author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Ray Charles JOHNSON.
    No. 82-KA-0045.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Rehearing Denied Feb. 11, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Ted Brett Brunson and Ralph S. Wright, Lowther & Boone, Many, Wellborn Jack, Jack, Jack, Cary & Cary, Shreveport, for defendant-appellant.
   DIXON, Chief Justice.

Ray Charles Johnson was tried by a jury on October 22,1981 and was found guilty as charged of second degree murder (R.S. 14:30.1). He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension. Defendant now appeals his conviction and sentence arguing five assignments of error.

Defendant resided with Ernie Mae McEl-roy in Apartment 120 in the housing project in Zwolle, Louisiana. Ms. McElroy’s four year old son, Barcelis, resided with them. This son was from her previous marriage to the victim, Randolph Davis.

On December 1, 1980, at approximately 1:00 p.m., Davis went to the residence of defendant and Ms. McElroy and asked Ernie Mae if he could see his son. On the front porch Davis took the child in his arms and attempted to pick him up, but Ernie Mae grabbed the child away from him. Davis began hitting Ernie Mae in the face and she called the defendant for assistance. Defendant, inside getting dressed for work, did not hear her until she called a second time.

Defendant, Ernie Mae and Elliot Shepard, all witnesses for the defense, testified that when defendant responded to Ernie Mae’s plea for help, Davis reached through the screen door for the defendant with a knife. The defendant then returned to the back of the house to the bedroom to get his gun. While the defendant was back in the house, Davis continued beating Ernie Mae. Upon his return to the front door, defendant fired one shot, apparently at an upward angle, in order to scare Davis.

There are essentially two versions of the events which occurred after the defendant fired the initial warning shot through the screen door.

This shot caused Davis to turn and leave the porch. Defendant and Ernie Mae testified that Davis fell on the porch as he was attempting to leave, and that defendant fired two shots at Davis as he tried to get up and go toward the street to his car. Once Davis reached his ear, he reached in his pocket for his car keys near the trunk of his car. At this point the defendant testified that he descended from the porch and stopped on the sidewalk. He called out to Davis warning him not to go into his trunk, since he knew that Davis was known for carrying a gun. Then defendant again fired at Davis.

Elliot Shepard testified that Davis then ran behind the Evans house and toward Cleo German’s house and that no one was running behind him. Davis attempted to ascend Cleo’s porch, but fell, knocking over a bike, and then died. The defendant testified that after Davis ran away from his car, he returned to Ernie Mae to attend to her injuries. He further testified that he went into the house to get a towel, emptied the shells and reloaded the gun and then took Ernie Mae and the gun over to Autrey Lee Carter’s house. Carter testified that defendant left the reloaded gun at his house with instructions to give it to anyone who asked for it. Carter turned the gun over to the authorities when they arrived.

After leaving the gun and Ernie Mae with Carter, the defendant testified that he went to Cleo German’s house where there was a crowd gathering. Cleo told the defendant not to come in her yard, and defendant turned and returned to his home.

Andy Pantalion, a white man who lived across the park from the Zwolle project, was also an eyewitness to the shooting. The distance from which he viewed the shooting is approximately two hundred thirteen yards. His version of the incident is substantially different from that of the defense witnesses. He testified that he heard the first shot, turned around and saw the defendant chasing Davis. He,then saw Davis fall down and the defendant fire four shots as Davis lay on the ground, under the clothesline behind the Evans home. There were others who testified that they heard these four shots. Defendant then returned to his house, emptied his shells and reloaded his gun. He went to where the victim lay, with his gun in his hand, and was told to leave the yard by Cleo German.

The coroner testified that Davis was struck by three bullets, but only one of these bullets inflicted the fatal wound. The other two bullets did not lodge in the body and caused only superficial wounds.

The police who came to the scene in response to calls testified that there was no knife or other weapon found on the person of Davis, nor in the immediate area. Davis was found holding a set of car keys in his hand.

To further support the state’s theory that the defendant chased Davis and shot him while he was lying on the ground, the state attempted to offer pictures into evidence of holes in the ground in the approximate location where Pantalion testified that he saw the shooting. The defense objected and the court sustained the defendant’s objection. The state was allowed to introduce the testimony of Chief Detective John Ranier to the effect that they discovered holes in the ground behind the Evans home under the clothesline. He further testified that they dug to find the projectiles, but this search was unsuccessful.

Argument 1 (Assignment of Error No. 1)

The defendant contends that 'the trial court erred in denying a mistrial based upon the nondisclosure by the state of an oral statement made by the defendant immediately after his arrest to Officer Dean Lambert. This statement concerns the victim’s possession of a knife. The defendant argues that this oral statement is Brady material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Substantial evidence was presented by the state at trial that no knife was recovered from the victim’s body, nor from the immediate area. There were two written statements made by the defendant which were made available to the defense prior to trial in response to the defendant’s discovery motions. The first written statement made by the defendant to the officers does not mention a knife. The defendant’s second written statement, which was made six to eight weeks later, specifically mentions that the victim had a knife.

Officer Lambert testified at trial that the defendant made an oral statement to him, shortly after his arrest, to the effect that the victim had a knife. This statement as to the victim’s possession of a knife was in response to the officer’s question. This information about the oral statement was contained in Officer Lambert’s police report, yet it was not disclosed to the defendant. After this exculpatory testimony, the defense moved for a mistrial on the basis that the police report was not furnished to the defendant as requested during discovery. C.Cr.P. 775.

The state maintains that it was not obliged to produce the police report under C.Cr.P. 723, but was required to produce only the written statements. Further, it contends that this oral statement contains substantially the same information which was contained in the second written statement. The defendant maintains that the disclosure of this information falls within the exceptions established by C.Cr.P. 723, and that its disclosure was mandated by C.Cr.P. 718(1) and Brady v. Maryland, supra.

Exculpatory evidence must be provided to the defense when it is material to guilt or punishment, regardless of the good faith or bad faith of the prosecutor. Brady v. Maryland, supra at 87, 83 S.Ct. at 1196. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the United States Supreme Court delineated three tests of materiality, depending on the type of request presented by the defense to the prosecutor. This case falls under the third category of cases set forth in United States v. Agurs, since the request for information was for all Brady material. This court in State v. Willie, 410 So.2d 1019, 1031 (La.1982), discussed the analysis for this type of request when there is undisclosed evidence which may constitute Brady material. Reversible error results when the undisclosed evidence, considered in the context of the entire record, “creates a reasonable doubt that did not otherwise exist.” United States v. Agars, supra 427 U.S. at 112-13, 96 S.Ct. at 2401-02.

In the instant case the defense in its discovery motion requested:

“That the District Attorney permit or authorize the Defendant to inspect, copy, examine, test scientifically, photograph or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof which are within the possession, custody or control of the State in which: (a) are favorable to the Defendant and which are material and relevant to the issue of guilt or punishment, or (b) are intended for use by the State as evidence at the trial, or (c) were obtained from or belonged to the Defendant.”

This is a general, not a specific, request for Brady material.

The nondisclosure of the oral statement does not create a reasonable doubt which did not otherwise exist. The jury was presented with the evidence through the testimony of Officer Lambert. State v. Hicks, 395 So.2d 790 (La.1981). Furthermore, the defense presented, through the testimony of the defendant, Ms. McElroy and Elliot Shepard, evidence that the victim had a knife. The possibility of the existence of a knife in the possession of the victim was well known to the defendant.

Defendant has made no showing that this additional evidence would have altered his defense, nor has he shown that, by its nondisclosure, he has been denied a fair trial. On the contrary, Officer Lambert’s testimony was supportive of his defense of self-defense. This evidence, although exculpatory, evaluated in the context of the entire record, does not create a reasonable doubt as to the defendant’s guilt.

This assignment of error lacks merit. Argument 2 (Assignment of Error No. 3)

Defendant argues that the trial court erred in denying a mistrial based upon the prosecutor’s reference to the defendant’s right against self-incrimination. C.Cr.P. 770(3),

During direct examination, Mary Jean Ford, a state witness, was asked to view photographs of the scene. At that time she stated that she was “dizzy” because she had just gone to the doctor for a shot. When questioned as to why she was dizzy, the following colloquy occurred:

“A the only thing I could see was — I’m dizzy right now. This is my house (indicating on exhibit). I can’t see it all.
Q What’s the matter with you now?
A I took a shot when I went to the doctor while ago.
Q How come you had to go to the doctor while ago?
A I had some pressure on me and I couldn’t take it.
Q What kind of pressure? Speak loudly so these folks can hear it.
A Ray Charles was talking to me.
Q Ray Charles Johnson, this fellow over here?
A Yes, sir.
Q What did he tell you?
MR. WRIGHT: Objection, Your Honor. Now we are going to do this out of the presence of the jury.
DISTRICT ATTORNEY: Going to do what out of the presence of the jury?
MR. WRIGHT: I object, Your Honor.
DISTRICT ATTORNEY: If it please the Court, she can repeat anything this man said.
MR. WRIGHT: She can’t.
DISTRICT ATTORNEY: He’s in Court. He can get up there on the stand and deny it.
MR. WRIGHT: I object and I move for a mistrial, Your Honor. He cannot refer to the failure of the defendant or the fact that he does or does not testify at all.
THE COURT: Just a minute. Take the jury out, please.
(Jury leaves the courtroom).”

The prosecutor explained to the court that the remark was intended to explain the exception to the hearsay rule, which would enable Ms. Ford to testify as to what the defendant told her. The defense counsel insisted that the prosecutor’s comment was meant to refer to the fact of whether the defendant testifies or not. The trial court denied the defendant’s motion and ruled that the comment did not fall within the prohibition of C.Cr.P. 770(3).

While the jury was out, Ms. Ford told the court about the incident with the defendant, near the witness room, which caused her to become distressed. After recounting her story, the jury was brought back in and admonished by the trial court to disregard any statement made by the prosecutor regarding the defendant’s right not to testify.

This court has held that to constitute reversible error under C.Cr.P. 770(3), “the inference must be plain that the remark was intended to bring to the jury’s attention the failure of the defendant to testify.” State v. Murray, 375 So.2d 80, 86 (La.1979) (emphasis added). See State v. Stephenson, 412 So.2d 553 (La.1982); State v. Curry, 390 So.2d 506 (La.1980); Clark v. Marullo, 352 So.2d 223 (La.1977); State v. Schouest, 351 So.2d 462 (La.1977); State v. Frank, 344 So.2d 1039 (La.1977); State v. Smith, 327 So.2d 355 (La.1976); State v. Reed, 284 So.2d 574 (La.1973); State v. Howard, 262 La. 270, 263 So.2d 32 (1972). However, it was recently held in State v. Fullilove, 389 So.2d 1282, 1284 (La.1980), that “[w]hen the remark directly points out that the defendant has not testified, it is irrelevant whether the prosecutor intended the jury to draw unfavorable inferences from the defendant’s silence.” (Emphasis added).

The remark in the instant case by the prosecutor was not intended as a reference to the defendant’s right against self-incrimination; rather it was intended as an explanation of an exception to the hearsay rule. Further, the defense counsel in his opening statement specifically stated that the defendant would take the stand at trial, and the defendant did in fact take the stand to give his version of the shooting. The entire colloquy in the presence of the jury was prompted by a defense objection on hearsay grounds, and only became an issue under C.Cr.P. 770(3) when the prosecutor attempted to respond to the defense’s objection. The jury heard the comment in light of the hearsay objection and not as a remark calling attention to the defendant’s failure to testify in his own defense; the decision of the defendant to testify had already been made before this exchange occurred.

This assignment of error lacks merit. Argument 3 (Assignment of Error No. 4)

Defendant contends that the evidence is insufficient to establish second degree murder, and that under the Jackson v. Virginia standard the evidence presented would only have justified a verdict of manslaughter. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970).

The standard of review for the consideration of a sufficiency claim is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, supra at 319, 99 S.Ct. at 2789. This court has consistently applied this standard of review when considering sufficiency of the evidence. State v. Ennis, 414 So.2d 661 (La.1982); State v. Stewart, 400 So.2d 633 (1981); State v. Guillot, 389 So.2d 68 (La.1980); State v. Landry, 381 So.2d 462 (La.1980); State v. Mathews, 375 So.2d 1165 (La.1979); State v. Abercrombie, 375 So.2d 1170 (La.1979), cert. denied, Abercrombie v. Louisiana, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980).

The state’s witness, Andy Pantalion, testified that he heard a shot which drew his attention, and that he then witnessed defendant’s pursuit of Davis, Davis’ subsequent fall, and defendant’s firing of four shots with a .357 magnum revolver as the victim lay defenseless on the ground. There were other witnesses, neighbors of the defendant, who testified that they heard these four shots in addition to the first one.

Police who immediately responded to the scene testified that no weapon was found on Davis’s body, near his body, nor the immediate area. A set of car keys was the only object which the victim held in his hand.

The coroner testified that Davis was struck with three separate bullets, one of which inflicted the fatal wound. Only the first shot fired by the defendant through the screen door could have been arguably made in self-defense, or with reasonable provocation, if it is assumed that Davis had a knife. However, the state established, by the testimony of the coroner and Detective Rainer, that this first shot could not have inflicted the fatal wound since the location of the bullet hole in the screen did not correspond with the entrance location of the fatal bullet. The fatal shot was one of the several shots fired by the defendant as Davis attempted to flee from the defendant.

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the defendant guilty of second degree murder beyond a reasonable doubt.

This assignment of error lacks merit. Argument 4 (Assignment of Error No. 5)

Defendant contends that Ms. Ford’s testimony concerning an earlier conversation with defendant during a trial recess, outside the witness room, was irrelevant, and that its probative value was outweighed by its prejudicial effect. Further, he asserts that Ms. Ford was in a drugged state and thus was not in a condition to truthfully testify. The trial court allowed Ms. Ford to testify concerning her conversation with the defendant.

In response to the state’s questioning of why she was upset, Ms. Ford testified:

“Q You are Mary Jean Ford?
A Yes, sir.
Q I had asked you, Miss Ford, why you were having some difficulty. What was your response?
A Well, I said when we got on lunch break, we were walking down the hall, you know, going to lunch. I rides down here with Cleo German so me and her go to lunch together. Well, I met, you know, Ray Charles going out and he asked me could I help him. And I told him, you know, no, that I couldn’t help him because I had seen him Monday and I wasn’t going to lie.
Q Is that what you told the defendant, Ray Charles Johnson, today?
A Yes, sir.”

Ms. Ford then testified as to her observation of the events on December 1,1980, the date of the shooting of Davis.

Defense counsel cross-examined Ms. Ford as follows:

“BY MR. WRIGHT:
You didn’t see Mr. Davis running in front of this defendant?
A All I could see was Ray Charles.
Q Now, right now you are under sedation from a doctor, right?
A Yes, I am.”

The state then conducted redirect examination in an attempt to rehabilitate the witness, and to explain to the jury the reason Ms. Ford was sedated. The redirect was as follows:

“Q Why are you under sedation from the doctor?
A Well, I had a little pressure put on me in the hall.
Q By who?
A By Ray Charles.
Q By who?
A Ray Charles.
Q Would you explain what you mean, had the pressure put on you?
A Well, when I was going to lunch, you know, and I come back in the witness room, I left Cleo downstairs and I would be waiting on her in the room here. So just as I go in there, Ray Charles come by and he was still talking. And I was standing in the doorway, and he was standing, you know, right beside me. And he told me all I would have to say was I didn’t see him running but I told him I couldn’t lie.
Q Is that how come you—
A I can’t take too much pressure. It was too much pressure. I just, you know—
Q You went to the doctor?
A Yes, sir.
Q He gave you a shot?
A He gave me a shot.
Q And when he asked you a minute ago about the sedation, that’s the result of that pressure, is that right?
A Yes, sir.”

Counsel for the defense on recross-examination then asked:

“Q The last time we came up here for a hearing, did you have to go to the doctor that day, too? The pressure was too great?
A No, I had an appointment to go to the doctor. I had been there a week before.
Q In fact, you have a nervous condition of some sort, don’t you?
A No, I had a touch of pneumonia the first time and on the 18th of April when we come back down here, I had to go back. On the 18th day of May when I came down here, I had to go back for a check-up.
Q But you just told us the exact truth right there, huh?
A Yes, sir.”

Relevant evidence is defined in R.S. 15:441 as:

“... 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 evidence of attempts by a defendant to intimidate witnesses for the state has substantial probative value; and that actions on the part of the defendant which are designed to prevent witnesses from testifying will give rise to an inference that the defendant acted from an awareness or consciousness of his own guilt. State v. Burnette, 353 So.2d 989, 992 (La.1977); State v. Davis, 154 La. 295, 314, 97 So. 449, 455 (1923). As stated by this court in State v. Burnette, supra at 992: “... Such evidence ... has substantial probative value in a proceeding designed to test the guilt or innocence of an accused.... ” The exertion of pressure on Ms. Ford by defendant clearly would fall within the rule of State v. Burnette, and therefore, the subject was relevant to the issue of defendant’s guilt or innocence.

What the defendant said to Ms. Ford could hardly be considered an attempt to intimidate a normal witness. Even a normal witness, however, would have concern and apprehension about being required to testify and place the blame on the accused. Since she disclosed her apprehension, and blamed it on “pressure” by the defendant, it was not error to permit the state to inquire into the “pressure” to enable the jury to evaluate the testimony.

This assignment of error lacks merit. Argument 5 (Assignment of Error No. 6)

Defendant contends that the trial court improperly allowed Detective Ranier to testify that there were “holes” in the ground under the clothesline since an examination of the holes did not recover any projectiles. Defendant argues that such evidence was not relevant and its probative value did not outweigh the prejudicial effect.

During the state’s direct examination of Detective Ranier, the state attempted to introduce a photograph of the scene which showed “holes” in the ground. Defense counsel objected and the trial court sustained the objection and excluded the photograph from evidence. The state then proceeded to present the testimony of Detective Ranier who stated that the authorities found holes in the ground under the clothesline where the defendant was shot, according to Mr. Pantalion. Detective Ranier further testified that they dug out the holes as deeply as they could, but found nothing.

Relevant evidence is that tending to show the commission of the offense or intent, or that tending to negate the commission of the offense or intent. R.S. 15:441. The record indicates that the testimony of Mr. Pantalion and that of the coroner support the state’s theory and the possibility that the holes in the ground were bullet holes. The jury had before it the testimony of Detective Rainer, that although they dug into the holes, they did not dig as deep as was possible because they only used a common kitchen knife, and that no projectiles were ever found in the holes. The probative value of this testimony as to the holes clearly outweighs any prejudicial effect.

This assignment of error lacks merit.

Accordingly, the conviction and sentence of the defendant are affirmed.

      . The following is the defendant’s first written statement which he gave on December 1, 1980, the date of the shooting:
      “I, Ray Charles Johnson was in my bedroom getting my work clothes ready and hears Ran-dophy Davis outside beating up on my lady and walk to the door and told him not to hit her any more and he said what in the hell is you and reach for the screen door, so I turn around and we (sic) into the bedroom to get my gun and when I got back to the door she was holding the baby and he was still hiring (sic) on her that when I shot to make him leave her alone. This was around 1:00 o’clock and I went behind him and he fell down and got up that’s when I shot him again because I thought he was going to turn on me.
      s/Ray Chas. Johnson
      Witnessed by: s/Wayne Ebarb s/Quinton Brandon”

      . The defendant’s second written statement, which was written six to eight weeks after the first statement, but which was not dated, reads as follows:
      “Sabine Parish Jail
      I, Ray Chas Johnson, do swear to tell the truth, on Wednesday before Thanksgivings, my lady Earnie Mae ask me to take her to Big Star before I went to work, somewhere between 1:30 and quarter to three. I was in the bathroom brushing my teeth and heard someone knock, and a few minutes later my stepson who is four was saying I don’t want to see that ugly man, my daddys (sic) name Ray Charles Johnson, this is when I came out, on my way to the bedroom, and my lady was in the living room, and said that was Barcelis father saying he wanted his son. I been with them a year in Jan., and he never come there before now, so after the holidays he came back that Monday between 12:30 and 1:00 and Earnie Mae met him at the door, so when I was on my way too (sic) the kitchen he was walking down the sidewalk, and I ask her what did he want, and she said he wanted his son, the baby was across the street playing with a neighbors (sic) little boy, and I heard some one ask Earnie Mae if she wanted Barcelis to come home, and she said yes, so there he come running back home, his father got back on the porch a little bit after the baby did, so I went back into the bedroom, getting my work clothes together and went back into the kitchen to get my work boots, and heard him saying he believe someone is influence (sic) his son not to want him that he created this boy, and if it was someone he was going to kick some ass, this is when I walk to the front door and look out, and he was still looking at my lady, so I go back to the bedroom with my boots, and by the time I put them down, I heard something hit against the screen door and my name call, on my way to the living room, I could see her holding the baby, and he was beating her with the baby in her arms, and her head was beening (sic) knock back and forth to those brick of the apartment, and I rush to the front door and push the screen door back and said don’t you hit her any more, and he said who in the hell you think you are and reach at the door with a knife in his right hand, so I turn around and went back into the bedroom and got my pistol. When I got back to the living room he was still beating her holding on to her baby both of them was hollering so I came out shooting, one shot to depart them, he turn to run slipping on the porch, and when he was trying to get his balance he fell up against the wall facing me with the knife at his side, that’s when I shot three or four times and he started running toward his car parked in front of mines and I shot again so he turn and went between my car and his across the streets around those other projects and Eamie Mae was then laying down on the ground with the baby beside her, I kneel down and got her up blood was just running down the left side of her face, I went inside to get a towel, and went into the bedroom and got I think there was four or five shells, was all I had left and reloaded my gun leaving the empty on my bed and went back outside to give my lady the towel, she was over to the neighbors (sic) house calling the police, so I walk across the street to see if I could see him, and this woman was hollering thru (sic) her window saying don’t come in her yard, and I stood where I was for about 3 seconds, and went back home so I could see from my front yard to see if anyone was going to take that knife from him cause there so many people standing around him, I walk over to the neighbor house where my lady was talking on the phone, and Mr. Quinton Brandon pull up and we walk out leaving my pistol with my neighbor to Mr. Brandons (sic) car, and he ask, Ray Charles what’s wrong, and my lady said she wanted to press charges against her X, and Mr. Brandon ask me how bad is she hurt, I couldn’t tell because she was bleeding heavily, and Mr. Brandon told me to get in my car and take Earnie Mae to the hospital, and Mr. Dean Lambert meet me at the hospital, and we walk over to jail and he read me my rights.
      And this is the earnest God truth.
      s/Ray Chas. Johnson”

      . This court in State v. Willie, supra at 1031 stated:
      “The third category of cases consists of those in which a general request (‘all Brady materials’) or no request at all is made. A conviction will be overturned, in such cases, if the omitted evidence creates a reasonable doubt that did not otherwise exist. The omission must therefore be evaluated in the context of the entire record.
      ‘If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.’ United States v. Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2401.”

      . “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict. An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.” C.Cr.P. 770.

      . It should be noted that the sole issue presented by the defense at trial was whether defendant shot Davis in self-defense. Little, if any, mention was made by counsel for the defense as to the possibility that defendant was provoked into shooting Davis because of the beating of his girl friend. The major point of dispute at trial was whether or not Davis had a knife.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Gloria BUCKLEY. STATE of Louisiana v. Ernest ROBERTSON.
    Nos. 82-K-1283, 82-K-1538.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Rehearing Denied Feb. 11, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee in No. 82-K-1283.
    Maurice T. Hattier, New Orleans, for defendant-appellant in No. 82-K-1283.
    Harry F. Connick, Dist. Atty., William Campbell, Asst. Dist. Atty., for relator in No. 82-K-1538.
    Calvin Johnson, New Orleans, Supervising Atty., Erika Beck, Student Practitioner Veronia Martzell, New Orleans, for respondent in No. 82-K-1538.
   DIXON, Chief Justice.

In each of these two cases we granted writs sought by the State of Louisiana to review the actions of the Orleans Parish Criminal District Court which sustained defendants’ motions to suppress the evidence. Because of the similarity of the factual situations, procedural postures and issues of law in these two cases, the cases have been consolidated in this court and both will be treated in this opinion.

Gloria Buckley was charged by bill of information April 1,1982 with possession of Talwin in violation of R.S. 40:967. Defendant pleaded not guilty and filed a motion to suppress the evidence which the state answered. After a hearing on the motion and the submission of briefs, the trial judge ordered the evidence suppressed. The state’s application for writs of certiorari was granted. 416 So.2d 936 (La.1982).

Ernest B. Robertson was charged by bill of information on May 4, 1982 with possession of Preludin in violation of R.S. 40:967 to which he pleaded not guilty. Robertson also filed a motion to suppress the evidence which was granted by the trial court after a hearing and submission of briefs. The state’s application for writs was granted. 416 So.2d 937 (La.1982).

Both defendants were arrested shortly after allegedly making drug purchases in an area of the City of New Orleans suspected by the police as being high in drug trafficking, and each was in possession of drugs at the time of their arrest. Confidential informants played a part in both of these separate arrests, and in neither case was the suspected seller of the drugs arrested. The defendants claim the evidence should be suppressed because of violations of their constitutional and statutory protections against unreasonable searches and seizures. Specifically, defendants argue that there was insufficient probable cause for the searches or for the arrests.

At the hearing on Gloria Buckley’s motion to suppress, the following facts were adduced. Officer Selby of the Special Operations Division of the New Orleans Police Department testified that on the afternoon of March 18, 1982 he (and others not named) met with a confidential informant who stated that he had observed a black female known as “Vickie” selling narcotics on the corner of Thalia and South Rampart Streets. According to the informant, Vickie was wearing brown slacks and a white blouse and had been dealing drugs in front of Snow’s Gambling Shack on the lake, downtown comer of the intersection throughout the course of the day.

Selby asked the informant to return to the intersection to determine if Vickie was still selling drugs, and to report at a nearby pay telephone. The informant telephoned at 4:20 that afternoon and reported that he was at the intersection and had observed another black female dressed in a one-piece, striped red and white outfit get out of a gold Plymouth, approach Vickie and hand her some United States currency. Vickie took the currency inside the restaurant and then returned to the female waiting outside. Vickie handed her some pills that were described by the informant as being pink and blue, the size of aspirins, which she placed in her right hand. The female then crossed South Rampart and walked toward downtown.

Upon receiving this information, the officers proceeded in their car up Erato Street, turning left toward uptown on South Rampart. They observed a female in a red and white striped outfit walking toward them on the left side of the street. Officer Selby testified that they observed her place something from her right hand into the small brown purse she was carrying. The officers got out of the car, identified themselves as police officers, and asked the female if they could see her purse, and if she would mind emptying the purse onto the trunk of the police car. The female stated, “You have me,” and admitted having narcotics in her purse. The purse was then emptied, yielding six loose pills, three Talwin and three Pybenzomine. The female, Gloria Buckley, was then advised of her rights and taken to Central Lockup.

Officer Selby testified that an attempt was made to locate Vickie and the other occupants of the gold Plymouth but it was unsuccessful. The officer explained that when anyone is stopped at or near that intersection, the remaining people disband and somewhat disappear.

On cross-examination, Officer Selby testified that the confidential informant involved in this arrest was “quite reliable.” Officer Selby estimated that seventy to eighty arrests had been made with this informant and others working in that area of the city. Responding to a question from the court concerning convictions following the arrests, Selby stated that they were still going to court on the cases, but that they had not lost one of the cases yet.

The hearing on Ernest Robertson’s motion to suppress was held on June 11, 1982. Officer Selby again testified for the state. After confirming the past reliability of the informant used in the arrest, Selby testified that he received information that subjects were dealing narcotics at the corner of Thalia and South Rampart Streets in front of a bar located on the lake side of South Rampart Street in New Orleans. In particular, the informant described the clothing of two individuals whom he had observed selling drugs. A female was described as wearing red slacks and a silky white blouse and a male was wearing blue jeans and a black silk shirt with some lighter colored design in it. Officer Selby took up a position in a building across the street and observed the described subjects, among others, outside in front of the bar.

The female and the male were engaged in conversation on the sidewalk when they were approached by Ernest Robertson. Robertson and the female walked to the entrance of the bar, where Robertson handed United States currency to the female who took it into the bar. When she returned, she handed something to Robertson which he took in his right hand. Selby could not see what was passed to Robertson. Robertson then stepped down from the step in front of the bar, looked up and down the street, and walked up Thalia Street toward Saratoga Street. Feeling that a drug transaction had taken place, Selby radioed a unit in the area and described Robertson’s clothing and indicated his location and direction.

The arrest of Ernest Robertson was made by Officer Bardy who received the radio message from Officer Selby. Bardy, called by the defense, testified that he had been told by Selby that a drug transaction had just taken place and the subject, wearing short blue pants and a brown print design shirt, was heading down Thalia in the direction of Saratoga with whatever he had purchased in his right hand. Bardy was parked in an unmarked car on Saratoga and saw Robertson, matching the radioed description, pass directly in front of his car. Bardy stated that as Robertson noticed the officers in the car, he quickened his pace, but Bardy immediately got out of the car and told Robertson to “hold up” and retrieved from his right hand ten orange Pre-ludin pills in a celophane wrapper.

When Robertson was stopped, again the intersection under surveillance by Officer Selby became quickly deserted. The female involved in the transaction with Robertson crossed South Rampart Street and headed toward uptown out of Selby’s view. The male subject was not pursued according to Officer Selby since he had not been involved in any transaction that Selby saw. Selby testified that he believed the arresting officers came down Thalia in search of the female, but were unable to locate her.

The defense also called Yvonne Porter, the girl friend of Robertson. Her testimony was that she and her baby were eating in a cafe with Robertson. He finished eating early and left to take a walk down the street, saying he would be right back. After Porter and the baby finished, they decided to wait for Robertson in his truck. She stated that she saw him walking up Thalia in the direction of the cafe when he was stopped by the officer. The essence of her testimony was that Robertson was acting normally at the time of his arrest, with nothing visible in his hand.

The state argues in each instance that there was probable cause to arrest, and that the contraband was found in a search pursuant to a lawful arrest. This is a recognized exception to the rule that a war-rantless search is unreasonable. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Tomasetti, 381 So.2d 420 (La.1980). However, the police must affirmatively show that probable cause existed for the arrests, for if an arrest is unreasonable, a subsequent search does not come within the exception. State v. Zielman, 384 So.2d 359 (La.1980).

Probable cause to arrest exists when the detaining officer has articulable knowledge of particular facts sufficient to reasonably suspect the detained person of criminal activity and thus justify an infringement on his constitutionally protected right of freedom from governmental interference. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Wilson, 366 So.2d 1328 (La.1978). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Tomasetti, supra; State v. Marks, 337 So.2d 1177 (La.1976). Whether probable cause existed at the time of the arrest must be determined without regard to the result of the subsequent search. State v. Finklea, 313 So.2d 224 (La.1975).

Information received from informants contributes to the articulable facts known to the police, provided the information is trustworthy. Trustworthiness is measured against the two prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), which requires that the information provided include facts relating to both the “basis of knowledge” and the “veracity” of the information. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The “basis of knowledge” factor preserves the function of the neutral and detached magistrate by requiring the recital of facts from which he can conclude that probable cause exists, rather than merely basing the determination of probable cause on the conclusions provided by others. The “veracity” factor requires facts which allow the magistrate to determine the reliability of the informant.

While information from an informant may provide sufficient probable cause for an arrest, State v. Morvant, 384 So.2d 765 (La.1980), it is often the case that the information only contributes to the articulable facts needed for probable cause. In such instances, the information is combined with knowledge acquired by the police from other sources and independent investigation.

Also relevant to a determination of probable cause is the nature of the area in which the activity reported to the police occurs. The reputation of an area is an articulable fact upon which a police officer may legitimately rely. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Magda, 547 F.2d 756 (2d Cir.1976). Such so-called high crime areas are places in which the character of the area gives color to conduct which might not otherwise arouse the suspicion of an officer. United States v. Garr, 461 F.2d 487 (6th Cir.), cert. denied, 409 U.S. 880, 93 S.Ct. 170, 34 L.Ed.2d 135 (1972); United States v. Bailey, 547 F.2d 68 (8th Cir.1976).

Louisiana jurisprudence requires more than merely innocent activity within a suspect area. In State v. Saia, 302 So.2d 869 (La.1974), cert. denied, 420 U.S. 1008, 95 S.Ct. 1454, 43 L.Ed.2d 767 (1975), there was no probable cause to arrest defendant who left a residence known to be a drug outlet and slipped her hand inside the waistband of her pants and turned to walk in the other direction upon sighting the marked police car pull abreast of her. This court found the case factually similar to Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), in which the United States Supreme Court found no probable cause to arrest defendant after talking with several known narcotics addicts where nothing was seen exchanged. This court also found insufficient facts upon which to base a finding of probable cause in State v. Kinnemann, 337 So.2d 441 (La.1976), where defendant entered a residence under surveillance by the police as a suspected drug outlet empty-handed and emerged a short time later carrying two paper bags, even though defendant looked up and down before crossing the street and had a changed demeanor after leaving the residence. See also, State v. Jones, 308 So.2d 790 (La.1975). In each of these cases, there was nothing to connect the defendant with the criminal activity known by the police to be common in the suspect area.

All the information then in the possession of the police is to be considered in the determination of whether probable cause existed for the arrest. State v. Edwards, 406 So.2d 1331 (La.1981); State v. Frisch, 393 So.2d 1220 (La.1981); the quantity and quality of evidence needed for probable cause are measured by lesser standards than those for conviction of the defendant at trial. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). These considerations control the analysis of the arrests of Gloria Buckley and Ernest Robertson.

Gloria Buckley

Buckley was arrested based on information supplied by the confidential informant which was partially corroborated by the observations of the police officers making the arrest and on information independently acquired by the police.

The veracity of the informant was shown at the hearing on the motion to suppress by Officer Selby’s testimony that the particular informant had provided information in the recent past that led to seventy or eighty arrests; that those cases were still being tried in court and not one case had yet been lost. Regarding the basis of knowledge, Selby testified that the informant stated that he had personally observed the small pink and blue pills which Buckley placed in her right hand.

As the officers approached the intersection shortly thereafter, they saw a female matching all of the characteristics described by the informant, corroborating the information given to them. They also noticed Buckley transfer something from her right hand to the small purse she was carrying. This normally innocent act, considered in connection with the information already in the possession of the police, further corroborated the informant’s tip.

The police also had independent knowledge that the intersection where the informant made his observations was an area high in drug trafficking, and the police had been conducting investigations in the area. The informant had also earlier that day told the officers that he had observed Vickie selling narcotics on that corner throughout the day. The fact that Buckley was observed acquiring the pills through what reasonably appeared to be a purchase from an identified seller of narcotics connected Buckley with the criminal activity known by the police as being prevalent in the suspect area.

The combination of these articulable facts, judged by the probabilities and practical considerations of everyday life on which average policemen can be expected to act, provides ample basis to support a finding of probable cause to arrest Gloria Buckley for possession of controlled substances. The trial court erred in ordering suppressed the evidence seized incident to her arrest.

Ernest Robertson

The information provided by the confidential informant in the arrest of Robertson did not include as many important specific facts as the information in Buckley’s arrest, but the tip did include the crucial link between the criminal activity in the area and the defendant.

The credibility of the informer was again proved on the basis of the past performance. Officer Selby testified that this particular informant had provided information leading to approximately nine or ten arrests resulting in four or five convictions with other cases still pending. As to the informant’s basis of knowledge, Selby testified that the confidential informant stated that he had observed a particular male and female engaging in several narcotics transactions (personal knowledge from observation).

The police set up a surveillance from a building across the street. While the descriptions of the male and female were not detailed, they were sufficient for the officer to recognize them from his vantage point.

While the pair was under surveillance, they were approached by Robertson who engaged them in conversation. The female received money from Robertson and then went inside the bar. Upon her return a short time later, the officer observed her hand “objects” to Robertson which he cupped in his right hand. Even with the aid of binoculars, the officer could not identify the object that was passed from hand to hand. Robertson was arrested one block from where his transaction was observed.

The defendant cites cases holding that a person’s associations do not provide probable cause for his arrest. State v. Blanton, 400 So.2d 661 (La.1981) (no probable cause to arrest after transporting several people under surveillance for drug violations); State v. Jones, supra; State v. Saia, supra; State v. Kinnemann, supra; Sibron v. New York, supra. Defendant also compares the present facts to those found in State v. Herbert, 351 So.2d 434 (La.1977), where this court on rehearing found that the passing of an object between admitted narcotics addicts followed by the passing of an object to a woman who fled at the sight of the police was not sufficient for a finding of probable cause. The majority in this decision stated, quoting State v. Kinnemann, supra:

“... These ‘facts’ cannot be said to furnish probable cause for an arrest or search. They do not connect defendants with criminal activity. They are at least as consistent with innocent activity as with guilt.” State v. Herbert, supra at 440.

The court in State v. Herbert, supra, had only the fact that the object had previously been passed between narcotics addicts to support the ultimate conclusion that the object was an illegal drug. In the present case, the police had the informant’s tip that the described pair was engaging in narcotics transactions, and had also observed the exchange of money for the object. We find the decisions relied on by defendant factually distinguishable from the present case. Those cases correctly state the rule that a person’s associations or the area in which an innocent activity occurs alone do not support a finding of probable cause. The requisite connection of the defendant with the criminal activity suspected was missing in the cases relied on by defendant.

The trial judge in written reasons correctly stated that the information provided by the confidential informant was not sufficient to provide probable cause for the arrest of the defendant. The trial judge also correctly stated that the action of Roberta son at the intersection was not inconsistent with ordinary everyday behavior and in and of itself insufficient to supply articulable facts for the arrest of the defendant. However, considering the cumulation of all of the facts known to the police at the time Robertson was arrested, it is reasonable for an average policeman to conclude that the object passed to Robertson was an illegal drug, the possession of which is a crime. Under all of the circumstances, innocent explanations for this exchange seem implausible. The trial court erred in sustaining defendant Robertson’s motion to suppress the evidence seized from him at the time of his arrest.

The ruling of the trial judge sustaining the motions to suppress the evidence as to both Gloria Buckley and Ernest Robertson is reversed. Both cases are remanded for further proceedings consistent with this opinion.

WATSON, J., concurs in the result.

      . The state contends that the facts found by the trial court are not supported by the record. As there were no explicit findings relating to credibility, this opinion is based on the record of this case.

      . While the test of Aguilar was developed in the context of affidavits in support of search warrants, the test is equally applicable to information provided to officers making warrantless arrests. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

      . The veracity factor of the Aguilar test may be met in a variety of ways. Among the methods most often suggested are past performance of the informant, McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); admissions against the interest of the informant, United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (declaration that informant had recently purchased illicit whiskey from within named residence); and the inherent credibility of the provider of information (for example, information provided by a citizen witness to a crime contrasted with information provided by a paid informer close to criminal activity). The basis of knowledge factor may be satisfied by a showing that the information is the personal knowledge of the informant, including the circumstances under which such knowledge was acquired; information that is of such detail that the personal knowledge of the informant may be presumed, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); or the information is secondhand, but there is reason to believe in the credibility of the third person, United States v. Smith, 462 F.2d 456 (8th Cir. 1972). See generally, LaFave, Search and Seizure, § 3.3, West Publishing Co. (1978).

      -. There are two distinct concepts involved when police undertake an investigation following a tip from an informant; the first involves the verification of the facts provided, while the second seeks to discover new facts culminating in probable cause. The first concept is illustrated by Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), where an informant told police that a suspect would be arriving on a train from Chicago at a certain time and that he would be carrying three ounces of heroin. The informant described Draper, the clothes he would be wearing, and a tan zipper bag that he would be carrying and also stated that Draper habitually walked fast. The United States Supreme Court upheld the war-rantless arrest and search of a man alighting from the train having all of the described characteristics. The court held that “with every other bit of [the informant’s] information being thus personally verified,” the surveilling agent had probable cause “that the remaining unverified bit of [the informant’s] information — that Draper would have the heroin with him — was likewise true.” 358 U.S. at 313, 79 S.Ct. at 333. The Draper case has not been without criticism, and interpretations of the case do not clearly describe which factor of the Aguilar test is supported by corroboration of innocent details of the informant’s tip, that is, whether the corroboration goes to the basis of knowledge or the veracity of the informant. See Justice White’s concurring opinion in Spinelli v. United States, 393 U.S. 410, 423, 89 S.Ct. 584, 592, 21 L.Ed.2d 637 (1969), for a rejection of the proposition that the corroboration of nine innocent facts enhances the trustworthiness of the tenth unverified fact where the tenth fact is the crucial one which cannot be inferred from the other nine. See also Stanley v. State, 19 Md. App. 507, 313 A.2d 847 (1974).

      . See the following for a finding of probable cause where normally innocent activity occurs in suspect surroundings: Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (known bootleggers traveling route from source of supply at international border to bootleggers’ primary area of operation); The Apollon, 9 Wheat. 362, 6 L.Ed. Ill (seizure of French vessel near coastal area historically infested by smugglers); State v. Melton, 412 So.2d 1065 (La.1982) (reputation of discotheque as establishment where narcotics are present relevant to officer’s belief that pills in plastic bag were illicit drug); Commonwealth v. Holloway, 229 Pa.Super. 128, 323 A.2d 216 (1974) (suspect carrying stereo equipment at night in a neighborhood with a high burglary rate); and State v. Sinclair, 11 Wash.App. 523, 523 P.2d 1209 (1974) (carrying television set considered with great number of burglaries committed in the area).


author: CALOGERO, Justice. MARCUS, Justice

text:
    Brownie Reed HEBERT v. GULF STATES UTILITIES COMPANY, et al.
    No. 81-C-0544, 81-C-0557.
    Supreme Court of Louisiana.
    Jan. 10, 1983.
    Rehearing Denied Feb. 11, 1983.
    Vance R. Andrus, Andrus & Preis, Lafayette, for applicant in No. 81-C-0544.
    W.L. Wilson, Taylor, Porter, Brooks & Phillips, Ben L. Guelfo, Pete Diazzio, Watson, Blanche, Wilson & Posner, Baton Rouge, for respondents in No. 81-C-0544.
    Ben L. Guelfo, Pete Diazzio, Watson, Blanche, Wilson & Posner, Baton Rouge, for applicant in No. 81-C-0557.
    W.L. Wilson, Taylor, Porter, Brooks & Phillips, Baton Rouge, Vance R. Andrus, Andrus & Preis, Lafayette, for respondents in No. 81-C-0557.
   CALOGERO, Justice.

We are presented in this case for the first time following our decision in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982) the need to review a case involving injuries to a worker who made contact with electrical transmission lines. The facts involved in this case are distinctly different from those involved in Kent. For the reasons which follow, we find merit in the plaintiff’s position and reverse the judgment of the district court and the Court of Appeal.

The petitioner, employed by Southern Structures, Inc. to erect a metal building for Kelly R. Parrino in a Baton Rouge industrial park, was injured when a twenty foot piece of angle iron he was holding contacted a power line owned and maintained by the defendant, Gulf States Utilities Company. A jury verdict was returned favorable to the utility company. The First Circuit Court of Appeal affirmed the judgment of the lower court. Hebert v. Gulf States Utilities, 395 So.2d 832 (La.App. 1st Cir.1981). In this Court, plaintiff urges three assignments of error: (1) The Court of Appeal erred in failing to consider the legal duty and liability of Gulf States Utility Company; (2) The Court of Appeal erred in applying a contributory negligence standard to the activities of the plaintiff/victim; (3) the trial court gave erroneous jury instructions.

Because we agree that the trial jury and the appellate court neglected to weigh properly the respective legal duties of the worker and the utility company in this electrocution case, we reverse the rulings of the lower courts, render judgment in favor of the plaintiff and remand the cases to the district court for a determination of damages.

To put the facts of this litigation in proper perspective, we begin a narration of events some time before the accident which severely injured the plaintiff, Brownie Reed Hebert.

Plaintiff had been trained as an iron worker and employed in the construction of metal buildings for Southern Structures for one and a half years before the accident, during which time he was promoted to “pusher” (foreman of a crew). He had participated in the construction of approximately twenty such metal buildings. These buildings were erected by first constructing a metal skeleton and then fastening metal wall and roof sheets to the skeleton. The property on which this particular metal building was constructed is part of an industrial park in Baton Rouge and was located between the last and the second to last electric utility poles on a distribution line for businesses in the vicinity. The rear of the slab on which the building was to be erected backed directly onto a servitude which contained four overhead electrical lines: three of them were energized with 7,620 volts of electricity; the fourth, above and to the middle of the other three, was neutral. A company spokesperson testified later at the trial that the lines were insulated by “isolation, by elevation,” since they were “out of the practical reach of people.” While the lines were 26.4 feet from the ground, the line nearest the proposed building was horizontally only 3.45 feet away, vertically only 9.5 feet away and diagonally a little more than ten feet from the highest point of the metal skeleton of the building. Such distances conformed to the national standards for the industry at the time the electrical line was constructed, although they are inadequate according to today’s standards.

Four days before the accident which resulted in the injury, Brownie Hebert contacted these utility lines with a crane that he was using to transport metal sheets from the front to the rear of the slab where they were to be attached as walls of the building. No one was injured on that occasion but electric service to the area was interrupted. With the interruption, Mr. T. Otis McKnight, special legal investigator for Gulf States Utilities, came to the construction site and remained until the job requiring use of the crane was completed. Electricity was then restored to the overhead lines on the servitude behind the construction site.

It was four days later on the following Monday that Hebert sustained the severe injuries which touched off this litigation. That morning he had to place and secure a twenty foot metal fascial angle on the top outside rear of the building. This twenty foot metal beam was leaning vertically inside the building’s shell against the horizontal rafters of the rear end wall closest to the utility’s right of way. Facing the inside of the partially constructed building, Hebert was perched on the wobbly metal end wall rafter almost sixteen feet from the concrete floor of the building, with his feet on either side of one of the metal roof purlins and his back to the power lines. He pulled up the twenty foot angle iron hand over hand until he had it and himself balanced with about ten feet of the metal on each side of him. To place the metal fascial angle perpendicularly over the' ends of the roof purlins, Hebert had to turn himself and the metal beam around to face the outside of the building. A co-worker was at one end of the wall rafter waiting to help screw the beam in place once Hebert was to have put it in place atop the purlins. With Hebert’s twisting the twenty foot piece of metal counterclockwise, it came in contact with the innermost electrical wire. The electrical charge burned Hebert’s hands and feet. He was thrown to the ground.

The jury by a nine to three vote returned a verdict in favor of the defendant. The questions posed to the jury were: “(1) Do you find in favor of the plaintiff, Brownie Reed Hebert? (2) Do you find in favor of the defendant, Gulf States Utilities? (3) If the answer to # 1 is Yes, what amount do you award the plaintiff?” The jury merely answered # 2 in the affirmative. Thus the jury’s answer to the court’s interrogatories did not reveal whether their verdict in favor of Gulf States Utilities was because of an absence of fault on the part of the utility company or because of plaintiff’s contributory negligence notwithstanding Gulf States’ fault.

One of plaintiff’s arguments on appeal was that Gulf States was negligent and that the jury erred in finding otherwise. The Court of Appeal pretermitted this issue of Gulf States’ fault and focused instead upon plaintiff fault which would, if found, bar recovery in any event. Hebert, supra at 834.

An appropriate resolution of this case on appeal does indeed entail a two fold inquiry. The first, relative to Gulf States and their fault, is whether the scope of their duty to protect against hazards in the transmission of electricity over high power lines encompassed the risk of harm encountered by this plaintiff, and, if so, whether Gulf States breached a duty owed to this plaintiff. The second incidental inquiry, assuming fault on the part of the utility, is whether this plaintiff is to be barred by his own contributory negligence.

We have just recently had occasion to consider the principles of tort liability which apply when injury occurs as a result of contact with overhead power lines. In Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982), a majority of this Court rejected the suggestion that absolute liability be imposed upon the utility company. Likewise, because of the utility’s actual knowledge of the condition of the lines, the Court found it unnecessary to impose strict liability. Kent, supra at 498. Rather in the case of an electrocution, we apply the principles of negligence and assess the liability of the various parties to the accident under a duty-risk analysis.

In deciding in favor of the utility in Kent, however, because of the peculiar and unusual facts of that case, we did not intend to diminish in any way the high degree of care that Louisiana courts have required of those who deal in the manufacture and distribution of electricity. See generally: Stone, Tort Doctrine § 395 in 12 Louisiana Civil Law Treatise 519.

Electric transmission companies which maintain and employ high power lines are required to exercise the utmost care to reduce hazards to life as far as practicable. Simon v. Southwest La. Elec. Membership, 390 So.2d 1265 (La.1980); Nessmith v. Central La. Electric Co., 257 So.2d 744 (La.App. 3d Cir.), writ denied, 261 La.480, 259 So.2d 921, 922 (1972). However, an electric utility is not required to guard against situations which cannot reasonably be expected or contemplated. Simon, supra.

In Simon and in Kent, a majority of the Court found that the accident in each case could not reasonably have been anticipated. It was not within the scope of the duty owed by the defendant utilities to the injured plaintiffs, because there was no ease of association between the risk presented by the utilities’ conduct under the overall circumstances and the resulting injuries. Hall v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

One of the two Simon decedents was fatally shocked when a forty-two foot drilling pipe he was removing at ground level from a well hole touched an overhead power line 26.7 feet above the ground. The second decedent succumbed to shocks sustained in trying to rescue the first by picking up the drilling pipe with his hands. In Kent, the accident occurred when the thirty foot aluminum pole the victim was using in an unorthodox fashion to texture the surface of a roadway came in contact with an overhead high voltage distribution line.

Here the facts are distinctly different. Unlike Kent where there were involved workers, construction supervisors, the highway department and the utility company, only two parties in this case essentially could have prevented this accident: the utility company and the busy workman, Hebert. Furthermore this accident occurred in an industrial park where the construction of metal buildings was commonplace. In fact earlier the same year, on or about January 19,1977, another worker had been injured by coming in contact with the high voltage line while installing roof purlins for a metal building in the same industrial park. The means and methods of construction on the Parrino site were customary for the industry and those usually employed by Southern Structures and the plaintiff Hebert. Moreover, the risk is different for one assigned to work fifteen feet above the ground and atop a structure which is within ten or eleven feet of the power line, than for ground level workers who must use extraordinary means to contact the overhead electrical lines. Therefore the risk that an iron worker placing a twenty foot metal fascial angle on the top outside of a metal building will be injured by electrocution by inadvertently touching a power line at most only eleven diagonal feet away from his work place comes within the scope of the utility’s duty to exercise the utmost care to reduce hazards to life as far as practicable. The duty of the defendant electrical utility was meant to protect this plaintiff worker from this type of harm (electrocution) arising in this manner (constructing a metal building in an industrial park).

Did Gulf States Utilities breach their duty to Brownie Reed Hebert? The threefold duty of the utility in cases where injury is easily associated with the transmission of electricity over high power lines, as set forth in Simon, supra, is (1) to insulate the lines, or (2) to warn adequately of the danger, or (3) to take other proper and reasonable precautions to prevent injury. Gulf States Utilities maintains that the power lines were properly insulated and that Hebert was adequately warned of the dangers so that other precautions against injury were riot necessary. Their argument is not convincing.

The lines, according to the defendant utility, were “insulated by isolation.” Isolation in this sense means that the lines because of their location were not readily accessible to people. The lines were suspended 26'4" from the ground, with a horizontal and vertical clearance of 3.45' and 9.5' respectively from the nearest part of the building. These distances satisfied the minimum industry requirements when the lines were erected. [The distances have subsequently been increased, so that such clearances are no longer in compliance. See note 2, supra] However mere compliance with safety standards does not, per se, relieve the utility of negligence. Simon, supra; Mc-Kowen v. Gulf States Utilities Co., 358 So. 2d 675 (La.App. 1st Cir.1978).

In proper perspective, the power line was only about four feet above and three feet away from the head of a six foot worker standing, as was Hebert, on top of the end wall rafter. Furthermore these national standards are for already constructed solid wall buildings without windows facing the servitude. That margin of safety is a far cry from that needed for a building under construction. The construction of a building involves, as in this case, an ongoing work site with workers and activity above, below and around the skeleton of the building. The national clearance standards for an already completed solid wall structure without a window facing the servitude can hardly render solace to the utility in the case of an industrial accident resulting from the construction of the building itself. Additional inquiry must be made concerning the actual continuing effectiveness of the insulation.

Insulation by isolation is maintained until something intervenes. Just as time, climate, blows or other circumstances may deteriorate rubber insulation coating a wire, so insulation by isolation may deteriorate with a changing environment. In this case after the construction of the power lines and with the advent of the construction of the metal building, the potential existed for the deterioration of the insulation by isolation. Then, such a deterioration or invasion of the insulation by isolation actually occurred in this case and was brought to the utility’s attention when, four days before the accident resulting in injury, a crane in use on the construction site hit and knocked out service temporarily. Thus the defendant utility had specific knowledge of the risk of harm attending work at this construction site. At that point the utility could no longer fulfill its duty by maintaining the status quo and those protective measures which had previously been deemed sufficient to avoid accidents at this work place. Their duty then was to take reasonable measures to assure that workers legitimately in the area were able to work without unreasonable risk of harm.

The defendant contends that their conservative response of shutting down the electricity until work with the crane was completed and of warning the plaintiff Hebert and receiving his assurance that there would be no further problems with the crane, were sufficient to absolve them of any responsibility thereafter for injuries resulting from accidental contact with the lines. We do not agree that the utility company’s response was adequate. It should have been evident even after the crane use was completed that the workers in the incipient stages of building construction would need to push and lift structural sections of metal in close proximity to the high voltage power lines.

McKnight, an accident investigator and safety supervisor for thirty-four years and the utility’s representative at the accident site, had the professional background and years of experience with electricity to assess realistically the potential hazards of the situation given the type of buildings, the fact that the building was under construction at an incipient stage, and the proximity of the building frame to the high power line.

Therefore, the defendant utility company was in the better position to avert the consequences of an electrical accident on the job and should have taken other proper and reasonable precautions to prevent injury. At trial, experts differed over the ease with which the preventive options could have been implemented. Four not unrealistic possibilities, however, included: de-energiz-ing the entire line adjacent to the construction site, de-energizing the two nearest lines and feeding the transformer from the line most distant from the construction; re-' routing the energy supply so as to service other customers from the opposite end and de-energizing the span immediately adjacent to the work site; and placing temporary insulation similar to rubber hoses or snakes on the line. The utility company unquestionably had it within their power to make the site a safer place at which to work. It was the utility company which had the greater options, the greater knowledge, the direct control over the source of injury.

Hebert on the other hand, had no control over the transmission of the electricity despite a defense contention that he could have requested that the power be turned off while the job was completed. To expect Hebert to have so requested is unrealistic, given his position only as a work crew pusher for the construction company and considering that the Gulf States’ safety inspector himself re-energized those lines upon conclusion of the crane’s use at the construction site.

The defense argues additionally that there was a safer way to raise the twenty foot metal fascial angle. It is difficult for us to perceive of any really safe method of raising a twenty foot beam for horizontal installation on the exterior of a building, ultimately to be placed within little more than three horizontal feet and nine vertical feet of an electrical line. In any event to impose that burden on this plaintiff when the removability of the hazard is so obviously within the power of the utility company is unrealistic.

In assessing negligence and contributory negligence in a particular case, we do not necessarily require identical conduct of the plaintiff and the defendant. “Varying factors affect what the standard of the reasonable man requires. For example, the defendant may have had more information than the plaintiff concerning the risk involved ...” Hall v. Hartford Accident & Indemnity Co., 278 So.2d 795 (La.App. 4th Cir.), writ denied, 281 So.2d 753 (La.1973). See also: Canter v. Koehring, 283 So.2d 716 at 728 (La.App. 4th Cir.1973), writ refused, 260 La. 857, 257 So.2d 432 (1972); Helminger v. Cook Paint and Varnish Co., 230 So.2d 623, at 628-29 (La.App. 3d Cir.1970); Allien v. Louisiana Power and Light Co., 202 So.2d 704 (La.App. 3d Cir.), cert. denied, 251 La. 392, 204 So.2d 574 (1967). We find therefore that the defendant utility company owed the plaintiff Hebert a duty to protect him from the risk of harm from electrocution and that the defendant utility breached that duty.

Did plaintiff’s conduct preclude his recovery? Working near electrical power lines is neither contributory negligence per se nor assumption of the risk. Likewise the fact that a person’s own actions bring him in contact with high voltage wires does not necessarily make him negligent. The question, as enunciated in Dyson v. Gulf Modular Corporation, 338 So.2d 1385 at 1390 (La.1976) is whether “the party’s conduct conform[ed] to the standard of care that would be exercised by a reasonable man; or did the conduct breach a duty imposed upon the party to protect against the particular risk from which the accident resulted?” In other words, did the plaintiff Hebert breach a duty to himself by failing to avoid the unreasonable risk created by the defendant utility company? We find that he did not.

Hebert had no part in deciding where to locate the metal building. No attempt was made by his superiors or the utility company to minimize the dangers of electrocution. His alternatives were “to try to tell his superior[s] how to run the job or to quit.” Tirante v. Gulf States Utilities Co., 412 So.2d 128 at 133 (La.App. 4th Cir.) writ denied, 414 So.2d 389 (La.1982) quoting Chaney v. Brupbacher, 242 So.2d 627 at 631 (La.App. 4th Cir.1970). As discussed earlier, the method used to raise the angle iron was not unorthodox and had been effectively and efficiently used in the past without unfortunate incident. The beam on which Hebert was standing was unsteady, in large part because the fascial angle that Hebert was attempting to position was not yet screwed in place. Nor had the wall sheets been installed. The unsteadiness of the end wall rafter, then, made it difficult to balance, and Hebert was, in effect, attempting to use the angle iron itself in part to maintain his balance by holding it in the middle with ten feet to either side of his hands and body. It is evident from the testimony that Hebert was concentrating on keeping his balance. Therefore while he was generally aware of the danger of working around electrical power lines, he was not specifically aware of the immediate danger presented when he tried to turn the angle iron around. Obviously had he known that the angle iron would touch the line energized with 7620 volts of electricity he would have done otherwise. The fact that the far end did indeed touch the power line does not preclude his recovery for the injuries he sustained.

As aptly stated in Hall, supra at 799:

When the party charged with the responsibility of observing safety factors fails to do so, it is grossly unjust to place the blame for a resulting accident on the person who poured the last cup of water before the defective dam broke, unless that person also exercised a substantial amount of knowledgeable control over the dangerous situation. There was no such knowledge or control by plaintiff in the present case.

Therefore Hebert’s actions should not have barred his recovery for injuries sustained in this work accident. The jury was clearly wrong. In so finding, we are not oblivious to the deference that should be given the determination of the district court. Canter v. Koehring, 283 So.2d 716 (La.1973). Nonetheless the constitutional scope of review of the Supreme Court in civil cases extends to both law and facts. La. Const, art. 5 § 5(C). In the instant case, we give less credence to the outcome in the district court because the jury charges given probably contributed to the result favorable to the defense. Those instructions did not include a significant legal principle which, as evident from this opinion, was especially relevant to the jury’s proper consideration of the varying elements of responsibility between the utility company and the plaintiff workman. Plaintiff requested a specific jury instruction based upon the Hall case (to which reference has earlier been made in this opinion) and the standards for assessing negligence and contributory negligence in situations involving industrial safety. The judge refused, contending that the import of the requested charge was included in his general instruction. It was not.

Decree

For the foregoing reasons, the judgments of the lower courts is reversed; the case is remanded for the determination of damages.

REVERSED AND REMANDED.

DIXON, C.J., concurs.

WATSON, J., concurs in the result.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I am unable to say that the jury verdict in favor of Gulf States in this factual case was clearly wrong. Accordingly, I respectfully dissent.

      . Suit was originally brought also against Kelly R. Parrino, the owner of the property on which the building was constructed. The district court granted his motion for summary judgment. The Court of Appeal affirmed because of the exclusiveness of the workers’ compensation remedy. Hebert v. Gulf States Utilities Co., 369 So.2d 1104 (La.App. 1st Cir.), writ denied, 369 So.2d 466 (La.1979).

      . According to Otis McKnight of Gulf States Utilities, the electric line in question was built in 1967 under the 1961 National Electrical Safety Code. The minimum horizontal and vertical clearance requirements for electrical lines adjacent to buildings under the 1961 Code were three feet and five feet respectively. The 1971 National Electrical Safety Code changed the minimum requirement for new construction and reconstruction to three feet and eight feet. In 1977, the minimum distance was increased to five feet and ten feet, respectively.

      .A fascial angle is the twenty foot metal beam designed to be placed horizontally to connect the ends of roof purlins (see note 4, infra). The beam is referred to as an “angle” because its 4" and 2" metal lips meet at a ninety degree angle. The smaller 2" lip is placed horizontally and screwed to the ends of the several roof purlins. The 4" lip or side hangs vertically along the outside of the building and is used for attachment of the vertical end wall sheets.

      . Roof purlins are metal horizontal members running from the front to the back of the building and supporting the cross beam rafters.

      . Measurements made at the scene of the accident contained in the report filed by McKnight and entered into evidence at trial show the burn marks on the plate where Hebert was standing were 15' 113A" above the finished concrete flooring of the building. From these same bum marks in a straight line, it was 11' 4V2" to the bum mark on the conductor (the energized aluminum wire). From the bum mark on the conductor to the ground measured 26' 4". There were three bum marks on the twenty foot fascial angle which had contacted the line, one each at distances of 1', 13' 23", and 14' from one end.

      . Absolute liability is imposed in those situations where the risk is such that harm results from the very nature of the activity itself, irrespective of protective measures taken by the enterpriser. Some activities which involve so high a degree of risk as to be considered ultra-hazardous are pile driving, storage of toxic gas, blasting with explosives and crop dusting with airplanes. Kent v. Gulf States Utilities Co., 418 So.2d 493 at 498 (La.1982). In deciding against the imposition of absolute liability upon a utility company, the majority stated in Kent, supra at 498-99.
      On the other hand, the transmission of electricity over isolated high tension power lines is an everyday occurrence in every parish in this state and can be done without a high degree of risk of injury. And when the activity results in injury, it is almost always because of substandard conduct on the part of either the utility, the victim or a third party, (footnote omitted)

      . Specifically, the Court found in Kent, supra at 499-500:
      A combination of unusual factors concurred to cause this accident. The breaking down of the road machine caused the need to use the rake over an unusually long distance and period of time. The double width of the roadway caused the need to use an exceptionally long handle. The appropriation of the bench to another use caused the need to utilize the flip-flop method (which the Barber executives and others testified they had never seen used with such a long handle). The progress of the grooving to the point of intersection with the wires caused the need to devise an alternative method of procedure under the wires. Finally, Kent’s act of raising the handle into wires he had just been warned to avoid was necessary to complete the unfortunate scenario.

      . In essence the defendant argues that two men on two ladders could have raised the twenty foot piece of metal and secured it without involving the power lines. This does not take into consideration that the twenty foot piece of metal still had to be placed on the top outside end of the roof cross beams. Working from the inside of the building, it still would have been necessary in some way to thread the twenty foot piece of metal up between and over the cross beams which may have required still at some point swinging one end perilously close to the wires, while holding the other end. The other means suggested was to install it from the rear outside of the building. To do this, the workers would have had to work in the servitude itself, since the building was constructed flush with the property line. Under these .circumstances, with the workers directly under the power lines, there existed potentially a greater danger of line involvement, even if it could be argued that they had the right or permission to go onto the servitude in the first place.