author: FRED S. BOWES, Justice Pro Tern.

text:
    STATE of Louisiana v. Charles W. LANE.
    No. 81-KA-2208.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Philip J. Boudousque, William C. Credo, III, Asst. Dist. Attys., for plaintiff-appellee.
    William Noland, New Orleans, for defendant-appellant.
   FRED S. BOWES, Justice Pro Tern.

The defendant, Charles W. Lane, was convicted by a jury of first degree murder, in violation of La.R.S. 14:3o. He was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. On appeal, defendant urges nine assignments of error. Assignment of Error Number 5 was neither briefed nor argued, therefore it is considered abandoned. State v. Blanton, 325 So.2d 586 (La.1976).

FACTS:

On September 28, 1979, the defendant, Charles W. Lane, Frances Arwood, the victim, and Robert Sawyer, were at Cynthia Shano’s mother’s house in Gretna, Louisiana. Frances Arwood was Cynthia Shano’s sister-in-law, and was baby-sitting with Cynthia’s two small children, who were also present. Robert Sawyer lived at the residence with Ms. Shano.

When Shano returned home at approximately 12:30 p. m., Sawyer, the defendant, Lane, and Arwood were arguing. As the arguing continued, Sawyer pushed Ar-wood’s head back against a sofa bed and hit her in the face. At this point, the defendant also hit Arwood in the face with his fist. Sawyer then started hitting her in the chest. As Arwood tried to get up from the bed, Sawyer kicked her in the chest and told her to get up and go wash herself.

After Shano had gone into the bedroom with the children, she heard the defendant hitting Arwood. When she came out of the bedroom, Shano observed Sawyer drag Ar-wood by the hair into the bathroom. When Arwood would not get into the bathtub, Sawyer kicked her in the chest, knocking her into the tub, and hitting her head against the wall. The defendant, Lane, then pulled Arwood out of the bathtub and undressed her. The bathroom door was then closed for about twenty minutes.

While the defendant was in the bathroom alone with Arwood, Sawyer boiled hot water. He went into the bathroom and poured detergent over the victim’s head and then poured the hot water on her. The defendant started ducking the victim’s head under the water and punching her with his fists. Sawyer and the defendant then pulled Arwood out of the bathtub. When the victim resisted by hitting Sawyer, he screamed and kicked her in the chest. Ar-wood’s head hit either the windowsill or the bathtub and rendered her unconscious. The defendant and Sawyer then carried the victim into the living room and dropped her face down on the floor. Lane started kicking Arwood in the rib area, while Sawyer walked on her back. After Sawyer beat the victim with a leather belt, the two men put Arwood on a sofa bed. Shano, who had been screaming for them to stop, covered the victim’s body with a blanket.

While Shano was in the bathroom, after being nauseated, she heard Sawyer state to the defendant, “I’ll show you how cruel I can be.” When Shano returned from the bathroom, she observed smoke coming from the victim’s face and that the victim’s legs were open. The defendant was laughing and informed her that his sexual organ was burned because he was having sexual intercourse with the victim while Sawyer set them on fire.

After some of Shano’s relatives arrived at the house, the victim was transported to West Jefferson Hospital. Arwood, who arrived at the hospital in a coma, had third degree burns all over her body, lacerations on her chin, and swelling of the face and neck. She died on November 21, 1979, approximately two months later. The cause of death was significant brain damage from a blunt head injury and extensive burns over most of her body.

The defendant and Sawyer were arrested and advised of their Miranda rights when police officers and medical units arrived on the scene. Lane signed a “rights of arres-tee” form and gave a statement admitting that he was present but stating that he only tried to assist the victim.

On November 21, 1979, Lane was re-booked and formally charged with the first degree murder of Frances Arwood. At that time, the defendant admitted to having sexual intercourse with the victim while she was in the bathtub, but denied having anything to do with beating her.

Assignment of Error Number 1

By this assignment, defendant contends that the trial court erred in denying his motion to suppress oral inculpatory statements made by him when he was in jail. Defense counsel argued that the statement was elicited during custodial interrogation and required full Miranda warnings.

The statements in question were made to Deputy Gerald Self of the Jefferson Parish Sheriff’s office on November 21,1979, when the defendant was being rebooked for first degree murder. The defendant inquired as to why he was brought into the intake booking area. Deputy Self explained to the defendant that he was to be rebooked for first degree murder. At this time, the defendant asked whether the girl had died and Self responded, “Yes, she did.” The defendant then stated, “Well, let me tell you what happened.” Deputy Self repeatedly informed the defendant that he did not want him to say anything.

The defendant insisted and stated that he wanted to explain what happened. According to Deputy Self’s testimony, the defendant stated that, “he wanted somebody to understand that he did not do anything to the girl, as far as hitting her, and that Mr. Sawyer did it all.” The defendant then stated, “All I did was top her in the bathtub.” Self then asked, “What do you mean by topping her — did you have sex with her?” The defendant responded, “Yes.” In response to questions by Deputy Self, the defendant gave several more statements without being advised of his Miranda rights.

The trial judge ruled that the first part of the statement was freely and voluntarily given. He also ruled that any statements beyond the defendant’s explanation of “topping” would be inadmissible. So the issue here is whether Deputy Self’s first question constituted custodial interrogation in violation of the defendant’s Miranda rights.

In State v. Robinson, 384 So.2d 332 (La.1980), this court held that spontaneous and voluntary statements not given as a result of police interrogation or compelling influences are admissible in evidence without Miranda warnings, even though the defendant is in custody. In this case, there was no interrogation going on. On the contrary, Deputy Self tried to prohibit any conversation with the defendant. The statement by the defendant that he “topped” the victim in the bathtub was clearly spontaneous and voluntary and was not given as a result of compelling influences. State v. Robinson, supra. Detective Self was merely trying to clarify the voluntary statement made by the defendant. In our opinion, the operative colloquy between the detective and the defendant did not constitute custodial interrogation in violation of Miranda.

This assignment is without merit.

Assignment of Error Number 2

By this assignment, defendant contends that the trial court erred in denying his motion for a continuance on June 20, 1980, three days prior to the date set for trial. The trial judge denied the motion. On the morning of trial, defense counsel again requested a continuance. The State opposed the motion and it was denied by the trial judge. Defendant’s argument is that he was prejudiced by the trial court’s denial of his motion for a continuance because he was unable to obtain crucial evidence regarding the cause of death from the treating physician.

The record reflects that defense counsel had at least four months to prepare for trial of this case. During the May 29,1980 hearing on the defendant’s motion for inspection and discovery defense counsel admitted that he had complete access to the district attorney’s file, except for statements made by State witnesses. This clearly gave defense counsel ample opportunity to discover the cause of the victim’s death from the treating physician.

Defendant additionally argues that he was prejudiced by the prosecutor’s failure to make available statements made by State witnesses. This court has consistently held that criminal discovery does not enable a defendant to discover the State’s evidence. State v. Hennigan, 404 So.2d 222 (La.1981); State v. May, 339 So.2d 764 (La.1976). Since the defendant was not entitled to the names of the State witnesses, he cannot urge that he was prejudiced by the State’s nondisclosure of this information. We feel the trial judge was correct in denying the defendant’s continuance.

This assignment is without merit.

Assignment of Error Number S

By this assignment, defendant contends that the trial court erred in permitting the introduction of prior consistent statements of the State’s key witness. He argues that the State was allowed to corroborate the witness’ testimony prior to the impeachment of the witness.

During the direct examination of Cynthia Shano, the prosecutor requested that the witness’ signed statement given to the officers on the afternoon of the offense be admitted into evidence. Defense counsel stated that he had no objection to the introduction of the statement. The prosecutor then requested that Shano read the statement to the jury. At this point, defense counsel did not object but stated that the prosecutor was trying to impeach his own witness. The prosecutor responded that he only wanted to show that the witness’ testimony was essentially the same as it was two hours after the incident. The trial court permitted the witness to read the statement to the jury. Defendant now argues that the State introduced the witness’ prior consistent statement in an attempt to bolster her credibility.

Defense counsel stated that he had no objection to introduction of the witness’ statement to police officers and he did not object to her reading this statement to the jury. This court has consistently held that an objection not contemporaneously raised in the lower court cannot be raised on appeal. State v. Baylis, 388 So.2d 713 (La.1980). Additionally, defense counsel’s only statement at trial was that the prosecutor was attempting to impeach his own witness. Defendant now argues that the State prematurely introduced the witness’ prior consistent statement to bolster her credibility. La.R.S. 15:484. A new basis for an objection cannot be raised for the first time on appeal. State v. Motton, 395 So.2d 1337 (La.1981), State v. Johnson, 389 So.2d 372 (La.1980). Therefore, nothing is presented for our review.

In any event, the defendant has not alleged or shown that he was prejudiced by the trial court’s ruling and no prejudice appears to exist. State v. Mead, 377 So.2d 79 (La.1979). Accordingly, this assignment is without merit.

Assignment of Error Number 4

By this assignment, defendant contends that the trial court erred in introducing gruesome photographs of the victim into evidence. He argues that the photographs should have been excluded because of their lack of probative value and their prejudicial effect on the jury.

The evidence forming the basis of defendant’s argument is four color photographs of the victim’s face and body after she had been burned and beaten. While the photographs are unpleasant, they are not so gruesome that they would overwhelm reason. The photographs corroborated the testimony of the examining physicians, the pathologist, and Cynthia Shano. They also established the identity of the victim and tended to show the use of unnecessary force and violence by the perpetrators. In our opinion, the probative value of the photographs certainly outweighed any possible prejudice that may have resulted from their display to the jury. State v. Lindsey, 404 So.2d 466 (La.1981); State v. Myles, 389 So.2d 12 (La.1980). Therefore, the trial court did not abuse its discretion in admitting the photographs into evidence.

This assignment lacks merit.

Assignment of Error Number 6

By this assignment, defendant contends that the trial court erred in conducting a hearing on the removal of a juror outside the presence of the defendant.

During the trial, the judge held a hearing in chambers in response to a note received by one of the jurors, Sam Hebert, stating that he was at one time acquainted with the State’s witness, Cynthia Shano. After questioning the juror, defense counsel requested that he have a minute to confer with the defendant and allow him to make the decision on whether the juror should be excused. The court granted the motion. Shortly thereafter, defense counsel returned and advised the court that he was satisfied with the make-up of the jury.

Defense counsel argues that La.C.Cr.P. Art. 831 requires that the defendant be present for such a hearing and that his absence invalidated the entire proceeding. At no time, however, did defense counsel make an objection to the defendant’s absence during the hearing. As pointed out earlier herein, this court has consistently held that an objection not contemporaneously raised in the lower court cannot be raised on appeal. State v. Lawson. Therefore, nothing is presented for us to consider.

In any event, defense counsel immediately informed the defendant of the juror’s note and of the hearing. From the record, it appears the defendant and defense counsel made the ultimate decision to allow the juror to hear the case.

Therefore, this assignment lacks merit.

Assignments of Error Numbers 7 and 8

By these assignments, defendant contends that the trial court erred in failing to give one of his requested jury charges. The defendant requested that the jury be read the definition of negligent homicide.

La.C.Cr.P. Art. 802 requires that the judge charge the jury as to the law applicable to the case. State v. Clement, 368 So.2d 1037 (La.1979); State v. Marse, 365 So.2d 1319 (La.1978). Special requested jury charges are governed by La.C.Cr.P. Art. 807, which provides, in part, that a special charge shall be given by the court if it does not require qualification, limitation or explanation and if it is wholly pertinent and correct. State v. Telford, 384 So.2d 347 (La.1980).

A review of the facts adduced during the trial of this case indicate that the defendant’s requested jury charge was not pertinent in this case. Thei'efore, the trial judge did not err in failing to instruct the jury as to negligent homicide.

This assignment is without merit.

Assignment of Error Number 9

By this assignment, defendant contends that the trial court erred in charging the jury as to the definition of aggravated arson. He argues that the jury was improperly left with the impression that they could find that the crime of aggravated arson had been committed as an aggravating circumstance to first degree murder.

Prior to the trial court’s charge to the jury, defense counsel objected to the trial judge instructing the jury as to the definition of aggravated arson. He argued that the State had not established any evidence of the offense of aggravated arson. The judge overruled defense counsel’s objection and read the definition of aggravated arson to the jury.

La.R.S. 14:51 defines aggravated arson as follows:

“Aggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable whereby it is foreseeable that human life is endangered.”

The record reflects testimony of lighter fluid being poured on the victim and on surrounding sheets and sofa bed. The victim was then set on fire, as was the bedding around her. Lighter fluid is an explosive substance. There is no doubt that these acts were intentional and it was surely foreseeable that Frances Arwood’s life would be endangered by such acts. The trial judge reasoned that the fabric around the victim and the sofa bed could certainly be considered movables within the meaning of the statute. In our opinion, the trial judge was correct in charging the jury as to the definition of aggravated arson.

This assignment is without merit.

DECREE

For the above reasons, the defendant’s conviction is affirmed.

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Court of Appeal, Fifth Circuit and Walter I. Lanier, Jr., of the Court of Appeal, First Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.

      . A co-defendant, Robert Sawyer, was also tried and convicted on the same charge.


source: Caselaw Access Project

author: MARCUS, Justice .

license: Public Domain

text:
    STATE of Louisiana v. Frank Charles FEEBACK.
    No. 81-KA-2549.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
    Thomas W. Davenport, Jr., of Davenport, Files, Kelly & Marsh, Monroe, for defendant-appellant.
   MARCUS, Justice .

Frank Charles Feeback was charged in the same information in separate counts with: (1) distribution of methaqualone on December 22, 1979; (2) distribution of methamphetamine on December 22, 1979; (3) distribution of methamphetamine on January 8, 1980; (4) distribution of marijuana on January 8, 1980; and (5) possession of marijuana with intent to distribute on March 28, 1980. After trial by jury, defendant was found guilty as charged on counts (1) through (4) but guilty of only possession of marijuana on count (5). Subsequently, defendant was sentenced. On appeal, defendant relies on fifteen assign-merits of error for reversal of his convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in denying his motion to release seized property and motion to suppress on the ground that certain items were not subject to seizure. He argues that the items were not contraband; therefore, they were irrelevant to this prosecution.

During the search of defendant’s residence, pursuant to a search warrant, officers seized a number of items. Defendant filed a motion to release some of the seized property. The state agreed to return many of the items. As to the remaining ones, defendant’s motion was denied after a hearing. Subsequently, defendant filed a motion to suppress the items not released. This motion was likewise denied. On defendant’s application to this court, we ordered the cash seized returned to defendant; otherwise, the application was denied. The contested items, consisting of a briefcase, various papers, cigarette rolling papers, gloves, address books, a radio scanner, telephone answering device, tape recorder, defendant’s driver’s license, a teargas canister, slapper (billy club) and other miscellaneous items, were introduced in evidence at trial.

La.Code Crim.P. art. 161 provides in pertinent part:

A judge may issue a warrant authorizing the search for and seizure of any thing within the territorial jurisdiction of the court which:
(3)May constitute evidence tending to prove the commission of an offense.

La.Code Crim.P. art. 165 provides:

While in the course of executing a search warrant, a peace officer may make photographs, lift fingerprints, seize things whether or not described in the warrant that may constitute evidence tending to prove the commission of any offense, and perform all other acts pursuant to his duties.

Relevancy and admissibility at trial is not the test governing the seizure of things by an officer while executing a search warrant. Rather, the standard is whether the items tend to prove the commission of any offense.

In the instant case, the items in question clearly tend to prove the commission of the charged offenses. Defendant had been seen with the briefcase and gloves when he sold methamphetamine and marijuana to an undercover narcotics officer. Moreover, the briefcase contained marijuana at the time it was seized. The other items tend to show defendant’s intent to distribute and/or his dominion and control over the drugs seized from his residence. They are' also consist ent with the type of things possessed by a drug dealer.

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion to quash and motion for severance grounded on the claim that the offenses were improperly joined in the same information. He argues that he was prejudiced by the joinder thereof.

Two or more offenses may be charged in the same information in a separate count for each offense under La.Code Crim.P. art. 493 if the offenses charged

are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

In the instant case, the offenses charged, four counts of distribution and one count of possession with intent to distribute, are of the same or similar character. Moreover, since the punishment for each offense is necessarily confinement at hard labor, the mode of trial (jury composed of twelve jurors, ten of whom must concur to render a verdict) is the same. La.Code Crim.P. art. 782. Hence, the offenses were properly joined in the same information. La.Code Crim.P. art. 493.

When an accused has been charged in the same information with two or more offenses pursuant to art. 493, he may apply for severance of offenses under La.Code Crim.P. art. 495.1, which provides:

If it appears that a defendant or the state is prejudiced by a joinder or offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

In the instant case, the four distribution charges occurred at the same location on two occasions about two weeks apart. The possession with intent to distribute charge occurred later when law enforcement officers searched defendant’s residence pursuant to a search warrant. Evidence concerning the prior distributions would have been admissible to prove intent to distribute the marijuana. State v. Prieur, 277 So.2d 126 (La.1973). Additionally, the evidence for each crime was simple and distinct and was carefully presented to the jury by the state according to the dates on which the offenses occurred. Also, the trial judge instructed the jury on the law applicable to each charge. Accordingly, we conclude that the jury could compartmentalize the evidence and apply the law intelligently to each offense. Clearly, defendant was not prejudiced by the joinder of the offenses.

Defendant further contends that the joinder of the offenses prevented him from testifying about an alibi to the two counts of distribution occurring on December 22, 1979, because he would have been subject to cross-examination upon the whole case. La. R.S. 15:280. Severance is not required simply because a defendant indicates that he wishes to testify on some counts but not on the others. Alvarez v. Wainwright, 607 F.2d 683 (5th Cir. 1979). Moreover, defendant presented his alibi defense to the two counts of distribution occurring on December 22, 1979 through the testimony of five witnesses.

In sum, the trial judge did not abuse his discretion in denying defendant’s motions seeking a severance of the offenses. Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in denying his motion to suppress evidence seized pursuant to a search warrant. He argues that the affidavit supporting the issuance of the warrant did not recite sufficient facts to establish probable cause. He further argues that the warrant was improperly executed because two officers from a nearby town assisted in the search.

The affidavit recites that, within 72 hours, a confidential informant, who had furnished information in the past resulting in four arrests and two convictions for drug violations, advised affiant that he had just left defendant’s residence where defendant had marijuana and methamphetamine in his possession. The affidavit further recited that defendant had previously distributed methamphetamine to an undercover narcotics officer.

The reliability of the informant and his information is demonstrated in the affidavit. Hence, it satisfied the “two-pronged test” set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), in determining if an affidavit based on hearsay has established probable cause for the issuance of a search warrant. U.S.Const. Amend. IV; La.Const. art. 1, § 5; La.Code Crim.P. art. 162.

Defendant further contends that the warrant was improperly executed because two Monroe city police officers aided in the search of defendant’s residence in West Monroe. Detectives Pat Stewart and Graham Gardner of the Monroe City Police Department aided two state troopers, two Ouachita Parish sheriff’s deputies and one West Monroe detective in searching defendant’s residence.

La.Code Crim.P. art. 164 provides that a peace officer may use such means and force as are authorized for arrest in order to execute a search warrant. La.Code Crim.P. art. 219 provides that a peace officer making a lawful arrest may call upon as many persons as he considers necessary to aid him in making the arrest. The testimony at the suppression hearing is clear that the two Monroe city police officers merely aided in the search. Hence, defendant’s contention is without substance.

In sum, the trial judge did not err in denying the motion to suppress. Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in allowing the state to call a witness in rebuttal to his alibi defense on the ground that the state had not timely notified him of its intention to call the witness.

La.Code Crim.P. art. 727 sets forth the requirements for notice of alibi. Subsection (D) provides that, upon the failure to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness. However, subsection (E) permits the court to grant an exception to any of the requirements for good cause shown.

In the instant case,' the state requested, on February 26, 1981, that defendant notify it as to whether he intended to offer a defense of alibi. Defendant replied in the affirmative on March 4, 1981. The state then notified defendant on March 5, 1981 that it would call Eugene and Susan Willis to rebut defendant’s alibi. On March 9, 1981, the morning of trial, the state gave defendant written notice of its intent to call two more alibi rebuttal witnesses at trial. Defendant objected to the timeliness of the notice. The state argued that it had just learned of the existence of the additional witnesses. The trial judge refused to exclude the testimony of the additional witnesses.

Under the circumstances, we are unable to say that the trial judge abused his discretion. Moreover, only one of the additional witnesses testified at trial and her testimony was not directed at the rebuttal of defendant’s alibi. Therefore, defendant was not prejudiced. Also, defendant did not request a continuance to conduct additional discovery which would have eliminated any potential prejudice. La.Code Crim.P. art. 729.5.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the trial judge erred in allowing the state, over his objection, to ask one of its witnesses, Eugene Willis, repetitive questions concerning his motive for testifying on behalf of the state. Willis had been granted immunity by the state. Willis’ initial answer was vague and necessitated additional questioning to clarify his answer. Hence, the trial judge did not abuse his discretion in overruling defendant’s objection as to the repetitiveness of the questions. La.R.S. 15:275. Moreover, defendant suffered no prejudice. In fact, defendant sought on cross-examination to impeach Willis on the basis of his motive for testifying.

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in allowing the state to question Sgt. W. L. Deaver concerning his knowledge of sentences imposed for narcotics convictions.

During cross-examination, defendant asked Sgt. Deaver whether the penalty for distribution depended upon the quantity of the drugs involved. He responded that he believed that the penalty was the same regardless of the amount. On redirect, the state asked him whether he had been referring to the possible penalty or to the penalty actually imposed. Defendant objected. The trial judge overruled the objection and permitted the witness to answer the question.

The state’s question was within the scope of redirect as it was directed at a matter covered on cross-examination. La.R.S. 15:281. Hence, the trial judge did not err in overruling the objection.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in allowing in evidence hearsay testimony concerning money owed to defendant for narcotics.

Count (3) of the information charged defendant with distribution of 5 grams of methamphetamine on January 8,1980. The price was $750 but'defendant was paid only $300 at that time. On February 2, 1980 (about three weeks later), State Trooper William Beckham, together with Eugene Willis, at whose residence the distribution of drugs had taken place, met Irma Jean Wilhite, a friend of defendant, at Gentry’s Dixie Dandy in West Monroe to make payment of the balance due ($450). Trooper Beckham, over defendant’s objection, was permitted to state that the subject of the conversation was drugs and money owed to defendant by Willis. This conversation formed part of one continuous transaction and was therefore admissible under the res gestae exception to the hearsay rule. La. R.S. 15:448.

Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends the trial judge erred in allowing redirect examination of District Attorney J. Carl Parkerson on a matter not covered in cross-examination.

On cross-examination, defendant asked Mr. Parkerson whether he had told defense counsel and defendant’s father that he was going to “put Frank in the penitentiary.” He denied making an unqualified statement to that effect. On redirect, the state asked Mr. Parkerson whether he had made a qualified statement about his intention to put Frank Feeback in the penitentiary. Defendant objected on the ground that the question was not within the scope of redirect examination. The objection was overruled and the witness was allowed to answer the question.

The state’s question was within the scope of redirect as it was directed at a matter covered on cross-examination. La.R.S. 15:281. Hence, the trial judge did not err in overruling the objection.

Assignment of Error No. 10 is without merit.

ASSIGNMENT OF ERROR NO. 11

Defendant contends the trial judge erred in admitting in evidence, over his objections, various items seized from his residence. He argues that the items were not relevant and constituted evidence of other crimes.

The complained of items consisted of two bags of syringes, a small box with a spoon, a slapper (billy club), tear gas canister, three address books, two note pads, three handguns, a radio scanner and a telephone answering machine. Most of the items were relevant to prove defendant’s intent to distribute and/or his dominion and control over the drugs seized from his residence. Although not evidence of other crimes, the other items were irrelevant; however, they were not of such a prejudicial nature as to constitute reversible error.

ASSIGNMENT OF ERROR NO. 12

Defendant contends the trial judge erred in allowing in evidence, over his objection, hearsay evidence.

On January 8, 1980, Eugene Willis telephoned defendant’s residence from the sheriff’s office to arrange a meeting for an undercover officer to buy drugs from defendant. Lynn Graves answered the phone and informed Willis that defendant was not at home. On redirect examination, the state asked Willis what he had said to Ms. Graves. Defendant’s objection was overruled and the witness responded that he told her that a “guy was in town that Frank wanted to talk to .... ”

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. State v. Hathorn, 395 So.2d 783 (La.1981); State v. Broussard, 391 So.2d 1167 (La.1980); State v. Hatcher, 372 So.2d 1024 (La.1979). A well-known rule is that evidence is non-hearsay which is offered not to prove the truth of the facts recited, but to prove that the utterance occurred. State v. Hatcher, supra. The contested statements were not offered to prove the truth of the facts recited but rather that the utterance occurred, demonstrating how the January 8, 1980 meeting with defendant was arranged (at which meeting the distributions in counts (3) and (4) occurred). Hence, the trial judge did not err in overruling the objection.

Assignment of Error No. 12 is without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends the trial judge erred in allowing evidence of other crimes without notice.

During a search of defendant’s residence, a quantity of marijuana in a brown bag was seized. That marijuana was the subject of count (5) of the information (possession of marijuana with intent to distribute). At trial,-defendant called Virginia Friday as a witness. She testified that, while she was cleaning defendant’s home and while defendant was asleep (some six hours prior to the search), two women arrived with a grocery bag similar to the one containing the marijuana seized in the search. Ms. Friday stated that they left the bag at defendant’s residence. She also testified that she had known defendant for some twelve years and that defendant had never distributed drugs to her. Thereafter, the state called Helen Crump Feeback in rebuttal and asked her if she had seen defendant distribute drugs to Ms. Friday. The witness answered in the affirmative. Defendant’s objection on the ground of relevancy and request that the jury be instructed to disregard the answer was denied. No further questions were asked in this regard.

Each side has the right to impeach the testimony and the credibility of every witness sworn on behalf of the other side. La.R.S. 15:486. The credibility of a witness may be attacked generally, or it may be attacked only insofar as the credibility in the case on trial is concerned. La.R.S. 15:490.

At the outset, we note that defendant did not object at the time of occurrence on the ground of lack of notice. A new basis for an objection cannot be raised for the first time on appeal. La.Code Crim.P. art. 841; State v. Sanders, 357 So.2d 492 (La.1978). In any event, defendant’s contention is without substance. The state called Helen Feeback to impeach the credibility of Ms. Friday insofar as her (Ms. Friday’s) credibility in the case on trial was concerned. No notice is required to be given defendant of evidence offered to impeach the credibility of a witness. Hence, the trial judge did not err in his ruling.

Assignment of Error No. 13 is without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends the trial judge erred in refusing to give a special written charge requested by him. The requested special charge involved the credibility of witnesses granted immunity.

A defendant has the right before argument to submit to the court special written charges for the jury. A requested special charge need not be given if it is included in the general charge. La.Code Crim.P. art. 807.

In the instant case, the court’s general charge to the jury included ample instructions on the credibility of witnesses. Hence, the trial judge did not err in refusing to give the requested special charge.

Assignment of Error No. 14 is without merit.

ASSIGNMENT OF ERROR NO. 15

Defendant contends the trial judge erred in imposing excessive sentences.

La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentences imposed by him should not be set aside as excessive in the absence of manifest abuse of his discretion. State v. Carter, 412 So.2d 540 (La.1982); State v. Jacobs, 383 So.2d 342 (La.1980).

In the instant case, defendant was convicted of four counts of distribution occurring on two occasions and one count of possession occurring on a third occasion. At the sentencing hearing, the trial judge stated that, although the amount of drugs distributed was small, the evidence indicated that defendant intended these distributions to lead to much larger ones in the future. Defendant had previously been convicted of felony offenses as well as for possession of marijuana. Under the circumstances, we are unable to say the trial judge abused his discretion in sentencing defendant. The sentences imposed were not excessive.

Assignment of Error No. 15 is without merit.

DECREE

For the reasons assigned, the convictions and sentences are affirmed.

       Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Fourth Circuit Court of Appeal and Judge H. Charles Gaudin of the Fifth Circuit Court of Appeal participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . Counts (1), (2) and (3) are alleged to be in violation of La.R.S. 40:967; counts (4) and (5), in violation of La.R.S. 40:966.

      . Defendant was sentenced to serve two and a half years at hard labor and to pay a fine of $1,000 on count (1) (distribution of methaqua-lone). On count (2) (distribution of methamphetamine), he was sentenced to serve two and a half years at hard labor and to pay a fine of $1,000, concurrent with the sentence imposed on count (1). On count (3) (distribution of methamphetamine), defendant was sentenced to serve ten years at hard labor, consecutive with the sentences imposed on counts (1) and (2). On count (4) (distribution of marijuana), he was sentenced to serve four years at hard labor and to pay a fine of $1,000, concurrent with the sentences imposed in counts (1), (2) and (3). On count (5) (possession of marijuana), defendant was sentenced to serve one hundred days in the parish jail and to pay a fine of $400, concurrent with sentences imposed on counts (1) through (4).

      . Assignment of Error No. 6 was neither briefed nor argued; therefore, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . 386 So.2d 1383 (La.1980).

      . La.Code Crim.P. art. 727 provides:
      A. Upon written demand of the district attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such different time as the court may direct, upon the district attorney a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi,
      B. Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the district attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses.
      C. If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under Subsection A or B, the party shall promptly notify the other party or his attorney of the existence and identity of such additional witness.
      D. Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his own behalf.
      E. For good cause shown, the court may grant an exception to any of the requirements of Subsections A through D of this Section.
      F. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.


author:
PHILIP C. CIACCIO, Justice Pro Tern.
     DIXON, Chief Justice

text:
    STATE of Louisiana v. William F. SMITH.
    No. 81-KA-2660.
    Supreme Court of Louisiana.
    May 20, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Bobby Stromile, Asst. Dist. Atty., for plaintiff-appellee.

      S. Patrick Phillips, Indigent Defender Bd., Bossier City, for defendant-appellant.
   PHILIP C. CIACCIO, Justice Pro Tern.

The defendant, William F. Smith, was charged with distribution of methamphetamine. R.S. 40:967(A); 964(C). A jury found him guilty as charged and he was sentenced to serve three years at hard labor. The defendant appeals his conviction on the basis of six assignments of error, of which he argues and briefs only three.

On February 4, 1980, Jack Miller, who was an undercover agent employed by the Federal Drug Enforcement Task Force and the Shreveport Police Department, became engaged in an undercover operation which involved a drug purchase from the defendant, William Smith.

Agent Miller secured $125.00 from the Bossier City Police Department and proceeded by car, with a confidential informant, to the Hornet Gasoline Station, which is located in Bossier Parish. Upon arrival at the gas station, the confidential informant introduced Agent Miller to the defendant. Agent Miller told the defendant that he wanted a couple of dollars worth of gas and that he was interested in buying some “crystal” (i.e., another term for methamphetamine). The defendant told Miller to wait until he could go inside the office.

Agent Miller waited inside the station office while the defendant pumped gas for some other customers. During this time Miller observed some ten to twelve people milling around the station. He next observed a white van stopped alongside the station. He saw the defendant walk up to the van and talk to two men inside. The defendant took out a roll of money which he gave to the occupants of the van and for which he received a small package wrapped in brown sack paper.

The defendant returned to the office and went straight into a rear room. He returned to the office where Miller was waiting and gave him a small clear triangular cellophane packet containing a white powder. Miller, in return, gave Smith $125.00. Miller, joined by the informant, returned to the car and left the scene.

Miller performed a field test on the white powder when he returned to the station. The powder tested positive for methamphetamine. It was placed in the safe by Agent Miller until it was turned over to the crime lab on February 8,1980. The defendant was not arrested until September, 1980, as this transaction formed only a small part of a larger undercover drug operation.

Assignment of Error No. 1.

The defendant contends that the trial court erred in refusing to grant his motion for a judgment of acquittal. He argues that the State failed to prove an essential element of the crime, namely, that the methamphetamine that was the subject of this transaction was not proven to be of the type which has a “stimulant effect on the nervous system.” R.S. 40:964(c). The defendant reasons that this is an essential element of proof, under the language of the statute, as not all methamphetamine have such an effect. State v. Slayton, 301 So.2d 600 (La.,1974), rev. other grounds. 338 So.2d 694.

The standard for granting a motion for acquittal is set forth in Louisiana Code of Criminal Procedure, Article 778:

Art. 778. Motion for acquittal
In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.

Under this statute the trial judge has no authority to grant a directed verdict in a jury trial. State v. Garrison, 400 So.2d 874 (La.,1981).

Since this case was tried before a jury, the court was procedurally correct in denying the defendant’s motion for a judgment of acquittal.

The more difficult consideration concerns the substantive issue presented by this argument. The defendant argues that this Court must consider that all expressions in a statute have some meaning.

La.R.S. 40:964(C) reads as follows:

C. Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including their salts, isomers and salts of isomers, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
(1) Amphetamine
(2) Methamphetamine
(3) Phenmetrazine
(4) Methylphenidate
(5) Phendimetrazine
(6) Phentermine

La.R.S. 40:961(34) defines a “stimulant” as follows:

“a drug which contains a quantity of amphetamine or any of its isomers; any salt of amphetamine or any salt of an insomer of amphetamine; or any substance which the secretary of the Department of Health and Human Resources after an investigation, has found to be and by regulation designated as habit forming because of its stimulant effect on the central nervous system.”

Defendant argues that the grammatical construction of the statute limits the prohibited methamphetamines to only those having a stimulant effect on the central nervous system. Thus, the prosecution must prove not only that the substance at issue is a methamphetamine but also one that stimulates the central nervous system. Defendant’s grammatical construction argument appears in his brief as follows:

Elementary rules of grammatical construction dictate that the clause “having a stimulant effect on the central nervous system” modified the noun which it follows — “substances.” Further, not being separated from the noun by a comma, the clause is a restrictive clause, i.e. it restricts the noun which it modifies.
The restrictive clause following the noun “substances” limits the scope of the “substances” defined therein by restricting the “substance” to only those “having a stimulant effect on the central nervous system.”

Defendant relies upon the decision of this court in State v. Slayton, 301 So.2d 600 (La.,1974) to support his argument, as this court held in State v. Slayton, supra, that since some isomers of methamphetamines were “inactive” and were included in “over the counter” preparations, those “inactive” methamphetamine compounds were not included in the definition of stimulant but, included, were only those methampheta-mines which had a stimulant effect on the central nervous system.

Determination and definition of acts which are punishable as crimes are purely a legislative function. La.Const. Art. 2, Sec. (s) 1, 2; Art. 3, Sec. 1. State v. Rodriguez, 379 So.2d 1084 (La.,1979). Therefore, in Louisiana, unless an act can be brought within the meaning of the words of a statute it is not a “crime.” State v. Vaccaro, 200 La. 475, 8 So.2d 299 (La.,1942.)

The defendant was charged pursuant to Louisiana Revised Statute Title 40 Section 967 A, which reads as follows:

967. Prohibited acts-Schedule II, penalties A. Manufacture, distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II;
(2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule II.
***** *

The Louisiana Revised Statutes set forth a schedule of controlled dangerous substances:

964. Composition of schedules
Schedules I, II, III, IV and V shall, unless and until added to pursuant to R.S. 40:962, consist of the following drugs or other substances, by whatever official name, common or usual name, chemical name, or brand name designated.
******

We are satisfied that the State met its burden of proof in this case.

James Barnhill, an employee of the Northwest Louisiana Criminalistics Laboratory in the position of Laboratory Manager, by stipulation, was qualified as an expert in the field of chemistry, particularly the chemical analysis of certain compounds. He testified that he was in charge of drug analysis and had been employed in that capacity since August of 1970, and had testified as an expert in the field of drug analysis in many court proceedings. He further testified that he examined the substance which is the subject of this case and found that the powder in that plastic triangle was determined to contain the drug substance known as “methamphetamine”. He stated that he was familiar with the controlled dangerous substance statute and the schedule contained therein and, when asked what schedule this particular substance fell within, he responded: “It is in Schedule II listed under stimulants.” No further clarification of this opinion was sought by either the prosecuting attorney or defense counsel.

A stimulant is by legal definition a “drug” which has a “stimulant effect on the central nervous system.” The witness classified the methamphetamine that he had examined as a stimulant, thereby excluding other methamphetamines which are “inactive” and not covered by this law. The jury could conclude from his testimony that this substance was the type of methamphetamine which was unlawful, that is, the type which has an effect on the central nervous system.

Therefore, we find that Assignment of Error Number 1 lacks merit.

Assignment of Error Nos. 2 and 4.

The defendant, through assignments of error numbers 2 and 4, contends that the trial court erred in its charge to the jury. In particular, the defendant contends that error was committed when the judge refused to instruct the jury that the statutes which deal with the prohibition of metham-phetamines refer only to those which have a stimulant effect upon the central nervous system, and, in order to convict the defendant, they must find that the evidence established, beyond a reasonable doubt, that the substance identified as State Exhibit 1 was a methamphetamine which had a stimulant effect on the central nervous system.

In a criminal prosecution, the trial court must charge the jury, when properly requested, as to the law applicable to any theory of defense which jurors could reasonably infer from the evidence, but this charge must be supported by the evidence presented at the trial, as the trial court is not required to instruct the jury on abstract principles of law. State v. Telford, 384 So.2d 347 (La.,1980).

The record is devoid of any evidence which would give rise to the defense that this methamphetamine might be of the type which had no effect on the central nervous system.

The record reveals that the defendant was afforded the opportunity, upon proper notice, to have the chemical substance examined prior to the trial. There is no evidence that this examination was ever performed. Moreover, during the trial the defense stipulated to the qualification of James Barnhill as an expert. On cross examination of Mr. Barnhill, no question was directed to him by the defendant regarding the effect of this methamphetamine which he had analyzed. No countervailing evidence was presented by the defendant regarding the nature of this drug and no objection was lodged at the time it was introduced into evidence. The only mention of such a defense was when the defendant argued the point before the judge. An argument, unsupported by evidence, is insufficient to support a charge to the jury.

Furthermore, a requested special charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent; it need not be given if it is included in the general charge or in another special charge which is given. C.Cr.P. Art. 802, 807. State v. Murray, 375 So.2d 80 (La.,1979).

The defendant, at the close of the trial, filed a timely request for a special jury charge concerning the proof nécessary to convict the defendant of illegal distribution of methamphetamine.

In the judge’s general charge to the jury, he specifically stated that in order to convict the defendant they must find that the defendant knowingly and intentionally distributed a Schedule II controlled dangerous substance, namely, methamphetamine, in violation of Revised Statute Title 40, Section 967 A and he read the applicable part of the statute. The judge further instructed the jury that methamphetamine is listed under Revised Statute Title 40, Section 964 (C). Section C provides “Stimulants.” The court then proceeded to read this section of the statute, including the portion of the statute which states that the substances have a stimulant effect on the central nervous system.

The closing argument of the defense counsel helped to bring the court’s general jury charge into even clearer focus. In closing argument he stated that “all meth-amphetamines are not controlled dangerous substances” and “unless they are proven by the State to be substances (methampheta-mines) which have a stimulant effect on the central nervous system, they are not controlled dangerous substances.” He further stated that “if they are not controlled substances, then the transfer of this little package would be no more illegal than the transfer of an aspirin, tylenol or a buffe-rin.”

Our review of the record convinces us that the trial court’s general jury charge was an accurate and complete statement of the applicable law. The points made by the defendant and requested in his special charge were wholly contained in the court’s general charge.

Furthermore, the defense argument, in closing, helped to clarify any misconceptions which may have arisen because of the format in which the court’s general charge was presented.

The trial court did not commit error in refusing to give the defendant’s special jury charge. The special charge was contained in the court’s general charge. The general charge was a complete and accurate statement of the law of the case.

Assignments of Error Numbers 2 and 4 are without merit.

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

AFFIRMED

DIXON, C. J., concurs with reasons.

BLANCHE, J., concurs for reasons assigned by Dixon, C. J.

DIXON, Chief Justice

(concurring).

I respectfully concur.

The result reached in the majority opinion is right, but it is not correct to say that our opinion in State v. Slayton, 301 So.2d 600 (La.1974), excluded inactive metham-phetamines from operation of the statute. In State v. Slayton, Schedule III A (2) of R.S. 40:964 as it then read, was challenged as unconstitutionally vague and overbroad. Specifically, it was argued that the language “including its ... isomers” was over-broad because not all isomers found in methamphetamines cause a stimulant effect on the central nervous system; according to expert testimony introduced by the accused, only “D” and “L” isomers are optically active. This court held that the objectionable language was limited by paragraph A which proscribes only those substances that have a stimulant effect on the body. Since only “D” and “L” isomers have such an effect, they are the only isomers encompassed within the wording “including its isomers.”

In reliance on Slayton, supra, defendant argues that the state failed to prove an essential element of the crime, namely, that methamphetamines have a stimulant effect on the central nervous system. The only testimony relevant to this point is that of Jimmy Barnhill, an expert witness in the area of chemical analysis of drugs. Barn-hill testified that he tested a compound purchased from defendant and that it was methamphetamine, found “in schedule two, listed under stimulants.”

Whereas not all isomers have a stimulant effect, all methamphetamines do have a stimulant effect on the central nervous system (due to the presence of “D” and “L” isomers). Methamphetamines belong to the amphetamine drug group; by definition, they are central nervous system stimulants. Dorland’s Medical Dictionary, 24th ed. (1965); Schmidt’s Attorney’s Dictionary of Medicine (1980); see Baumgartner and Morrell, Pharmaceutical Industry Regulation by the Department of Justice, 23 Syracuse L.Rev. 785, 793-810 (1972); About Your Medicines (Abstracted from the 1981 United States Pharmacopeia Dispensing Information) (1981). Thus, the state met its burden of proving that the substance had a stimulant effect upon the central nervous system by introducing evidence that the drug obtained from defendant was methamphetamine. (For similar reasons, the trial court properly refused to give defendant’s requested jury charges since they were framed in terms of the stimulant effect of methamphetamines, not of isomers).

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, Watson.

      . Assignments of error which are not argued and briefed are considered abandoned. State v. Gardette, 352 So.2d 212 (La., 1977).

      .Defendant’s Special Charges read as follows:
      Requested Charge No. 1.
      In order to convict the defendant you must find that evidence proves to your satisfaction beyond a reasonable doubt the following:
      1. That there was a distribution of a substance
      2. That defendant distributed the substance
      3. That defendant acted- knowingly or intentionally
      4. That the substance distributed was methamphetamine
      5.That the methamphetamine distributed has a stimulant effect on the central nervous system
      Alternate Requested Charge No. 1.
      La.R.S. 40:964 and 40:967 prohibits the distribution of only those methamphetamines which have a stimulant effect on the central nervous system. Thus, in order to convict the defendant of either this charge or any charge responsive thereto, you must find that the evidence establishes beyond a reasonable doubt that the substance identified as State Exhibit 1 has a stimulant effect on the central nervous system. State v. Slayton, 301 So.2d 600 (Sup.Ct.1974).

      . Schedule III A (2) of R.S. 40:964 provided:
      “A. Stimulants. Unless specifically excepted or unless listed in another Schedule, any material, compound, mixture or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
      (2) Any substance (except an injectable liquid) which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers.” (Emphasis added).


author: PER CURIAM.

text:
    STATE of Louisiana v. Donald M. DURA.
    No. 81-KA-2250.
    Supreme Court of Louisiana.
    May 28, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Allen Harvey, Asst. Dist. Atty., for plaintiff-appellee.
    Stephen A. Jefferson, Monroe, for defendant-appellant.
   PER CURIAM.

Defendant Donald Dura was charged by bill of information with simple burglary of a pharmacy, in violation of La.R.S. 14:62.1. The trial court thereafter accepted defendant’s plea to the lesser offense of attempted simple burglary, La.R.S. 14:27; 14:62, and on July 21, 1981, sentenced him to serve three years at hard labor in the custody of the Louisiana Department of Corrections. By this appeal, defendant urges that the trial court erred in imposing an excessive sentence, La.Const.1974, Art. 1, § 20, and in failing to justify an apparently severe sentence according to the sentencing guidelines set forth in La.C.Cr.P. Art. 894.1. After reviewing this assignment, we conclude that a remand for resentencing is warranted.

At the sentencing hearing, the trial court emphasized only the seriousness of this offense, noting that the burglary had been the subject of some “advance planning and forethought” and that a “sizeable quantity of controlled substances” had been taken. Questioning by the trial judge elicited defendant’s admission of heavy narcotics usage, an aggravating factor which, in the trial court’s view, necessitated a relatively lengthy period of incarceration.

This limited recitation, however, virtually ignored this Court’s repeated warning that “the sentencing court should indicate that it has considered not only circumstances militating for incarceration, but also any mitigating factors.” State v. Franks, 373 So.2d 1307, 1308 (La.1979). Our review of the record reveals numerous such factors not addressed by the sentencing judge, most notable of which include the defendant’s youth, his steady employment, and his continued support of wife and family. The presentence report suggests that the instant offense resulted directly from the accused’s then-deepening dependence on narcotic drugs, a dependency which developed only after the brutal murders of his first wife and child at the hands of a released mental patient. Because the brief sentencing statement given by the trial court fails to provide an adequate factual basis for the apparently severe sentence imposed on this first offender, see, State v. Telsee, 404 So.2d 921 (La.1981), we vacate the sentence imposed and remand the case for resentenc-ing in accordance with the guidelines enumerated in La.C.Cr.P. Art. 894.1.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.

WATSON and LEMMON, JJ., dissent from remand.


text:
    STATE of Louisiana v. Leon WALKER.
    No. 81-KA-2253.
    Supreme Court of Louisiana.
    May 28, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Ruteldge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, A. Z. Butterworth, Asst. Dist. Attys., for plaintiff-appellee.
    George H. Ware, Jr., Clinton, for defendant-appellant.
   PER CURIAM.

Defendant was charged by grand jury indictment with armed robbery in violation of La.R.S. 14:64. After trial by jury on June 1, 1981, he was found guilty as charged. On June 24, 1981, the trial court sentenced him to thirty-five (35) years’ imprisonment at hard labor. Defendant has now appealed his conviction and sentence to this Court urging six assignments of error. We have reviewed defendant’s assignments as they relate to the jury’s verdict and find them without merit. We therefore affirm his conviction. However, we find that in imposing an apparently severe sentence on defendant, the trial court failed to weigh “... not only the circumstances militating for incarceration, but also any mitigating factors.” State v. Franks, 373 So.2d 1307, 1308 (La.1979). Accordingly, we vacate defendant’s sentence and remand for resen-tencing.

At the hearing on June 24,1981, the trial court observed that defendant committed the armed robbery against an elderly woman who had managed a small grocery store for “60 to 70 years.” It also noted that while defendant was a young first offender and that his crime “was perhaps a one time event,” the mitigating factors listed in La. C.Cr.P. Art. 894.1(B) were “not applicable because [the statute] sets forth guidelines for suspension of sentence which is not applicable in this case [under La.R.S. 14:64].”

However, in State v. Sepulvado, 367 So.2d 762, 767, 769 (La.1979), this Court held that the guidelines provided in La.C.Cr.P. Art. 894.1 furnish the appropriate criteria “... by which to review whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.” [emphasis supplied]. A trial court may not, therefore, ignore the mitigating circumstances listed in Art. 894.1(B) even when its sentencing alternatives have been narrowed to a determination only of the length of sentence imposed. State v. Dunns, 404 So.2d 1235 (La.1981); State v. Saunders, 393 So.2d 1278 (La.1981); State v. Franks, supra.

In this case, the trial court mentioned briefly some of the mitigating circumstances favoring defendant, especially his youth and status as a first offender. Nevertheless, its reasons indicate that it may not have followed the directive of Art. 894.1(B) that “[t]he following grounds, while not controlling the discretion of the court shall be accorded weight in its determination ... . ” [emphasis supplied]. We therefore vacate the sentence imposed and remand the case for resentencing in accord with the views expressed herein.

CONVICTION AFFIRMED: SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

MARCUS, WATSON and LEMMON, JJ., dissent from that portion of the opinion vacating the sentence.


text:
    STATE of Louisiana v. Mac O. DAVIS.
    No. 81-KA-2664.
    Supreme Court of Louisiana.
    May 28, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen.,' Edwin 0. Ware, Dist. Atty., Paul D. White, Jr., Robert Levy, Asst. Dist. Attys., for plaintiff-appellee.
    Stephen E. Everett, Alexandria, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with two counts of armed robbery in violation of La.R.S. 14:64. After trial by jury beginning on June 23, 1981, he was found guilty as charged on each count. On August 3, 1981, the trial court sentenced him to fifty (50) years’ imprisonment at hard labor for each offense, the sentences to run consecutively. Defendant has now appealed his convictions and sentences to this Court urging that the consecutive penalties imposed by the trial court are excessive.

At sentencing on August 3,1981, the trial court stated that defendant had a prior conviction for simple burglary and that armed robbery “is a very serious offense in which body and life [are] endangered....” In addition the presentence report notes that defendant “has a long record of offenses of a similar nature” and that he “is a probation violator.”

However, the presentence report has apparently confused defendant with the co-defendant in the case. Defendant was 17 years old at the time of both of his offenses and had no juvenile record or other arrests. The brief reasons articulated by the trial court therefore do not provide an adequate factual basis for review of the severe sentences imposed on this young offender, particularly in view of the apparent mistake in the presentence report. Accordingly, while we affirm defendant’s convictions, we vacate the sentences imposed and remand the case for resentencing in compliance with La.C.Cr.P. Art. 894.1.


text:
    LIFEMARK CORPORATION v. Roger GUISSINGER, Secretary, Department of Health and Human Resources, State of La. and Murray Forman, Director, Division of Health Planning and Development Department of Health and Human Resources, State of La.
    No. 82-C-1366.
    Supreme Court of Louisiana.
    June 4, 1982.
   Re Lifemark Corporation, applying for Supervisory Writs and Stay Order, Parish of East Baton Rouge, No. 255,861.

The applications for writs are granted in # 82-C-1366 and # 82-C-1376. The cases are fixed for expedited hearing at 10:00 a. m. Tuesday, June 8, 1982. The cases are consolidated for argument.

Because it appears that the trial judge exceeded his jurisdiction, the stay order signed by the district judge on May 27,1982 at about 3:25 p. m. in these cases is recalled and vacated, as are any other stay orders issued in these proceedings, the effect of which is to recall and vacate the decision of the Department of Health and Human Resources awarding National Medical Enterprises, Inc. certification under the Social Security Act, Section 1122, and further recalling and vacating any orders the effect of which is to notify the United States Department of Health and Human Services to return Form HRA-45 (record of state and local action pursuant to 1122 of the Social Security Act regarding the proposed Southern Diagnostic Center of National Medical Enterprises, Inc. in Slidell, Louisiana). All other proceedings in these cases are stayed pending further orders of this court.

CALOGERO, J., recused.


author: DENNIS, Justice,

text:
    QUALICARE, INC. v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, State of Louisiana, et al.
    No. 82-C-1376.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re National Medical Enterprises, Inc. applying for writs of Prohibition, Certiorari and Mandamus, Parish of East Baton Rouge No. 256,546.

The applications for writs are granted in # 82-C-1366 and 82-C-1376. The cases are fixed for expedited hearing at 10:00 a. m. Tuesday, June 8, 1982. The cases are consolidated for argument.

Because it appears that the trial judge exceeded his jurisdiction, the stay order signed by the district judge on May 27,1982 at about 3:25 p. m. in these cases is recalled and vacated, as are any other stay orders issued in these proceedings, the effect of which is to recall and vacate the decision of the Department of Health and Human Resources awarding National Medical Enterprises, Inc. certification under the Social Security Act, Section 1122, and further recalling and vacating any orders the effect of which is to notify the United States Department of Health and Human Services to return Form HRA-45 (record of state and local action pursuant to 1122 of the Social Security Act regarding the proposed Southern Diagnostic Center of National Medical Enterprises, Inc. in Slidell, Louisiana). All other proceedings in these cases are stayed pending further orders of this Court.

CALOGERO, J., recused.

DENNIS, J., concurs in the order and assigns additional concurring reasons.

DENNIS, Justice,

assigning additional reasons.

It appears that the applicant has standing to apply for supervisory relief in this court. A person who could have intervened in the trial court may appeal. La.C.C.P. art. 2086. An interested person has a right to appeal from an injunction judgment whether he was a party or not to the injunction suit. Cloud v. Bushnell, 168 So.2d 275, writ denied 247 La. 249, 170 So.2d 509 (1965). The failure of a foreign corporation to obtain a certificate of authority to transact business in this state does not prevent it from defending any action, suit or proceeding in any court of this state. La.R.S. 12:314(B).

Serious questions exist as to whether the district court has jurisdiction of the case in its present stage. The administrative decisions complained of probably are not final decisions nor adjudications, but only recommendations to be sent to the Department of Health, Education and Welfare. The final determination on Section 1122 qualification and capital expenditure benefit eligibility rests with the Secretary of Health, Education and Welfare and not with a state agency. Mallard Assoc. v. Pennsylvania, 422 A.2d 1178 (Commonwealth Court of Pa. 1980). Viewed as preliminary or intermediate agency actions the administrative decisions may not be susceptible to immediate judicial review because irreparable injury will not be sustained thereby. La.R.S. 49:964(A). The Secretary makes the final determinations involved and the facilities may still be constructed absent the approval of the Secretary, although the projects may become less financially desirable. 42 U.S.C. § 1320A-l(b). Moreover, the designated planning agency must grant to a person proposing a capital expenditure an opportunity for a fair hearing with respect to its findings and recommendations. 42 C.F.R. 100.106(c). Apparently this administrative remedy has not been exhausted. Even if no reviewing agency has been designated, it is by no means clear that a request for a review would not have prompted the Governor to designate an agency in time to conduct a review. See, Southern Indiana Health Systems v. State Board of Health, 391 N.E.2d 845 (Ind.Ct. of App.1979).


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr. v. ESTATE OF Numa Paul HIMBERT, et al.
    No. 82-C-0965.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re State of Louisiana, through the Atty. General William J. Guste, Jr., applying for writs of prohibition, mandamus, cer-tiorari and other supervisory remedies. Parish of East Baton Rouge. 410 So.2d 285.

Granted. The ruling of the trial judge is reversed. The case is remanded for further action in conformity with the provisions of C.C.P. 1467.


text:
    STATE of Louisiana ex rel. Douglas JOHNSON v. Warde Roger AUCOIN.
    No. 82-KH-0986.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Douglas Johnson, applying for writ of mandamus. Parish of East Baton Rouge.

Granted. Trial court is ordered to conduct hearing forthwith, but not later than seven days from date.


text:
    STATE of Louisiana ex rel. Warren HENRY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0922.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Warren Henry, applying for remedial writs. Parish of Orleans. No. 239-218.

Denied.


text:
    ACADIAN HERITAGE v. The CITY OF LAFAYETTE, et al.
    No. 82-0-1289.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re The Daily Advertiser Independent, Inc., d/b/a The Daily Advertiser, Charles Lenox and Vince Marino, applying for supervisory writs and for removal of District Judge as Judge Ad Hoe. Parish of Lafayette. No. 79-3350-G.

Denied.


text:
    ACADIAN HERITAGE v. The CITY OF LAFAYETTE, et al.
    No. 82-O-1290.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re The City of Lafayette, Jerry Trumps and Glenn Webber, applying for supervisory writs and application for removal of District Judge as Judge Ad Hoc. Parish of Lafayette. No. 79-3350-G.

Denied.


text:
    FIRST NATIONAL BANK OF COMMERCE v. Richard J. BOUTALL.
    No. 82-C-1084.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re First National Bank of Commerce, applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 411 So.2d 1193.

Granted.


text:
    LOUISIANA STATE BAR ASSOCIATION v. O. Romaine RUSSELL.
    No. 81-O-2090.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re O. Romaine Russell, applying for reinstatement to the practice of law.

On the showing made relator’s application for reinstatement to the practice of law is denied.


text:
    Jasper PIRELLO v. TRIANGLE ENTERPRISES, INC.
    No. 82-C-0796.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Triangle Enterprises, Inc., applying for reconsideration of a denied writ of April 21, 1982. Parish of Ascension. 413 So.2d 507.

Not considered.


text:
    STATE of Louisiana ex rel. James O. RAPHIEL v. Donald R. GUILLORY, Warden, Wade Correctional Center.
    No. 82-KH-0228.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re James 0. Raphiel, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 101563.

Denied.


text:
    STATE of Louisiana ex rel. Eugene JONES v. STATE of Louisiana.
    No. 82-KH-0232.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Eugene Jones, applying for writs of habeas corpus, mandamus and certiorari. Parish of Orleans. No. 270-651.

Denied.


text:
    INTERNATIONAL AMERICAN COMPANY, INC. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 82-C-0723.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re International American Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 412 So.2d 140.

Writ denied.

LEMMON, J., would grant the writ.


text:
    Larry G. MOBLEY v. REGO COMPANY, et al.
    No. 82-C-0751.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Larry G. Mobley, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Lincoln. 412 So.2d 1143.

Denied.


text:
    Mrs. Terry MOLENAAR, widow of Arthur John Phillpott v. McGILL MANUFACTURING CO., INC., August J. Berner, Frederick W. Berner, All Other Officers, Agents and/or Employees of Berner’s Inc., Sentry Insurance, a Mutual Company, and/or Sentry Indemnity Company.
    No. 82-C-0933.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Mrs. Terry Molenaar, widow of Arthur John Phillpott, applying for writ of certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 410 So.2d 869.

Denied.

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


text:
    Carroll Keifner, Wife of/and Reed W. HOLMES v. TRADIGRAIN, INC.
    No. 82-C-1070.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Tradigrain, Inc., applying for writ of certiorari, or review, to the Fourth Circuit, Court of Appeal. Parish of Orleans. 411 So.2d 1132.

Denied.


text:
    Pamela Flynn DESHOTEL v. AVONDALE SHIPYARDS, INC.
    No. 82-C-1073.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Avondale Shipyards, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 413 So.2d 208.

Denied.


text:
    Charles SCHRUMPF v. GEORGIA INTERNATIONAL LIFE INSURANCE COMPANY.
    No. 82-C-1075.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Charles Schrumpf, applying for cer-tiorari, or writ of review, to the Court of

Appeal, Third Circuit. Parish of Calcasieu. 413 So.2d 267.

Denied.


text:
    B. M. ALBRECHT ELECTRIC, INC. v. Claude GRIFFIN, et al.
    No. 82-C-1081.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Claude Griffin, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 413 So.2d 246.

Writ denied.


text:
    Sheldon R. McNEAL and Kay K. McNeal v. DIVISION OF STATE POLICE, DEPARTMENT OF PUBLIC SAFETY, State of Louisiana.
    No. 82-C-1083.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Sheldon R. McNeal and Kay K. McNeal, applying for writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 412 So.2d 1123.

Denied.


text:
    Barbara Dugas, Wife of/and Harry DUGAS v. Irma JIMINEZ, Richard Wise and Commercial Union Insurance Company.
    No. 82-C-1104.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Irma Jiminez, Richard Wise and U. S. Fire Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 413 So.2d 531.

Denied.

DENNIS, J., would grant the writ.


text:
    FIREMEN’S CHARITABLE AND BENEVOLENT ASSOCIATION OF NEW ORLEANS, et al. v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 82-C-1107.
    Supreme Court of Louisiana.
    May 28, 1982.
    Reconsideration Denied June 21, 1982.
   In re New Orleans Public Service, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, ish of Orleans. 413 So.2d 202. Par-

Denied.

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


text:
    Thomas BLACK v. EBASCO SERVICES, INC., et al.
    No. 82-C-1110.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Scaffolding Rental and Erection Services Inc. and Employers Casualty Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 411 So.2d 1159.

Denied.

DIXON, C. J., and WATSON and LEM-MON, JJ., would grant the writ.


text:
    INTERNATIONAL AMERICAN COMPANY, INC. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 82-C-1152.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Louisiana State Employees’ Retirement System, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 412 So.2d 140.

Writ denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Freddie CLEMENTS, Jr.
    No. 82-KH-1137.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Freddie Clements, Jr., applying for writs of supervisory and mandamus. Parish of Orleans. No. 272-959.

Denied.


text:
    STATE of Louisiana ex rel. Sylvester JACKSON v. Oliver SCHULINGKAMP, Judge Criminal District Court, Section “F”.
    No. 82-KH-0627.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Sylvester Jackson, applying for writ of mandamus. Parish of Orleans.

Granted. Application is transferred to district court for action.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. Criminal Sheriff Charles C. FOTI, Jr.; Criminal District Court Judge Bernard J. Bagert, Sr., Section “H” State of Louisiana, et al.
    No. 82-KH-0177.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Garrett Decatur Richardson, applying for writs of mandamus, habeas corpus, certiorari and prohibition. Parish of Orleans. No. 267-703.

Denied.


text:
    SABINE PIPE & SUPPLY COMPANY v. Shirley S. McNAMARA, Secretary, Department of Revenue and Taxation, State of Louisiana.
    No. 82-C-1109.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Sabine Pipe & Supply Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. East Baton Rouge Parish. 411 So.2d 1167.

Denied.


text:
    STATE of Louisiana v. Derek Edward DETRAZ.
    No. 82-K-0716.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Cotton Belt Insurance Company, applying for reconsideration of denied writ of April 30, 1982. St. Tammany Parish. 413 So.2d 902.

Not considered. See La.Supreme Court Rules IX, Sec. 6.


text:
    STATE of Louisiana ex rel. Allen BURTON v. Robert HENDERSON, Warden, Hunt Correctional Center.
    No. 82-KH-1138.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Allen Burton, applying for writ of mandamus. Parish of Tangipahoa.

Granted. Relator’s motion to withdraw application is granted.


text:
    STATE of Louisiana ex rel. James PUGH v. John T. KING, Sec. Dept. of Correction and Parole Board State of Louisiana.
    No. 82-KH-1139.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re James Pugh, applying for writ of mandamus. Parish of East Baton Rouge. No. 231-522.

Granted. Relator’s pro se writ application, not yet filed in the district court is transferred to the district court for consideration and appropriate action.


text:
    STATE of Louisiana v. Susan WALSH.
    No. 82-K-1144.
    Supreme Court of Louisiana.
    June 4, 1982.
    Reconsideration Denied June 21, 1982.
   In re Susan Walsh, applying for writ of certiorari, mandamus and review. Parish of Orleans. No. S-82-1034.

Granted. Relator’s motion states facts sufficient to warrant an evidentiary hearing. The New Orleans Municipal Judges are therefore ordered to transfer relator’s motion to recuse to the Criminal District Court for a hearing.

WATSON, J., dissents from the order.


text:
    STATE of Louisiana ex rel. Wyndell WASHINGTON v. CLERK OF COURT, 15TH JUDICIAL DISTRICT COURT PARISH OF VERMILION.
    No. 82-KH-1164.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Wyndell Washington, applying for writ of mandamus. Parish of Vermilion. Fifteenth Judicial District Court. No. 21144.

Granted. Clerk of this Court is ordered to forward copy of Boykin exam to relator.


text:
    Mitchell SERIO v. STEWART INVESTMENTS, INC.
    No. 82-C-1338.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Stewart Investments, Inc., applying for writs of certiorari, review, prohibition and stay order. Parish of Orleans. No. 82-2257.

Granted. The trial court is ordered to grant relator a suspensive appeal and to fix bond in connection therewith.


text:
    Susan Perry HARGRAVE v. John and Juanita Istre GASPARD.
    No. 82-C-1359.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re John Gaspard and Juanita Istre Gaspard, applying for supervisory writs. Parish of Vermilion. No. 81-42971.

Granted and consolidate with 82-C-1065 on June docket.


text:
    STATE of Louisiana ex rel. Leon Allan BEVERLY v. STATE of Louisiana.
    No. 82-KH-1038.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Leon Allan Beverly, applying for writ of certiorari. Parish of Ouachita. Fourth Judicial District Court.

Motion to dismiss application granted.


text:
    STATE of Louisiana ex rel. DeWayne F. HALL v. CLERK OF COURT, PARISH OF EAST BATON ROUGE, 19TH JUDICIAL DISTRICT.
    No. 81-KH-2390.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re DeWayne F. Hall, applying for writs of mandamus. Parish of East Baton Rouge. No. 11-78-670.

Denied. Relator may apply to the district court to purchase the additional transcript he desires.


text:
    STATE of Louisiana ex rel. Mark A. FISHER v. Charles C. FOTI, Jr. (Entire Prison System) et al.
    No. 81-KH-3125.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Mark A. Fisher, applying for writs of mandamus. Parish of Orleans. No. 284-389.

Writ denied. Relator has been released.


text:
    STATE of Louisiana ex rel. Gregory S. MARTIN v. Presiding Judge Frank V. ZACCARIA, Criminal District Court, 24th Judicial District, Parish of Jefferson.
    No. 81-KH-3211.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Gregory S. Martin, applying for writ of mandamus. Parish of Jefferson. No. 78-2217.

Writ denied.


text:
    STATE of Louisiana ex rel. Hillery PRESTON v. Ross MAGGIO, Warden, Louisiana State Penitentiary, Angola, Louisiana.
    No. 81-KH-3306.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Hillery Preston, applying for writ of certiorari. Parish of Orleans. No. 248-088.

Denied.


text:
    STATE of Louisiana, ex rel. Manuel DRAYDEN v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-KH-0220.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Manuel Drayden, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 119699.

Denied.


text:
    STATE of Louisiana, ex rel. Joseph ROBERTSON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-KH-0227.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Joseph Robertson, applying for writs of certiorari, prohibition, and mandamus. Parish of Iberville. No. 3600-79.

Denied.


text:
    STATE of Louisiana, ex rel. Oscar LEE v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-KH-0229.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Oscar Lee, applying for writ of habeas corpus. Parish of Orleans. No. 263-730.

Denied.


text:
    STATE of Louisiana ex rel. Howard L. PETE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0343.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Howard L. Pete, applying for writs of habeas corpus, and mandamus. Parish of Rapides. No. 180533.

Denied.


text:
    STATE of Louisiana, ex rel. Kenneth RIDEAUX v. Charles C. FOTI, Jr., Criminal, Sheriff, Orleans Parish.
    No. 82-KH-0455.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Kenneth Rideaux, applying for writ of mandamus. Parish of Orleans. No. 282-856.

Denied.


text:
    STATE of Louisiana v. Keith Douglas HORN.
    No. 82-K-0617.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Keith Douglas Horn, applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu. No. RC 759-81.

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


text:
    STATE of Louisiana, ex rel. Anthony R. ROBINSON, et al. v. STATE of Louisiana.
    No. 82-KH-0829.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Anthony R. Robinson, applying for remedial writs. St. Bernard Parish. No. 53-703.

Denied.


text:
    STATE of Louisiana, ex rel. Jerry NEWTON v. Honorable John R. JOYCE, Fourth Judicial District Court, Parish of Ouachita.
    No. 82-KH-0904.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Jerry Newton, applying for remedial writs. Parish of Ouachita. No. 39552.

Denied.


text:
    STATE of Louisiana ex rel. Mitchell C. MALLETT v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0988.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Mitchell C. Mallett, applying for writs of certiorari and review. Parish of Calcasieu. Nos. 97981 and 97988.

Denied.


text:
    STATE of Louisiana ex rel. Foster SHIVERS, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-1061.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Foster Shivers, Jr., applying for remedial writs. Parish of Caddo. No. 111-797.

Denied. Relator must first present his application to the district court.


text:
    STATE of Louisiana v. Charles FIELDS.
    No. 82-K-1382.
    Supreme Court of Louisiana.
    June 4, 1982.
   Charles Fields, applying for writs of cer-tiorari, prohibition, mandamus and for a stay order.

Denied. Adequate remedy in the event of conviction.


text:
    STATE of Louisiana ex rel. Joseph JACKSON v. STATE of Louisiana.
    No. 82-KH-1126.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Joseph Jackson, applying for writ of mandamus, Criminal District Court. Parish of Orleans. No. 269-399.

Denied. District court advised that it has no motion filed by relator in that court.


text:
    Stella TISBY v. GOOD SAMARITAN FUNERAL HOME, INC. and Johnny Davis.
    No. 82-C-1132.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Stella Tisby, applying for writ of certiorari. Second Circuit, Court of Appeal. Parish of Caddo. No. 14758.

Denied.


text:
    Julian GUICHARD v. DELTA AIRLINES.
    No. 82-C-1133.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Julian Guichard, applying for writ of review. Parish of Orleans, Civil District Court. No. 79-6253.

Denied.


text:
    William McAddo ROBINSON v. Ray Burton ROBINSON.
    No. 82-C-1178.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re William McAddo Robinson, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. No. 14771.

Denied.


text:
    STATE of Louisiana ex rel. Raymond ROCHON v. 15TH JUDICIAL DISTRICT COURT, PARISH OF ACADIA.
    No. 82-KH-1095.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Raymond Rochon, applying-for writ of mandamus. Parish of Acadia.

Denied. There are no charges pending against relator.


text:
    STATE of Louisiana, ex rel. James E. WARDE a/k/a James Atomanczek v. STATE of Louisiana.
    No. 82-KH-1093.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re James E. Warde a/k/a James Ato-manczek, applying for writ of habeas corpus. Parish of St. Tammany. Nos. 66885 and 68886.

Granted. Relator’s application transferred to district court for action.


text:
    Joseph H. BELLINA, M.D. v. Ceil Mary Ross, Wife of Joseph H. BELLINA, M.D.
    No. 82-C-0842.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Joseph H. Beilina, applying for reconsideration of denied writ of May 7,1982. Court of Appeal, Fourth Circuit, Civil District Court. Parish of Orleans. 414 So.2d 385.

Not considered. Rule 9 § 6 Louisiana Supreme court Rules.


text:
    Donald R. MILLER, Agent v. HARTFORD FIRE INSURANCE COMPANY.
    No. 82-C-1094.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Donald R. Miller, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 412 So.2d 662.

Granted.


text:
    U. S. FIRE INSURANCE COMPANY v. Ellen Tooley SWANN.
    No. 82-C-1143.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Ellen Tooley Swann, applying for writ of certiorari. St. Tammany Parish. No. 56126.

Granted.


text:
    STATE of Louisiana v. Thomas E. PARKER, Jr.
    No. 82-K-1287.
    Supreme Court of Louisiana.
    May 25, 1982.
   In re Thomas E. Parker, Jr., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Union. No. 45174.

Denied.


text:
    STATE of Louisiana v. Eldred WESLEY.
    No. 82-K-1106.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Eldred Wesley, applying for remedial writs. Parish of Orleans, Criminal District Court. No. 258-184.

Denied.


text:
    STATE of Louisiana v. Estella JACKSON.
    No. 82-K-0190.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Estella Jackson, applying for writs of certiorari. Parish of Terrebonne. No. 53965-P.

Denied.


text:
    STATE of Louisiana ex rel. David STAFFORD v. Ross MAGGIO, Warden.
    No. 82-KH-0290.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re David Stafford, applying for remedial writs. Parish of Rapides. No. 162360.

Denied.