Goetz, 374 So.2d 1219 (La.1979), which involved a DWI prosecution where a challenge to evidence from a breath analysis machine was sustained, the state made the argument that the impropriety was harmless error because of the existence of other independent evidence of the defendant’s intoxication. In rejecting that argument, this Court cited language from the earlier decision of State v. Graham, 360 So.2d 853 (La.1978):

“The wrongful introduction of a chemical analysis which by law presumed the defendant to be under the influence of alcohol at the time of his arrest was manifestly prejudicial to the defendant’s case. Although other independent evidence of intoxication was presented by the State at the trial of the case, we are prohibited by the constitution from deciding the factual question of guilt or innocence and must restrict our scope of review to questions of law in criminal cases. La.Const.1974, Art. 5, § 5. Consequently, we cannot speculate as to what decision the trier of fact would or should have made had the inadmissible evidence not been introduced. Instead, we are required to review the record for reversible errors of law and to declare them when found.” [citations omitted], at page 1223.

It is true that the instant case is technically distinguishable from Graham, supra, and Goetz, supra, for the reasons that the judge here stated that he considered the other evidence to be sufficient, thereby eliminating the necessity that this Court “speculate as to what decision the trier of fact would have or should have made” absent the inadmissible evidence. Nevertheless, we view the impact of the test results in this case in the same light as did the Court in Graham, supra, and Goetz, supra.

We tend to credit judges with the ability through training and experience to segregate and disregard inadmissible evidence, a faculty which we clearly do not (and properly so) ascribe to trial juries. While in fact this may be something of a fiction, it is generally a reality which does not offend the integrity of trial court determinations. It is entirely another matter for a trial judge to rule that certain damning evidence is admissible and then find a defendant guilty while protesting that his conclusion was absent consideration of the admitted evidence. The latter should not be countenanced.

Where in Goetz we would not say, as a reviewing court, that we found enough evidence absent that improperly admitted, here we say that the system should not tolerate a trial court judgment assertedly based entirely on only part of the evidence admitted, where the admitted but “disregarded” evidence is so probative of defendant’s guilt.

The trial court verdict of DWI is, in law at least, affected (or tainted) by the Auto-Intoximeter result. It is therefore necessary that the legality of the admission of those results be examined.

By the enactment of R.S. 32:662 the state has created a presumption which has the effect of shifting the burden of proof to the defendant. State v. Jones, 316 So.2d 100 (La.1975). It is axiomatic that due process requires the state to prove every element of the crime beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Searle, 339 So.2d 1194 (La.1976); and since R.S. 32:662, subd. A, par. 1(c), phrased in the imperative, is a mandatory presumption, it “violates due process ‘unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.’ ” County Court of Ulster County, New York v. Allen, 442 U.S. 140, [at 166,] 99 S.Ct. 2213, at 2229, 60 L.Ed.2d 777 (1979); State v. Lollar, 389 So.2d 1315 (La.1980).

In an effort to insure that various forms of chemical tests used in criminal prosecutions are valid, the legislature has enacted R.S. 32:663, which provides:

“Chemical analyses of the person’s blood, urine, breath or other bodily substance, to be considered valid under the provisions of this Part, shall have been performed according to methods approved by the Department of Public Safety and by an individual possessing a valid permit issued by said department for this purpose. The Department of Public Safety is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the department.”

In 1975, in the case of State v. Jones, supra, this Court expressed concern regarding the fact that a defendant could be convicted merely upon a showing of the results of a mechanical testing device. We expressed concern that the administration of these tests be done professionally and accurately, and found R.S. 32:663 to be mandatory on the department.

We noted that . test results establishing legal intoxication dispense with the State’s obligation to affirmatively meet its burden of proving the ‘intoxication’ element of the crime beyond a reasonable doubt,” and it was further decided that “... before the test results can trigger the presumption of intoxication and thus relieve the State of its burden of proof, much more than the mere designation of the name of a testing device and vague reference to some procedure or technique, without setting forth the specifics of such procedure or technique, ... is necessary.” State v. Jones, supra, at page 103.

In the past it has been held that operators of the mechanical testing devices need be qualified pursuant to the regulations of the Department of Public Safety, R.S. 32:663, State v. Jones, supra; that the state must produce positive proof of such qualification, State v. McGuffey, 316 So.2d 107 (La.1975); that the procedures for testing must be set out by said rules, that the state must be required to produce evidence of comportment with such rules, State v. Karol, 316 So.2d 106 (La.1975); that the state must lay a proper foundation that the chemicals used in the testing of the P.E.I. machine were of standard chemical quality, State v. Goetz, supra; and that the state must come forward with proof of the certification of each individual machine, State v. Goetz, supra.

The Department of Public Safety has promulgated rules which endeavor to conform the administration of the various chemical tests to the mandate of the legislature and, in particular, to the requirements of this Court as pronounced in Jones, supra, and in its progeny, including State v. Graham, supra. In Graham we stated:

“In considering previous attacks upon the validity of the statutory design, this Court has expressed the opinion that, in order for the State to avail itself of the Statutory presumption of a defendant’s intoxication without violation of his constitutional due process guarantee of a fair trial, detailed methods, procedures and techniques must be officially promulgated to insure the integrity and reliability of the chemical tests including provisions for ‘repair, maintenance, inspection, cleaning, chemical accuracy, certification [as well as] proof of adherence to’ those methods, procedures and techniques.” [citations omitted.]

The technology which is available to assess alcohol in the blood of a person suspected of being intoxicated is, like much of our applied science, constantly evolving. Recently, the Department of Public Safety has certified no less than four different machines for use in this context, namely, the Photo-Electric Intoximeter (P.E.I.) Model 400, the Gas Chromatograph Intox-imeter Mark IV, the Auto-Intoximeter (Auto I) (which is the machine in the instant case), and the Intoxilyzer Model Number 4011 AS-S. 6 La.Reg. 620, 621 (1980). While much of the jurisprudence concerning requirements for the admissibility of mechanical test results was addressed particularly to the Photo-Electric Intoximeter, the principles underlying those pronouncements are concerned with the reliability of the findings and are applicable to each of the four devices, including the Auto-Intox-imeter, as are the regulations of the department.

In his first assignment of error, the defendant contends that the state at trial has failed to introduce evidence sufficient to show compliance with the rules set forth by the Department of Public Safety. As required by the jurisprudence, the prosecution attempted to establish certification of the particular Auto-I machine which had been used to test defendant by the introduction into evidence of a document, reading in pertinent part as follows:

“This is to certify that instrument number 1061 Auto-Intoximeter is an approved instrument for use in breath alcohol testing and is certified to be in proper functioning condition on this 29th day of November, 1979. Located at the Louisiana State Police Troop F Monroe, Louisiana.

This certificate is prima facie evidence of the proper functioning of the instrument.

s/s Bailey D. Hughes, II s/s TName Illegible!
Supervisor of Maintenance Inspecting Technician”

Rule 1 of the Regulations of the Department of Public Safety, 4 La.Reg. 390 (1978), states that after the department has approved a prototype breath testing device as acceptable for use in chemical analysis of breath alcohol “... it shall be necessary for each individual instrument of the approved model to be checked out and approved for use by the State Police Crime Laboratory;^ Applied Technology Unit, at least once every four months, and a machine recertification form shall be maintained for each machine in the State Police Crime Laboratory, Applied Technology Unit...." The regulations then specifically require, at Rule 4d, that “[mjaintenance checks will be performed on a routine basis at least once every four months, by the Louisiana State Police Crime Laboratory, Applied Technology Unit.” (The Rule goes on to enumerate the particular items to be checked). 4 La. Reg. 391 (1978). These same regulations in Rule 8, require that “.. . maintenance and/or repair work will be performed by Breath Analysis Inspectors working for the Applied Technology Unit of the Louisiana State Police Crime Laboratory, who are certified by the Louisiana Department of Public Safety to perform such.” 4 La.Reg. 392 (1978). The defendant points out that the document, while reciting that the machine is in proper functioning order, fails to set forth the qualifications, required by Rule 8, of the maintenance technicians (Breath Analysis Inspectors) who have made that determination, and that no other evidence proving their certification was presented at trial.

The accuracy of the intoximeter test results is directly affected by the qualifications and the performance of the maintenance technicians. The regulations which seek to insure the proper calibration of the machines by, among other measures, requiring maintenance personnel to be certified should be and is, especially applicable to the Auto-I machine. A glance at Officer Ward’s testimony at trial indicates as much. In describing how a duly qualified operator of the machine obtains an accurate result, the officer testified that “[y]ou press one switch to turn it on so it will warm up. You press a button, it goes through a regular computer sequence which cannot be altered and at a certain point it has a light that comes on and it says ‘test subject’ . .. the only other thing you do is press a button that says ‘print’ and it prints out that little grocery store form there.”

The calibration of the Auto-Intoximeter, which is performed as a regular part of the maintenance schedule, on the other hand, seems to be somewhat more complex, involving a routine whereby the technician, among other tasks, cleans the instrument, runs a known alcohol standard to check the calibration, and if necessary, resets the calibration factor, the correct setting of which is indispensable to the accuracy of the test. It seems clear that a valid test result from the Auto-Intoximeter turns on the special expertise of the technicians charged with maintaining and calibrating the machine, rather than on any special expertise of the operator.

The certificate relative to proper functioning of the Auto-Intoximeter machine merely contains the names and signatures of the Supervisor of Maintenance and of the inspecting technician. No mention is made of the source of their qualifications to perform the task of maintenance, or even of compliance with the bare minimum requirement of the regulation, namely, that the technicians be certified by the department.

Furthermore, the state offered no other evidence of compliance with the departmental guidelines, nor testimony of the technicians, nor other ordinary proof of their certification, as would be an available alternative under Goetz, supra.

Accordingly, since Goetz requires that the state lay a foundation for the introduction of mechanical test results by “... ‘proof of adherence to’ those methods, procedures, and techniques” set out by the department, since the department in its regulations requires that the technicians be certified, and since no proof whatever was offered as to the qualifications of the inspecting technicians, we hold that it was error for the trial court to have admitted the results of the Auto-Intoximeter test. The minimum that the state must do to show that the maintenance and calibrating technicians are certified by the department is to include such a statement in the document which serves as proof of the certification of the machine. Of course, an alternate mode of certification would be by the ordinary presentation of evidence.

The issue, raised by the defendant’s second assignment of error is whether the aforementioned certificate introduced by the state was deficient in failing to bear affirmative and detailed proof that the “known alcohol standard” used to calibrate the Auto-Intoximeter was pure and unadulterated. Because of our determination that the test results were inadmissible due to the state’s failure to offer proof of the technicians’ certification, we need not address this issue.

Because this decision does not entail a finding that there was an insufficiency of evidence to convict defendant, rather only that the admission of the Auto-Intoximeter test result was erroneous, it is proper that the defendant be retried on the charge of driving while intoxicated. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Because upon retrial the trial court is likely to be faced again with the situation which gave rise to defendant’s third assignment of error, we will here review that assignment.

Defendant maintains that the court below erred in finding that there existed reasonable cause for Trooper Ward to have made an investigatory stop of the Morrison vehicle. Defendant cites the case of State v. Jones, 308 So.2d 790 (La.1975), where this Court found a stop which had occurred under circumstances similar to the instant case to have been initiated without reasonable cause. We believe, however, that this case is distinguishable. The Court’s decision in Jones, supra, was prompted in part by the suspect nature of the officers’ testimony concerning the weaving vehicle. Rather than formulating a rule of law pertaining to weaving automobiles, the Jones decision was born of a suspicion of the state’s evidence which we do not entertain in the instant case. While there is conflicting testimony in this case as to the duration of Trooper Ward’s observation of the defendant’s auto and as to the actual occurrence of the weaving, we find no reason to discount the officer’s testimony, nor have we been presented with any reason to second-guess the decision of the trial judge, present at the taking of the testimony.

Moreover, it is eminently reasonable that Trooper Ward’s suspicions be aroused initially by a car passing “very, very close” to his person and then by the uncontrolled weaving of that car at highway speeds. There was certainly at least reasonable cause for Trooper Ward to have intervened in what he was justified in perceiving as a potentially dangerous situation and as a violation of the law.

Decree

For the reasons set out above, the defendant’s conviction is reversed and the case is remanded for retrial.

REVERSED AND REMANDED.

      . The Auto-Intoximeter is a computer chroma-tograph which compares a sample of the subject’s breath to a known alcohol standard to determine the percentage of the subject’s blood alcohol.

      . R.S. 32:663, the Regulations of the Department of Public Safety, and State v. Junell, 308 So.2d 780 (La.1975), require that the operator of a breath test machine be certified to perform that function.

      . At trial, the officer who had administered the test to defendant referred to the results in terms of gram percent, which is incidentally also the terminology of the Regulations of the Department of Public Safety. The statute which creates the legal presumption of intoxication, R.S. 32:662, speaks of the measurement in terms of percentage by weight of alcohol in a person’s blood.

      . R.S. 32:662, subd. A, par. 1(c) provides:
      “If there was at that time 0.10 per cent or more of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages.”

      . This case comes before us on writ of certiora-ri, as there is no appeal of right unless a fine exceeding five hundred dollars or a sentence exceeding six months has actually been imposed. La.Const. art. V, § 5(D) (1974);

      . State v. Goetz, supra.

      .The defendant presents in his first assignment of error the additional argument that, irrespective of the state’s failure to show the departmental certification of maintenance personnel, the regulations themselves are deficient in not requiring that these technicians be qualified beyond the mere departmental employment and certification. The contention is that the regulations are lacking in the absence of a statement of exactly what qualifications the maintenance personnel are required to possess in terms of education, number of hours of technical training, experience with the particular machine, et cetera.
      While counsel for the defense can be credited at trial with a vehement objection to the test evidence on the grounds that the state had failed to show proof of adherence to the regulations, an examination of the record reveals no such challenge to the legal sufficiency of the rules as written. The argument is, therefore, not properly before us. C.Cr.P. art. 841.
      Aside from the lack of a timely objection, we would not be inclined to require, for a prima facie showing, that the technicians’ skill be proved with more particularity than would be present in a showing of their departmental certification.

      . At a date posterior to the testing of this defendant, the Department of Public Safety published a Notice of Intent to require that “[t]he inspecting maintenance technician’s permit number shall be affixed to this certificate.” 6 La.Reg. 620 (1980).

      . Assuming that the certificate is otherwise in compliance with the requirements of the department, such a certificate would fall under the public documents exception to the hearsay rule.

      . The Regulations of the Department of Public Safety provide, in pertinent part, for the calibration of the Auto-Intoximeter by the running of a “known alcohol standard”:
      * * * * * *
      “c. Maintenance: Maintenance checks will be performed on a routine basis at least once every four months by the State Police Crime Laboratory, Applied Technology Unit. Items to be checked shall be, but are not limited to, the following:
      # * # * * $
      (2) Running a known alcohol standard thereby checking the instrument and calibration. 4 La.Reg. 392 (1978).”

      . This Court has previously held that law enforcement officials need not have probable cause to initiate an investigatory stop; rather, something less, referred to as reasonable cause, is necessary. State v. Scott, 307 So.2d 291 (La.1975).


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Charles H. WESTBROOK.
    No. 65132.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Lester A. Robertson, Asst. Dist. Atty., for plaintiff-respondent.
    James Miguez, Lake Charles, for defendant-relator.
   ON REHEARING

WATSON, Justice.

Defendant, Charles H. Westbrook, was convicted at a bench trial of driving while intoxicated on September 30, 1978, his second offense. LSA-R.S. 14:98 C. The sentence was 125 days in the parish jail and a fine of $250, or 40 additional days in jail.

Originally, the conviction and sentence were reversed per curiam, 385 So.2d 13 (La.) because the- State failed to show that the person who checked the PEI machine had been certified by the Department of Health and Human Resources. LSA-R.S. 32:663.

A certificate of inspection filed with the Clerk of Court of Calcasieu Parish states that the PEI machine used to test defendant, No. 51, was in proper functioning condition on .August 3, 1978. Regulation 6 requires a maintenance check of each machine at least once every four months. The prior opinion found that it was also necessary for the individual checking the machine to be certified. However, there is no requirement in the Rules and Regulations that the person checking the machine be certified. Although the technicians doing maintenance repairs must be certified, Regulation 6E, the machines can be checked by anyone. The prior opinion erred in requiring that those checking the machines be certified. That opinion is now recalled and vacated.

The other assignments of error are as follows:

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in allowing introduction of a prior D.W.I. conviction because sufficient connexity was not shown between him and the prior offender, relying on City of Monroe v. French, 345 So.2d 23 (La., 1977). In City of Monroe v. French, the only point of identity with the prior conviction was defendant’s name. Here, in addition, the driver’s license number, sex, race and birth date all identified the prior offender with defendant. The State carried its burden of proving that this defendant is the West-brook previously convicted of D.W.I.

This assignment has no merit.

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE

Defendant contends that the PEI test results were inadmissible because the manufacturer’s certificate of the quality of the chemical ampul used in the machine was insufficient, and the ampul had not been spotchecked.

Regulation 5 provides:

“Each lot of ampuls shall be certified at the factory by the manufacturer as to their standard of quality. This certificate shall be prima facie evidence as to the standard of quality of the ampul.”

The State introduced a “Certificate of PEI Ampul Standard by Quality” certified by the head chemist and custodian of records for Intoximeters, Inc. The certificate, dated August 11, 1978, states that the ampuls from this lot, number 7806, were filled on May 23, 1978, and attests to their standard of quality. It is adequate compliance with Regulation 5.

Regulation 6A requires that each lot of ampuls be spotchecked during the maintenance check. However, the maintenance check of this machine, on August 3, 1978, involved another ampul group, lot number 2006. There is no evidence that ampul group number 7806, the one used in defendant’s test, was spotchecked. However, defendant was tested on September 30, 1978. This was within four months of the date of the manufacturer’s certificate of quality. The State can prove chemical quality of the ampuls by the manufacturer’s certificate in lieu of spotchecking. State v. Goetz, 374 So.2d 1219, (La., 1979). The manufacturer’s certificate was dated within four months of the ampul’s use and sufficed to prove the ampul’s quality.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

The defendant contends that the trial court erred in allowing introduction of the PEI result without evidence about the type of testing done when the machine was recertified. However, the Rules and Regulations do not mandate a particular method or type of testing.

This assignment of error lacks merit.

For the foregoing reasons, the prior opinion of this court is vacated and the conviction and sentence are affirmed.

AFFIRMED.

      . The testing methods at that time were according to the Rules and Regulations of the Department of Health and Human Resources. These are now promulgated by the Department of Public Safety. See State v. Morrison, 392 So.2d 1037 (La., 1980) handed down this date and decided under the new regulations.

      . LSA-R.S. 32:663 provides:
      . “Chemical analyses of the person’s blood, urine, breath or other bodily substance, to be considered valid under the provisions of this Part, shall have been performed according to methods approved by the Department of Public Safety and by an individual possessing a valid permit issued by said department for this purpose. The Department of Public Safety is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the department.”

      .Regulation 6 provides as follows:
      “Maintenance checks will be performed on a routine basis at least once every four months, by the Louisiana State Police Crime Laboratory. Items to be checked shall be not limited to the following:
      “A. Each lot of ampuls shall be spotchecked for performance.
      “B. Clean instrument.
      “C. Calibration check of standard ampuls.
      “D. Running of a known alcohol solution in which results shall be within plus or minus ,010g% or the known alcohol value. (See Exhibit C).
      “E. In the event any repair work is needed, it will be recorded in detail (See Exhibits D & E).
      “Repair work will be performed by technicians working for the Applied Technology Section of the Louisiana State Police Crime Laboratory who are certified by the Louisiana Department of Health and Human Resources, Office of Health Services and Environmental Quality, Bureau of Laboratories, to perform such maintenance.
      “The Applied Technology Section of Louisiana Police Crime Laboratory shall have the authority to instruct other individuals to perform such maintenance (Exhibit F). Upon satisfactory completion of such training the individual shall be certified to perform maintenance by the Louisiana Department of Health and Human Resources, Office of Health Services and Environmental Quality, Bureau of Laboratories.
      “Records covering maintenance, etc., of the P.E.I. (photo-electric intoximeter) instrument will be kept by the Louisiana State Police Crime Laboratory.”
      Rules and Regulations 6, Louisiana Register, Vol. 3, No. 6 at 273 (1977).


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. John D. HUFF, Johnnie Donald, Jr., Gerald Donald, Kenneth D. Sanford and Howard Wayne Phillips.
    No. 67576.
    Supreme Court of Louisiana.
    Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Glenn Gremillion, Asst. Dist. Atty., for respondent (plaintiff).
    Philip A. LeTard, Vidalia, for defendant-relator.
   BLANCHE, Justice.

Defendants were indicted by a Concordia Parish Grand Jury for knowingly and intentionally possessing with intent to distribute a controlled dangerous substance (marijuana) in violation of La.R.S. 40:966(A). Defendants filed the following motions prior to the commencement of a trial: (1) Motion for In Camera Inspection of the Grand Jury Proceedings; (2) Motion to Subpoena the District Attorney’s Testimony; (3) Motion to Compel the Testimony of the Foreman of the Grand Jury; (4) Motion to Quash the Grand Jury Indictment; (5) Motion to Suppress Statements of Certain Defendants, and (6) Motion to Reduce Bond and Remove Restrictions. The trial judge denied each motion and, upon application by defendant, this Court granted a writ to review these rulings. The ruling regarding the Motion to Reduce Bond and Remove Restrictions has previously been considered by this Court. We now affirm the trial court’s rulings on the remaining motions.

The record shows that defendants were arrested after first being indicted for this offense. The state maintains that the prosecution of these defendants initiated after an ex-police officer found fragments of photographs depicting the defendants with large quantities of what appeared to be marijuana, and turned these fragments over to the Vidalia City Police who, in turn, released them to the Concordia Parish Sheriff’s Department. According to the prosecution, Mike Clark discovered portions of what proved to be 13 photographs in a rural area of Concordia Parish, alongside a road, while he was working in the area laying telephone cable in the course of his employment with a general contractor.

After piecing together these photographs, personnel for the Sheriff’s Department were allegedly able to identify the persons in these photographs as the defendants, who were all residents of Concordia Parish. The Sheriff’s Department had these pieced together photographs in its possession for approximately two to three months prior to the time the prosecution sought a grand jury indictment of the defendants and, according to Deputy Sheriff Schiele, had yet to locate the building or house where the pictures had been taken at the time of the indictments, and were unaware of where the suspected crime had taken place. Defendants were all arrested after the issuance of bench warrants either the night the grand jury indicted them, or shortly thereafter.

After the arrests of defendants John D. Huff and Kenneth P. Sanford, each gave taped statements to the Concordia Parish Sheriff’s Department. Apparently defendant Gerald Donald also gave a statement to the police following his arrest. Based upon the statements of Kenneth Sanford and Gerald Donald, the Sheriff’s Department secured a search warrant to search the home of defendant Johnnie Donald, Jr. and to seize or photograph certain household and personal items, and contraband and drug paraphernalia depicted in the photographs referred to above. The Sheriff’s Department executed the search warrant, found some of the items for which they were searching, seized them, and took photographs of other items and of the scene. The execution of the search warrant document indicates nothing suspected to be marijuana was found, aside from “one small burnt cigarette of a green vegetable like material appearing to be marijuana”.

In the various motions filed by defendants, they contest the validity of their indictments, the legality of their arrests, the use of the statements of Kenneth Sanford and John D. Huff given by them following their arrests and the validity of the search warrant and seizure of evidence in the course of the execution of that warrant.

Probable Cause to Arrest Defendants

At the outset, defendants argue that the photographs in the possession of the Con-cordia Parish Sheriff’s Department do not, alone, establish probable cause to arrest them on the charge of possession of marijuana with intent to distribute. Defendants further contend that the existence of the grand jury indictment also does not provide the requisite probable cause to arrest and that the only evidence the state had against them and which was presented to the grand jury was the above mentioned photographs. Consequently defendants moved to suppress the statements of John D. Huff and Kenneth Sanford, which the Concordia Parish Sheriff’s Department secured from them following their arrests since they contend those statements were the fruits of illegal arrests.

Defendants attempted through various motions to prove their contention that the photographs were the only evidence against them presented to the grand jury. However, the trial judge refused defendants’ request that he conduct an in camera inspection of the grand jury proceedings to make this determination. He also refused to allow the defendants to compel the testimony of the foreman of the grand jury on the issue of what evidence the prosecution presented to them in this case. Finally, the judge did not allow defendants to call the district attorney to the stand to question him as to whether he felt a duty to advise the grand jury not to indict in cases where he felt there was insufficient evidence to indict. Defendants contended that the House of Delegates of the American Bar Association recognizes such a duty. The trial judge’s rulings denying the above motions were apparently in part motivated by a desire to protect the secrecy of the grand jury proceedings, and also by the judge’s opinion that an indictment handed down by a grand jury in itself provides probable cause to arrest. At the trial of the motion to suppress, the trial judge indicated that the grand jury indictment of defendants properly served as the basis for the issuance of the arrest warrants in this case.

This Court has previously held that a grand jury indictment serves as a determination of probable cause to hold a defendant on a charge and is a reasonable alternative to a preliminary hearing to determine probable cause to hold. See State v. Qualls, 377 So.2d 293 (La.1979). In that case, we emphasized that the grand jury is composed of twelve citizens chosen from a cross-section of the community and is charged with the responsibility and authority delegated by law to grand jurors. Further, the grand jury indictment “procedure is well-designed to protect the accused from an overbearing government prosecutor or false accusations. Before an indictment is returned this body must be satisfied that probable cause exists that the accused committed the crime and should be held for trial to defend himself

The grand jury has a statutory mandate to indict “when, in its judgment, the evidence considered by it, if unexplained and uncontroverted, warrants a conviction.” C.Cr.P. art. 443. This standard for rendering an indictment is a more stringent one and requires stronger proof than a finding of probable cause to arrest, i. e., probable cause to believe a crime has been committed by the arrestee. Our state constitution recognizes the significance of the grand jury and requires an indictment by a grand jury for a capital crime or crime punishable by life imprisonment before any prosecution for these crimes may proceed. La.Const. art. 1, § 15. Considering the importance ascribed to the grand jury in our judicial system and the high standard of proof required for a grand jury indictment, we hold that such an indictment establishes probable cause to arrest and is sufficient to protect the privacy of citizens of this state and to shield them from unwarranted arrests. The United States Supreme Court has taken this position since 1932. See Ex Parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, footnote 19; Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978) footnote 6 in concurring opinion.

Validity of the Grand Jury Indictment

Defendant also questions, in a Motion to Quash the Indictments, the validity of those indictments themselves, alleging that there was insufficient evidence to indict. It is well settled that a grand jury indictment cannot be attacked on the basis of insufficient evidence that the crime has been committed. State v. Edgecombe, 275 So.2d 740 (La.1973). For this reason, the judge correctly denied the motion to compel the testimony of the foreman of the grand jury and the motion for an in camera inspection which were in aid of defendant’s attack on the sufficiency of the evidence presented to the grand jury. The lower court ruling that the district attorney would not be subpoenaed to testify regarding any duty he felt to advise the grand jury not to indict for lack of evidence was also proper. Defendants failed to prove the existence of such a standard or its applicability to a Louisiana district attorney.

Defendants also contend that the instant indictments are invalid because the grand jury did not receive a written charge required by C.Cr.P. art. 482, which provides in part: “After the oath, is administered to the members of the grand jury, the judge shall charge them orally in open court upon their duties, rights and powers. Upon completion of the charge the judge shall give the grand jury a written copy of the charge.” Defendants’ position is that the grand jury was empaneled in April and orally charged at that time, but the jury was not charged when it was recalled in August.

This Court has held, in State v. Starr, 52 La.Ann. 610, 26 So. 998 (1900), that the fact that the minutes of the court did not reflect that the grand jury which returned the indictment was charged, was not reversible error. In light of this jurisprudence and the fact that the instant grand jury was charged at least once in April, we hold that the members were properly apprised of their rights, duties and powers, and the lack of a written charge when the jury was recalled does not affect the validity of the indictments at issue. These indictments may therefore supply the probable cause for the arrests of the defendants.

VOLUNTARINESS OF STATEMENTS

Statement of John D. Huff

Defendants allege, as an alternative basis for their motion to suppress the statements of Huff and Sanford, that these statements were not freely and voluntarily given. Defendants contend that defendant Huff was under the influence of two 100 mg. tablets of seconal at the time he made his statement and was unable to knowingly and intelligently waive his right to remain silent. They also allege that the Sheriff of Concordia Parish pressured Huff into making his statement by telling him if he cooperated he could possibly avoid going to federal prison or to Angola.

John Huff testified that he had worked from 2:00 p. m. to 10:00 p. m. on an oil rig in Adams County, Mississippi the night of his arrest. After working, he rode home to Concordia Parish with fellow worker Steven Dodd. Both Dodd and Huff testified that Huff took two 100 mg. tablets of seconal during the drive home to help him to sleep. The state stipulated Dodd had a prescription for the drug. According to Huff, he also had two or three beers on the way home.

Huff was arrested by Concordia Parish Sheriff’s Deputies at his home at approximately 11:30 p. m., was booked at the courthouse at 11:50, and then taken to Sheriff Schiele’s office. Both defendant and Sheriff Schiele testified that, at first, Huff refused to make any statement. According to Sheriff Schiele, he spoke to Huff for about ten minutes and did not threaten him or promise him anything in exchange for a statement. The Sheriff specifically denied telling Huff that agents of the federal government were “after him” and that he would try to protect him from them. Huff, on the other hand, maintained that the Sheriff told him there was a federal indictment for his arrest and, that if he cooperated, it would be a lot easier on him and he could stay in Concordia Parish and would not be sent to Angola. However, Huff did testify that the Sheriff repeatedly told him that he could not promise him anything. When questioned about Huff’s physical condition when he saw him the night of his arrest, Sheriff Schiele noted that Huff did seem sleepy and that he spoke slowly, but he attributed the sleepiness to the lateness of the hour, and stated that Huff’s speech pattern that night seemed to be his normal one as observed on other occasions. Huff described his physical condition the night of his arrest as “pretty bad” and stated that he was “just tired, from working hard”.

After defendant Huff spoke with Sheriff Schiele, he testified he remembered talking to another man who told him he ought to cooperate, but Huff still refused to talk. Some time later Huff apparently changed his mind and, in his words, told Deputy Sheriff Lyle Schiele (son of Sheriff Schiele and an old classmate and acquaintance of Huff’s) that he “was ready to get it over with”. He then gave the statement at issue to Deputy Schiele at approximately 2:54 a. m.

Deputy Lyle Schiele, who was also the arresting officer of Huff, testified as to this defendant’s physical condition the night of his arrest. Schiele stated he followed defendant home as he drove his vehicle from the spot where his fellow worker had dropped him off in Vidalia after their ride home from work. He felt that Huff had “driven fine” and when he spoke to him he did not appear to be intoxicated or drugged or any sleepier than could be expected after working all day. Schiele also testified that he did not coerce Huff or promise him anything in order to get a statement from him and believed Huff’s statement to be free and voluntary.

Dr. Allen M. Read testified to the effects of the drug seconal on the human body. He stated that seconal was commonly used as a sleeping pill and had a depressant effect, making a person drowsy. The drug’s action usually began within fifteen or twenty minutes from the time it was taken and its full effect would last about three to six hours, with a “hang-on” effect following. Dr. Read described the effect of the drug as simply making a person drowsy, but indicated that a high enough dose could have an hypnotic effect. He felt that two hundred milligrams of seconal could slow down a person’s thought processes to the extent that he could not make a decision whether to remain silent and would not know whether a statement he made was inculpa-tory or incriminating. One or two beers would cause the effect of the drug to be slightly stronger, and the drug would also have a greater effect the more fatigued a person was. Dr. Read explained that the drug’s effect varied depending on the particular individual and that age, height, weight and physical condition were relevant to the drug’s effect. He testified that he has not examined defendant Huff to determine his particular physical condition.

Considering all of the above testimony, we feel that John Huff freely and voluntarily made the statement at issue to the Sheriff’s Department. He did not testify that he was threatened or coerced in any way. Huff’s testimony regarding Sheriff Schiele’s comments about federal involvement and promises to keep him in the Parish were specifically rebutted by Sheriff Schiele, and the trial judge apparently attached more credibility to the Sheriff’s testimony on this point. It is significant, also, that Huff admitted that the Sheriff repeatedly told him “I can’t promise you anything, now.” There was no evidence presented at the hearing on the motion to suppress of any other alleged promises or coercion other than Huff’s statement that someone at the Sheriff’s Office told him “he ought to cooperate”. This can not be considered a coercive statement, or threat, or a promise, and Huff testified that the statement did not change his decision not to say anything at that time. Huff testified that he finally told his acquaintance Lyle Schiele that “I’m ready to get it over with”, just prior to giving Schiele his statement. The defense points out that defendant was in custody at the courthouse from 11:50 until 2:54 before he made his statement, and argues that the state cannot account for all of this time period. There is no allegation of threats, coercion or promises made to Huff other than those addressed above. In the absence of some indiction of an event in this time frame that would affect the voluntary nature of his statement, we do not feel that the failure of the state to account for Huff’s activities for every moment of time spent in custody should affect the admissibility of Huff’s statement.

The testimony also indicates that Huff’s statement made approximately 4Vá hours after he allegedly took seconal was not rendered involuntary by the effect of the drug. Even assuming defendant took the drug in the amount he claims, the testimony as to its effects on Huff is far from conclusive. The doctor who testified did not particularize the effects of the drug as to Huff, although he stipulated that the drug’s effect varied among individuals. Also, he stated that the drug simply made one sleepy, and only that an unspecified “high dosage” could have an hypnotic effect. His opinion that “someone” would be unable to make a decision as to a waiver of his rights must be discounted as a hypothesis that was not related to any of the facts surrounding Huff’s waiver.

Huff himself testified that he felt “sleepy”. Sheriff Schiele and Deputy Schiele both confirmed that defendant acted sleepy, but not intoxicated or drugged, according to Deputy Schiele. An examination of the transcript of Huff’s statement does not reveal that Huff was suffering from any impairment to his ability to make a knowing and intelligent waiver of his right to remain silent. There is no indication that Huff requested sleep or stated to the Sheriff’s Department personnel that he was, for any reason, overly drowsy or not in control of himself. There is no absolute duty on law enforcement officials to question an arrested suspect as to his physical condition prior to taking a statement from him. Under the evidence we have before us, we feel that the state has met its burden of proving that defendant John Huff’s statement was made freely and voluntarily, and that he made a knowing and intelligent waiver of his right to remain silent.

Statement of Kenneth Sanford

In attempting to suppress defendant Sanford’s statement, the defense argues that Sanford was not given his Miranda warning prior to the time he made statements in which he implicated himself. Although it is conceded that Sanford was fully advised of his rights prior to a taped statement given to Investigator Paul Scott, defendants contend that this taped statement was a fruit of the prior incriminating statement he alleges was made before any Miranda warning was given. Defendants also argue that Sheriff Schiele told Sanford of federal involvement in the case and may have made promises to try to keep Sanford out of a federal investigation if he cooperated. Finally, they assert that the Sheriff’s refusal to allow Sanford’s father into the room where Sanford was questioned was a coercive tactic.

We find that the evidence shows that defendant was read his Miranda warnings prior to making any statement. There is some question as to whether Deputy Lyle Schiele or Deputy Hal Harp gave Sanford his Miranda warnings when they arrested him. However, the booking sheet reflects that Deputy Bruce “booked” defendant, and that defendant did receive his Miranda warnings at this time. Deputy Bruce’s testimony confirms that he did book defendant and read him his Miranda warnings. It is the position of the defense that although defendant may have been read his rights when booked, the booking did not occur until after the statement was given. There is evidence to indicate that the booking did occur prior to any statement by Sanford.

Defendant was arrested at the home of his parents, and rode to the courthouse after his arrest in his parent’s vehicle. Defendant and his parents each testified that the arresting officers did not read defendant his rights at the time of his arrest, and that upon arrival at the courthouse, defendant was not booked, but was taken straight upstairs to Sheriff Schiele’s office and did not go back downstairs until after he made the statement. Although the Sheriff testified that it was his understanding Sanford was not booked downstairs before he was brought upstairs, the booking sheet reflects the booking time as 7:45. Defendant was arrested at 7:21 and gave his statement at 8:10. It is clear that if the time of booking was correctly logged in the booking sheet, defendant was advised of his rights prior to going upstairs and making any statement. Deputy Bruce testified that he did advise defendant of his rights when he booked him and then gave defendant the booking sheet for him to read his rights himself and that defendant then signed the sheet. He stated that 7:45 was the time he booked Sanford. The conflict in testimony as to whether defendant was read his rights was apparently resolved against defendant by the trial judge. We find that there was credible evidence to support the trial judge’s finding that defendant was advised of his rights prior to making any incriminating statement.

We further find that Sanford’s statement was not a result of any threats, coercion or promises. The evidence shows that Sanford was questioned alone by Sheriff Schiele. Defendants allege that Sanford’s father requested that he be allowed to stay with Sanford during the questioning and that the Sheriff refused his request. The absence of defendant’s father during the questioning does not affect the volun-tariness of defendant’s subsequent statement. Defendant was a major at the time of the arrest and, unlike the situation in State v. Welch, 337 So.2d 1114 (La.1976), he was not mentally handicapped or otherwise in need of guidance. Defendant’s father was not an attorney. Defendant had no right to have his father with him during questioning.

Sanford testified that he gave his statement to an investigator for the district attorney’s office after talking with Sheriff Schiele. He stated that Sheriff Schiele first showed him the photographs referred to above and told him he knew that he was involved in the case. He allegedly also told him there were federal men downstairs and that he wanted to keep him and the other defendants in Concordia Parish. At this point, defendant says he admitted his involvement in the case. He was then taken to investigator Paul Scott’s office, advised of his rights, and gave a typed statement.

According to Sheriff Schiele, Kenneth Sanford expressed a willingness to make a statement when he talked to him. He admitted “probably", showing the pictures to Sanford and telling him he “pretty much knew what had happened”. He also testified that he did not make any threats or promises to Sanford and did not mention any “federal involvement” in this case to Sanford. Again, the trial judge apparently resolved any conflicts in testimony against the defendant and in favor of the state’s witnesses. Under the above facts, we find that there was credible evidence to support the trial judge’s ruling that Kenneth Sanford’s statement was made freely and voluntarily.

Suppression of Evidence Seized Pursuant to the Search Warrant

Defendants allege that the affidavit for the search warrant discussed above did not sufficiently establish probable cause to search. They argue that the affidavit stated that the information the affiants received shows that the photographs referred to above were taken at the residence sought to be searched some time just before Easter of 1979. The search warrant was issued on August 28, 1979. Defendants argue that a 4-month period had thus passed since marijuana was alleged at that residence and there was no probable cause to believe that any marijuana remained at the residence at the time the search warrant was issued. We recognize that included within the general concept of probable cause for issuance of a search warrant is the reasonable belief that contraband or evidence will not be disposed of, but will remain at the place to be searched at the time of the proposed search. State v. Boneventure, 374 So.2d 1238 (La.1979). As the trial judge noted, it may be that the fact that large amounts of marijuana had allegedly been at the residence sought to be searched would provide continued probable cause to believe some marijuana would remain on the premises after a 4-month period. In any event, the judge held that there was probable cause to believe that the other items named in the search warrant that were sought to be seized or photographed remained on the premises at the time the search warrant was issued. The warrant, for example, listed such items as cooking pans, a wall plaque, a guitar case and guitar, a camera and a coffee table. We agree that probable cause existed to search for such items at the time the search warrant was issued and the search conducted.

Defendants also contend that the search warrant was invalid since the affidavit in support of this warrant does not allege that Kenneth Sanford or Gerald Donald (sources of the information in the affidavit) were reliable informants. The affidavit did, in fact, set forth sufficient underlying circumstances and details to provide a factual basis for determining the reliability of the informant and information. Both informants were named, and the reliability of their information was clearly established by the fact that they were participants in the alleged crime and spoke from first hand knowledge. State v. Paciera, 290 So.2d 681 (La.1974). Also, the fact that each defendant made statements against their own interests and which incriminated them, lends credibility to this source of information. State v. Welsh, 371 So.2d 1314 (La.1979). The affidavit is sufficient to establish the requisite probable cause to search.

For the above reasons, the trial judge’s rulings on these pre-trial motions of defendants are affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

CALOGERO, J., concurs and joins in reasons assigned by LEMMON, J.


author: LEMMON, Justice,

text:
    George PETERS, Husband of and Doris Peters and George Peters Enterprise v. LIFE GENERAL SECURITY INSURANCE CO.
    No. 80-C-2855.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
    LEMMON, J., concurs with reasons.
    MARCUS, DENNIS and WATSON, JJ., would grant the writ.
   LEMMON, Justice,

concurring in denial of certiorari.

In Orrell v. Southern Farm Bureau Cas. Ins. Co., 248 La. 576, 180 So.2d 710 (1965) this court held that an appellant’s failure to perfect a devolutive appeal timely was a jurisdictional defect and could be raised at any time, either by the appellee or by the court. However, the use of the term “jurisdictional” was imprecise and unfortunate.

The word “jurisdiction" means the legal power and authority of a court to determine a proceeding and to grant relief. C.C.P. art. 1. In appellate practice the term generally connotes the one of several courts which is the proper forum to modify or reverse a judgment of the trial court. However, when a devolutive appeal is filed after the expiration of the delay for appealing, the trial court judgment has acquired the authority of the thing adjudged [C.C. art. 3556(31)], and no court has the jurisdictional power and authority to modify or reverse. See also C.C.P. art. 1842. Thus, the defect resulting from the appellant’s failure in this regard is not truly one based on lack of jurisdiction, but one based on concepts of res judicata.

Accordingly, the defect resulting from a failure to perfect a devolutive appeal timely is one that strikes at the foundation of the right of appeal, and the urging of such a defect cannot properly be proscribed by the three-day limitation of C.C.P. art. 2161. Such a defect, of necessity, may be urged at any time and may be raised by the court on its own motion.

This reasoning does not apply, however, when (as in the present case) the appellant has timely obtained an order for a suspen-sive appeal, but has not timely furnished the required security. Under such circumstances the appeal is maintained as a devol-utive appeal, and the judgment does not acquire the authority of the thing adjudged. Hill v. Gandolfo Realty Co., 171 So.2d 684 (La.App. 4th Cir. 1965). Of course, the appellee may obtain the dismissal of the suspensive appeal, but must move for dismissal within the three-day limitation imposed by C.C.P. art. 2161 for urging ordinary defects.

Therefore, a suspensive appeal with a tardily filed bond is subject to dismissal, but only if moved for before three days have elapsed after the return day or the lodging of the record on appeal. If the bond has been filed and that time period has elapsed, the suspensive appeal is no longer subject to dismissal.

      . Of course, in the sense that no appellate court can acquire jurisdiction by an untimely devolu-tive appeal, the defect is jurisdictional. But the trial court does not retain jurisdiction under such circumstances, as the Orrell decision seemed to imply by referring to C.C.P. art. 2088, which merely delineates the point in time during an appeal at which certain pleadings must be filed in the appellate court rather than the trial court.

      . Of course, if the security has never been furnished, the appellee has recourse to test the sufficiency and validity of the bond in the trial court pursuant to C.C.P. art. 5123 and may obtain a dismissal by that procedure.


text:
    STATE of Louisiana v. Henry HINTON, Jr.
    No. 80-K-2284.
    Supreme Court of Louisiana.
    Oct. 10, 1980.
   In re Henry Hinton, Jr., applying for writ of certiorari and review. Parish of Caddo. No. 114359.

All proceedings, as well as probation revocation based on the theft conviction, are stayed pending further orders of this Court. However, if relator wishes to be released pending finality of this theft conviction on review, he should first apply for bail in the district court. See C.Cr.P. art. 899(C).


text:
    O. T. McCOY v. Lloyd TOMS.
    No. 80-C-1517.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Lloyd Toms, applying for reconsideration of denied writ of September 26, 1980. Brenville Parish.

Not considered. See Rule IX, Sec. 6 and C.C.P. 2166.


text:
    Dorothy Hebert ARDOIN et al. v. HARTFORD ACCIDENT AND INDEMNITY COMPANY et al.
    No. 80-C-1494.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re American Home Assurance Company, applying for writs of certiorari and review. Parish of Lafayette. No. 62532-D.

Granted. Dr. Bozeman is ordered to produce the requested surgical protocols, insofar as they describe the procedures the doctor used in the operating room, omitting all reference to names or identifying characteristics of the patients and reserving respondent’s right to seek a protective order if it becomes necessary.

MARCUS, BLANCHE and WATSON, JJ., would deny the application.


text:
    STATE of Louisiana v. Douglas MORAN.
    No. 80-K-1884.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Douglas Moran, applying for writs of certiorari, prohibition and mandamus. Parish of Rapides. No. 198-138.

Writ granted.


text:
    STATE of Louisiana v. George McCLOW.
    No. 80-K-2182.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re George McClow, applying for writs of habeas corpus and review. No. 251-469 B. Parish of Orleans.

Granted.


text:
    STATE of Louisiana v. Kenneth LECOMPTE et al.
    No. 80-K-2213.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re State of Louisiana, applying for writ of certiorari, or writ of review. Criminal District Court. No. 276-454. Parish of Orleans.

Granted and ordered docketed as an appeal.


text:
    STATE of Louisiana v. Richard C. VALENTINE, III.
    No. 80-K-2096.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Richard C. Valentine, III, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Avoyelles. No. 43514.

The trial court is ordered to produce a transcript to this Court.


text:
    CITY OF HAMMOND v. Melvin WASHINGTON, Reginald Wilson and Mark Washington.
    No. 80-K-1873.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Melvin Washington, Reginald Wilson and Mark Washington, applying for supervisory writs. City Court of Hammond. Parish of Tangipahoa. Nos. C-36428, C-36407 and 126416.

Not considered; not filed timely.


text:
    STATE of Louisiana ex rel. John L. ROBERTS v. Frank C. BLACKBURN, Warden.
    No. 80-K-2171.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re John L. Roberts, applying for writs of certiorari, prohibition and mandamus. No. 41944. Parish of Tangipahoa.

Dismissed on relator’s motion.


text:
    STATE of Louisiana ex rel. Frankie MORRISON v. Judge Matthew S. BRANIFF, Orleans Criminal District Court.
    No. 67553.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Frankie Morrison, applying for writ of mandamus. Parish of Orleans. No. 217-984.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Lawrence MATTHEWS v. Bernard J. BAGERT, Judge, Criminal District Court, Parish of Orleans.
    No. 67650.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Lawrence Matthews, applying for writs of mandamus and supervisory. Parish of Orleans. No. 228-661.

Denied.


text:
    STATE of Louisiana ex rel. Arnel NELSON v. Judge Frank A. MARULLO, Criminal District Court, Parish of Orleans.
    No. 80-K-1436.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Arnel Nelson, applying for writ of mandamus. Parish of Orleans. No. 248-419.

Granted. Writ application transferred to district court for action thereon within 10 days.


text:
    Anthony J. MACALUSA v. PITT GRILL, INC., and United States Fidelity and Guaranty Company.
    No. 80-C-1802.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Anthony J. Macalusa, applying for certiorari or writ of review to the Court of Appeal, First Circuit. Parish of St. Mary. 388 So.2d 97.

Writ denied. Result correct.


text:
    HARRY L. BEACHAM AND COMPANY, LTD. v. Walter E. BELANGER.
    No. 80-C-1803.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Harry L. Beacham and Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 388 So.2d 101.

Denied.

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


text:
    Thaddeus Eugene MOSES v. VULCAN MATERIALS COMPANY et al.
    No. 80-C-1805.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Thaddeus Eugene Moses, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 388 So.2d 117.

Denied.

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


text:
    STATE of Louisiana ex rel. Clarence HUBBARD v. CRIMINAL DISTRICT COURT, SECTION “F”, PARISH OF ORLEANS.
    No. 80-KH-1720.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Clarence Hubbard, applying for remedial writ. Parish of Orleans. No. 270-915.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Eric I. WHITE v. Honorable Frank MARULLO, Judge, Criminal District Court, Section “D”.
    No. 80-KH-2178.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Eric I. White, applying for supervisory and remedial writs. Parish of Orleans. No. 275-205.

Writ dismissed at relator’s request.


text:
    STATE of Louisiana ex rel. Jewel SPOTVILLE v. Isreal AUGUSTINE, Judge, Criminal District Court.
    No. 67147.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Jewel Spotville, applying for writ of mandamus. Parish of Orleans. No. 233-945.

Denied. Moot.


text:
    STATE of Louisiana v. Robert HARRISON.
    No. 80-K-2328.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Robert Harrison, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Orleans. Nos. 273-803 and 259-389.

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


text:
    STATE of Louisiana ex rel. Thomas HURST v. Frank BLACKBURN, Warden.
    No. 67710.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Thomas Hurst, applying for writs of habeas corpus and certiorari. Parish of Orleans. Nos. 206-746 and 206-751.

Denied.


text:
    STATE of Louisiana ex rel. Michael LARKINS v. STATE of Louisiana.
    No. 80-K-1455.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Michael Larkins, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 266-121.

Denied.


text:
    STATE of Louisiana ex rel. Joseph ROSENTHAL v. Frank C. BLACKBURN et al. Warden, Louisiana State Penitentiary, Criminal District Court, Parish of Orleans.
    No. 80-K-1491.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Joseph Rosenthal, applying for writ of mandamus. Parish of Orleans. No. 258-944.

Denied.


text:
    Merado M. CAVAZOS v. WILLIAMETTE INDUSTRIES, INC.
    No. 80-C-1587.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Merado M. Cavazos, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Winn. No. 14127.

Writ denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Lawrence JAMES v. Sally H. ROGERS, Deputy Clerk of Court and Court Reporter for the Parish of Terrebonne.
    No. 80-KH-1596.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Lawrence James, applying for writ of mandamus. Parish of Terrebonne. Nos. 78680 and 78681.

Denied.


text:
    STATE of Louisiana ex rel. Edward William BODLEY, Jr. v. STATE of Louisiana.
    No. 80-KH-1694.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Edward William Bodley, Jr., applying for remedial writ to the Criminal District Court. Parish of Orleans.

Writ denied. Transcript has been provided to relator’s attorney.


text:
    STATE of Louisiana v. James COPELAND.
    No. 80-K-1724.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re State of Louisiana, applying for writs of certiorari, prohibition and mandamus to 21st Judicial District Court. Parish of Livingston. No. 3055.

Denied.

MARCUS, BLANCHE and LEMMON, JJ., would grant the writ.


text:
    Willie RYAN v. ALLSTATE INSURANCE COMPANY et al.
    No. 80-C-1801.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Willie Ryan, applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of Washington. No. 13314.

Writ denied.

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


text:
    Jeffrey COFFEY and Vernon Higgins v. Harvey KIMBLE et al.
    No. 80-C-1807.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Jeffrey Coffey and Vernon Higgins, applying for writs of certiorari. Parish of St. Charles. No. 17288.

Denied.

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


text:
    PARISH OF EAST BATON ROUGE v. Autry J. POURCIAU.
    No. 80-C-1811.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Parish of East Baton Rouge applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13493.

Denied.


text:
    Washington DEMERY et al. v. Sam NELKEN et al.
    No. 80-C-1832.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Washington Demery, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. No. 7554.

Denied.


text:
    Joyce SHERVILLE et al. v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PENNSYLVANIA.
    No. 80-C-1833.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re National Union Fire Insurance Company of Pittsburg, Pennsylvania, applying for certiorari, or writs of review, to the Court of Appeal, First Circuit. Parish of St. Mary. No. 13244.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Gary BENOIT.
    No. 80-K-1834.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Gary Benoit applying for writ of certiorari. Parish of LaFourche. No. 85729.

Writ denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Gilbert M. DURAPAU and Craig J. Billac.
    No. 80-K-1835.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Gilbert M. DuRapau applying for remedial writs. Parish of Jefferson. No. 79-1738.

Denied.


text:
    STATE of Louisiana v. Van EDWARDS.
    No. 80-K-1843.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Van Edwards, applying for remedial writs. Parish of LaSalle. No. 21048.

Denied.


text:
    CITY OF BATON ROUGE v. Charles H. JARREAU.
    No. 80-K-1853.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Charles H. Jarreau applying for writ of certiorari. Parish of East Baton Rouge. No. 5-80-2, Sect. I.

Denied.


text:
    John C. BOYER and Mrs. Vera Boyer v. The MARYLAND CASUALTY COMPANY, Freemont Corporation and James Fouts.
    No. 80-C-1863.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re John C. Boyer, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. No. 14191.

Writ denied.


text:
    STATE of Louisiana ex rel. Dennis SEARS v. Frank C. BLACKBURN, Warden et al.
    No. 80-KH-1867.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Dennis Sears applying for writ of mandamus and supervisory. Parish of Orleans. No. 219-807, Sect. H.

Denied.


text:
    Linda REVON, wife of/and Charles Brown v. FIDELITY & CASUALTY COMPANY OF NEW YORK. Linda REVON, wife of/and Charles Brown v. ALLSTATE INSURANCE COMPANY.
    No. 80-C-1892.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Allstate Insurance Company applying for writ of certiorari or review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 11136.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Royal A. EVERY v. STATE of Louisiana.
    No. 80-KH-1899.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Royal A. Every applying for writs of certiorari, review and mandamus. Parish of Orleans. No. 250-228, Sect. E.

Denied.


text:
    STATE of Louisiana ex rel. James BELL v. Chris KRISTOFFERSON, Orleans Indigent Defender Bd.
    No. 80-KH-1905.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re James Bell applying for remedial writ. Parish of Orleans. No. 272-328.

Denied. Relator must first file in district court.


text:
    STATE of Louisiana ex rel. William O. HUFF v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTIONS “G” & “H”.
    No. 80-KH-1907.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re William O. Huff applying for writ of mandamus. Parish of Orleans. Nos. 231-530 and 231-552.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Brent A. TURNIPSEED v. 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE.
    No. 80-KH-1909.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Brent A. Turnipseed, applying for writ of mandamus. Parish of East Baton Rouge. No. 237748.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Roger YATES v. Judge Matthew S. BRANIFF, Orleans Parish Criminal District Court, Section “B”.
    No. 80-KH-2232.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Roger Yates, applying for writ of mandamus. Parish of Orleans. No. 248-553.

Denied. Moot.


text:
    STATE of Louisiana v. Robin L. DARNELL, Stanley J. Hoover, Enrique J. Jay, Pablo Chavez, Robert O. Lavigne, Jan A. Kunst, John G. Karcores, Don C. Caspary, Danny K. Darnell, Joseph C. Kunst, and Jose Miranda.
    No. 80-K-2244.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Robin L. Darnell et al. applying for writ of certiorari or review. Parish of Ter-rebonne. No. 93451.

Denied.


text:
    STATE of Louisiana ex rel. Robert E. PAUL et al. v. Judge Baron BOURG, 32nd Judicial District Court, Terrebonne Parish.
    No. 80-KH-2246.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Robert E. Paul, et al., applying for remedial writs. Parish of Terrebonne. No. 86622.

Denied.


text:
    STATE of Louisiana v. Jerry G. SMITH.
    No. 80-K-2256.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Jerry G. Smith applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. AA-27996.

Denied on the showing made.


text:
    STATE of Louisiana v. Gwen MORRIS, Ruby Jewell Williams and Isaac Sweeney.
    No. 80-K-2258.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Gwen Morris, Ruby Jewell Williams and Isaac Sweeney, applying for remedial writ of certiorari, review, prohibition, mandamus and stay order. Parish of Caddo. Nos. 114215, 114216 and 114483.

Denied. Adequate remedy by review in event of conviction.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana in the Interest of Henry J. SMITH.
    No. 80-K-2309.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Henry J. Smith, applying for writs of certiorari. Parish of Jefferson (Juvenile Court). No. 35486.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Roy Lee CHAMBERS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2321.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Roy Lee Chambers, applying for writ of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans. No. 269-042.

Denied.


text:
    STATE of Louisiana ex rel. Robert SPANN v. Honorable Judge Richard P. BOYD, Jr., 7th Judicial District Court, Parish of Concordia.
    No. 80-KH-I735.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Robert Spann, applying for writ of mandamus. Parish of Concordia. Nos. 74688 and 74689.

Denied.


text:
    In the Matter of Succession of Joseph Clevlanc VICE, Sr. Marie Leone Woods VICE, Surviving Spouse in Community v. Marie Brandon VICE, Administratrix et al.
    No. 80-C-1881.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Marie Leone Woods Vice applying for writ of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 385 So.2d 554.

Denied.

LEMMON, J., would grant the writ.


text:
    Jean Baptiste LAFLEUR, Jr., Individually, and as Administrator of the Estate of his Minor Son, Bryan LaFleur v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 80-C-1880.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Jean Baptiste Lafleur, Jr., applying for writ of certiorari or review to the Court of Appeal, Third Circuit. Parish of Evangeline. 385 So.2d 564.

Denied.


text:
    Louise UNTEREINER v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 80-C-1879.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re New Orleans Public Service, Inc., applying for writ of certiorari, or review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 385 So.2d 587.

Denied.

LEMMON, J., would grant the writ.


text:
    Laura Jo Rose DUPLISSEY v. SOUTHERN UNITED LIFE INSURANCE COMPANY and the Bank of Lecompte.
    No. 80-C-1893.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Laura Jo Rose Duplissey, applying for writ of certiorari, or review to the Court of Appeal, Third Circuit. Parish of Rapides. 385 So.2d 540.

Denied.

WATSON, J., would grant the writ.


text:
    Robert ISTRE v. HUDSON ENGINEERING CORPORATION.
    No. 80-C-1889.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Hudson Engineering Corporation, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Cameron. 386 So.2d 366.

Denied.

LEMMON, J., would grant the writ.


text:
    Patricia Dinvault, wife of Stanford J. GAUTIER v. Stanford J. GAUTIER.
    No. 80-C-1929.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Stanford Gautier, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist. 385 So.2d 583.

Not considered, untimely.


text:
    STATE of Louisiana v. Roger S. BOURGEOIS.
    No. 80-K-2485.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Roger S. Bourgeois, applying for writs of certiorari and stay order. Parish of Jefferson. No. 78-408.

Denied.


text:
    STATE of Louisiana v. Bruce W. SHANNON.
    No. 80-K-2926.
    Supreme Court of Louisiana.
    Dec. 18, 1980.
   In re Bruce W. Shannon, applying for writs of certiorari, mandamus, prohibition, and stay order. Parish of Orleans. No. 255-335.

Writ denied.

LEMMON, J., would grant the writ.


text:
    VERSAILLES ARMS APARTMENTS v. Everett GRANDERSON, Jr.
    No. 80-C-1717.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Everett W. Granderson, Jr., applying for reconsideration of denied writ of October 6, 1980. Orleans Parish.

Not considered. See, Rule 9, Section 6.

LEMMON, J., recused.


text:
    Isadore CARTER v. CHRYSLER MOTORS CORPORATION, Chrysler Corporation, Standard Motors, Inc. and Community Motors, Inc.
    No. 80-C-1789.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Isadore Carter, applying for reconsideration of denied writs of mandamus, certiorari and review to the Court of Appeal, Fourth Circuit. Orleans Parish. 384 So.2d 838.

Application not considered.


text:
    STATE of Louisiana ex rel. Darrell TAYLOR v. STATE of Louisiana.
    No. 66450.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Darrell Taylor, applying for reconsideration of denied writ of September 12, 1980. Orleans Parish. No. 241-109.

Not considered. See, Rule 9 Section 6.


text:
    TRINITY HEALTH CARE, INC. v. LOUISIANA DEPARTMENT OF HEALTH AND HUMAN RESOURCES and George Fischer, Secretary of the Louisiana Department of Health and Human Resources.
    No. 80-C-2433.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Louisiana Dept. of Health & Human Resources and George Fischer, applying for remedial writs. Parish of Jefferson. No. 243-480.

Not considered. Not timely. Rule 10, Sec. 5(b), La.Sup.Ct.Rules.


text:
    STATE of Louisiana ex rel. Donald Joe FORD v. Honorable Frank SHEA, Criminal District Court.
    No. 80-KH-2264.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Donald Joe Ford, applying for writ of mandamus. Parish of Orleans. No. 270-581.

Granted. The trial court is ordered to fix a new return date in this matter ninety (90) days from the date of this order. In this regard the transcript shall be furnished at least fifteen days prior to the return date. See C.Cr.P. art. 919 as amended by Acts 1980, No. 537.


text:
    In re Application of James E. SMITH, Jr.
    No. 80-O-2214.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Louisiana State Bar Association, Committee on Bar Admissions, applying for appointment of a Commissioner.

Granted.

MARCUS, BLANCHE and WATSON, JJ., dissent.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Overton C. THIERRY.
    No. 80-O-2286.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Overton C. Thierry, applying for application of reinstatement to the practice of law. Parish of Orleans. No. 56628.

Granted.


text:
    PASQUIER, BATSON & COMPANY v. Mildred Hunt EWING et al.
    No. 80-C-2515.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Pasquier, Batson & Company, applying for alternative supervisory writs of review, prohibition and mandamus, from the Court of Appeal, Second Circuit. Parish of Caddo. No. 14451.

Not considered. Not timely. Rule X, Sec. 5(b).


author: CALOGERO, MARCUS and DENNIS, JJ.,

text:
    Chalin O. PEREZ et al. v. Leander H. PEREZ, Jr.
    No. 80-C-2439.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Chalin O. Perez, Michael E. Kirby, Henry H. Urban, Jr. and Joseph Lionel Greco, Sr., applying for writ of certiorari, mandamus and prohibition. Parish of Plaque-mines. No. 60-461 B.

Denied.

CALOGERO, MARCUS and DENNIS, JJ.,

would grant being of the opinion that applicants have alleged facts which, if proven, would show that the district attorney has a personal interest in the cause or grand jury proceedings which is in conflict with the fair and impartial administration of justice. See C.Cr.P. art. 680.


text:
    Tammy BOXX v. George A. FISCHER et al.
    No. 80-C-2520.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Tammy Boxx, applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 237-246.

Not considered. Not timely. Rule 10, § 5(b).


text:
    STATE of Louisiana v. Earl PIERRE and Kevin James.
    No. 80-O-2796.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re State of Louisiana, applying for extension of stay order, No. M-105-196 and No. M-105-269. Parish of Orleans.

Lower court’s stay order extended and continued until further orders of this Court; relator’s forthcoming writ application shall be filed in this Court no later than Wednesday, December 10,1980 at 10:00 a. m., rather than December 12,1980, as earlier granted by trial judge.


text:
    STATE of Louisiana v. Clyde ROBINSON.
    No. 80-K-2839.
    Supreme Court of Louisiana.
    Dec. 10, 1980.
   In re Clyde Robinson, applying for writ of review and stay order. Parish of East Carroll. No. 19297.

Denied.


author: DIXON, C. J.,

text:
    Kennith D. SEBREN v. SOIL TESTING ENGINEERS, INC. et al.
    No. 80-C-2736.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Soil Testing Engineers Inc., et al., applying for writs of certiorari, prohibition, and mandamus. Parish of DeSoto. No. 38810.

Writ granted. Ruling of trial judge is set aside. The case is remanded to District Court to take evidence on the exception of venue.

DIXON, C. J.,

dissents. C.C.P. art. 72 puts venue of action to enforce a privilege in the parish where the property is located.

LEMMON, J., would remand to court of appeal to review trial court’s ruling on venue.


text:
    STATE of Louisiana v. Kenneth L. MANNING, Sr.
    No. 67355.
    Supreme Court of Louisiana.
    Dec. 16, 1980.
   In re Kenneth Manning, Sr., on motion to stay proceedings. Parish of East Baton Rouge. No. 1-79-451.

Denied.

DENNIS, J., dissents and would grant the stay order.

LEMMON, J., would grant the stay order.


text:
    STATE of Louisiana v. Willie DUBOIS.
    No. 80-K-2910.
    Supreme Court of Louisiana.
    Dec. 17, 1980.
   In re Willie Dubois, applying for writs of certiorari, prohibition, and mandamus. Nos. 80-2470, 80-2277. Parish of Jefferson.

Granted. Continuance ordered.


author: CUTRER, Judge.

text:
    Caroline Fay DICKSON et al., Plaintiffs, v. STATE FARM INSURANCE AGENCY et al., Defendants.
    No. 7848.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 1980.
    Davidson, Meaux, Sonnier & Roy, John E. McElligott, Jr., Lafayette, Roy & Forrest, Alex A. LoPresto, III, New Iberia, for defendants-relators.
    Joseph A. Koury, Lafayette, Gracella Simmons, Baton Rouge, for plaintiffs-respondents.
    Before CUTRER, SWIFT and STOKER, JJ.
   CUTRER, Judge.

Having considered the present posture of the instant suit this court concludes that the third party plaintiffs are entitled to have their third party demand against Continental Casualty Insurance (Lafayette Parish School Board insurer) tried by the jury along with the jury trial on the plaintiff’s principal demand.

The third party plaintiffs are not entitled to a jury trial of their confirmations of default against Venetian Manufacturing and Sales Corporation.

Also, the third party plaintiffs are not entitled to a jury trial against the Lafayette Parish School Board. If the School Board should waive its right to a non-jury trial, however, then the third party demands against the School Board would be tried before the jury along with the trial of the principal demand.

Accordingly, it is so ordered.


author: GUIDRY, Judge.

text:
    Norris Dale JACKSON, Plaintiff-Applicant, v. AETNA LIFE AND CASUALTY COMPANY, Defendant-Respondent.
    No. 7895.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      William Henry Sanders, Jena, for plaintiff-applicant.
    James D. Davis, Alexandria, for defendant-respondent.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

Upon application by Norris Dale Jackson, this Court issued a supervisory writ to decide whether the trial court erred in denying the relator’s motion to proceed in forma pauperis.

The facts, succinctly stated, are that following an adverse judgment on the merits, relator, the plaintiff in the above titled suit, filed a motion for a waiver of costs pursuant to LSA-C.C.P. art. 5181, et seq. After a hearing on the relator’s motion, the trial court determined that although he was unable to pay the costs of court because of his poverty and lack of means, his motion to proceed in forma pauperis should be denied because there existed a contract between the relator and his attorney which called for the attorney to advance all costs of litigation with reimbursement by the client at the conclusion of the suit.

The contingency fee contract between the relator and his attorney reads, in pertinent part, as follows:

“As a consideration for legal services rendered, client agrees to this assignment of interest under the provisions of R.S. 37:218 and R.S. 9:5001, as a contingent interest in said claims in the following percentages, together with all reasonable and necessary expenses incurred and paid by the Attorney for and on behalf of Client in said representation. Expenses chargeable to the Client are: telephone tolls, medical and hospital records, court costs, copy costs, court reporter charges, travel expenses, lodging, and any and all other expenses paid by Attorney for or on behalf of the Client.
“A. 33%% of recovery realized through compromise and without the necessity of filing suit.
“B. 40% in the event suit is filed.
“C. 50% in the event of appeal.
“D. Workmen’s Compensation — 20% of the first $5,000.00 & 10% thereafter.
“It is further agreed that the Attorney will advance all costs of litigation, investigation, depositions, pictures, models and other trial preparations."

The issue presented is whether or not the existence of a contingency fee contract, such as the one before us, prevents the relator from proceeding in forma pau-peris. We think not.

As we read the contract in question, the indigent plaintiff is not relieved of the payment of costs, rather the contract appears to specifically provide that the costs of court are chargeable to the client, and that if the attorney should advance the costs of litigation, that they are refundable to him.

However, in any event, we conclude that the right of an indigent should be determined by his ability to pre-pay the costs without examining any contingency fee contract entered into between the indigent and his attorney.

Our conclusion that the contract in this case should not bar the relator from proceeding in forma pauperis is based, in part, on the general notion that this statutory privilege is to be interpreted liberally, cf. Benjamin v. National Super Markets, Inc., 351 So.2d 138 (La.1977).

Our other basis for the above conclusion is found in Fils v. Iberia, St. M. & R. Co., 145 La. 544, 82 So. 697, 700 (1919). In that case, our Supreme Court determined that three paupers were entitled to proceed without the pre-payment of costs despite evidence that friends had come forward and offered to pay their court costs. Specifically the court stated:

“. .. and because friends, or sympathetic or charitable persons, are willing to come to his assistance, rather than see him deprived of legal recourse, detracts in no way from his poverty within the intendment of the forma pauperis act.”

For the reasons assigned, the writ is hereby made peremptory and the trial court is hereby ordered to sign relator’s motion to proceed in forma pauperis.

REVERSED AND REMANDED.


author: STOKER, Judge.

text:
    Louis A. DOMINGUE, Plaintiff-Appellant, v. Gerald PATIN, Defendant-Appellee.
    No. 7634.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1980.
    Lewis & Lolley, James R. Lewis, Lafayette, for plaintiff-appellant.
    Mouton, Roy, Carmouche, Bivens & Kraft, Wayne Shullaw, Lafayette, for defendant-appellee.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   STOKER, Judge.

This case involves a suit for damages brought by plaintiff-appellant, Louis A. Do-mingue, against defendant-appellee, Gerald Patin, as the result of Patin’s alleged breach of an agreement between the parties.

Domingue claims an agreement was made between himself and Patin under which he agreed to care for and board two quarterhorse mares and a stallion named “Mr. Concrete” for a period of approximately two years. Mr. Domingue states that he was to receive in return the right to breed the stallion to his mare, “Miss Windbreaker”, and obtain by such breeding two registered quarterhorses.

At the trial, plaintiff-appellant testified as the first witness. Plaintiff-appellant is a seventy-one year old man. Although he appears to have had little formal education, he has had years of experience with horses. His apparent lack of education and a hearing problem may have affected his ability to be as concise and articulate as he might have been.

When defense counsel began cross-examination of plaintiff the questioning immediately turned to dates and times of events. Counsel, asked, for example, at almost the beginning of his questioning, “after November of ’76, on what dates was your horse bred?” Plaintiff Domingue had set forth in his petition:

“During the month of November, 1976, the defendant herein agreed that he would provide his stallion, ‘Mr. Concrete’, for the purposes of breeding same to plaintiff’s mare to provide the plaintiff with two colts which could be registered as quarterhorses for the consideration of the plaintiff herein providing feed, boarding, and taking care of said stallion, two mares and two colts for a period of two years.” (Emphasis supplied)

The first of the two colts allegedly produced from breeding Mr. Concrete to Miss Windbreaker was named Nellie. Plaintiff testified that Nellie was born April 22, 1976, and the second colt, Mae, was born on May 1, 1977. Defendant immediately moved to strike as immaterial, any testimony concerning Nellie, since Nellie was born before November, 1976, the date plaintiff’s petition states that the parties made the agreement.

Defendant solicited testimony that determined the gestation period for horses to be between eleven and twelve months. Then defendant repeated his previous objection, this time in regard to the second colt, Mae. The objection was made because the length of the gestation period made it impossible for Mae to have been sired after the alleged agreement of November, 1976.

The trial judge sustained the objection and refused to allow any testimony relating to any agreements or occurrences prior to November, 1976, because the plaintiff’s petition alleged the agreement between the parties was reached in November, 1976. Counsel for plaintiff-appellant responded by requesting permission of the court to allow an amendment of the pleadings to reflect the proper year of the agreement, which was prior to 1976.

The issue in this case is whether the trial court erred in denying the plaintiff-appellant permission to amend his petition during trial, or, stated in another way, did the trial court abuse the discretion given it by Article 1154 of the Louisiana Code of Civil Procedure in denying the amendment of the pleadings.

Article 1154 regulates amendment of pleadings during trial. Former Louisiana Supreme Court Justice Tate commented on the pertinent section of Article 1154 in Tulane Law Review, Vol. XLIII, p. 211:

“Amendment to Meet Objection to the Evidence
The last two sentences of Article 1154 regulate a second type of trial amendment procedure, i. e., when evidence is objected to at the trial as beyond the issues raised by the pleadings. If the objection is valid, the article contemplates that the court should allow the pleadings to be amended to permit admission of the evidence, in the absence of real prejudice or surprise to the opponent. If needed to enable the opponent to meet such evidence, a continuance should be granted.
The comparable federal provision has been interpreted most broadly in favor of such amendment. Barron and Holtzoff flatly state: ‘The only time that refusal to allow amendment can be justified is where the amendment and the evidence will not assist in reaching the merits of the action.’ In reversing a trial court’s refusal to permit amendment during trial to encompass further grounds of recovery, a leading federal opinion stated:
There can be no question that a defendant should be protected from surprise resulting from a change of theory; but it is our opinion that the court erred in the method it chose to protect him. The proper procedure would have been to grant the defendant a continuance in order to meet the new evidence. But it was beyond the limits of its judicial discretion to refuse to allow the amendment.
This Louisiana code provision has given rise to few reported appellate decisions, corroborating the writer’s general observation that it has worked well in practice and that its application is in general accord with its intent and with the federal applications.” (Emphasis supplied)

In McCauley v. Manda Brothers Provisions Co., 202 So.2d 492 (La.App.1967), in reference to Code of Civil Procedure Article 1636, the court stated concerning the appellate court’s treatment of testimony proffered in the trial court:

“... appellate court is in a position to rule on the admissibility of the evidence, but it cannot give it any probative value. If, therefore, the testimony is found to be admissible and essential to a decision in the case, a remand to the trial court becomes necessary to permit the excluded testimony, and any other testimony bearing thereon to be taken.”

In the present case plaintiff requested the right to present a proffer of evidence in the trial court. After examining this evidence we find that justice was not served by dismissing this case in the trial court merely because the petition listed an incorrect date for the agreement. Defendant’s answer to interrogatories show some sort of agreement was made that was similar to the one plaintiff claims to have made with defendant. From the record it appears that defendant knew of the agreement and knew of the incorrect date on the petition. This knowledge is reflected in defendant’s immediate questioning of plaintiff in regard to dates.

The evidence proffered in district court shows this case would be close if it were allowed to go to trial. From all this we conclude that justice was not served by dismissing this case, and the trial judge abused his discretion in not granting to plaintiff the right to amend.

We, therefore, reverse the judgment of the trial court and remand this case for action consistent with this opinion. All costs of this appeal are to be assessed to defendant-appellee.

REVERSED AND REMANDED.

      . Article 1154. Amendment to conform to evidence. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will

        be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.” (Emphasis supplied)

      . Defendant-appellee alleges in paragraph 2 of his answer that “Mr. Concrete” was left with petitioner sometime in the spring or early summer of 1976 for a period of two (2) months.