text:
    N K FIELDS, Appellant, v. STATE of Florida and Fifteenth Circuit Court of Florida, et al., Appellees.
    Nos. 82-652, 82-673.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1982.
    N K Fields, pro se.
    No appearance on behalf of appellees.
   PER CURIAM.

By previous order we directed the clerk of the circuit court to provide us with copies of appellant’s notice of appeal which he filed in the circuit court, dated October 26, 1981; all orders to which it referred; and a statement from the clerk if no order existed. We also directed the circuit court order of March 4, 1982, be filed as well as the county court docket.

Having examined everything that the clerk has filed pursuant to such order as well as the file of this court in Fields v. State, et al., Case No. 82-851 wherein we sua sponte dismissed appellants’ appellate proceedings for lack of jurisdiction, we can only conclude that rather than accept our earlier decision, appellant has done nothing more than initiate proceedings in the circuit court and now in this court to revisit that which has been finally put to rest.

We start with the premise that the court is responsive to pro se proceedings and gives them the attention they require. There reaches a point, however, when an appellant has filed such quantity of frivolous pro se pleadings that they represent nothing more than abuse of the use of judicial facilities provided each citizen. Such abuse has occurred here, needlessly involving the labor of the circuit court in its appellate capacity as well as this court; and this court will not entertain any further pleadings — in this or any subsequently filed proceeding — seeking further review of action taken in that county court proceeding which is beyond our jurisdiction. We urge appellant to heed our admonition that he has reached the point of abuse so that further action by this court will be unnecessary to stop needless and purposeless interference with the labor of the judges and clerks who have so many appellate disputes of appellant’s fellow citizens to resolve over which this court has jurisdiction.

The appeal and petition for writ of certio-rari, having been consolidated, are dismissed.

GLICKSTEIN, HERSEY and WALDEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. John W. McCULLEY, Appellee.
    No. 82-723.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Milton E. Grusmark of Law Offices of Milton E. Grusmark, P.A., Miami, for appel-lee.
   PER CURIAM.

Reversed and remanded for further proceedings on the authority of State v. Vanyo, 417 So.2d 1104 (Fla. 4th DCA 1982).

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. David POWELL, State Farm Mutual Automobile Insurance Company, John C. Cockerham and Bolinda F. Cockerham, his wife, and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 82-759.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1982.
    Walter C. Jones, IV, of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellant.
    James A. Bonfiglio, West Palm Beach, for appellee-Powell.
    Rolando A. Vasallo, West Palm Beach, for appellee-State Farm.
    Guy C. Hill of Maxwell & Hill, West Palm Beach, for appellee-Cockerhams.
   PER CURIAM.

This is an appeal by Allstate Insurance Company from a partial summary judgment. It determined the issue of liability in favor of appellee, David Powell, and against Allstate. More exactly, it was decided that Allstate was liable under the theft coverage proviso of its insurance policy issued to Powell, on account of the theft of an automobile claimed to be owned by Powell.

A recital of the complicated fact pattern would not be necessary, helpful, or of general interest. Suffice it to say, there were genuine issues of material fact which precluded entry of summary judgment and which cause us to reverse. There were at least these issues:

A. The ownership and status of the car at the time in question.

B. Whether or not there was coverage under the policy. The policy was never before the Court. Without it there can be no determination or review of coverage.

A party moving for summary judgment must show unequivocally that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. 31 West’s F.S.A. Rules of Civil Procedure, Rule 1.510(c); Horton v. Gulf Power Co., 401 So.2d 1384 (Fla. 1st DCA 1981); Correia v. Seaboard Coast Line R.R., 393 So.2d 1161 (Fla. 1st DCA 1981); Wells v. Wilkerson, 391 So.2d 266 (Fla. 4th DCA 1980).

We REVERSE and REMAND for further proceedings.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


text:
    K. J. B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 81-2618.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

K.J.B. challenges the denial of her motion to suppress drug paraphernalia seized from the glove compartment of the vehicle she was operating. She reserved her right to appeal the denial of her motion when she entered a plea of no contest and was subsequently adjudicated delinquent on the charge of possession of the paraphernalia. We reverse.

St. Petersburg police officers lawfully stopped the car appellant was driving because it had an expired license tag. The officers then arrested appellant for having no driver’s license, and, at the scene and without probable cause to do so, they searched the interior of the vehicle pursuant to impoundment and inventory search procedures authorized by city ordinance and routinely practiced by the police department. The officers did not have probable cause to believe there was contraband in the vehicle, and no contention was made at the trial that the search was made incident to appellant’s arrest. The standard im-poundment and warrantless inventory search procedures by which the officers were guided in this case do not include police advice to the owner or possessor of a vehicle that the vehicle would be impounded unless a reasonable alternative could be provided. The officers did not announce their intention to impound the car and offered no such advice to the appellant prior to the impoundment and search. Despite the appellant’s argument that the impoundment of the car and inventory search were unlawful, the trial court denied the motion to suppress “on the grounds that the im-poundment was legal.”

It is now settled that, except in certain extraordinary circumstances, an arresting officer who intends to impound a vehicle must first advise a present owner or possessor of that vehicle that the vehicle will be impounded unless the owner or possessor can provide a reasonable alternative to impoundment. Miller v. State, 403 So.2d 1307 (Fla.1981); Sanders v. State, 403 So.2d 973 (Fla.1981). These cases control our disposition of this case.

Because the officers failed to advise the appellant of their intention to impound the vehicle unless the appellant could provide a reasonable alternative, the impoundment was improper. Therefore, the subsequent warrantless search of the vehicle and seizure of the physical evidence constituted an unreasonable search and seizure requiring exclusion from evidence at the appellant’s trial as required by Section 12 of Article I of the Florida Constitution.

REVERSED.

GRIMES, A. C. J., and SCHEB and DAN-AHY, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    David C. KANGAS, Appellant, v. Mary Jo KANGAS, Appellee.
    No. 82-598.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1982.

      Ronald L. Collier of Rosin, Abel, Band, Brown & Russell, Chtd., Sarasota, for appellant.
    No appearance for appellee.
   GRIMES, Acting Chief Judge.

Reciting that the husband was unemployed at the final hearing, the final judgment of dissolution ordered him to pay the wife support of $10 per week for each of their three children but provided that after he became employed, his child support obligations would increase to $35 per week per child. The husband had recently lost his job when the State of Florida abolished compulsory motor vehicle inspections. The husband contests the contingent future increase in child support.

Judgments providing for automatic changes in alimony and support payments upon the occurrence of future events have not usually found favor in Florida. Stoler v. Stoler, 376 So.2d 253 (Fla. 3d DCA 1979); Reid v. Reid, 365 So.2d 1050 (Fla. 4th DCA 1978); Richter v. Richter, 344 So.2d 889 (Fla. 4th DCA 1977); McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA 1976). There is no evidentiary basis for the determination of future events, and there is an adequate procedure for modification when changes in the circumstances of the parties do occur. Stoler v. Stoler. However, certain prospective modifications have been upheld when they were carefully conditioned upon specifically articulated changes in circumstances which would virtually preclude the possibility of unfairness to either party. See Mills v. Mills, 417 So.2d 298 (Fla. 1st DCA July 23, 1982) (alimony increased by one half of the gross of increases in husband’s military retirement income); Spotts v. Spotts, 355 So.2d 228 (Fla. 1st DCA 1978) (child support increased $10 per month per child for each $1,000 annual increase in husband’s income).

While clearly intended to be a practical vehicle to obviate the need of the parties to return to court when the husband obtains a job, we find the court’s provision for the future increase of child support too imprecise. While each child’s need for support of at least $35 per week might be assumed, the court had no way of foreseeing that once the husband procured employment his ability to pay would be commensurate with his obligation to do so. The amount of the prescribed increase bears no relationship to what the husband might earn in his new. job. Needless to say, our ruling does not preclude the filing of an appropriate motion for modification of the child support payments at such time as the husband obtains a job .or even if he fails to diligently seek one.

We reverse that portion of the judgment providing for the future increase of child support. In all other respects, the judgment is affirmed.

SCHEB and SCHOONOVER, JJ., concur.


author: SCH00N0VER, Judge.

text:
    STATE of Florida, Appellant, v. Glenn Ernest TATE, Appellee.
    No. 82-807.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Leonard C. Carter, Lakeland, for appel-lee.
   SCH00N0VER, Judge.

This is an appeal from a judgment holding that the “bookmaking” statute, section 849.25, Florida Statutes (1981), is unconstitutional. We reverse.

The appellant, the State of Florida, filed an information charging the appellee, Glenn Ernest Tate, with bookmaking in violation of section 849.25. The trial court held that the statute is unconstitutional and dismissed the information.

The trial court found that the bookmaking statute either violates the equal protection clause of the United States and Florida Constitutions or is so vague that it fails to adequately inform those affected by the statute of the conduct that it prohibits. We disagree and hold that the statute is constitutional.

Section 849.25(1) and (2) provides in pertinent part as follows:

849.25 “Bookmaking” defined; penalties; exceptions.—
(1) The term “bookmaking” means the act of taking or receiving any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man or beast or between men, beasts, fowl, motor vehicles, or mechanical apparatus or upon the result of any chance, casualty, unknown, or contingent event whatsoever.
(2) Any person who engages in bookmaking shall be guilty of a felony of the third degree....

The trial court based its order on the definition of “bookmaking.” We hold that the language and the intent of the statute is sufficiently clear to meet the strict test that must be applied when examining the language of a penal statute.

In construing this statute, we first note the basic rule that statutes which relate to the same or to a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other. We must review the entire statutory scheme to determine legislative intent. Ferguson v. State, 377 So.2d 709 (Fla.1979).

The supreme court in Ferguson held that the statutory scheme of chapter 849 (Gambling) evinces a general intent to treat the business or profession of gambling as a felony while treating the casual or occasional act of gambling as a misdemeanor.

The legislature has provided that anyone who keeps a gambling house in violation of section 849.01, Florida Statutes (1981), or engages in bookmaking in violation of section 849.25 is guilty of a felony of the third degree. It appears that by making these offenses felonies, the legislature has concentrated on certain incidents of gambling on the theory that if they are prohibited, the evil itself will be suppressed because of the impracticability of carrying on gambling on a large scale without some of the accessories denounced by the statute. People v. Gittens, 78 Misc. 7, 137 N.Y.S. 670 (N.Y.Sup.Ct.1912). In considering one of the felony offenses within chapter 849, i.e., keeping a gambling house in violation of section 849.01, Florida courts have consistently held that a single act of gambling is an offense separate and distinct from keeping a gambling house and have read the element of habitualness into this section. Ferguson v. State.

We now hold that the bookmaking statute is also not applicable to a single act of gambling. If a single act of gambling were to be punishable under the bookmaking section, sections 849.08, 849.11, and 849.-14, Florida Statutes (1981), would lose their force because the state could always prosecute a single act of gambling as a felony under section 849.25, or if the gambling occurred on someone’s premises, under section 849.01. We must construe all statutes relating to the same subject matter with reference to each other in such a manner that effect may be given to all of the provisions of each. Ferguson v. State.

Furthermore, one is not necessarily in violation of the bookmaking statute by merely participating in one or more acts of gambling. One who makes a private bet is not a bookmaker in the commonly accepted meaning of that term. Board of Commissioners v. Grodecki, 21 N.J.Misc. 241, 33 A.2d 115 (Essex County Ct. 1943). One who makes a private bet or wager, either by offering to bet, or by accepting a bet may be guilty of violating section 849.14 without engaging in bookmaking. One engaged in bookmaking is gambling, but ordinary gambling is not bookmaking. People v. Gittens. Bookmaking is a specific act of gambling which consists of certain specific acts distinguishing this form of gambling from every other form of gambling. People v. Laude, 81 Misc. 256, 143 N.Y.S. 156 (N.Y.Cty.Ct.1913). This court has held that bookmaking is a specific act of gambling. State v. Schell, 211 So.2d 581 (Fla. 2d DCA 1968). The supreme court has defined bookmaking as “making book.” King v. State, 104 So.2d 730 (Fla.1958).

The underlying idea of bookmaking is participation in gambling as a moneymaking pursuit. Bookmakers prepare a list with the odds so arranged as to percentages as to give them a profit whoever the winning participant may be. People v. Langan, 196 N.Y. 260, 89 N.E. 921 (1909).

We construe section 849.25 to prohibit a person engaged as a bookmaker from taking or receiving bets or wagers and as so construed hold that the statute does not violate the equal protection clauses of the United States or Florida Constitutions and is not so vague that men of common intelligence must necessarily guess at the statute’s meaning and differ as to its application.

We reverse and remand for proceedings consistent herewith.

SCHEB, A.C.J., and RYDER, J., concur.

      . The supreme court in Zuppardi v. State, 367 So.2d 601 (Fla.1979), in considering a constitutional attack on this statute on other grounds, ruled that it is constitutional.


author: CALOGERO, Justice. MARCUS, Justice BLANCHE, Justice

text:
    Buering GUILLORY v. UNITED STATES FIDELITY & GUARANTY INSURANCE COMPANY.
    No. 81-C-2471.
    Supreme Court of Louisiana.
    July 2, 1982.

      Guillory, McGee, Mayeux & Fontenot, Donald L. Mayeux, Eunice, for applicant.
    James G. Dubuisson, Dubuisson & Du-buisson, Oplousas, for respondent.
   CALOGERO, Justice.

In this worker’s compensation case, a forty-two year old laborer with twenty-one consecutive years of apparent good health and essentially uninterrupted work record fainted at the conclusion of a strenuous work day. He was thereupon, for the first time, diagnosed as having had a long standing heart disease, aortic valvular stenosis. The undisputed medical evidence was that 1) the fainting spell was caused by a combination of the stenosis and the stress occasioned by virtue of plaintiff’s work that day, 2) the condition of his defective heart valve was not essentially different following the fainting incident than before the accident, 3) the diagnosed condition disabled plaintiff from returning to his accustomed work and 4) absent corrective heart surgery the prognosis was that plaintiff would not live another five years.

The trial judge awarded plaintiff permanent and total disability benefits under the compensation law. The Court of Appeal in a five judge opinion with two judges dissenting reversed the trial court judgment and dismissed plaintiff’s lawsuit upon finding no causal connection between the job accident and plaintiff’s ensuing disability. 401 So.2d 543 (La.App. 3rd Cir. 1981). We granted writs on relator’s application.

For the reasons which follow, we reverse the judgment of the Court of Appeal and reinstate the trial court judgment awarding total and permanent disability benefits.

Buering Guillory, an illiterate forty-two year old laborer, had been employed as a carpenter’s helper for over twenty years working out of a labor union hall at different job sites around the state. When this incident occurred he was hired through Carpenter’s Local 117 in Baton Rouge by defendant U.S.F. & G’s insured (an employer whose name in the record is P.A.L.A.), and assigned to work at an Exxon construction site in Baton Rouge where his job was excavating and grading land with a pick and shovel just prior to the pouring of concrete slabs. Monday through Thursday of the week in question, he had worked alongside as many as five other laborers.

On Friday, December 15, 1978, however, he was required to work alone. He had awakened as usual at about 3:45 a.m. at his home in Lawtell, La. He rode a bus from Opelousas to Baton Rouge, and began working at approximately 7:30 a.m. About an hour later, he was assigned, alone, to dig out an area where three carpenters were waiting to build forms for another slab shortly to be poured. Guillory continued to work alone, and steadily, without a break, until noon, using a pick and then removing the debris with a shovel. After a half hour break for lunch, he resumed the same work until 3:30 p.m. As in the morning, he took no breaks; again he was working alone, and under pressure, because the carpenters were right behind him building the forms. By 3:30 p.m. he was very tired, more tired according to him than on any other day that he could remember. After he had put his tools in the shed and was walking toward the plant gate, he experienced dizziness, and then fainted. He remained unconscious for several minutes.

After an examination by an Exxon doctor, he was rushed to Baton Rouge General Hospital where he was treated by Dr. Boyd E. Helm, a cardiologist. Dr. Helm’s diagnosis was syncope, or fainting, related to aortic valvular stenosis and caused by a deficiency in the amount of blood reaching the brain. The stenosis, or constriction, was brought on by the calcification of a defective valve over a period of years. The calcification was the result of an aortic valve disease which may have been congenital or may have been caused by other disease such as rheumatic fever, syphilis or bacterial infections at some earlier time in his life. On the day in question, the outflow valve from the left ventricular chamber of the heart had not opened wide enough to let sufficient blood pass through, and then had not completely closed, allowing some of the blood to rush back into the heart.

Dr. Helm advised Guillory to undergo a heart catheterization to determine whether surgery was needed to replace the valve, and/or to by-pass any of his coronary arteries. The prognosis, according to Dr. Helm, based on the presence of syncope (fainting) upon exertion, was a rapid progression of the stenosis and probable death within five years unless the valve were to be replaced. For reasons not entirely clear from the record, Guillory did not have the catheterization performed; nor the heart surgery which would evidently have been recommended after the catheterization.

Following his release from the hospital on December 19,1978, Guillory remained under Dr. Helm’s care for several months. On February 14, 1979, he began seeing Dr. Charles Fontenot, a general practitioner in Ville Platte, Louisiana; on May 24, 1979, Guillory consulted Dr. Donald Gremillion, an internist in Opelousas, Louisiana. Both doctors confirmed Dr. Helms’ diagnosis of aortic stenosis, treated his continuing symptoms of dizziness, chest pain, shortness of breath, and weakness, and found him to be totally and permanently disabled.

The defendant insurer paid most of plaintiff’s medical bills incurred at Baton Rouge General Hospital, but refused to pay the bills of Drs. Gremillion and Fontenot, the bills for medication, and any workers’ compensation benefits whatsoever, contending that Guillory’s disability was not caused by the accident of December 15, 1978.

Plaintiff sued for permanent and total disability compensation payments, medical bills, penalties and attorney’s fees. After trial on the merits, the trial judge concluded that “plaintiff has made out his case on the question of disability and causal connection with employment and should be awarded total and permanent disability.” Defendant appealed suspensively and plaintiff answered the appeal requesting penalties and attorney’s fees. In a three to two decision the Court of Appeal for the Third Circuit reversed the trial court’s ruling on the merits and dismissed plaintiff’s lawsuit with the order that he pay all costs in the trial and appellate courts.

In his writ application, and now in brief in this Court, plaintiff contends that the Court of Appeal erred in two respects; (1) in finding that there was no causal connection between the fainting spell and the disability; and (2) in not awarding penalties and attorney’s fees.

Eligibility for worker compensation disability benefits in Louisiana is governed by R.S. 23:1021 et seq. In particular R.S. 23:1031 provides:

If an employee . . . receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated. (Emphasis supplied)

The requirements for a successful claim under this statute are thus personal injury which is the result of an accident, which accident in turn arises out of and in the course of employment. The Louisiana compensation act does not require that the employment cause the disability. The chain of causation required by the statutory scheme as adopted by the Legislature in R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability.

An accident is defined in La.R.S. 23:1021(1) as

... an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.”

It is conceded by the parties, and the Court of Appeal so held, that Guillory suffered an accident, by statutory definition, on Friday, December 15, 1978, which accident arose out of and in the course of Guillory’s employment for PALA at the Exxon construction site in Baton Rouge, Louisiana. Furthermore, it is conceded by all that Guillory was totally and permanently disabled following December 15, 1978. The Court of Appeal stated, supra at 545:

All three physicians testified the fainting spell on December 15, 1978, was probably causally related to the strenuous physical labor performed by plaintiff that day. Furthermore, all three were of the opinion that plaintiff is now permanently and totally disabled from performing strenuous physical labor. Under this expert medical testimony, defendant concedes that plaintiff suffered a job related accident on December 15,1978, and that he is presently disabled.

It is the intervening link of causation that is disputed: that is, whether the disability followed and was caused by the fainting spell, or instead whether plaintiff’s disabled condition pre-existed, and was not caused by, the fainting. The Court of Appeal, supra at 547, concluded that the causation required by Louisiana compensation scheme was not satisfied.

Thus, all three of the doctors testified plaintiff’s pre-existing aortic valve disease was not aggravated or made worse by the fainting spell on December 15, 1978. This fainting spell was only a symptom which made the doctors aware of the pre-existing heart disease and that it had progressed to the point that it was disabling.

In other words, the defendant argued, and the Court of Appeal agreed, that although the accident chronologically preceded the diagnosis of the disability, it was only coincidental with and did not cause that disability since the defective condition of the heart was essentially identical both shortly before and after the fainting spell.

In resolving the question before us, i.e., whether plaintiff’s condition caused his disability, several factors, some factual, some legal, bear upon our decision.

The first, factual considerations, relate to plaintiff’s condition and work history.

1) Prior to the accident in question plaintiff was not disabled, i.e., he had been able to work hard for many years without an incident such as occurred on December 15, 1978.

2) After the accident he clearly was disabled, not only because diagnosed as having a heart disease but also because his physical condition had taken a substantial turn for the worse. The record clearly shows that following the accident he had frequent incidents of dizziness, chest pain, shortness of breath and weakness and that he could no longer perform hard labor.

The second set of considerations are the legal principles relating to the Louisiana scheme of workers’ compensation.

1) Clearly a worker’s pre-existing condition does not bar his recovery under the Louisiana Workers’ Compensation statute. Guidry v. Serigny, 378 So.2d 938 (La.1979); Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975). An employer takes the worker as he finds him. An abnormally susceptible worker is entitled to no less protection under the compensation statute than a healthy worker. Allor v. Belden Corp., 393 So.2d 1233 (La.1981) and cases cited therein at 1236. Furthermore it is immaterial that the diseased or weakened condition eventually might have produced death or disability outside the employment situation. See generally: Malone & Johnson, Workers’ Compensation § 232, 13 La. Civ.Law Treatise 482.

2) The accident need not either cause or aggravate the disease which is the cause of the disability, nor adversely change a particular organ or organs of the body. In Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 at 827 (1969), this Court expressly rejected the proposition that “an accident must either cause or aggravate the disease which is the cause of the disability,” a proposition which had been espoused in Nickelberry v. Ritchie Grocer, 196 La. 1011, 200 So. 330 (1941) and Seals v. Potlatch Forests, Inc., 151 So.2d 587 (La.App. 3d Cir.) cert. denied 244 La. 398, 152 So.2d 63 (1963). Instead the Bertrand court stated:

The legal criterion in compensation cases involving heart disease should be whether the accident caused a change in the employee’s physical condition which is disabling, and not whether the accident changed the diseased organ of the employee. The residual condition from an accidental injury which substantially increases the possibility of recurrence of a disabling or death-dealing episode is legally disabling and is compensable under our Workmen’s Compensation law. Bertrand, supra [221 So.2d] at 828, quoted in Guillory, 401 So.2d at 550. (Domengeaux, J. dissenting) (Emphasis supplied)

3) Where there is proof of an accident and of the following disability without any intervening cause it is presumed that the accident caused the disability. It is not necessary to determine the exact cause of the disability. Allor, supra. The criterion for causal connection between the accident and the disability is: “has the accident changed the plaintiff’s condition so as to render him disabled and unfit for his former employment?” Bertrand, supra at 827.

4) The presumption referred to in number three above is rebuttable. Its effect is to shift the burden of proof to the defendant. The defendant bears the burden of coming forward with enough contrary evidence to rebut the presumption. Allor, supra; Haughton v. Fireman’s Fund American Ins. Co., 355 So.2d 927 (La.1978).

5) The ultimate determination concerning disability under the worker’s compensation statute is by the courts, not the medical experts. The courts apply legislative definitions to the medical science in order to achieve an equitable and just result. Bertrand, supra at 828. “Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.” Haughton, supra at 928.

Taking into account all of the foregoing we find the following as to this plaintiff’s accident and his disability:

1) Before the accident of December 15, 1978 plaintiff was not disabled, but rather able bodied and functioning.

2) He suffered a work-stress related accident contributed to in part by a pre-exist-ing heart disease (aortic stenosis).

3) Following the accident he was disabled from performing work by virtue of his condition as well as because of his medical diagnosis (and prognosis).

4) His disability is presumed to have been caused by the accident.

5)Defendant did not rebut that presumption. While the accident admittedly did not change the stenosis, it did change the symptomatology and did worsen his condition.

We therefore find that plaintiff’s disability was caused, at least in part, by the accident.

We turn now to plaintiff’s contention that he is entitled to penalties and attorney’s fees.

The trial judge did not award plaintiff penalties and attorney’s fees. Nor, however, did he address the issue of entitlement to penalties and attorney’s fees in his judgment. The purpose of the penalty provision of the workers’ compensation law is to discourage attitudes of indifference to the injured employee’s condition. If the failure to pay compensation benefits is found to be arbitrary, capricious or without probable cause, penalties and attorney’s fees may be awarded. Patton v. Silvey, 395 So.2d 722 (La.1981).

In this case, all parties agreed that Guillory suffered an accident in the course of and arising out of his employment. Furthermore, all agreed that Guillory was totally and permanently disabled after the accident. The defendant-insurer paid most of plaintiff’s medical bills but denied that it owed the plaintiff compensation benefits, on the contention that there was no causal connection between the accident of December 15, 1978 and the ensuing disability.

The Bertrand decision was rendered in 1969 and has been the prevailing law since then. Notwithstanding the rebuttable nature of the Bertrand presumption, the tenor of the strong facts and evidence of causality in this case make the defendant’s refusal to pay compensation arbitrary and capricious.

We therefore award $5,000.00 in attorney’s fees and penalties in accordance with La.R.S. 22:658 (12% of all past due amounts plus legal interest from the day on which each unpaid amount was due).

Decree

For the foregoing reasons the judgment of the Court of Appeal is reversed, the judgment of the district court is reinstated, but amended to include $5,000.00 in attorney’s fees and penalties in accordance with law.

COURT OF APPEAL JUDGMENT REVERSED; TRIAL COURT JUDGMENT AMENDED, AND AS AMENDED AFFIRMED.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

LEMMON, J., dissents from the award of penalties and attorney’s fees.

MARCUS, Justice

(dissenting).

I do not consider that Guillory’s disability was caused by his fainting (employment-related accident). Reason: defective condition of Guillory’s heart valve was essentially the same before and after the accident. Fainting (accident) was merely a symptom of stenosis (defective heart valve). Hence, I consider Guillory’s disability was caused by his heart condition not by his employment-related accident. Accordingly, I do not reach the issue of penalties and attorney fees. I respectfully dissent.

BLANCHE, Justice

(dissenting).

This writer agrees that a worker’s pre-ex-isting condition does not bar his recovery under the Louisiana workmen’s compensation statute. An employer takes a worker as he finds him. Assuming that plaintiff’s disability is presumed to have been caused by the accident, the evidence in this case clearly overcomes such a presumption. The evidence is conclusive that aortic stenosis is a condition of the heart in which the aortic passageway for blood to leave the heart has become stenosed — that is, narrowed or constricted — so that the amount of blood that is pumped from the heart is less than is required. A fainting episode is a symptom of aortic stenosis. Due to the insufficiency of blood leaving the heart, there is a concomitant insufficiency of oxygen being delivered to the brain through the oxygen-carrying function of the blood’s circulatory system and, when this occurs, fainting results. The evidence is overwhelming in that after plaintiff’s fainting episode, he was in the exact same physical condition as he was before. Plaintiff’s condition was not caused by his work or by any exceptional physical exertion. In no way did the fainting spell aggravate plaintiff’s pre-ex-isting aortic stenosis, which is the only cause of his disability.

It would seem that, if all three doctors testified that plaintiff’s pre-existing aortic valve disease was not aggravated or made worse by the fainting spell, and the fainting spell was only a symptom that made doctors aware of the pre-existing heart disease, and that it had progressed to the point that it was disabling, then plaintiff should not be able to recover because he did not receive personal injury by accident arising out of his employment.

I agree with counsel for plaintiff that the case is almost identical to Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969), but would cite it for a different reason. Bertrand’s duties on the job had nothing to do with his disability, and he should not have recovered as no accident caused his inability to work.

      . The disease is characterized by a constricted valve which restricts the amount of blood leaving the heart, and results in problems such as fainting, shortness of breath and/or chest pain. Additionally Guillory may have had aortic insufficiency, a secondary valve problem, involving a valve distortion whereby blood leaving the heart through the valve flows back into the heart, with necessarily ill effect.

      . In fact plaintiff’s condition caused his death about twenty-four months after the incident. Although the record as presently made up does not reflect that fact, this- was told us during oral argument by counsel for plaintiff and conceded by counsel for the defendant.

      . We also granted writs in two other cases concerning heart conditions, disability, and workers’ compensation. Guidry v. Sline Industrial Painters, Inc., 410 So.2d 1129 (La.1982), and Adams v. New Orleans Public Service, Inc. (On rehearing) No. 81-C-0784, pending before this Court. The cases present three separate but interrelated questions. Here, in Guillory, there was clearly an accident occurring in the course of and arising out of the plaintiff’s employment. The query presented to the court is whether the accident caused Guillory’s subsequent disability. In Adams, the outset question is whether there was an accident on the job. If there was, the query becomes whether the job/work stress caused or contributed to the accident (angina). In Guidry, the plaintiff positively suffered an injury by accident (myocardial infarction followed by death) in the course of his employment. The query presented for the court’s determination is whether that accident arose out of the employment, i.e., was caused by work related stress.

      . External trauma is not necessary in order for an event to be considered an accident under Louisiana jurisprudence. See; Ferguson v. HDE, Inc., 270 So.2d 867 (La.1973).

      . The argument in this regard is much like that presented in the angina pectoris/arterioscler-osis/heart disease cases such as Adams (See footnote 3, supra). In the aortic stenosis situation (the present case) work stress prompting an unsatisfied need for blood to the brain (because of aortic valve deficiency), precipitates syncope, or fainting. In the arteriosclerosis situation, work stress prompting an unsatisfied need for blood into the heart (because of clogged arteries) precipitates heart pain or angina pectoris. It is argued that fainting and heart pain are merely the symptoms of stenosis and arteriosclerosis respectively.

      . At the deposition of Dr. Heim, the following was recorded:
      Q. Alright. Well, is there a change — if he is not having heart pain and he obviously wasn’t if he had been working regularly, you know, like the history does show and prove, then that means he must have been getting enough blood to the heart as compared to now where he is having this heart pain and he must not be getting enough blood to the heart. Would that not be a change?
      A. Well, it’s a change. Yes, it’s a change. He has — I think his symptoms have markedly increased and there has been a change in his symptoms.

      Q. Since the accident of December 15th?
      A. Since the accident of December 15th.
      Q. So then that would be some changes in his body then, would it not?
      A. But the question was the cause of the change, I think, and — What’s the question? BY MR. DUBUISSON: Did the incident of 12/15 change—
      CONTINUATION OF RE-DIRECT EXAMINATION BY MR. MAYEUX:
      Q. Of course, I didn’t ask the initial question.
      A. Okay
      Q. I’m just trying to figure out here — I had understood that the question was is there any change in his body now as compared to before December 15 th.
      BY MR. DUBUISSON: That was not my question, but you can ask it.
      Q. Okay, Well,—
      A. There is a change in his symptomatology and he has worsened since December 15th. (Emphasis provided)


author:
DIXON, Chief Justice.
     WATSON, Justice,

text:
    STATE of Louisiana v. John Wayne TONUBBEE.
    No. 81-KA-2643.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.
    Dissenting from Denial of Rehearing Oct. 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Patrick G. Quinlan, Asst. Attys. Gen., Harry F. Morel, Jr., Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Julie E. Cullen, Asst. Atty. Gen., Baton Rouge, for plaintiff-appellee.
    Victor E. Bradley, Jr., Norco, Harriette R. Merrell, Slidell, for defendant-appellant.
   DIXON, Chief Justice.

Defendant John Wayne Tonubbee was charged by grand jury indictment with two counts of first degree murder (R.S. 14:30). Following a trial by jury, defendant was found guilty as charged and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. It is from this conviction and sentence which defendant appeals, urging thirty-one assignments of error.

On April 19, 1980, between 11:10 and 11:33 p. m., Pauline Odom and Leo Dufrene were struck and killed by a vehicle on Highway 90 near Paradis, Louisiana. The St. Charles Parish Sheriff’s Office had received a call regarding a body lying on the side of the road. The investigating officer discovered Pauline Odom fatally injured near a light blue automobile. Shortly thereafter, Scott Perret and Paul Templet arrived at the scene. It was learned that the two young men had stopped to aid Odom whom they had seen stumbling across the highway, apparently drunk. Templet remained with the woman while Perret drove off to phone for assistance. According to Tem-plet, a middle-aged man later identified as Leo Dufrene stopped to assist. Templet stated that he was kneeling on the ground holding Odom’s head while Dufrene was standing in front of him. Hearing footsteps behind him, Templet turned around and glimpsed a dark complexioned, mustached man wearing dark clothes before he was hit on the head and rendered semiconscious. When Perret returned, he found Templet staggering down the highway with a gash on his head. The two men returned to the scene and found the police already there.

Further investigation revealed that on the night of her death Ms. Odom had been drinking at Blondy’s Lounge, where she was eventually refused service due to her drunken condition. A customer at the bar testified that Odom had talked casually with the defendant before reluctantly leaving the premises with him around 11:00 p. m.

The police officers then proceeded to defendant’s residence. The house was located in a camp owned by defendant’s employer; defendant shared the house with Roy Sta-pleton. Stapleton escorted the officers into the house and led them into defendant’s bedroom where defendant was found asleep. The officers handed the defendant his clothes and defendant accompanied them to headquarters.

Meanwhile, Roy Stapleton’s truck was located abandoned behind a lounge a block off the highway. Defendant had borrowed the truck on the day in question. The front grill and bumper were damaged. Blood, hair and body tissue were spotted on the front of the truck and a man’s shirt was twisted around the drive shaft. The blood samples were later matched with the victims’ blood and the shirt was later identified as belonging to Leo Dufrene.

The blue car parked next to Odom’s body had been identified as belonging to Du-frene, but Dufrene could not be located. Finally, at dawn on April 20, 1980, Du-frene’s body was discovered on the median of the highway 120 feet from the location of Odom’s body.

Defendant was indicted by the grand jury for first degree murder. The prosecution was subsequently quashed because the district attorney was related to one of the victims. The attorney general’s office then took charge of the case and presented it to the grand jury a second time. A second indictment was returned. On May 5, 1981, defendant was convicted of two counts of first degree murder and was sentenced the following day to life imprisonment without benefit of parole, probation or suspension of sentence.

Assignments of Error Nos. 2, 9 and 10

By these assignments defendant contends that he was arrested in his home without a warrant in violation of the Fourth Amendment of the United States Constitution and Art. 1, § 5 of the Louisiana Constitution of 1974. Defendant asserts that the warrantless arrest was made without probable cause, and without exigent circumstances for the intrusion of a constitutionally protected area, and, therefore, all evidence seized as a result of this arrest should be suppressed under the “fruit of the poisonous tree” doctrine. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Detective Bolling, the arresting officer, stated that he did not procure an arrest warrant for defendant before going to the house because he just wanted to question him. He stated that defendant was not placed under arrest until sometime later at the sheriff’s station, after Leo Dufrene’s body and the truck were found.

The detective’s story was corroborated by Officer Boudreaux and Roy Stapleton. Stapleton testified that he resided with defendant in a camp owned by Jack Allen, defendant’s employer. When the detectives arrived, Stapleton was across the road on his houseboat. He informed the detectives that defendant was sleeping in the house. Stapleton was asked to remove any guns from the house, which he did. He then gave the detectives permission to enter the house and led them to defendant’s bedroom. Approximately five policemen stood around the bed while Stapleton awakened defendant.

When defendant sat upright on the bed the police told him to get dressed to come to headquarters in Hahnville for questioning. One of the police officers handed defendant his pants. While defendant was dressing it was determined that he was putting on the same clothes that he had worn the previous night. Stapleton stated that his truck was mentioned and defendant, who had used it the day before, did not know where it was or where the keys were.

It is clear that the detectives entered the house with the consent of one of its occupants. The testimony of all of the witnesses to this confrontation established that defendant was asked to accompany them to headquarters for questioning. Defendant did not decline the request or otherwise voice his disapproval. Under the circumstances, there is no reason to believe that defendant’s action was not voluntary.

These assignments lack merit.

Assignments of Error Nos. 1 and 18

By these assignments defendant contends that the trial court erred in denying his motion to suppress the photographic lineup identification. The basis for the motion is the assertion that the lineup was suggestive and the chain of evidence was not maintained.

The record shows that Paul Templet chose defendant’s picture during the photographic lineup. Templet testified that he was given a stack of seven photographs. The man in each photograph had similar physical characteristics and was pictured with a mustache and either black or dark brown hair. Templet stated that he looked through the stack three or four times before making a selection and no suggestion or indication was made with regard to the picture he should choose. He also stated that he signed his name on the back of the picture he chose.

This court has previously held that there are “[n]o exact detailed criteria for a legitimate photographic lineup.... [T]he fundamental rule is that each case must be considered on a careful analysis of its own facts. . . . ” State v. Morgan, 367 So.2d 779, 783 (La.1979). An analysis of the facts in the instant case indicates that particular care was displayed by the police officers in selecting photographs of men with physical characteristics very similar to those of defendant. In fact, the trial judge commented while viewing the pictures that “all of the pictures look alike ... to the extent that those people could be look alikes.” The trial court properly denied the motion to suppress.

Defendant’s argument with respect to the “integrity” of the chain of custody is without merit. Detective Bolling testified that the photographs remained in his custody at all times. Additionally, Templet testified that he chose defendant’s photograph during the photographic lineup and he identified his signature on the back of it. It is undisputed that the photograph chosen by Templet was the same one admitted into evidence.

These assignments lack merit.

Assignment of Error No. 8

By this assignment defendant contends that he was denied a speedy trial.

Defendant was indicted by the grand jury on May 2, 1980 following his arrest on April 20, 1980. Pursuant to a motion for a speedy trial signed by the trial court on September 3, 1980, a trial date was set for October 28, 1980. On September 10, 1980, however, the District Attorney of St. Charles Parish recused himself on the ground that he was related to one of the victims, Leo Dufrene. Defendant filed a motion to quash the original indictment, which motion was sustained by the court on September 30, 1980. Defendant remained in custody until October 23, 1980 when the court ruled at a preliminary examination that there was no probable cause to hold him. A new grand jury was subsequently empaneled under the direction of the attorney general’s office and defendant was indicted a second time. Following a series of motions the trial date was set for April 21, 1981. Defendant did not file a motion for a speedy trial subsequent to the second indictment.

The length of delay between defendant’s original arrest and the beginning of the trial was one year. Following the filing of defendant’s motion for a speedy trial on the first indictment, a trial date was set for less than two months later. However, pursuant to defendant’s subsequent motion to quash, the entire prosecution was dismissed. Despite the fact that defendant did not request a speedy trial following the second indictment, the trial began four months later. Moreover, defendant does not assert that his ability to adequately prepare his defense was impaired or that defense witnesses or evidence had become unavailable due to the delay. See State v. Dewey, 408 So.2d 1255 (La.1982).

Defendant argues that the delay was occasioned by the district attorney’s failure to recuse himself until four and one-half months after defendant’s arrest. However, the district attorney recused himself pursuant to defendant’s motion and defendant does not maintain that the district attorney acted in bad faith. Furthermore, at the time the district attorney was recused, a trial date had already been set. Defendant could have proceeded to trial on that date, but chose to have the indictment quashed; he made no speedy trial request subsequent to the second indictment.

Considering these factors, especially the fact that no prejudice has been shown, the defendant was not deprived of his constitutional right to a speedy trial.

This assignment lacks merit.

Assignment of Error No. 6

By this assignment defendant contends that the trial judge erred in not ordering a recess to allow defense counsel to thoroughly examine Detective Bolling’s entire file to make notations and copies as might be required.

Detective Bolling was testifying at the preliminary hearing on October 23, 1980 about statements made to him by Tina Robinson regarding her whereabouts on the night of the homicides. Tina Robinson had previously given a formal written statement from which Bolling read as he testified. During cross-examination defense counsel requested that he be allowed to examine the contents of the detective’s folder and requested a recess in order to do so. Defense counsel was permitted to view the contents of the folder for a short period of time in court while cross-examining the witness, but the recess was not granted. Defendant claims that under this court’s ruling in State v. Valentine, 375 So.2d 1378 (La.1979), the court should have ordered the recess to allow him to thoroughly examine the document in order to intelligently examine the witness.

In Valentine, the trial judge refused to permit defense counsel to examine the notes from which a prosecution witness was testifying. In this case, however, defense counsel was permitted to view the notes from which the prosecution witness was testifying. Nevertheless, defense counsel asserts that the trial court should have granted a recess to permit him to copy and make notations from the notes, an issue that was not addressed in Valentine.

Whether to grant or deny a recess is a matter within the sound discretion of the trial court, and its ruling with respect thereto will not be disturbed absent a showing of abuse of discretion and a showing of specific prejudice resulting therefrom. See State v. Telford, 384 So.2d 347 (La.1980); State v. Bertrand, 381 So.2d 489 (La.1980); State v. Gordy, 380 So.2d 1347 (La.1980).

The record reflects that the parties had been allowed complete discovery prior to trial. Counsel for both parties and the trial judge agreed that everything in the state’s case file had been subject to discovery by the defense, including all police reports and statements by witnesses. Defense counsel does not claim that he was denied access to the statement during discovery. Therefore, the trial judge did not abuse his discretion in refusing to grant the recess.

This assignment lacks merit.

Assignment of Error No. 7

By this assignment defendant contends that the trial court erred in ordering him to furnish the state a copy of defendant’s polygraph examination.

The trial court granted defendant’s motion for funds to pay for a private polygraph examination of defendant. Subsequent to the examination, the state filed a motion, based on C.Cr.P. 725, requesting the results of this test. The trial court ordered defendant to provide the state with the results, which defendant did on April 21, 1981. Defendant asserts, however, that the order was improper, inasmuch as the results of a polygraph test are inadmissible at trial, and so were never intended for use at trial. Defendant argues that discovery of the polygraph tests is not justified by either C.Cr.P. 725 or C.Cr.P. 728. Polygraph examinations are generally regarded as a type of scientific evidence. State v. Catanese, 368 So.2d 975 (La.1979). Since C.Cr.P. 728 specifically exempts scientific reports from its requirements, C.Cr.P. 725 governs the admissibility of polygraph examination results.

In ordering defendant to provide the state with the results of the examination, the trial judge stated that as he remembered it, there was an agreement that if state funds were going to be used, the test results would be made available to both sides. Such an agreement, however, is not substantiated by the record.

If the defendant, under C.Cr.P. 719, is allowed to copy reports of scientific tests in possession of the district attorney and intended for use at trial, C.Cr.P. 725 permits the state to inspect or copy reports of similar scientific tests or experiments in the defendant’s possession intended for use at trial. The results of a polygraph examination are inadmissible in Louisiana when offered at a criminal trial by either party, either as substantive evidence or as relating to the credibility of a party or witness. State v. Davis, 407 So.2d 702 (La.1981); State v. Catanese, supra. Since the results could not be referred to at trial, the trial court erred in ordering defense counsel to provide the state with the results of the examination. However, such an error does not necessarily constitute reversible error. “A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantia] rights of the accused.” C.Cr.P. 921 (emphasis added).

The results of the polygraph examination were never introduced into evidence and no reference was made to the fact that the lie detector test was given. Defense counsel failed to show any prejudice that may have resulted from the state’s inspection of the test findings. Therefore, any error that might have occurred here was harmless, inasmuch as it did not affect a “substantial right of the accused.”

Assignment of Error No. 11

By this assignment defendant contends that the trial court erred in allowing the St. Charles Parish Sheriff to sit at the counsel table during voir dire.

The prosecution in this case was handled by the office of the attorney general, as the district attorney was recused. During voir dire the trial judge allowed the sheriff to sit with the prosecutors to assist by providing relevant information concerning the parish.

Defendant asserts that his trial was prejudiced by the presence of the sheriff, with his badge on, at the counsel table. However, this court has never held that such actions necessarily prejudice a defendant’s trial. Defendant cites no statutory authority for his position, nor does he show any specific prejudice that resulted from the sheriff’s presence at the counsel table.

This assignment lacks merit.

Assignments of Error Nos. 12 and 14

By these assignments defendant argues that the trial judge erred in admitting gruesome photographs of the victim since their probative value did not outweigh the possible prejudice to the jury. State v. Matthews, 354 So.2d 552 (La.1978).

Defendant points out that the state refused his offer to stipulate as to the victims’ injuries and the location of the bodies unless defendant would likewise stipulate that the photographs showed his specific intent to kill. Defendant maintains that the injuries sustained were consistent with injuries suffered in any vehicular homicide, and, therefore, these photographs were not relevant to show specific intent.

The photographs which defendant objects to are:

SE-# 3 — upper half of Odom by car
SE-# 4 — full body by car, Odom
SE-# 5 — upper half of Odom by car
SE-# 15 — full body, Dufrene
SE-# 16 — full body, Dufrene
SE-# 17 — face and shoulders, Defrene
SE-# 18 — back and head, Dufrene
SE-# 19 — face, Dufrene

Defendant contends that the graphic col- or and the repetitiveness of the photographs encouraged the jurors to overemphasize prejudicial material with little evi-dentiary value.

A trial court’s ruling with respect to the admissibility of allegedly gruesome photographs will only be disturbed if the prejudicial effect of the photographs clearly outweighs their probative value. State v. Landry, 388 So.2d 699 (La.1980), cert. denied, 450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981):

“. .. In weighing the relative probative value of proffered evidence against its probable prejudicial effect, whether the evidence is merely cumulative is a factor to be considered.. . . ” State v. Manieri, 378 So.2d 931, 933 (La.1979).

In the instant case two of the photographs depicting the body of Pauline Odom are virtually identical. No legitimate purpose can be attributed to the introduction of the second photograph.

The state maintains that it introduced the photographs to pinpoint the location of the bodies, the extent and nature of the injuries and the clothing worn by the victims in order to link them with Staple-ton’s truck and to corroborate other evidence. Although the photographs were unpleasant and distasteful, the state argues that they were not so gruesome as to inflame the jury against the defendant. State v. Vernon, 385 So.2d 200 (La.1980).

Even though distasteful, these photographs were held to be relevant, having a probative value which outweighed any possible prejudicial effect on the jury when they were offered to prove the injuries, to corroborate other evidence indicating the manner of death and to identify the victims. State v. Motton, 395 So.2d 1337 (La.1981), cert. denied, 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981); State v. Vernon, supra.

In regard to defendant’s argument that his offer to stipulate as to the contents of the gruesome photographs was refused, this court held in State v. Bodley, 394 So.2d 584, 591 (La.1981):

“. .. While the existence of an offered stipulation necessarily bears upon a balancing of the probative value of the photographs against their prejudicial effect, the decision nevertheless remains one for the trial court. . . . ”

The existence of the stipulation together with the introduction of the two virtually identical photographs are additional factors to be considered in balancing the probative value of the evidence against any possible prejudicial effects. State v. Manieri, supra. Since the photographs were relevant to show intent to kill or inflict great bodily harm—an issue not stipulated to by the defendant—and since the cumulative effect of the two duplicate photographs was not clearly inflammatory, the trial judge did not clearly abuse his discretion in concluding that the probative value overcame any possible prejudicial effects. State v. Landry, supra; State v. Sawyer, 350 So.2d 611 (La.1977).

These assignments lack merit.

Assignments of Error Nos. 15, 16, 17,18, 19, 20, 21 and 22

By these assignments defendant contends that the trial court erred in admitting various items of physical evidence without the proper foundation. The defendant claims that the chain of custody was not properly established for the introduction of these items since they were obtained and handled by many different people.

The test for admissibility of demonstrative evidence was described in State v. Paster, 373 So.2d 170, 177 (La.1979):

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the. case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, eonnexity is a factual matter for determination by the trier of fact. State v. Drew, 360 So.2d 500 (La.1978).”

A review of the record in the instant case shows that all items of evidence in question were relevant to issues at trial and were identified, both directly and by chain of custody, in such a manner as to establish their connexity to the case. The investigating officers testified as to their involvement with each piece of evidence admitted and as to the procedures established to maintain security of the evidence. It is true a possibility exists that one of the participating criminologists misplaced a piece of cloth with blood-like samples taken from one of the bottles since two cloths were placed in the vial and only one remained to be tested. In addition, a shoe was moved at the crime scene before the crime scene technician arrived. The law, however, does not require the foundation to negate every possibility of tampering. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972). The exhibits introduced were connected with the case. State v. Paster, supra. Any deficiencies in the chain of custody were properly attributable to the weight, rather than to the admissibility of the evidence.

These assignments lack merit.

Assignment of Error No. 24

By this assignment defendant contends that the trial court erred in admitting a diagram of the crime scene made as part of the police record.

The diagram depicted the location of the two bodies and the probable path of the vehicle as adduced from the physical evidence at the crime scene. Defendant asserts that the diagram is irrelevant.

This court in State v. Prestridge, 399 So.2d 564 (La.1981), held that diagrams are admissible to aid the jury in understanding testimony if they are a reasonable visual demonstration of the events which the witnesses are relating. The accuracy of the diagram herein was attested to by Deputy Curtis Scott and State Trooper Jimmy Ma-han, who were both present at the crime scene at various times (the two men drew the diagram). Even though Odom’s body and Dufrene’s automobile had been removed by the time Mahan arrived at the scene, Deputy Scott was present prior to the transfer of the body and vehicle from their original location. Since the diagram appears to be relevant and there is no evidence to refute its accuracy, we find no error in the trial judge’s ruling.

This assignment lacks merit.

Assignment of Error No. 25

By this assignment defendant contends that the trial court erred in admitting hearsay statements of defendant that were made to state witness Billy Ray Reno.

Pauline Odom was seated in Blondy’s Lounge next to Billy Ray Reno and defendant about 10:30 p.m. (approximately one hour before her death). Reno testified that Ms. Odom had been “cut off” from alcoholic beverages at the bar because of her drunkenness and that defendant attempted to get her to leave with him. He declared that Odom stated to him: “I don’t want to leave here. I don’t want any trouble. I love this place around here. I only want to be happy.” Reno explained further that defendant responded to Odom: “If they want to party here all night, let them party here all night but we’re goin’. Either you come along with me or I’m gonna knock your butt off and take you out.” Reno later saw defendant and Odom walk out of the door together.

This court has adopted Professor McCormick’s definition of hearsay evidence:

“ ‘. . . testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ ” (Citation omitted). State v. Martin, 356 So.2d 1370, 1373-74 (La.1978).

In this case it is clear that Reno’s testimony regarding Odom’s statements was not hearsay since the out-of-court statement was offered as circumstantial proof of the victim’s state of mind prior to the homicide. State v. Raymond, 258 La. 1, 245 So.2d 335 (La. 1971), appeal dismissed, Ramos v. Louisiana, 404 U.S. 805, 92 S.Ct. 101, 30 L.Ed.2d 38 (1971). Evidence of her fear of defendant or her emotional reaction to his presence is relevant to show that contact between the victim and defendant occurred. State v. Raymond, supra. Admission of the out-of-court declaration of the victim is premised upon the expedient rule that “. . . conduct or declarations of the decedent shortly before [her] killing may sometimes be admissible as tending to show immediately antecedent circumstances explanatory of the killing and tending to connect the accused with it. . . . State v. Raymond, supra 245 So.2d at 342 (concurring opinion).” State v. Weedon, 342 So.2d 642, 646 (La.1977). Odom’s statements to Reno are admissible as circumstantial evidence of her state of mind concerning the defendant less than an hour before her death.

Reno also testified as to defendant’s conversation with Odom. At trial Reno recalled the defendant telling Odom: “Either you come along with me or I’m gonna knock your butt off and take you put.” This statement to the victim constitutes a threat.

Reno’s testimony about defendant’s conversation does not qualify as hearsay because it was not introduced to prove the truth of the matters asserted. “.. . Rather, the conversation is admissible to show that it occurred.... ” State v. Boyd, 359 So.2d 931, 938 (La.1978). Evidence of previous quarrels between the defendant and the victim or of previous threats made by the defendant to the victim has previously been held admissible to attest to the intent of defendant to commit a crime in a case where he denies that he is the perpetrator. State v. Leming, 217 La. 257, 46 So.2d 262 (1950); State v. Winstead, 204 La. 366, 15 So.2d 793 (1943). In prosecutions for murder, proof of prior difficulties and of threats made by defendant against the victim are admissible. State v. Morris, 397 So.2d 1237 (La.1980); State v. Thibeaux, 366 So.2d 1314 (La.1978); State v. Sharp, 174 La. 860, 141 So. 859 (1932); State v. Davis, 154 La. 295, 97 So. 449 (1923). Thus the threatening statements made by defendant to the victim are admissible to establish a motive or the intent of the defendant to harm the victim. State v. Leming, supra.

This assignment lacks merit.

Assignments of Error Nos. 27 and 28

By these assignments defendant contends that the trial court erred in denying his motion for a new trial.

The basis for defendant’s motion was that the evidence was insufficient to support a finding of specific intent to kill or inflict great bodily harm upon more than one person.

Several witnesses testified that on the night that Pauline Odom was killed, she and defendant were drinking together in Blon-dy’s, and that she left the bar with defendant only after being threatened by him: “Either you come along with me or I’m gonna knock your butt off and take you out.” The testimony established that the two left the bar together around 11:00 p. m.

Paul Templet testified that shortly after 11:00 p. m. he saw Odom alive, staggering across the highway, and he stopped to assist her. He stated that he was kneeling over Odom, and Leo Dufrene (who also had stopped to assist) was standing in front of him when he heard footsteps from behind. He looked up and saw a dark complexioned man with a mustache, dressed in dark clothes, whom he later identified as defendant in a photographic lineup. He was then hit over the head and rendered semiconscious.

The evidence also reveals that Odom and Dufrene were struck and killed by a truck belonging to Roy Stapleton, the man with whom defendant was living. Stapleton stated that defendant was using the truck the day Odom and Dufrene were killed. Finally, a state witness testified that he saw defendant driving the truck as late as 6:00 p. m. on the day in question.

In addition, the experts testified that the shirt defendant wore that night was stained with human blood.

Defendant’s version of the facts is that he left the camp in Stapleton’s truck about 9:00 a. m. to cash his paycheck. After he got the check cashed later that morning, he started drinking at Slim’s about 2:00 p. m., leaving the truck in Slim’s parking lot at this time. About 4:30 p. m. he walked to Blondy’s where he met Pauline Odom for the first time and bought her a “beer or two.” Odom left shortly thereafter but defendant stayed at Blondy’s until around 8:00 p. m. As he walked out of Blondy’s on his way back to Slim’s, defendant met a “friend” named Jim, to whom he loaned Stapleton’s truck. Jim was an acquaintance with whom defendant had spoken casually on several occasions. Defendant did not know Jim’s last name or where he was employed, and Jim was never located. Defendant testified that he spent the rest of the evening, until about 11:00 p. m., in Blondy’s where he witnessed the fight between Pauline Odom and her boyfriend Eddie Legg, prior to Legg’s leaving the bar. After Legg left, Odom drifted over to the bar and talked to defendant for about twenty minutes. Defendant stated that he then went to the restroom and left Blondy’s by the back door in order to avoid any trouble with Odom and her boyfriend Legg.

Defendant stated that since Jim had not returned with the truck, he first wandered over to Mike’s Place and ordered a drink. He then hitched a ride with an unknown person to J. & D.’s Bar, where he called Juanita Dufrene, his girl friend. Juanita arrived at J. & D.’s and they socialized until about 1:00 a. m. before leaving to eat at Captain Leo’s Restaurant. Juanita drove defendant back to the camp about 2:00 or 2:30 a. m. Defendant denies driving the truck after about 2:00 p. m., when he parked it at Slim’s Bar. He denies leaving the bar with Odom and he also denies making any statement while riding to police headquarters.

The evidence contradicts defendant’s testimony and leads to the conclusion that defendant and Odom left the bar together in the borrowed red and white truck. Whether defendant was driving the truck when it struck the victims, and whether he had specific intent to kill or inflict great bodily harm on them, are determinations deduced from the established facts of the case.

Defendant had possession of the truck which mangled Dufrene’s body. He talked with an intoxicated, flirtatious Odom in a bar, and they were both denied service by the bartenders. He failed to convince Odom to leave with him until he threatened her. Defendant and Odom left together at 11:00 p. m. At about ten minutes after 11:00 p. m. Templet and Perret stopped on the highway not far from Blondy’s to assist Odom, drunk but as yet unharmed. Perret went to telephone. Dufrene joined Tem-plet, and Templet was struck from behind by a dark complexioned attacker.

Templet’s identification of defendant was not certain because of the darkness and the swiftness of the unexpected attack. Nevertheless, the description he gave resembled Tonubbee, whose photograph he selected in the lineup. Always admitting the possibility of error, Templet’s identification of To-nubbee was consistent and convincing to the jury.

Ten or fifteen minutes after the killings, defendant wandered into a barroom a short distance down the road. His damaged truck, with flesh, hair and clothing clinging to it from the collision with the victims, was found a block and a half off the highway behind that barroom.

Wreckage from defendant’s truck was recovered from the death scene and human blood was found on his shirt.

The Louisiana rule as to circumstantial evidence is:

“. .. assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” R.S. 15:438

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires, to support a conviction, that the evidence be .sufficient to convince any rational trier of fact of defendant’s guilt, viewing the evidence in the light most favorable to the prosecution.

Both rules are satisfied in this case. Every reasonable hypothesis of defendant’s innocence is excluded by the facts which the evidence tends to prove. No contrary hypothesis is consistent with the evidence. The evidence is sufficient to convince a rational fact finder, viewing the evidence in the light most favorable to the prosecution, of defendant’s guilt.

These assignments lack merit.

Assignment of Error No. 29

Defendant contends that his trial was prejudiced by the four and one-half day recess ordered by the trial court when the state applied for supervisory writs to this court.

Defendant did not raise his objection to the recess in the trial court until he moved for a new trial. He could have registered his objection either when the recess was granted or when the trial resumed at the end of the recess. See C.Cr.P. 708, Comment (b).

The record reveals that during cross-examination of the defendant, the prosecutor attempted to impeach him with a prior inconsistent statement made during a pre-test interview with the polygraph administrator. The judge refused to allow any questioning by the state that in any way related to the polygraph test administered to defendant. Nevertheless, he recessed the trial on Wednesday morning until the following Monday morning to allow the state time to apply for writs to this court. The writ request was denied and the trial commenced the following Monday, four and one-half days later.

To impeach the credibility of the defendant, the state has to lay the foundation required by R.S. 15:493, which states:

“Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be cailed to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.” (Emphasis added).

Accordingly, an inquiry about the circumstances under which the prior inconsistent statement was made would have been necessary. The statement occurred during the pre-test interview with the polygraph tester. The existence of a polygraph examination cannot be referred to in a criminal trial to bear upon the credibility of the defendant. State v. Davis, 407 So.2d 702 (La.1981); State v. Catanese, supra. The end result of laying the proper foundation would be to put the jury on notice that a polygraph examination had been administered to the defendant. This is impermissible.

Since this attempted cross-examination of defendant would have led necessarily to inadmissible testimony, the trial judge properly refused to allow the state to pursue this line of questioning. However, the judge also granted the state a recess to apply for writs on this issue. The grant or denial of a recess is largely within the discretion of the trial court. State v. Bertrand, supra; State v. Charles, 350 So.2d 595 (La.1977); State v. Sharp, 321 So.2d 331 (La.1975); State v. Richmond, 284 So.2d 317 (La.1973). An appellate court will not overturn the trial judge’s decision absent a clear abuse of discretion. State v. Bertrand, supra; State v. Robertson, 358 So.2d 931 (La.1978); State v. Jenkins, 340 So.2d 157 (La. 1976).

The four and one-half day delay occurred at a critical time in the first degree murder trial when defendant was under cross-examination. A considerable time break in the midst of defendant’s testimony could prejudice the jury’s verdict. In the instant case the sequestered jury could only speculate as to the reasons for the substantial delay.

This court denied the state’s writ request, recognizing that the application lacked merit. A recess should not have been granted by the trial judge on his own motion since the possibility of prejudice clearly outweighed the merits of the state’s claims. However, the defendant failed to make a timely objection to the judge’s action. An accused’s right to have a particular trial action reviewed on appeal may be waived by the failure of his counsel to object to it at the time made:

“. . . the failure of an accused’s counsel to make such objection or to file such motions will ordinarily constitute an intelligent waiver of the right to appellate review of such types of errors and the evidence upon which they are based.... ” State v. Spain, 329 So.2d 178, 179 (La.1976).

By failing to seek corrective measures or to make a timely objection, defendant waived his right to contest the granting of the four and one-half day recess. C.Cr.P. 841; State v. Clark, 332 So.2d 236 (La.1976); State v. Marcell, 320 So.2d 195 (La.1975).

This assignment lacks merit.

Assignment of Error No. SO

By this assignment defendant contends that the trial court erred in requiring the defense to submit assignments of error before the trial transcript was prepared.

Defendant asserts that the court reporters were granted extensions of time in which to file the transcript of the trial, although defense counsel was denied an extension of time in which to file assignments of error. The result, defendant states, is assignments of error that are not as precise or as accurate as they should be.

Defendant was not without a remedy in ensuring that his assignments of error were precise or accurate. He had the option of either refining the assignments of error through his brief or of applying for writs to this court to be allowed to file supplemental assignments of error. Upon a showing of prejudice to the appeal, this court permits supplemental assignments of error. Defendant failed to avail himself of the remedies available to him. Moreover, he does not make a showing of specific prejudice resulting from the trial court’s ruling.

This assignment lacks merit.

Assignment of Error No. 31

By this assignment defendant requests that this court review any and all errors patent on the face of the record. We found no errors that would warrant a reversal of defendant’s conviction.

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

LEMMON, J., concurs.

WATSON, Justice,

dissenting from denial of rehearing.

The defense contends that specific intent to kill or inflict great bodily harm on more than one person was not proved. The opinion relies, in part, on questionable facts to reject the defense argument. Particularly, the opinion states that blood on the front of the truck matched that of the victims. The blood was not matched with the victims’. (See testimony of Stephen Kirby, Jefferson Parish Crime Lab.)

This case is based on circumstantial evidence, and all reasonable hypotheses of innocence must be negated.

The facts appear as compatible with negligent homicide as first degree murder, especially as to Dufrene. The record, while somewhat sketchy as to defendant’s implication in Odom’s death, is almost entirely silent as to the circumstances of Dufrene’s; about the only indication is that Dufrene was hit by the pickup truck, which certainly falls far short of proving an intentional killing, beyond a reasonable doubt. The facts should be re-examined.

Also, there is a substantial issue under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed. 2 and 639 (1980) concerning defendant’s warrantless arrest.

For these reasons, a rehearing should be granted.

       Judges Charles R. Ward, William H. Byrnes, III and David R. M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Assignments of Error Nos. 4, 5, 8, 23 and 26 were specifically abandoned and waived in brief by defense counsel.

      . “When the court grants the relief sought by the defendant under Article 719 it shall, upon the motion of the state, condition its order by requiring that the defendant permit or authorize the state to inspect and copy, photograph or otherwise reproduce any results of reports, or copies thereof, of physical and mental examinations and of scientific tests or experiments, of a similar nature, made in connection with the case, that are in the possession, custody, or control of the defendant, and that the defendant intends to use as evidence at the trial or were prepared by a witness whom the defendant intends to call at the trial when such results or reports relate to his testimony.” C.Cr.P. 725.

      . “Except as to scientific or medical reports, this Chapter does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant or his attorneys or agents in connection with the investigation or defense of the case; or of statements made by the defendant, or by witnesses or prospective witnesses to the defendant, his agents or attorneys; or of the names of defense witnesses or prospective defense witnesses.” C.Cr.P. 728.

      . Chain of custody or identification objections were lodged against the following items of evidence: S 38, black blouse; S-39, tan slacks; S 40-41, pair of brown boots, all identified by Ted Stevens, technician assigned to the crime scene; S -42-43, known hair samples identified by Stevens and Steve Kirby, a Jefferson Parish crime lab person; S-51-53, blood-like samples identified by Stevens and Kirby; S-54, lug wrench identified by Stevens; S-55, piece of pipe identified by Stevens; S-56, GMC label identified by Stevens; S-57, plastic grill identified by Stevens; S-58, navy blue cap; S-59, gray shoe; S-60, light tan men’s slacks; S-61, plaid men’s shirt, all identified by Stevens; S-70-79, photographs of exhibits, identified by Ronald Singer, Director of Jefferson Parish Sheriff’s Office Crime Lab; S-80-82, paint scrapings identified by Singer; S-83, S-87, debris scrapings from exhibits identified by Singer; S-88, gray plastic fragments identified by Singer.

      . However, Reno’s written statement shortly after the incident recounts the utterance as: “If you don’t come on and go, I will knock the hell out of you.”