author: DIXON, Chief Justice.

text:
    Laura Jean STEWART, as Natural Tutrix of Clerice Yvett Wilson v. Don SCHMIEDER, d/b/a Schmieder Enterprises et al. Dorothy Franklin JEFFERSON v. Don SCHMIEDER, d/b/a Schmieder Enterprises et al. Roland DESHOTEL v. 12055 AIRLINE CORPORATION et al. Billie Jean McGOWAN, Individually and as Natural Tutrix of her Minor Child, Cheryl Sue McGowan v. Don SCHMIEDER, d/b/a Schmieder Enterprises et al. Stanley L. STEVENS v. 12055 AIRLINE CORPORATION et al.
    No. 66437.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearing Denied Sept. 12, 1980.

      Walter G. Monsour, Jr., Parish Atty., Frank J. Gremillion, Asst. Parish Atty., for City of Baton Rouge and Parish of East Baton Rouge, applicant.
    John Dale Powers, David M. Vaughn, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for Stanley L. Stevens, respondent.
    Gordon M. White, Steve M. Marks, Baton Rouge, for Dorothy Franklin Jefferson, plaintiff-respondent.

      William J. Doran, Jr., Doran & Kivett, Baton Rouge, for Richard Schmieder, defendant-respondent.
    Thomas K. Kirkpatrick, Gary Keyser, Kirkpatrick, Keyser & Kirkpatrick, Baton Rouge, for Billie Jean McGowan and Cheryl Sue McGowan, respondents.
    Harris D. Copenhaver, Jr., Airhart & Co-penhaver, David W. Robinson, Watson, Blanche, Wilson & Posner, Charles William Roberts, Mengis, Roberts, Durant & Carpenter, Paul H. Due, Due, Dodson & deGra-velles, Baton Rouge, John A. Bivins, Mouton, Roy, Carmouche, Hailey, Bivins & McNamara, Lafayette, Ben W. Lightfoot, Durrett, Hardin, Hunter, Dameron & Frit-chie, Baton Rouge, for respondents.

       Marcus and Lemmon, JJ., would both grant a rehearing.

   DIXON, Chief Justice.

These five consolidated suits were brought against the City of Baton Rouge and the Parish of East Baton Rouge following the collapse, during the final stages of construction, of a building owned and being constructed by Don H. Schmieder. Three workmen, Jimmy Lee Wilson, Franklin Jefferson and William H. McGowan, were killed by the collapse, and two others, Roland Deshotel and Stanley Stevens, were injured. The trial court found that the City-Parish, Roy Rackley (the architect employed by Schmieder) and the prospective tenant of the building were liable. The Court of Appeal reversed against the tenant, Rust Engineering Company, but affirmed the judgment against the City-Parish and the architect, Roy Rackley. Writs were granted on the application of the City-Parish.

The facts are as follows. Schmieder agreed to construct and then to lease a building located on his property to Rust Engineering Company. He retained Rack-ley to draw the plans and specifications for the building. The Baton Rouge Building Code required that plans and specifications drawn by a licensed architect or civil engineer accompany any application for a building permit for the type of building proposed. Five sheets of plans were prepared when Rackley was instructed to cease work and to apply for a permit from the City-Parish, using those plans completed. At that time the plans were incomplete and inadequate for purposes of construction. Rackley submitted the plans on November 28, 1973, and certified that they complied with the code, that he would inspect the construction and that on completion he would certify that the building had been completed in accordance with the plans and specifications.

Initially, the City-Parish refused to issue a permit, and indicated that more complete plans would be required. A permit was nevertheless issued on January 25, 1974, marked “shell only.” The plans and specifications were never completed.

During construction, Rackley visited the building site, even though he was never called upon by Schmieder to make inspections. On the site he noted that there were a number of deviations from the incomplete plans he had submitted, and that electrical work was being done despite the fact that such work was not permitted under the shell permit that had been issued. He therefore on two occasions wrote to Schmieder pointing out the problems and suggesting that they be remedied. Copies of the letters were sent to and received by the City-Parish. Rackley also consulted with Vincent E. First, the manager of the Baton Rouge office of Rust Engineering Company, who had become concerned with the structural safety of the building. First communicated those concerns to the City-Parish. As a result, representatives of the City-Parish building official indicated by letter to Rackley that a certificate of occupancy would not be issued until the problems pointed to in Rackley’s last letter to Schmieder were corrected.

On September 25, 1974 Rackley made an inspection and by hand delivered letter indicated to the City-Parish that his recommendations had been followed and the problems were solved. At that time, however, he had not been able to verify that that was actually the case. Five days later, on September 30, 1974, the building collapsed. The consensus of the experts who testified at trial was that the collapse was the result of a shear failure in the concrete roof at the point where the roof was connected to the north wall. The failure was the result of faulty design which allowed insufficient support for the roof and failed to take into account the shrinkage which occurred when the concrete roof cured.

The duties and powers of the City-Parish building official (the head of the construction permit and inspection department) are set out by ordinance in the Baton Rouge Building Code. Section 5(b) provides:

“The building official shall have the power and duty to enforce all of the provisions of this title; shall have general supervisory authority over the administration and enforcement of all building codes and ordinances; and shall coordinate the administration and enforcement of all such ordinances to insure that all provisions thereof are fully complied with before the issuance of necessary certificates of occupancy; all permits shall be issued by him and he shall collect all fees provided herein, and transmit the same to the director of finance. He shall examine premises for which permits have been issued, and shall make necessary inspections to see that the provisions of law are complied with and that construction is prosecuted safely. He shall, when requested by proper authority, or when the public interest requires, make investigations in connection with matters referred to in the building code, and render written reports on the same. He shall issue such notices and orders as may be necessary to enforce compliance with the provisions of the building code, to remove illegal or unsafe conditions, to secure the necessary safeguards during construction, and to require adequate exit facilities in buildings and structures.”

Section 102.6 provides:

“Application for permits shall be accompanied by drawings of the proposed work, drawn to scale, showing foundation plans, floor and roof plans, elevations, sections and structural details sufficient to define completely the proposed construction. All plans shall be accompanied by duplicate plot plans, elevations, sections and structural details sufficient to define completely the proposed construction. All plans shall be accompanied by duplicate plot plans on letter-size sheets showing all lot dimensions and the location of the structure upon the lot or property with reference to each lot line. For all buildings or structures except as otherwise provided by this section, the application for a building permit shall be accompanied by a complete set of plans and specifications prepared by an architect or civil engineer licensed in accordance with Louisiana law, or under his supervision, and a certificate signed by the licensed architect or civil engineer to the effect that the said plans and specifications comply with and are in conformity with the requirements of this Code, the state fire code and the state sanitary code and that said plans and specifications were prepared by him or under his supervision; and, all applications shall also be accompanied by a load and stress sheet showing the weights carried by the supports, including columns, posts, girders, lintels, pillars, foundations and footings, when the building is fully loaded, and the safe loads such supports, etc., will carry and stress sheet showing the stresses caused by the required wind load and the manner in which they are transmitted into the ground. The application for a permit for any new building or structure shall be accompanied by a complete description of the kind and size of such buildings, the character of materials to be used, the ground area to be covered, and the net cubic contents of such building. Before a certificate of occupancy is issued, the architect or civil engineer must furnish the building official a certificate certifying that the building or structure has been completed, to the best of his knowledge, in accordance with the plans and specifications as approved by the inspection division and the maximum live load each floor will safely carry.

As to the issuance of permits, Section 102.9 provides:

“The building official shall examine applications for permits, within a reasonable time after filing. If, after examination, he finds no objections to the same and it appears that the proposed work will be in compliance with the laws and ordinances applicable thereto and the proposed construction or work will be safe, he shall approve such application and issue a permit for the proposed work as soon as practicable. If his examination reveals . . . that some objection exists, he shall reject such application and note his findings in a written report to be attached to the application and deliver a copy to the applicant. . . . ”

In this case a permit marked “shell only” was issued. Such a partial permit is authorized by Section 102.11, which provides:

“Nothing in this code shall be construed to prevent the building official from issuing a permit for the construction of part of a building or structure before the entire plans and detailed statements of said building or structure have been submitted or approved, provided adequate information and detailed statements have been submitted for the same and have been found to comply with this code.”

It can be seen that, in addition to general enforcement duties, the building official has the specific duty, before issuing a building permit, to require detailed plans and specifications to be submitted by a licensed architect or engineer. He further has the duty to examine those plans to determine that they comply with the laws and ordinances in effect and that the proposed construction is safe. In light of the City-Parish building official’s failure to carry out that duty in regard to the structural plans and specifications for this building, and in particular in regard to the defectively designed wall connection which caused the collapse, we conclude that the City-Parish is liable to those injured and killed when the building proved to be structurally- unsound.

The testimony of the expert witnesses at trial was that the roof-to-wall connection which failed was improperly designed. The City-Parish’s own expert witness, Dr. Dean McKee, testified that the average competent engineer in the Baton Rouge area would have detected the weakness in the design, and that the design was in violation of building code requirements. The weakness could have been detected by a review of the drawings of the plans without checking the sophisticated mathematical calculations involved in determining the ultimate safety of a building design. Dr. McKee stated that he felt that if the plans had been reviewed by a structural engineer for the city, the engineer would have disapproved of the plans. The testimony of the other experts at trial is consistent with the conclusion that the design of the wall-to-roof connection was unsafe, and that that unsafe condition was discoverable by a competent engineer.

Leon Rodriguez, an employee of the City-Parish permit department, testified that he reviewed the plans when they were submitted for a permit. He testified that although the plans appeared to be structurally sufficient, he was in fact not qualified by experience or education to make such a judgment. In fact the substance of his testimony, and that of other City-Parish employees, was that neither he nor any other employee of the City-Parish actually examined the plans and specifications to determine if they were structurally sound. In the area of the structural design of the building the City-Parish simply failed to make the examination required by the code. That failure led to the issuance of a permit to construct a building that was unsafe, and therefore to the eventual collapse of that building. It was the testimony of the City-Parish’s employees who testified that the building official’s office did not make it a practice to review submitted plans for structural soundness. Instead, the City-Parish relied on representations of the architect or engineer who designed the buildings as proof of safety. The witnesses pointed to Section 102.6 which provides that the architect or engineer must certify that the plans and specifications are in conformance with the code. However, the requirement for the certificate was not meant to relieve the City-Parish of its duty to examine applications to determine if the plans are safe.

First, the code specifically requires that detailed plans accompany an application. The code then provides that those applications be examined to determine if the construction is safe. There is no indication that the City-Parish is not obligated to examine the structural details of the plans submitted as well as the other portions of those plans.

Second, the code provision requiring the architect’s or engineer’s certificate does not contain language indicating that the certificate relieves the City-Parish of its duty to determine independently that the plans are structurally sound. In fact, the architect or engineer must certify that the plans and specifications are in compliance not only with those portions of the code dealing with the structure of the building but with the entire code, and the state fire and sanitary codes as well. It is not evident that the code provision was intended to render the office of the building official free from the duty to insure compliance with the code. Instead, the provision creates a second line of safety and security, in addition to the building official’s duties of inspection, by providing that the architect or engineer, as well as the building official, is responsible for compliance with the code.

The City-Parish argues, however, that even if its employees breached a duty imposed by ordinance, it is not liable to these plaintiffs — that its duties in the issuance of permits and the inspection of construction are owed to the public generally and not to any particular member of the public. In support of this “public duty doctrine,” the City-Parish cites Dufrene v. Guarino, 343 So.2d 1097 (La.App.1977), writ denied 343 So.2d 1068 (La.1977). In that case the court held that governmental officials charged with a duty of inspecting buildings for fire hazards were not liable for damages incurred in a fire on premises where no inspection had been made, or where inspection had been made improperly, and fire hazards were allowed to exist. The court reasoned that the duty to inspect was imposed to protect the public generally, and that no duty was owed individually to the persons who may have been on the premises in the future.

The almost universally cited authority for the “public duty doctrine” is Cooley on

Torts, 4th Ed., § 300 at page 385. Cooley states:

“The rule of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. ‘The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance.’ ”

The “public duty doctrine” has come under considerable attack' in recent years. It has been called “in reality, a form of sovereign immunity.” Adams v. State of Alaska, 555 P.2d 235, 241 (Alaska 1971). One court has said that it sets up just the type of “proprietary” and “governmental” distinction that was disposed of by the abolition of sovereign immunity. Coffey v. City of Milwaukee, 247 N.W.2d 132 (Wis.1976). It has also been criticized because it places the costs of inadequate performance on the shoulders of the innocent victims of official neglect, rather than spreading the costs of such neglect throughout society. 39 Albany L.Rev. 599, 601 (1975). The doctrine is also said to be predicated largely upon the erroneous assumption that, without it, a municipality would be subjected to crippling judgments because of the negligence of its employees, a fear which also hampered the abrogation of sovereign immunity. 13 Co-lum.J.L. and Social Problems 303 (1977). The doctrine also has the effect of removing a great deal of the incentive for public bodies to see that the functions of government are carried out responsibly and with reasonable care. The need for governmental responsibility in the modern world was a major factor in this court’s action in abandoning the doctrine of sovereign immunity in Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Co., 273 So.2d 19 (La.1973). It is noteworthy that in a number of states where the doctrine is applied it has been seriously eroded in recent years. See, e. g., Oleszczuk v. State of Arizona, 124 Ariz. 373, 604 P.2d 637 (1979); Sanchez v. Village of Liberty, 49 A.D.2d 507, 375 N.Y.S.2d 901 (1975).

This court has not before now had occasion to consider the applicability of the “public duty doctrine” in Louisiana. We have, however, in many instances, held governmental entities or public officials liable for the breach of duties which, at first blush, appear to be owed to the public rather than any individual. For example, the maintenance of highways and streets by the state and local governments is an undertaking that benefits the general public and is not carried out for any particular individual. Nevertheless, we have not hesitated to find the state or local entities liable for failure to maintain the streets and highways in a reasonably safe condition. United States Fidelity & Guaranty Co. v. State of Louisiana, Through the Dept. of Highways, 339 So.2d 780 (La.1976); Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); Vervik v. State of Louisiana, Dept. of Highways, 302 So.2d 895 (La.1974). Similarly, the incarceration of criminals would appear to be a duty owed to the public in general, but when the custodian’s negligence in allowing an escape causes injury to an individual, the custodian may be held liable. Frank v. Pitre, 353 So.2d 1293 (La.1978). Furthermore, in Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (1971), we held that a city might be held liable for the wrongful performance of a duty in many respects similar to that of the issuance of building permits. In that case we held that the plaintiff’s allegation that the city had authorized the creation of new subdivisions, with the knowledge that such authorization would cause flooding, thereby increasing the plaintiff’s peril of flooding, stated a cause of action.

Therefore, under the jurisprudence of this state, the mere fact that a duty is of a public nature, and benefits the general public, does not require a conclusion that the city cannot be found liable for the breach of that duty.

In addition, we note that in jurisdictions where the “public duty doctrine” is applied, it is subject to the important exception that liability can be founded upon the violation of a duty that would be generally considered to be owed to the public, if the statute or ordinance setting forth the duty indicates, by its language, that the duty is designed to protect a particular class of individuals. In Halvorson v. Dahl, 89 Wash.2d 673, 574 P.2d 1190 (1978), it was held that an ordinance identifying “conditions and circumstances . . . dangerous and a menace to the health, safety, morals or welfare of the occupants of such buildings and the general public” was found to be designed to protect,a specific class of individuals (building occupants) as well as the general public. 574 P.2d 1190 at 1193-1194. In Oleszczuk v. State of Arizona, supra, the court held that the duties of the driver licensing authority to maintain a record of an applicant’s previous accidents and cancellations, to establish a medical examining board, and to require answers to certain questions on an application were duties designed specifically to protect that portion of the public using the state highways. The court in that case held that the state could be held liable for the issuance of a driving permit to an individual suffering from a psychomotor disorder who injured the plaintiffs by driving while disabled by his disease. See, also, State v. Superior Court of Maricopa County, 123 Ariz. 324, 599 P.2d 777 (1979).

In the instant case the building official had the power and the duty to inspect premises for which a permit had been issued to insure that “the provisions of law are complied with and that construction is prosecuted safely.” Further, he was empowered and obligated to issue such notices and orders necessary to enforce codal compliance, to remove unsafe and illegal conditions, and to “secure the necessary safeguards during construction.” It is plain from that language that the building official, in addition to his general enforcement duties, was charged with a special duty to see that the construction of buildings was carried out safely — a special duty in favor of those injured by accidents occurring during construction, such as the workmen who were injured in this case. Therefore, it is irrelevant whether the “public duty doctrine” would exculpate the building official from liability for breach of those broader duties which may more properly be considered to be owed to the public in general.

We conclude that a finding of liability on the part of the City-Parish is not precluded by the jurisprudence of this state or the “public duty doctrine.” The City-Parish must be held responsible for having breached its duty to examine plans for proposed construction projects, and thereby causing injury to the plaintiffs.

For the reasons assigned, the judgment of the Court of Appeal is affirmed, at relator’s cost.

MARCUS, J., dissents.

       Chief Judge Frederick Stephen Ellis', Louisiana Court of Appeal, First Circuit, Justice Ad Hoc, recused.

      . These suits were brought against Don H. Schmieder, Richard D. Schmieder, John W. McLaughlin, 12055 Airline Corporation, Roy Rackley, the City-Parish, Rust Engineering Company and American Mutual Liability Insurance Company, Rust Engineering’s insurer. Don H. Schmieder, McLaughlin and 12055 Airline Corporation settled with all plaintiffs and the suits were dismissed against them. All suits were dismissed against Richard D. Schmieder after trial on the merits.

      . Some calculations on structural safety were received by the City-Parish and approved by James G. Atteberry, a civil engineer in the employ of the City-Parish Department of Public Works. Atteberry was not qualified as a structural engineer to review those calculations. In any event the calculations submitted and approved were incomplete and did not apply to the roof-to-wall connection that failed.

      . The application of the “public duty doctrine” in the area of fire inspection has been criticized. See 13 Colum.J.L. and Social Problems 303 (1977). As noted by Cooley, the duties of public inspectors are owed to the individuals who could be affected as well as to the public at large. He also notes that a building inspector can be liable for negligence. Cooley on Torts, 4th Ed., § 304 at page 403. This court has held that the negligent inspection of pork creates a cause of action against an official inspector. Tardos v. Bozant, 1 La.Ann. 199 (1846). In addition, it has been said that an insurer can be liable for the negligent inspection of a premises, which would indicate that the Dufrene decision failed to actually treat the city inspectors in the same way in which private inspectors would be. Rogers v. Highlands Insurance Co., 270 So.2d 277 (La.App.1972).


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    Jennie S. BILLEAUDEAU and Otis J. Billeaudeau, Jr. v. Robert W. LEMOINE et al.
    Nos. 66680, 66683.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearing Denied Sept. 12, 1980.

      Stephen R. Wilson and Joseph F. Keogh, Keogh & Keogh, Ltd., Baton Rouge, for Allstate Ins. Co., applicant in 66680 and respondent in 66683.
    Thomas D. Benoit, Smith & Smith, Baton Rouge, for plaintiff-applicant in 66683 and for respondent in 66680.
    James B. Thompson, III, Richard Creed, Jr., Dale, Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendants-respondents in both cases.
   MARCUS, Justice.

Jennie S. Billeaudeau and her husband, Otis J. Billeaudeau, Jr., filed this suit against Robert W. Lemoine, Manchester Insurance and Indemnity Company (Manchester) and Allstate Insurance Company (Allstate) seeking damages for personal injuries sustained by them in an accident between an automobile driven by Lemoine and a pickup truck owned by Otis J. Billeaudeau, Sr. and driven by Billeaudeau, Jr. Jennie S. Billeaudeau was a passenger in the pickup truck. Manchester was the liability insurer of Lemoine, and Allstate was the liability insurer of Billeaudeau, Jr., Billeau-deau, Sr. and Jennie S. Billeaudeau.

Lemoine answered generally denying the allegations of plaintiffs’ petition and affirmatively pleaded the defenses of contributory negligence and assumption of risk. Allstate answered plaintiffs’ petition and alleged settlement and compromise of the claims asserted by Jennie S. Billeaudeau by virtue of an agreement she executed with Allstate; Allstate also asserted a third party demand against Lemoine and his insurer (Manchester) for $15,000 which Allstate paid Billeaudeau, Jr. and Jennie S. Billeau-deau for their release of Allstate from liability under the uninsured motorist coverage of the various Allstate policies. Manchester was insolvent and Louisiana Insurance Guaranty Association (LIGA) was added as successor of the insolvent insurer pursuant to La.R.S. 22:1375-:1394. Proceedings against Manchester were stayed.

After trial on the merits, the trial judge found the accident was caused by the joint negligence of Billeaudeau, Jr. and Lemoine. Judgment was rendered dismissing Billeau-deau, Jr.’s lawsuit. Judgment was further rendered in favor of Jennie S. Billeaudeau and against Lemoine, Allstate and LIGA, in solido, for $30,000. LIGA’s liability was limited to $10,000, the amount of the Manchester policy. Allstate’s liability was subject to a credit of $15,000 which Allstate had previously paid in settlement to Jennie S. Billeaudeau under the uninsured motorist coverage of the Allstate policies; Allstate’s liability under its liability policy was limited to an additional $5,000 as per a written agreement between plaintiffs and Allstate. Allstate’s third party demand for $15,000 against Lemoine was granted. Lemoine and LIGA appealed. No appeal was taken as to the findings of negligence and quantum.

The court of appeal affirmed in part, reversed in part, and amended the judgment. As amended, the judgment was in favor of Jennie S. Billeaudeau and against Allstate for $5,000 and against Lemoine for $5,000; her demand against LIGA was dismissed. Allstate’s third party demand against Lemoine was also dismissed. Upon separate applications of Jennie S. Billeau-deau and Allstate, we granted certiorari to review the correctness of this decision.

The issues to be resolved in this litigation are: (1) whether LIGA is entitled to a credit against its liability limit for any sums received by Jennie S. Billeaudeau from Allstate and (2) whether Allstate is entitled to a judgment on its third party demand against Lemoine.

1.

Prior to filing suit, plaintiff and Allstate reached a settlement of any claims plaintiff may have had against Allstate under the uninsured motorist provisions of the various Allstate policies. In return for the release of Allstate from liability under the uninsured motorist provisions and the subrogation of Allstate" to plaintiff’s claim to the extent of the payment made, plaintiff received $15,000. At the same time, plaintiff agreed Allstate’s liability under the liability provisions of its policies would be limited to $5,000. The policies involved otherwise would provide total liability coverage of $15,000.

After executing the settlement, plaintiff filed suit against Lemoine, Allstate and Manchester. However, Manchester is insolvent, and LIGA is substituted as defendant for Manchester. LIGA contends that by virtue of La.R.S. 22:1386(1) it is entitled to a credit for any sums received by plaintiff from Allstate. La.R.S. 22:1386(1) provides:

Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this Part shall be reduced by the amount of any recovery under such insurance policy.

This issue was recently considered by this court in Hickerson v. Protective National Insurance Company, 383 So.2d 377 (La., 1980). There, we noted La.R.S. 22:1382(l)(b) provides LIGA shall “[b]e deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent.” We also noted the purpose of the Insurance Guaranty Association Law, “to avoid financial loss to claimants or policyholders because of the insolvency of an insurer,” La.R.S. 22:1376, is thwarted by requiring an injured party to proceed first against his or her own insurer. We held that “[t]he only statutory interpretation which will effect the purposes of the Insurance Guaranty Association Law is to deem LIGA the insurer with all the obligations of the insolvent insurer. To the extent of that coverage, the individual defendants were insured.”

Accordingly, in the instant case, LIGA is to be treated as though it were the insurer that issued Lemoine’s policy. The trial judge found Lemoine’s policy with Manchester limits LIGA’s liability to $10,-000. LIGA is not entitled to a credit against its liability limit for any sums received by plaintiff from Allstate.

The trial judge found both Billeaudeau, Jr. and Lemoine negligently caused the injuries of Jennie S. Billeaudeau. He further determined that an award of $30,000 would adequately compensate her for her damages. Ordinarily, Lemoine and the two liability insurers (Allstate and LIGA) would be held liable, in solido, for the full amount of plaintiff’s damages, with the liabilities of the insurers limited to the amounts provided in their policies.

Here, however, plaintiff and Allstate made an agreement that the maximum liability coverage of Allstate in this case would be $5,000. Accordingly, Allstate can be cast for no more than $5,000. And, because Lemoine and LIGA were not parties to the agreement, it cannot affect their liabilities. La.Civil Code art. 2100 provides:

The creditor, who consents to the division of the debt with regard to one of the -codebtors, still has an action in solido against the others, but under the deduction of the part of the debtor whom he has discharged from the debt in solido.

In the instant case, plaintiff has agreed $5,000 is Allstate’s part of the debt. Hence, we consider plaintiff has consented to a division of the debt. Lemoine and LIGA cannot be liable for more than Lemoine’s virile share. The virile share is one-half, or $15,000. As this is more than the $10,000 liability limit of LIGA, it is only liable for $10,000. Five thousand dollars of Lem-oine’s virile share is uninsured. Ordinarily, Lemoine would be liable for this amount. However, when Allstate and plaintiff settled the claim for the uninsured portion of plaintiff’s damages, plaintiff subrogated Allstate to her claim for this amount. Allstate has paid in Lemoine’s behalf and he owes plaintiff nothing.

Accordingly, judgment in the main demand will be rendered in favor of plaintiff and against Allstate for $5,000 and against LIGA for $10,000. Plaintiff’s claim against Lemoine will be dismissed.

2.

Next, we consider whether Allstate is entitled to a judgment on its third party demand against Lemoine. As part of the settlement of the uninsured motorist claim, plaintiffs and Allstate executed a document which subrogated Allstate to Jennie S. Bil-leaudeau’s claim to the extent of the payment made. However, Lemoine contends that he has been discharged by a letter written by plaintiffs’ attorney to which Allstate’s representative agreed on the day of settlement. That letter provides in part:

As per our settlement agreement yesterday and your memorandum letter of that day stating broadly our intent and purpose, I concur in the statements therein; however, I add for the record and out of an over-abundance of caution, that we mutually understood and contemplated that Allstate would refrain from attempting to exercise any subrogation rights for this $15,000.00 that it might have against Otis Billedeau, Jr. [sic], a named payee on the check.

Lemoine argues that he and Billeaudeau, Jr. are solidary obligors, and since Allstate released Billeaudeau, Jr. without reserving rights against him, he too was discharged. We agree.

The trial judge found the accident was caused by the joint negligence of Bil-leaudeau, Jr. and Lemoine. It is well settled that joint tortfeasors are solidarily liable for damages resulting from their concurrent negligence or wrongdoing. Guarisco v. Pennsylvania Cas. Co., 209 La. 435, 24 So.2d 678 (1945); Reid v. Lowden, 192 La. 811, 189 So. 286 (1939); Irwin v. Scribner, 15 La.Ann. 583 (1860). Hence, Billeaudeau, Jr. and Lemoine were liable in solido to Jennie S. Billeaudeau for her injuries. She subrogated Allstate to her cause of action to the extent of the payment made. Thus, Allstate had a cause of action against Bil-leaudeau, Jr. and Lemoine in solido to the extent of the payment made.

La.Civil Code art. 2203 provides:

The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.

Accordingly, if Allstate discharged Billeau-deau, Jr. without expressly reserving its right against Lemoine, that right has been lost. Guarisco v. Pennsylvania Cas. Co., supra; Reid v. Lowden, surpa.

Allstate agreed to “refrain from attempting to exercise any subrogation rights for [the payment made] that it might have against” Otis Billeaudeau, Jr. We consider this language to constitute a conventional discharge of Billeaudeau, Jr. from his liability to Allstate. Allstate did not expressly reserve its right against Lemoine. Hence, Lemoine too was discharged. Accordingly, Allstate cannot recover on its third party demand.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed insofar as it denied Jennie S. Billeaudeau judgment against Louisiana Insurance Guaranty Association and awarded her judgment against Robert W. Lemoine; judgment is rendered in favor of Jennie S. Billeaudeau against Louisiana Insurance Guaranty Association for $10,000 and in favor of Robert W. Lemoine against Jennie S. Billeaudeau dismissing her claim; otherwise, the judgment of the court of appeal is affirmed.

LEMMON, J., dissents in part.

      . 377 So.2d 1344 (La.App. 1st Cir. 1979).

      . 381 So.2d 511 (La. 1980).


text:
    STATE of Louisiana v. Ray JONES, Jr., a/k/a Ray Masters.
    No. 66689.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearing Denied Sept. 12, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.
    Office of Public Defender, William L. Lowe, Shreveport, for defendant-appellant.
   MARCUS, Justice.

Ray Jones, Jr. was indicted by the grand jury for the first degree murder of his two and one-half month old son in violation of La. R.S. 14:30. After trial by jury, he was found guilty as charged. After a sentencing hearing conducted before the same jury that determined the issue of guilt, the jury unanimously recommended that defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. The trial judge sentenced defendant in accordance with the recommendation of the jury. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in allowing in evidence certain inculpatory statements made by him to persons in the hospital on two occasions and to police officers at the police station. He argues that the statements were not freely and voluntarily made after having been advised of his Miranda rights.

During the early morning hours of January 18, 1979, defendant went to the house of Shirley Ruffin, mother of the two and one-half month old victim. Defendant was the victim’s father. The child had been crying most of the night and Ms. Ruffin had stayed up caring for the child. Defendant told Ms. Ruffin to go to bed and he walked the child to sleep. He then woke Ms. Ruffin’s daughter so that she could prepare for school. Shortly after the daughter left for school, Ms. Ruffin was awakened by defendant. He was nude, had shaven off all his hair and began calling her “Satan.” He began choking her until she fell to the floor unconscious. When she regained consciousness, the baby could not be found. The police were called. They located the bruised body of the child in Ms. Ruffin’s back yard about twenty to thirty feet from the back door.

In the meantime, the police, in response to a phone call about a man exposing himself, found defendant nude in a vacant house approximately two blocks from Ms. Ruffin’s house. He was arrested after a struggle, handcuffed and transported to the LSU Medical Center for observation. Tests performed in the hospital confirmed the presence of phencyclidine (PCP or angel dust) in defendant’s system.

At trial, outside the presence of the jury, a predicate was laid by the state for introduction of the inculpatory statements in evidence. Dr. Diana Bienvenue, the psychiatrist who treated defendant at the hospital, testified that when she first examined defendant on January 18, 1979, his condition was one of drug-induced acute psychotic reaction, or a lost contact with reality. She then administered a moderate amount of the drug Haldol, used to re-establish a patient’s contact with reality. She explained that Haldol does not lower one’s inhibitions so that one would say something involuntarily that one would not otherwise have said. Defendant was given several dosages of this drug during his first day at the hospital. Dr. Bienvenue testified that when she checked defendant the following morning (January 19, 1979), he was calm, rational, lucid and capable of communicating. During the visit, Dr. Bienvenue asked defendant several questions which are commonly used to determine a patient’s contact with reality. After she asked him who he was, where he was, what day it was, and whether he knew why he was in the hospital, defendant told the doctor about the attack on Ms. Ruffin and that he “proceeded to go where the baby was and pick up the baby and start hitting the baby and then threw the baby out of the back door of the house.” On the same morning, some time after the statement was made, two police officers came to the hospital and told defendant that he was being charged with simple battery. He was advised of his Miranda rights. Defendant was also told that he was a suspect in the homicide of his son, though no details of the death were described. He was again advised of his rights. At this point, defendant stated that he had nothing to say until he talked to an attorney.

Defendant’s second inculpatory statement was made in the hospital on January 24, 1979, just before his release to the police. One of the aides informed a nurse, Gwendolyn Caraway, that defendant was showing signs of distress. Defendant was in a seclusion room which the nursing staff did not enter unless accompanied by a security guard. Nurse Caraway called a university security guard to accompany her. As two aides, the nurse and the guard entered the room, defendant was crying. They testified that he stated in a coherent tone that “he had snuffed out the life of the only thing he ever loved, and that was his son.”

The final statement was made by defendant at the police station following his release from the hospital. After Detectives Gary Lindsey and Donald Ashley read defendant his Miranda rights, defendant stated that he understood his rights and would talk to them, but he wanted his lawyer present when he did so. The officers explained that an attorney was not available at the moment but that one would be appointed for him as soon as he was transferred to the parish jail. Detective Lindsey then told defendant that “God takes care of little babies” and that “the baby was already in heaven.” Defendant then asked Lindsey if he was a religious man. After the detective stated that he was “not as religious as I should be,” defendant told the officers how he choked Ms. Ruffin and hit the baby and threw him into the back yard.

At the conclusion of the predicate, the trial judge found that defendant’s statements made at the hospital were free and voluntary and were not made as a result of “custodial interrogation” requiring the Miranda warnings. He also found that the statement made at the police station was freely and voluntarily made. He concluded that the “police officers did not set out to trap this man, to make a statement,” but rather that defendant changed his mind after invoking his Miranda rights and decided to confess to what he had done. Accordingly, the trial judge ruled all the inculpato-ry statements made by defendant admissible in evidence.

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, the United States Supreme Court observed: “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been . . . deprived of his freedom of action in any significant way.” Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody. State v. Robinson, 384 So.2d 332, No. 65,722 (La., May 19, 1980); State v. George, 371 So.2d 762 (La. 1979); State v. Thornton, 351 So.2d 480 (La. 1977); State v. Sockwell, 337 So.2d 451 (La. 1976); State v. Thomas, 310 So.2d 517 (La. 1975); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972); State v. Hall, 257 La. 253, 242 So.2d 239 (1970). The Supreme Court further stated in Miranda : “Once warnings have been given, the subsequent procedure is clear. ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La. 1977).

In the instant case, the first statement made by defendant to Dr. Bienvenue on the morning after his admission to the hospital was voluntary and unsolicited. Defendant was calm and rational and clearly capable of communicating. His statement was the product of a free and rational choice. Moreover, not being subjected to interrogation by a police officer, Miranda warnings were not required. Hence, the trial judge properly admitted this statement in evidence.

The second statement was likewise properly admitted in evidence. It was not made in response to police interrogation. The university security guard was present as a protective measure for the hospital staff and he did not question defendant. The statement was unsolicited and the evidence was clear that defendant was rational and aware of what he was saying. As in the case of the earlier statement, no Miranda warnings were required.

Finally, the admissibility of the statement made by defendant at the police station upon his release from the hospital presents a closer question. The United States Supreme Court recently defined the term “interrogation” in State of Rhode Island v. Innis, - U.S. -, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), in a case remarkably similar to the present one. In Innis, the defendant was arrested for the murder of a cab driver and when given his Miranda rights, he replied that he wanted to speak to a lawyer. While defendant was being transported by police officers from the arrest scene to the police station, one policeman said to the other in reference to the missing murder weapon, “there’s a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves.” At this point, the defendant, seated in the rear of the patrol car, stated that he would show them where he had hidden the murder weapon. The Court noted that not all statements obtained by the police after a person has been taken into custody are the product of interrogation. In concluding that the statements in the patrol car did not represent “interrogation,” the Court stated:

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to .express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely, to elicit an incriminating response. - U.S. at -, 100 S.Ct. at 1689-90. [Footnotes omitted.]

In the instant case, after being advised of his Miranda rights, defendant stated that he wanted to tell about it but would like a lawyer present. He was told that one would be appointed as soon as he arrived at the parish jail. Nonetheless, he again said, “well I want to tell you about it.” It was at this point that Detective Lindsey made a declaratory statement that “God takes care of little babies” and that “the baby was already in heaven.” Defendant then asked Lindsey if he was a religious man to which he replied “not as religious as I should be.” At this point, defendant told the officers about what had happened. Although Detective Lindsey stated that he felt defendant wanted to tell about it as a relief and he naturally wanted to find out for himself, we are unable to say that the original statement made by the officer was such as he “should have known that it was reasonably likely to elicit an incriminating response.” Rather, the statement was more in the nature of consolation. Under the circumstances, we conclude that defendant was not “interrogated” within the meaning of Miranda. Moreover, we consider that defendant simply changed his mind after invoking his Miranda rights and decided that he wanted to relieve himself of his burden by telling the police officers about it at that time rather than waiting until later when an attorney would be appointed to represent him. This .was the conclusion reached by the trial judge and we agree.

Even assuming that defendant’s statement to the police officers was improperly introduced in evidence, we consider the error harmless. Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct, 824, 17 L.Ed.2d 705 (1967). In Null v. Wainwright, 508 F.2d 340 (5th Cir.), cert. denied 429 U.S. 970, 95 S.Ct. 1964, 44 L.Ed.2d 459 (1975), the court was faced with a statement that had been improperly admitted because it was obtained by police officers who failed to advise defendant of his Miranda rights. The court found the other evidence overwhelming and held the erroneous admission harmless beyond a reasonable doubt, citing Chapman v. California, supra.

In view of the testimony of Dr. Bienvenue, who witnessed defendant’s first inculpatory statement, and the testimony of the hospital aide, nurse Caraway and the university security guard, who witnessed the second inculpatory statement, we find the third inculpatory statement, if erroneously admitted, was harmless error beyond a reasonable doubt. Four testimonials of precisely the same statement on two prior occasions together with other evidence adduced at the trial constitute overwhelming evidence that defendant was guilty of the crime for which he was convicted.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in restricting his cross-examination of a witness.

During the predicate for introduction introduction of inculpatory statements made by defendant outside the presence of the jury, defense counsel was questioning Dr. Bienvenue regarding the background information of a patient that she considered necessary to form her diagnosis of defendant’s condition. Defense counsel asked:

So that if you got bad information on your admission—in other words, if let’s say for example you had one person who was the identified patient say in a family, and one person was brought in for admission, and other family members told you that they were sick, is it a potential situation that you could get bad information concerning that patient from others in the family?

The state’s objection on the ground of relevancy was sustained. The only relevant issue was whether defendant’s mental state rendered him incapable of making a free and voluntary statement. There was no evidence that “bad information” had been furnished when defendant was admitted to the hospital. Under the circumstances, it is difficult for us to understand the relevancy of defendant’s question. The trial judge is vested with a sound discretion to stop prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross. La.R.S. 15:275. We do not find that the trial judge abused his discretion in this instance. Assignment of Error No. 2 is without merit.

DECREE

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

DENNIS, J., concurs.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Billy Ray WASHINGTON.
    No. 66117.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearing Denied Sept. 12, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Stephen A. Glassell, B. Woodrow Nesbitt, Asst. Dist. Attys., for plaintiff-appellee.
    Donald R. Minor, Shreveport, Office of Indigent Defender, for defendant-appellant.

       Marcus, J., would grant a rehearing. Lemmon, J., concurs in the denial of rehearing.

   BLANCHE, Justice.

The defendant, Billy Ray Washington, was indicted on four counts of attempted aggravated rape. These counts were all tried in a single proceeding and the defendant was found guilty on all counts. He was sentenced to fifty years on each count, the sentences to run consecutively.

The charges lodged against defendant arose from the abduction and sexual assault, in separate incidents, of four different five- and six-year-old girls during a three-month period in Shreveport in 1978.

The first incident occurred in the late afternoon or early evening hours of May 30, 1978, and involved a six-year-old child. The child was riding her bicycle on the sidewalk near her Shreveport home when a man in an orange car drove up and offered her some candy. When she refused, the man grabbed her, put her in the car, and drove to a nearby lake located at the end of a dead end street. There, the man assaulted the girl. . After the assault, he drove her to a location near her home.

The second incident involved the sexual assault of a five-year-old child. While riding her bicycle near her home, the child was approached by an unknown man in a car, the color of which she was unable to remember. The man ordered her into his car and then drove her to a “water fountain” near the SWEPCO power plant in Shreveport, where he molested her. After raping the child, the man drove to a location near her house, where she was released.

The third count of attempted aggravated rape lodged against defendant arises out of the following circumstances. On July 30, 1978, a six-year-old child was playing near her front yard with her younger sister when a man in an orange automobile drove up and asked her to get in the car and show him the way to the store. When she failed to comply with this request, the man grabbed her and placed her in the vehicle. He then drove to a vacant house near Lake Cliff where he assaulted her. After completing the rape, the man drove her to March Street, where she got out of the car and ran home.

The last offense allegedly committed by defendant occurred during the early evening hours of September 3, 1978. On that date, another six-year-old girl was playing in her front yard when a man riding a bicycle approached and asked her to go to the store with him. After receiving her mother’s permission, she got on the bicycle with the man who took her to some old houses on Jamison Street where he sexually assaulted her. The child was subsequently released at a location near her home.

Prior to trial, the defendant filed a motion for severance of offenses claiming prej-udieial joinder under C.Cr.P. art. 495.1. The defendant claimed that the effect of trying these four separate offenses together would be to erode his constitutional presumption of innocence by causing doubtful jurors to feel certain that the defendant was guilty of something. Furthermore, defendant claims that the number of offenses charged would cause the trier of fact difficulty in distinguishing the evidence and applying the law intelligently to each offense. The defendant did not produce any testimony nor evidence supporting these allegations nor did he request any limiting instructions at trial. Rather, he argued that this Court’s interpretation of La.C.Cr.P. art. 495.1 in State v. Carter, 352 So.2d 607 (La.1977), mandates severance in his case.

In Carter, we recognized that although our legislature had adopted the federal rule on joinder , it did not adopt the federal rule on severance. Justice Calogero, writing for the Court, stated:

“. . .we recognize that the federal rules allow joinder of offenses of the same or similar character but provide that the trial court may, in its discretion, sever the offenses for separate trials upon a showing of prejudice by either party. The ABA Standards likewise allow joinder of the same or similar offenses but offer defendant an absolute right to severance when offenses have been joined solely on that ground. Our newly-adopted Louisiana provision is a cross between these two. Although the prosecutor has the option to join into one indictment offenses of the same or similar character, on application of the defendant or the state, the court ‘shall grant’ a severance of offenses whenever ‘it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.’ ” Carter, supra, at 610.

In Carter, this Court set the parameters for the exercise of the trial court’s discretion under C.Cr.P. art. 495.1 as follows:

“. . . when crimes, which have been joined simply because they are the same or similar character offenses, are indeed legitimate ‘other crimes’ under Prieur [State v. Prieur, 277 So.2d 126 (La.)] and its progeny (the offenses are sufficiently similar, the evidence is relevant to a real issue in each case, and the prejudicial effect of the evidence does not outweigh its probative value), a decision not to sever the crimes will normally be proper. Conversely, we hold that when offenses, which have been joined solely because they are same or similar character offenses, are not legitimate ‘other crimes’ under Prieur and its progeny, they should normally be severed upon pretrial motion of the accused or the state.” Carter, supra, at 614.

After Carter, however, the legislature amended C.Cr.P. art. 495.1 in 1978 and adopted an article tracking the federal severance provision. We regard this legislation as an obvious attempt to adopt the federal rule as to severance, and turn to the federal jurisprudence for guidance.

It is well-established in the federal courts that the defendant has a heavy burden of proof when he alleges prejudicial joinder. United States v. Allstate Mortgage Corporation, 507 F.2d 492 (7th Cir. 1974). A motion for relief from a prejudicial joinder is addressed to the sound discretion of the trial court and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of that discretion. United States v. Olson, 504 F.2d 1222 (9th Cir. 1974); United States v. Ziperstein, 601 F.2d 281 (7th Cir. 1979). Thus, in order for an appellate court to reverse the trial court’s ruling, there must be a showing of clear prejudice. United States v. Bowman, 602 F.2d 160 (8th Cir. 1979).

In ruling on the motion, the trial court must weigh the possibility of prejudice versus the important considerations of judicial economy and administration. In determining whether prejudice may result from, the joinder, the court should consider whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. See Drew v. United States, 331 F.2d 85 (D.C.Cir.1964); United States v. Weber, 437 F.2d 327 (3rd Cir. 1970).

In Drew, supra, the Court, in dealing with a similar joinder situation, noted:

“[5] It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged. Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose. The same dangers appear to exist when two crimes are joined for trial, and the same principles of prophylaxis are applicable.” Drew, supra at 89. [Footnotes omitted].

In some cases, evidence of other crimes is admissible to show:

“. . . (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value.” Drew, supra at 90. [Footnotes omitted].

The Court noted that any prejudice which would result from the introduction of the evidence of other crimes would not be enlarged by the fact of joinder in those incidents where the crimes would have been admissible in several trials. With these principles in mind, the federal courts have fashioned a rule whereby crimes which are not admissible in separate trials ordinarily should not be tried together. Robinson v. United States, 459 F.2d 847 (D.C.Cir.1972); United States v. Carter, 475 F.2d 349 (D.C. Cir.1973). The Court noted, however, that the federal courts have not found that all such situations merit severance. For instance,

“[10] The federal courts have, however, found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials . This rests upon the assumption that, with a proper charge, the jury can easily keep such evidence separate in their deliberations and, therefore, the danger of the jury’s cumulating the evidence is substantially reduced.” Drew, supra at 91.

Thus, where the parties and the judge through an orderly presentation of the evidence and careful and precise instructions, limit the possible prejudice brought about by joinder, severance may not be mandatory-

After a review of the federal jurisprudence, we conclude that Carter still does remain viable as a criteria for judging when there is a strong possibility of prejudice but the new article allows more flexibility on the part of the trial court in fashioning relief from possible prejudice. Unlike the old article 495.1, which required the trial court to grant a severance when appropriate to promote a fair trial, the new statute allows the trial court to either order separate trials, grant a severance or provide whatever other relief justice requires. Therefore, under the new rule, a severance need not be granted if the prejudice can effectively be avoided by other safeguards.

Applying these principles to the present case, however, we find that the trial court did abuse its discretion in denying the motion for severance. In Louisiana, “Evidence of crimes other than the one for which the defendant is on trial is admissible as ‘other crimes’ evidence when the two incidents exhibit such peculiar modes of operation to distinguish them as the work of one person” and when they are relevant to a material issue in the case. La.R.S. 15:446; State v. Carter, supra; State v. Prieur, 277 So.2d 126 (La.1973).

The four crimes tried together here, although similar, are not so unique as to qualify as “signature crimes”. Although all four involved sexual assault on small girls, the method of assault varied with each. The perpetrators’ mode of transportation differed in one instance. The methods of enticement varied and finally, the four attacks occurred in four different places at four different times. Thus, these crimes were not admissible under the Prieur rationale.

We further note that although the evidence for each crime was simple and distinct, the trial court’s instruction offered little guidance to the jury in order to prevent their cumulating the evidence. Finally, we note that the crimes herein charged, involving sexual molestation of young children, are the type of crimes which arouse a hostility in any jury which would be compounded by each additional charge. Our review can only lead to the conclusion that the defendant herein suffered substantial prejudice in trying these counts together. For this reason, we find that the trial court erred in denying the defendant’s motion for severance.

By assignment of error number five, the defendant contends that the trial court erred in sustaining a state objection on relevancy to defense counsel’s questioning of a police witness regarding other child rapes in the Shreveport area.

La.R.S. 15:441 defines relevant evidence as follows:

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

This Court has held that a trial judge’s ruling as to the relevancy of evidence will not be disturbed absent a clear abuse of discretion. State v. Weems, 358 So.2d 285 (La.1978); State v. Winston, 343 So.2d 171 (La.1977). In this case, the sole issue was the identity of the perpetrator. Regardless of the intent of the state, the joinder of the four offenses in the same trial painted a picture which suggested that the defendant's guilt of one alleged offense was highly corroborative of his guilt of similar offenses. If, as defense counsel contends, there were other highly similar offenses after the defendant’s arrest, then this fact would weaken the state’s case against the defendant. The obvious purpose of the defendant’s query was to show that the alleged rapes were committed by a person or persons other than the defendant. We can only conclude that such evidence is relevant where the state, through joinder, has attempted to establish the defendant’s identity through evidence of several offenses.

Further, we note that traditional and fundamental standards of due process require that an accused person must be allowed to make out his defense to the state’s charges. Chambers v. Miss., 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). We find it fundamentally unfair to allow the state in an instance of joinder to introduce evidence of similar crimes and thereby infer that defendant is the culprit, yet not let the defendant create a countervailing inference. For these reasons, we find that the trial court abused its discretion in limiting counsel’s examination as to the child rapes after he had been arrested and placed in jail.

For the reasons assigned, the defendant’s convictions are reversed and the case is remanded for a new trial in accordance with this decision. •

REVERSED AND REMANDED.

MARCUS, J., dissents.

       Honorable Richard H. Gauthier participated in this decision as Associate Justice Ad Hoc.

      . Compare C.Cr.P. art. 493, which reads as follows, with the federal rule, 8(a):
      “Art. 493. Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, 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.” Amended by Acts 1975, No. 528, § 2.
      Rule 8(a) of the Federal Rules of Criminal Procedure provides as follows:
      “Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, 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.”

      . Our provision read as follows:
      “Art. 495.1. Severance of offenses. The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever: (a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or (b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.” Added by Acts 1975, No. 528, § 3 (amended).
      The federal rule was:
      “If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.”

      . “Art. 495.1. Severance of offenses. If it appears that a defendant or the state is prejudiced by a joinder of 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.” Added by Acts 1975, No. 528, § 3. Amended by Acts 1978, No. 466, § 1.

      . Judge Clark gave only the following instruction:
      “This defendant is charged with four counts of Attempted Aggravated Rape. You may render any combination of verdicts you find appropriate from the law and evidence. You are not obligated to find the defendant guilty on all counts or not guilty on all counts. You may find the defendant guilty on all counts or not guilty on all counts, or you may find any possible combinations of guilty verdicts to each count, or you may find the defendant not guilty on one count and return one of the possible guilty verdicts on the other counts.
      “More simply stated, you should return the verdict as to each count you feel the facts and the law dictate. However, you are to reach one separate verdict as to each of the four counts.”


author:
BLANCHE, Justice.
     DENNIS, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Willie ROBINSON.
    No. 66352.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearing Denied Sept. 12, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Robert A. Pitre, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Gerdes, Valteau & Cade, Charles T. Williams, Arthur L. Harris, Sr., New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Willie Robinson, was convicted of aggravated rape in violation of La. R.S. 14:42. Subsequently, he was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals on the basis of four assignments of error.

On the evening of October 9, 1978, the rape victim went to the Courthouse in New Orleans in order to meet a friend who was attending a driver’s education class. After arriving at the Courthouse, she learned that the class had been moved to West Jefferson High School, so she went there to look for her friend. She was walking on the school grounds toward a lighted building, when a man pushed her to the ground and began beating her with his fists. She fought with her assailant for some time until finally, he threatened to kill her and then raped her. Immediately following the rape, she went to the police and reported the incident.

On two separate occasions, the victim identified defendant as her attacker, and as a result, police went to defendant’s residence to investigate. They searched the house, seized a shirt, a pair of pants and a pair of shoes, and took defendant into custody. The victim identified the shoes as being similar to the ones worn by her attacker. She said the pants seized were not the ones he wore, and she could not be sure of the shirt. Subsequently, defendant was charged with aggravated rape.

Assignment of Error Number 1

Defense counsel contends the trial court erred in denying his motion to suppress the introduction of the clothes in evidence because they were seized as a result of an illegal search.

At a hearing on the motion to suppress, the police officers who seized the evidence and the defendant gave sharply differing accounts of the search. Detectives Robert Masson and Susan Miller testified that they, along with two other officers, knocked on defendant’s door and identified themselves as police. After explaining to defendant that someone had identified him as the perpetrator of a rape, Masson asked defendant if the officers could search the residence. The detectives stated that defendant consented to the search and signed a consent to search form which had been filled out by Detective Susan Miller. Only after defendant signed the form did the officers search the house and seize the clothes.

Both defendant and defendant’s wife testified that the officers did not identify themselves as police, did not ask defendant if they could search and did not have defendant sign a consent to search form. They claim that after they answered a knock on the door, the police walked into their residence and immediately began to search every room. Both defendant and his wife admitted the signature on the consent to search form was similar to defendant’s signature, but defendant claimed that if he signed it, he did so at the police station later that night.

Both the Louisiana and the United States Constitutions prohibit unreasonable searches and seizures. La.Const. art. 1, § 5; U.S.Const. amend. 4. A search conducted without a warrant is, per se, unreasonable subject only to a few well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). A valid consent search is one of these exceptions. Schneckloth v. Bustamonte, supra; State v. Wilson, 363 So.2d 445 (La.1978); State v. Mitchell, 360 So.2d 189 (La.1978). After the defendant establishes that a search was made without a warrant, the burden of proof shifts to the state to establish that the consent was freely and voluntarily given. State v. Johnson, 380 So.2d 32 (La.1980); State v. Dunbar, 356 So.2d 956 (La.1978). Whether consent to a search was voluntary is a question of fact to be determined by an analysis of all the circumstances of each case. State v. Wilson, supra; State v. Schouest, 351 So.2d 462 (La.1977). Because consent is a question of fact involving the credibility of witnesses, the determination of the trial judge, who had an opportunity to observe and hear the witnesses, is given great weight on review. State v. Dunbar, supra; State v. Schouest, supra; State v. Temple, 343 So.2d 1024 (La.1977).

In the instant case, a straightforward credibility issue was presented to the trial judge. The police officers testified that defendant voluntarily signed a consent to search form after Officer Masson asked him for permission to search the house. In contradiction to this testimony, defendant claimed that the police never asked for his permission to search the house and he did not sign a consent to search form prior to the search. After hearing this testimony and evaluating the credibility of the witnesses, the trial judge chose to believe the police officers’ version of the search over defendant’s, and concluded that defendant had voluntarily consented to the search. Our review of the record does not show he abused his discretion in so concluding, and accordingly, he did not err in overruling defendant’s motion to suppress the evidence and his objection at trial to its introduction in evidence.

Assignment of Error Number 10

Defense counsel contends the trial judge erred in denying his motion for a new trial on the ground that the state systematically excluded blacks from the jury. Defendant relies on the fact that the state exercised nine peremptory challenges, eight of which excluded every black person called and one of which excluded a white individual.

The circumstance that, in a particular case, the state may have used its peremptory challenges to exclude members of a minority does not constitute a denial of constitutional rights. A defendant has the burden of establishing a systematic exclusion of the minority over a period of time. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Brown, 371 So.2d 751 (La.1979); State v. Rhodes, 351 So.2d 103 (La.1977).

Defendant made no attempt to show a pattern of systematic exclusion of black jurors by the state. Therefore, this assignment is without merit.

Assignment of Error Number 2

Defense counsel contends the trial court' erred in denying counsel’s pre-trial motion to suppress the rape victim’s out-of-court identification of defendant.

On October 9,1978, the night of the rape, the victim described the rapist to Detective Susan Miller. Because this description of the assailant fit the description of someone she had arrested a year earlier (the defendant in this case), Detective Miller decided to conduct a photographic line-up. At approximately one o’clock in the morning on October 10, 1978, Miller obtained a photograph of defendant, combined it with four other photographs, and asked the victim to view the five photographs to determine if she could identify the rapist. The victim selected the photograph of defendant as depicting her attacker except that she could not be sure if the man in the photograph had the same eyes as the rapist because defendant’s eyes were partially closed in this particular photograph. She asked Detective Miller if she could view a photograph which depicted defendant with his eyes open.

On the evening of October 10, the victim viewed another photographic show-up. The photographs used in this second display were the same as those used in the first, except that Detective Miller substituted a photograph of defendant with his eyes open for the photograph of defendant used in the first photographic show-up. The victim again identified defendant as the rapist. Because this second photograph of defendant in which his eyes were open was more yellowed by age than the other four photographs shown the victim, defense counsel claims the identification procedure singled out defendant and thus, was suggestive.

A line-up is unduly suggestive if the identification procedure displays the defendant so that the witness’ attention is focused on the defendant. For example, distinguishing marks on the photographs may single out defendant. State v. Guillot, 353 So.2d 1005 (La.1977). A line-up can also be suggestive if a sufficient resemblance of physical characteristics and features of persons in the line-up does not exist to reasonably test the identification. State v. Guillot, supra; State v. Gray, 351 So.2d 448 (La.1977); State v. Anthony, 347 So.2d 483 (La.1977). Even if an identification procedure is suggestive, it will not result in reversal of a conviction if it is demonstrated that the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, supra.

The yellowed tint of the photograph of defendant indicates that the photograph is older than the other four photographs viewed by the victim, but that fact alone does not suggest to the witness that the officers suspected defendant to be the rapist. In addition, the victim testified she did not even notice that one photograph was more yellowed than the others. Consequently, we do not believe the yellowed tint of the photograph caused the witness’ attention to focus on the defendant as a suspect so as to make the procedure impermis-sibly suggestive.

Further, the photographs used in the lineup depict individuals with sufficient resemblance of characteristics (e. g. hair length, facial hair, skin color and. complexion, build and facial features such as chin, nose, etc.) to reasonably test identification.

This assignment is without merit.

Assignment of Error Number 5

Defense counsel claims defendant was denied a fair trial in violation of due process of law because the state lost certain evidence. U.S.Const. amend. 14; La.Const. art. 1, § 2.

At the preliminary examination the defense learned that a sample of combed pubic hairs had been taken from the victim. The state planned to test the hairs to see if any foreign hairs were present, and if foreign hairs were found, they were to be compared with the pubic hairs of defendant.

At trial, Linda Reel, expert from the Jefferson Parish Sheriff’s Office Crime Laboratory, testified that when she received the envelope listed as containing the pubic hairs combed from the victim, the envelope was empty. Thus, she was never able to determine if any foreign hairs were present.

Defense counsel points out that if the state had not lost the sample, foreign hairs, which belonged to a person other than defendant, might have been found. Thus, the sample might have helped to prove defendant’s innocence.

There is no way to predict what the test results would have proved. Linda Reel, the expert examiner, could have discovered hairs of the defendant, or of a third person, or no foreign hairs at all. The mere possibility that the tests might have produced evidence favorable to the defendant does not mean the failure to conduct the tests because of the lost sample denied defendant a fair trial.

This assignment is without merit.

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

AFFIRMED.

DENNIS and CALOGERO, JJ., dissent and assign reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

I cannot agree that this black defendant, tried by an all white jury for rape of a white victim, was not deprived of his constitutional rights to a fair trial and to freedom from racial discrimination when the prosecuting attorney was allowed untrammeled discretion to remove all blacks from the jury by exercising eight of nine peremptory challenges against prospective black jurors.

CALOGERO, Justice,

dissenting.

I dissent for the reasons assigned by Dennis, J. However, I have some additional reservations about this case. I am impressed by the fact that suspicion was focused on the suspect not by any concrete evidence, but by the fact that the woman police officer handling the case had arrested defendant earlier on another charge. She placed his photograph in a lineup and was only able to secure a positive identification from the victim when she put a second (yellow-tinted) photograph of this same defendant in a second photographic lineup.

I also have reservations about assignment of error number one concerning the volun-tariness of defendant’s consent to search, although the prejudice suffered by defendant as a result of the search was not necessarily great. The only evidence of significance seized was a pair of shoes which the victim testified looked similar to the shoes worn by the rapist.

       Chief Judge Frederick S. Ellis participated in this decision as Associate Justice Ad Hoc.


text:
    In re the MONTGOMERY COUNTY ALABAMA GRAND JURY INVESTIGATION.
    No. 67500.
    Supreme Court of Louisiana.
    Sept. 5, 1980.
   ORDER

CONSIDERING the foregoing motion:

It is ordered by the court that the order issued by Judge Lemmie 0. Hightower, Fourth Judicial District Court, on or about May 5, 1980, which ordered Fred Nolan to appear in Montgomery County, Alabama, as a witness before the Grand Jury, be, the same hereby is, recalled and vacated, and that the proceedings pending before this court on writs of certiorari, prohibition and mandamus be declared moot and dismissed.


text:
    Frank Harlan AUGUSTINE v. WASHINGTON PARISH POLICE JURY et al. Frank Harlan AUGUSTINE v. Charles SPEARS et al.
    No. 67192.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Frank Harlan Augustine, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 383 So.2d 1271.

Denied.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Barbara STANTON.
    No. 67503.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re State of Louisiana, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans, Criminal District Court, Section D. No. 67503.

Writ denied.

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

LEMMON, J.,

dissents, believing Jackson v. Henderson, 255 So.2d 85 (La. 1971) has been complied with.


text:
    PARENT-COMMUNITY ALLIANCE FOR QUALITY EDUCATION, INC., the Greater New Orleans Louis A. Martinet Society Inc., Nate Phipps, Carl Galmon, and Rev. Sylvester Lyle, Sr. v. NEW ORLEANS PARISH SCHOOL BOARD.
    No. 67793.
    Supreme Court of Louisiana.
    June 23, 1980.
   In re Parent-Community Alliance etc., et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 385 So.2d 33.

Denied.

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


text:
    Joel MESSER v. DEPARTMENT OF CORRECTIONS, Louisiana State Penitentiary.
    No. 67563.
    Supreme Court of Louisiana.
    June 23, 1980.
   In re Joel Messer, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 19th Judicial District Court. 385 So.2d 376.

Writ denied.

LEMMON, J., would grant and re-examine LeBlanc v. New Orleans Police Department, 231 So.2d 568 (La.App. 4th Cir. 1970).


text:
    STATE of Louisiana v. Gregory BOULMAY.
    No. 80-K-1678.
    Supreme Court of Louisiana.
    July 25, 1980.
   In re Gregory Boulmay, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of St. Tammany.

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


text:
    CITY OF NEW ORLEANS v. John D. POWELL.
    No. 80-K-1676.
    Supreme Court of Louisiana.
    July 29, 1980.
   In re John D. Powell applying for writs of certiorari, prohibition and stay order. Parish of Orleans, Sect. B, Traffic Court. Nos. E817265, E817266 and E817267.

Denied.


text:
    James U. BLANCHARD, III et al. v. James H. BROWN, Secretary of State for the State of Louisiana.
    No. 80-C-1667.
    Supreme Court of Louisiana.
    July 29, 1980.
   In re James U. Blanchard, III, et al., applying for writs of certiorari, mandamus, prohibition and stay order. East Baton Rouge Parish. No. 237-193.

Application to by-pass Court of Appeal is denied. Court of Appeal is ordered to act expeditiously on the Secretary of State’s appeal.

DIXON, C. J., dissents from the order and would take the matter up immediately.


text:
    STATE of Louisiana ex rel. Ivan MOLINARIO v. STATE of Louisiana.
    No. 80-KH-1631.
    Supreme Court of Louisiana.
    July 29, 1980.
   In re Ivan Molinario, applying for writs of certiorari, remedial writs. Parish of Orleans. Nos. 259-273 and 259-274.

Denied.


text:
    STATE of Louisiana ex rel. Larry CURTIS v. STATE of Louisiana.
    No. 80-KH-1642.
    Supreme Court of Louisiana.
    July 29, 1980.
   In re Larry Curtis, applying for remedial writs. Parish of Orleans. No. 266-983.

Writ granted. The district court is ordered to act on relator’s motion for bail forthwith or if it has already acted to furnish this Court with a copy of the judgment.


text:
    STATE of Louisiana v. Donald W. WOODS.
    No. 80-K-1707.
    Supreme Court of Louisiana.
    July 30, 1980.
   In re Donald W. Woods, applying for remedial writs. Parish of LaSalle. Nos. 21,350; 21,519; 21,520.

Denied.


text:
    STATE of Louisiana v. Abdiel ISRAEL.
    No. 80-K-1683.
    Supreme Court of Louisiana.
    July 30, 1980.
   In re State of Louisiana applying for writ of certiorari, or writ of review, to Criminal District Court for the Parish Orleans, Court of Appeal. No. 276-408.

On the showing made, denied.


text:
    STATE of Louisiana ex rel. James M. NEALY v. Honorable Stephen A. DUCZER, Judge, 22nd Judicial District Court.
    No. 80-K-1686.
    Supreme Court of Louisiana.
    July 30, 1980.
   In re James M. Nealy applying for writs of certiorari, prohibition, mandamus, review and stay order. Parish of St. Tammany.

Denied.


text:
    STATE of Louisiana v. James E. COPELAND.
    No. 80-K-1675.
    Supreme Court of Louisiana.
    July 30, 1980.
   In re James E. Copeland applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Livingston. No. 3035.

Denied. Relator’s motion does not state a factual basis to establish valid grounds for recusation.


text:
    STATE of Louisiana ex rel. Timothy A. JACKSON v. STATE of Louisiana.
    No. 80-KH-1708.
    Supreme Court of Louisiana.
    Aug. 1, 1980.
   In re Timothy A. Jackson applying for remedial writs. Parish of Orleans. No. 270-654.

Denied.


text:
    STATE of Louisiana v. Michael GATLIN.
    No. 80-K-1725.
    Supreme Court of Louisiana.
    Aug. 1, 1980.
   In re Michael Gatlin applying for writs of certiorari, prohibition, and mandamus. Parish of Tangipahoa. No. 44222.

Denied.


text:
    STATE of Louisiana v. Harry SMITH.
    No. 80-K-1740.
    Supreme Court of Louisiana.
    Aug. 1, 1980.
   In re Harry Smith applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 80-2024.

It is ordered that relator be released unless an arrest warrant is issued forthwith or probable cause is shown at a hearing held forthwith.


text:
    William A. NEFF v. Mary Jean FRANK, wife of William A. Neff.
    No. 80-C-1748.
    Supreme Court of Louisiana.
    Aug. 1, 1980.
   In re William A. Neff, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 78-6987.

Writ granted. In view of apparent error in trial court’s written reasons hearing on motion for new trial is ordered held within ten days.


text:
    In re Clyde MERRITT.
    No. 80-K-1836.
    Supreme Court of Louisiana.
    Aug. 8, 1980.
   In re Clyde Merritt, applying for supervisory writs and stay order. Parish of Orleans.

Writ granted and all proceedings stayed pending further orders of this Court.


text:
    STATE of Louisiana v. Roger SCROGGINS.
    No. 80-K-1763.
    Supreme Court of Louisiana.
    Aug. 8, 1980.
   In re Roger Scroggins applying for writs of certiorari, review, prohibition, mandamus and stay order. Parish of Lafayette. No. 43172.

Writ denied.


text:
    STATE of Louisiana v. Mohammad Reza SALIMY and Ali Reza Salimy.
    No. 80-K-1749.
    Supreme Court of Louisiana.
    Aug. 8, 1980.
   In re Mohammad Reza Salimy and Ali Reza Salimy, applying for writs of certiora-ri, prohibition, mandamus, supervisory writs and stay order. Parish of East Baton Rouge. No. 2-80-398.

Writ denied. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana v. Frank Charles FEEBACK.
    NO. 80-K-1753.
    Supreme Court of Louisiana.
    Aug. 8, 1980.
   In re Frank Charles Feeback, applying for writs of certiorari, prohibition, mandamus. Parish of Ouachita. No. 39,499.

Writ granted in part and denied in part. It is ordered that the cash seized be returned to relator upon proper receipt. The application is otherwise denied. Remanded for further proceedings.


text:
    STATE of Louisiana v. Joseph N. SHERER.
    No. 80-K-1841.
    Supreme Court of Louisiana.
    Aug. 11, 1980.
   In re Joseph Sherer, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Concordia. No. 76-1823.

Writ granted. Relator ordered returned from Angola to parish jail. Trial judge ordered to conduct full hearing with defendant present and thereafter fix the amount of bail.


text:
    STATE of Louisiana v. Terry Anthony GLASS.
    No. 80-K-1847.
    Supreme Court of Louisiana.
    Aug. 15, 1980.
   In re Terry Anthony Glass applying for writs of review and prohibition and stay order. Parish of Ouachita. No. 39,375.

Granted.


text:
    STATE of Louisiana in the Interest of Ernie BARTHELEMY and Dexter Buras.
    No. 80-K-1637.
    Supreme Court of Louisiana.
    Aug. 8, 1980.
   In re Ernie Barthelemy and Dexter Buras applying for writs of certiorari and prohibition. Juvenile Court. Parish of Jefferson.

It is ordered that the matter be transferred to the court of appeal for action.


text:
    STATE of Louisiana v. Garland CHAUVIN.
    No. 80-K-1868.
    Supreme Court of Louisiana.
    Aug. 15, 1980.
   In re Garland Chauvin applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 80-2188.

Granted. A habeas corpus hearing is ordered forthwith, but no later than Monday, August 18, 1980.


text:
    Peggy Powers Williams, wife of James T. WILLIAMS v. James T. WILLIAMS.
    No. 80-C-1710.
    Supreme Court of Louisiana.
    July 30, 1980.
   In re James T. Williams, applying for supervisory and/or remedial writs and stay order. Parish of Jefferson. No. 236-917.

Denied.