text:
    HALIFAX AREA COUNCIL ON ALCOHOLISM, and Serenity House, Inc., a Florida Corporation, Appellants/Cross Appellees, v. CITY OF DAYTONA BEACH, a political subdivision of the State of Florida, Appellee/Cross Appellant.
    No. 79-21.
    District Court of Appeal of Florida, Fifth District.
    July 9, 1980.

      Fred S. Disselkoen, Jr., Ormond Beach, for appellants/cross-appellees.
    Gregory J. McDole, Daytona Beach, for appellee/cross-appellant.
   FRANK D. UPCHURCH, Judge.

This is an appeal from an order of the Circuit Court for Volusia County which denied appellant’s petition for a permanent injunction and writ of mandamus.

Appellant, Serenity House, is a non-profit corporation involved in the rehabilitation of sober alcoholics. It operates out of a house located at 547 High Street in the City of Daytona Beach. The property is zoned “BP” (Business-Professional).

In August, 1978, the Director of Serenity House applied to the City for a certificate of occupancy. This application was denied, with the City’s Chief Building Official contending the use was improper in the particular zone unless limited to daylight hours, with sleeping on the premises prohibited, and certain parking requirements satisfied. The director was referred to the City Planning Board and City Commission and advised to apply for a semi-public use permit. This application was made and denied by the Board and City Commission. Serenity House was then ordered to vacate the premises.

Serenity House then brought the instant action. The trial court denied relief finding that Serenity House’s operation is not a permitted use, nor a “similar use” permitted in a “B-P” zone. The court found that Serenity House failed to exhaust its administrative remedies, but held it was nevertheless properly before the court. It also found that the zoning restrictions placed upon Serenity House were not arbitrary or unreasonable. The City has cross appealed on the question of exhaustion and this issue merits our initial consideration.

While the trial court held that Serenity House did not exhaust its administrative remedies it stated that no useful purpose would be served by remanding the case to the City’s Board of Adjustment. As a general proposition, where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the court will act. 1 Fla.Jur.2d Administrative Law § 147 (1977). See also De Carlo v. Tower of West Miami, 49 So.2d 596 (Fla.1950); Brooks v. School Board of Brevard County, 382 So.2d 422 (Fla. 5th DCA 1980); Hennessy v. City of Fort Lauderdale, 101 So.2d 176 (Fla.2d DCA 1958). In the instant case, the City relies upon Skaggs-Albertson’s P., Inc. v. Michels Belle. Bl. P., Inc., 332 So.2d 113 (Fla.2d DCA 1976). This case involved a suit by nearby property owners to enjoin construction of a drugstore alleged to be in violation of a zoning ordinance. Appellees had filed written objections with the city and after five days of inaction, sued for injunctive relief. The court held that appellee’s failure to wait for the city’s Board of Adjustment to act required the suit be dismissed without prejudice. The court declared that the assertion that the Board would have rubber-stamped the decision did not obviate the need to exhaust administrative remedies. Unlike in Skaggs, Serenity House went through a two step administrative process and the City Commission, the ultimate administrative arbiter, accepted and ruled upon its appeal without requiring Board disposition.

In City of Miami v. Sunset Island, 216 So.2d 509 (Fla.3d DCA 1969), the Third District recognized there is no requirement that one exhaust his administrative remedies prior to seeking mandamus where it is apparent that such a gesture would be futile. In the instant case, the trial court recognized this principle and specifically found that no useful purpose would be served by allowing the Board of Adjustment to consider the matter because the Planning Board and the City Commission had already ruled adversely to appellant. See also Town of Orange Park v. Eager, 351 So.2d 402 (Fla. 1st DCA 1977). We also note that not only did the ultimate administrative body, the City Commission, rule on the matter without requiring a Board determination, but appellant received a potentially misleading letter from the City Building Official. The letter advised appellant that the contemplated use was a “special use” under the ordinance and that it would be necessary for appellant to apply to the “Planning Board and City Commission” for approval. We therefore agree with the trial court that no useful purpose would have been served by visiting an inferior administrative body after the ultimate administrative body, the City Commission, had ruled.

The next question is whether the “Serenity House” operation is a “professional service” or a “similar use” permitted in the “B-P” zoning classification. We have concluded that it is and reverse.

Appellant contends that Serenity House is a “professional service” as a “consultant in a related field.” As a broad proposition, since zoning regulations are in derogation of private rights of ownership, they should be interpreted in favor of the property owner. Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla.1973). In addition, they are subject to the same rules of construction as are state statutes. Id.

The principle of ejusdem generis may be applied to aid in the construction of the ordinance. Under this rule, where the enumeration of specific things is followed by a more general word or phrase, the general phrase is construed to refer to a thing of the same kind or species as included within the preceding and more confining terms. However, the rule does not necessarily require that the general provision be limited in its scope to the identical things specifically named, otherwise it would render the subsequent general phrase entirely inoperative. 30 Fla.Jur. Statutes § 92 (1974); Childrens Bootery v. Sutker, 91 Fla. 60, 107 So. 345 (1926). Consideration must therefore be given to the details of the Serenity House operation.

Under the rehabilitation program, four to ten people reside on the property at any given time and stay for varying periods of up to six months. Meetings are held periodically on the premises and counseling service is available twenty-four hours a day with services provided without cost to those unable to pay. The director holds an occupational license as an alcoholism counselor but this license does not require any specialized knowledge requiring intensive academic preparation and anyone who wishes may obtain the license and operate as such. If the director were a psychiatrist, psychologist, osteopath, chiropractor or physician, operating in an identical manner for the identical purpose, the conclusion is inescapable that it would be a permitted use. The City reasons that because the director is not a professional, as defined in Webster’s, the service that he is rendering is not a “professional service.” Zoning can only control the use of land and does not have as its function to inquire into the qualifications of the operator. The record does not reflect that this operation would be offensive, or less efficiently operated, or less effective if operated by Serenity House as opposed to a doctor of medicine.

Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla.1973), is instructive for it concerned a zoning classification in which “contractor’s plants and/or storage yards” was a permitted use. Rinker Corporation planned to erect a concrete mixing plant. The court held, after considering the character and quality of other permitted uses within the zone that the language “contractor’s plant” was sufficiently broad to include a concrete mixing plant.

It is especially persuasive that the catch-all phrase “and similar uses” must include the contemplated use, because it is designed to cover contingencies for particular uses which are not described in the comprehensive zoning ordinance. Sunset Island at 512. In the case before us, the City Building Official testified that, “there is no real definite zone that allows this.” There being no zone which specifically permits this use, it is then incumbent upon the City to permit the activity within the zone most nearly applicable.

The “B-P” zone permits “professional services, boarding houses, motels, and restaurants.” None of the activities contemplated by appellant are inconsistent or incompatible with those specifically permitted. No other zoning classification defines activities more comparable to those planned by appellant. We therefore conclude that the lower court was in error in determining that the use was not permitted in the “B-P” zone.

Since we find this to be a permissible use, remand to the trial court is necessary for a determination as to whether regulations applicable to uses in the “B-P” zone have been met, especially those relating to parking, overnight sleeping and food service.

Affirmed in part, reversed and remanded in part.

DAUKSCH, C. J., and SHARP, J., concur.

      . Article 21, section 7.1 of the City Zoning Ordinance requires that the Board shall hear appeals from alleged errors in determinations by the City’s Chief Building Official.

      . Article 14, section 1.1.1 of the City’s Zoning Ordinance provides what uses are permitted in a “B-P” district:
      Apartments, hotels, motels, professional services, personal services, business services, type A-l restaurants, clubs, lodges, and similar uses.

      . “Professional Service” is defined in Article 3 of the ordinance to mean:
      The conduct of business in any of the following related categories: law, architecture, engineering, medicine, dentistry, osteopaths, opticians, chiropractors or consultants in these or related fields.

      .Webster’s New Collegiate Dictionary, p. 911 (ed. 1979). Profession—A calling requiring specialized knowledge and often long and intensive academic preparation.

      . A parking variance was granted to the property owner in 1971. It is the general rule that a grant of a variance runs with the land and is not a personal license given to the landowner. See, e. g., State v. Konopka, 19 Ohio App. 513, 200 N.E.2d 695 (1963); 8 McQuillen, Mun.Corp. § 25.163. This rule is based on the view that zoning ordinances have reference to land use rather than to the persons who own the land. State v. Konopka. It should be noted that in the instant case, the city has failed to show that any significant change in the use of the variance will result from Serenity House’s operation. See, e. g., City of Miami Beach v. Arlen King Cole Condominium Association, Inc., 302 So.2d 777 (Fla.3d DCA 1974).


source: Caselaw Access Project

author: DAUKSCH, Chief Judge.

license: Public Domain

text:
    CAPE PUBLICATIONS, INC., a Florida Corporation, Mike Lewis and Vincent Spezzano, Appellants, v. TERI’S HEALTH STUDIO, INC., a Florida Corporation, Appellee.
    No. 79-1766/T4-715.
    District Court of Appeal of Florida, Fifth District.
    July 9, 1980.
    S. Lindsey Holland, Jr. of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellants.
    Charles Holcomb of Holcomb & Theriac, Merritt Island, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a libel case. The point on appeal involves an award of punitive damages. The appellants have not appealed the judgment for compensatory damages.

The question on appeal is whether the evidence supports the award of punitive damages, which evidence concerns the malice of the appellants in printing a false news story about a private individual. The standard of proof for punitive damages in a newspaper libel case is discussed in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). To hold the appellants liable, it must have been proved the false statement was printed with knowledge the statement was false or in reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). In St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Supreme Court said:

These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

Id. 88 S.Ct. at 1325.

There is no question the news reporter who prepared the story for publication was negligent in his investigation and he and his employer should suffer the result of that negligence by paying appellee for all injuries which were caused by the negligence. The jury found appellee was injured in its business in the amount of $15,000.00 and the trial court entered judgment for that amount. As was said, that portion of the judgment is not being appealed. The jury also awarded $2,550.00 punitive damages; $2,500.00 against the reporter, $25.00 against Vincent Spezzano, the publisher and editor of the paper, and $25.00 against “all Defendants, jointly and severally.”

Upon a review of the evidence we find it legally insufficient to support the judgment for punitive damages. The essential facts are that appellee operated an exercise facility and, as is the custom in that business, induced its patrons to enter into long term contracts. As is also the custom in this business, apparently, the patrons defaulted in the payment on the contracts. Appellee filed a lawsuit and obtained a judgment for $53.00 against Alix T. Ball, a patron, for non-payment on her contract. Alix Ball did not pay that judgment and was evidently in default of other payments to Lynn Institution for Savings which brought suit to foreclose a mortgage. Because appellee’s judgment was recorded before the Lynn lawsuit was instituted, Lynn named appellee as a party defendant in order to extinguish any claim appellee, a judgment creditor, would have against the property being foreclosed. This situation is not at all uncommon in mortgage foreclosures, and is one which any experienced news reporter would recognize. But the reporter covering this story was not experienced, was covering two reporters’ jobs and in his haste filed a false story which was printed. The story in its entirety is as follows:

Suit Names MI Firm
A Merritt Island health studio is being sued by a Massachusetts lending institution that stated it has not received several mortgage payments.
Lynn Institution for Savings, in a Bre-vard Circuit Court lawsuit, stated that Teri’s Health Studio, Inc., of 670 N. Cour-tenay Parkway has not paid on its mortgage since Feb. 1.
The studio now owes $15,799.37 plus interest, the suit claimed.
TODAY was unable to contact Alix T. Ball, the studio’s operator, for comment.

Teri Erb, a principal in the appellee corporation, complained to the newspaper and a retraction was printed the next day. The entire retraction is as follows:

Health Studio Story Erred
TODAY erronously (sic) reported on page 3B Tuesday that Teri’s Health Studio, Inc., 670 N. Courtenay Parkway, Merritt Island had been named in a suit alleging that it had failed to make mortgage payments since Feb. 1. TODAY also incorrectly identified Alix T. Ball as the health studio’s operator.
Teri’s Health Studio, Inc., operated by Teri Erb, is in no way connected with any mortgage litigation. The article stated wrongly that the firm owed $15,799 to the Lynn Institution for Savings of Mas-sachussetts (sic).
The suit actually is against Alix T. Ball, from whom Teri’s Health Studio obtained a judgment on April 25, 1975. It is because of this judgment that the health studio was mentioned in the litigation against Mrs. Ball. Under Florida law, anyone with a claim against a suit defendant technically becomes a party to the suit.
The suit in no way alleges any financial problem with the health studio and TODAY apologizes to Mrs. Erb for any false impressions left by this regrettable error.

The newspaper also sent Teri Erb a letter of apology which she posted on the bulletin board. She also posted a sign on her advertising marquee in one-foot letters which is as follows:

THANK YOU TODAY FOR APOLOGY

One might expect that ended it all, but as can be seen, it did not. The question is whether it should have ended it all, at least as to punitive damages. The answer is yes.

There are statutes dealing with matters such as this and they are within chapter 770, Florida Statutes (1979). Of primary concern here are sections 770.01 and 770.02, and they are as follows:

770.01 Notice condition precedent to action or prosecution for libel or slander.— Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he alleges to be false and defamatory.
770.02 Corrections, apology, or retraction by newspaper or broadcast station.— If it appears upon the trial that said article or broadcast was published in good faith, that its falsity was due to an honest mistake of the facts, that there were reasonable grounds for believing that the statements in said article or broadcast were true, and that, within 10 days after the service of said notice, a full and fair correction, apology or retraction was, in the case of newspapers and periodicals, published in the same editions or corresponding issues of the newspaper or periodical in which said article appeared and in as conspicuous place and type as was said original article or, in the case of broadcast, the correction, apology, or retraction was broadcast at a comparable time, then the plaintiff in such case shall recover only actual damages.

The key to this case is that if the newspaper prints a full and fair retraction, which appellee admits it did, then the defamed person must prove malice, bad faith or a reckless disregard for the truth or falsity of the story. Although the negligence of the reporter is readily apparent and admitted in this case, that negligence does not rise to the level of reckless disregard for truth or falsity so as to demonstrate actual malice. St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). The story is hardly libelous, let alone so egregious as to warrant more than a retraction and an award of compensatory damages. This record simply does not support a punitive damage award.

REVERSED.

ORFINGER and COBB, JJ., concur.


author: FRANK D. UPCHURCH, Judge.

text:
    Delois JACKSON, Appellant, v. Marjorie WILLIAMS and Commercial Union Insurance Company, Appellees.
    No. 79-752/T4-482.
    District Court of Appeal of Florida, Fifth District.
    July 9, 1980.

      Kenneth R. Cate, Orlando, for appellant. Ronald S. Webster, Orlando, for appel-lees.
   FRANK D. UPCHURCH, Judge.

Appellant, Delois Jackson, who was the plaintiff below, appeals from a final summary judgment entered in the Circuit Court for Orange County in favor of appellees, Marjorie Williams and Commercial Union Insurance Company.

Mrs. Jackson had resided in the home of her sister, Marjorie Williams, approximately nine months of each year for the past four years. She was injured in an explosion when she lifted the lid on the washing machine located in a small unventilated room in which Mrs. Williams stored a lawnmower and a can of gasoline. In her complaint for negligence, she alleged that Mrs. Williams had approximately caused her injuries by allowing gasoline vapors to accumulate, failing to warn of the danger and failing to repair a dangerous washing machine. Mrs. Jackson testified she was aware of the gasoline can, but she had detected no odor of gasoline. She admitted that the can had been in the same place for the past four years. Mrs. Williams, on the other hand, admitted that she was aware of the danger in storing gasoline in this manner.

The question presented by this appeal is whether the court erred in granting summary judgment.

The Supreme Court in Wood v. Camp, 284 So.2d 691 (Fla.1973), eliminated the distinction between commercial (business or public) visitors and social guests. Therefore, Mrs. Jackson, as a guest by invitation, is included within the category of “invitee.” As discussed by this court in Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980), a property owner or occupier owes two duties to an invitee: “He must keep his property reasonably safe and protect the visitor from dangers of which he is, or should be aware.” Id. at 1193, citing Post v. Lunney, 261 So.2d 146 (Fla.1972). The reasoning of Pittman is equally applicable here.

Mrs. Williams owed a duty to keep her property reasonably safe and to protect visitors from dangers of which she was or should have been aware. Whether she breached this duty is an issue for the jury to determine. Other issues to be submitted to the jury include whether the explosion was the result of the presence of the gasoline can in the laundry room and whether Mrs. Jackson was aware of the danger. Thus, the lower court erred in entering summary judgment.

Accordingly, the judgment is reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.


author: PER CURIAM.

text:
    CARNIE INVESTMENTS, INC., a Florida Corporation, Florcar, Inc., a Florida Corporation, Ro Bla, Inc., a Florida Corporation, and Bla Or, Inc., a Florida Corporation, Petitioners, v. Eugene N. ALPERT, Individually, Gena Investments, Inc., a Florida Corporation, Respondents.
    No. 80-1079.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1980.
    Peter Kneski of the Firm of Robert W. Stern, P.A., Miami, for petitioners.
    Michael W. Moskowitz of Goldberg, Young, Goldberg & Borskon, P.A., Fort Lauderdale, for respondents.
   ON REQUEST FOR EMERGENCY RELIEF

PER CURIAM.

Appellants/petitioners seek review of a non-final order of the trial court “impressing an Equitable Lien and Lis Pendens” upon property owned by appellants/petitioners. Upon the filing of their brief appellants/petitioners moved for emergency relief and requested this court to “enter emergency order discharging the equitable lien and/or Lis Pendens against Appellants/Defendants’ real property.” In addition, appellants/petitioners request the time for appellees/respondents’ answer brief be shortened.

Initially, we notice that the subject matter of this appeal is not subject to review pursuant to Florida Rule of Appellate Procedure 9.130(a)(3). Cooper Village, Inc. v. Moretti, 383 So.2d 705, Fourth District Court of Appeal Case No. 79-302, Opinion filed April 30, 1980. However, since any injury which may inure to appellants/petitioners as a result of said order may not be remediable by plenary appeal, we will treat the appeal as a Petition for Writ of Certiorari. Cooper Village, Inc. v. Moretti, supra; Hallmark Mfg. Inc. v. Lujack Const. Co., 372 So.2d 520 (Fla. 4th DCA 1979).

Appellants/petitioners’ motion for emergency relief is denied. To grant said motion would be tantamount to deciding the ultimate question presented for our resolution.

Appellants/petitioners’ motion to restrict the time for appellees/respondents’ answer brief is denied and appellees/respondents are directed to file a response to appellants/petitioners’ brief within 20 days from date of this opinion.

LETTS, C. J., and DOWNEY and GLICKSTEIN, JJ., concur.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Nelson Grant DAVIS.
    No. 65852.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied July 7, 1980.

      William F. Grace, Jr., Havard L. Scott, III, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David R. Paddison, Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant, Nelson Grant Davis, was charged by grand jury indictment with two counts of first degree murder. On the day of trial, the prosecutor amended the indictment to charge defendant with one count of second degree murder in violation of R.S. 14:30.1. Following trial, a twelve-member jury returned a 10-2 verdict of guilty as charged, and defendant was sentenced to life imprisonment. On appeal, defense counsel alleges eight assignments of error.

On July 20, 1976, Paulette Royal and Eddie Smith were shot to death in a hotel room at Howard Johnson’s Motor Lodge in New Orleans. A third person, Samuel Williams, was also in the hotel room and was shot, but lived and later testified at defendant’s trial. Three men, Jesse Ford, Clarence Davis and the defendant, were arrested and charged with the shootings. Jesse Ford testified at defendant’s trial in exchange for a grant of immunity from prosecution for the murders.

Ford testified that he was with defendant when David Joseph Sylvester offered to pay defendant “$10,000 a head” to shoot Paulette Royal and Eddie Smith. Sylvester wanted the two dead because they were key state witnesses in a narcotics prosecution against him. On the day after this conversation, defendant and Clarence Davis, defendant’s brother-in-law, allegedly forced Ford to get into a car and go with them to the victims’ hotel room. Defendant wanted Ford to go along because Ford knew Eddie Smith and probably could get Smith to open the door for them. Smith opened the door for Ford as expected, and Ford, Clarence Davis and the defendant entered the room. The victims, Eddie Smith and Paulette Royal, were told to lie face down on the floor. After defendant became aware that a third person, Williams, was in the room, defendant ordered, “He goes too.” Ford testified that defendant put a pillow over Eddie Smith’s head and then shot him in the head three times. Defendant then did the same to Paulette Royal. Ford stated that Clarence Davis forced Williams on the floor, put a pillow over Williams’ head, and shot him in the head, but Davis’ gun jammed after one shot. Defendant then put his own gun to Williams’ head and pulled the trigger several times, but the gun wouldn't fire as it had run out of bullets. Defendant, Davis and Ford then fled from the room.

Samuel Williams testified that on the day of the shootings, he was asleep in the hotel room he shared with Smith and Royal when a knock on the door awakened him. Three strangers entered the room and engaged in a conversation with Eddie Smith. Shortly thereafter, Williams became aware that the strangers were armed. The intruders told Williams to get out of bed. One of them pulled him out of the bed, forced him to lie face down on the floor, and then put a pillow over his head. Williams said he could see or hear nothing after the pillow was placed over his head. Some time after the shooting, he gained consciousness and went for help. Williams identified the defendant as one of the three intruders, and as the man who had pulled him out of his bed and forced him onto the floor.

Assignments of Error Numbers 1 and 7(a)

Defense counsel contends the trial judge erred in allowing the prosecutor to amend the grand jury indictment, which charged defendant with first degree murder, to charge second degree murder.

District attorneys are empowered to amend indictments to charge lesser offenses. See State v. Gilmore, 332 So.2d 789 (La.1978). The issue here is whether the amendment violated the defendant’s constitutionally protected right to have his prosecution initiated by an indictment of the grand jury. Louisiana’s constitutional provision states that “no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by grand jury”. La.Const.1974, art. 1, § 15. See also La.C.Cr.P. art. 382. Under the law applicable to defendant, second degree murder is a crime punishable by life imprisonment and, therefore, is a crime the prosecution of whieh must be instituted by grand jury indictment. State v. Stevenson, 334 So.2d 195 (La.1976). These legal precepts would require that a person should not be accused of the offense for which defendant was charged and convicted except by a group of his fellow citizens acting independently of either prosecuting attorney or judge. See Stirone v. United States, 361 U.S. 212 at 218, 80 S.Ct. 270 at 273, 4 L.Ed.2d 252 (1959).

To support his argument that defendant was deprived of his constitutional right, counsel relies on State v. Donahue, 355 So.2d 247 (La.1978), in which we reversed a conviction because the district attorney, after nolle prossing a grand jury indictment of first degree murder, reinstituted prosecution by a bill of information charging the defendant with second degree murder. We held the reinstitution of prosecution by bill of information in the Donahue case to be a violation of the defendant’s constitutional right to have the second degree murder charge instituted by grand jury indictment.

Although the distinction is one without much difference, Donahue is distinguishable from the instant case as the prosecution did not nolle pros the grand jury indictment and reinstitute prosecution by bill of information. Here, he formally amended the indictment in open court on the day of trial to charge the lesser offense of second degree murder. Such an amending procedure cannot be characterized as a true reinstitution of prosecution.

Though not applicable to this prosecution, we observe that such an amendment may prejudice defendant’s right to have the second degree murder charge instituted by grand jury indictment if, under the applicable law, second degree murder is not a lesser and included offense of first degree murder, i. e. if the second degree murder definition contains essential elements not included as essential elements of first degree murder. The prejudice results by virtue of the fact that as to the elements of the offense not so included, the prosecutor makes the judgment as to whether the evidence would justify the prosecution instead of the grand jury who, by law, had sole authority to make such a determination.

At the time of the murder of which defendant was convicted, first degree murder was defined as:

. . the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape, [aggravated burglary] or armed robbery; or
(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties; or
(3) When the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or
(4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person;
(5) When the offender has specific intent to commit murder and has been offered or has received anything of value for committing the murder.”

Second degree murder was defined as:

“. . . the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill.”

Under the applicable definitions above, first degree murder includes all the elements (killing with specific intent) of the first type of second degree murder. The amending of the indictment to charge the lesser offense of second degree murder did not prejudice the defendant’s constitutional right to have the prosecution for that crime instituted by a grand jury. When the grand jury considered the evidence relevant to the elements of first degree murder and decided to indict defendant with that crime, it necessarily considered the evidence relevant to all the essential elements of specific intent second degree murder.

This assignment lacks merit.

Assignment of Error Number 2

Defense counsel contends the trial judge erred in denying counsel’s motion for a continuance, made as a result of the state’s amendment of the indictment to charge one count of second degree murder. Counsel contends the defense needed the continuance in order to prepare for any differences in defending a first degree murder charge and a second degree murder charge.

Code of Criminal Procedure art. 489, in pertinent part, provides as follows:

“If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution.”

The purpose of the continuance is the prevention of prejudicial surprise to the defendant. State v. Gibson, 322 So.2d 143 (La.1975). The defendant has the burden of establishing that an amendment has prejudiced the defense. State v. Strother, 362 So.2d 508 (La.1978). Further, the trial judge has great discretion in deciding whether to grant a continuance, and his decision will remain unless he arbitrarily or unreasonably abuses that discretion. State v. Hammontree, 363 So.2d 1364, 1367 (La. 1978); State v. Harvey, 358 So.2d 1224, 1235 (La.1978).

The trial judge did not abuse his discretion when he concluded that the amendment of the indictment did not prejudice the defense. Proof of a specific intent killing as an element of the offense was required under both the original indictment for first degree murder and the amended indictment for second degree murder. Thus, the defendant would have been required to defend on this issue regardless of the charge.

The amendment did not constitute prejudicial surprise and is without merit.

Assignments of Error Numbers 3 and 5

Defense counsel contends the trial judge erred in refusing to grant counsel’s pre-trial motion to suppress Samuel Williams’ out-of-court identification of defendant.

Some time prior to his identification of defendant, Williams, the victim who was shot but lived, provided the police with the following descriptions of the three men involved in the shootings of himself, Paulette Royal and Eddie Smith. All three men were negro males in their early twenties. The first was approximately 5T0" tall, had a slim build, wore a blue bandana, and appeared to be a homosexual. The second was approximately 5'7" tall, had a slim to medium build, short close-cropped hair, a dark complexion and a small mustache. The third was over 6' tall and was “kind of, not stout, but kind of on the slim side too, but a little stout.” He had a medium bush, a dark complexion, a small mustache and a goatee.

On July 27, 1976, seven days after the shootings, the police brought Williams to the police station and asked him to view fifteen photographs. Williams selected three of the photographs as depicting the three men who entered his hotel room on July 20, 1976 and shot him, Paulette Royal and Eddie Smith. The three photographs chosen by Williams were of the defendant, Jesse Ford and Clarence Davis.

Defense counsel argues that the identification procedure was impermissibly suggestive as to the defendant because his photograph was the only one out of the fifteen photographs which fit the description of the third subject. A line-up is unduly suggestive if a sufficient resemblance of characteristics and features of the persons in the line-up, e. g. build, hair, facial hair and complexion, does not exist to reasonably test the identification. State v. Guillot, 353 So.2d 1005 (La.1977); State v. Gray, 351 So.2d 448 (La.1977); State v. Anthony, 347 So.2d 483 (La.1977). If only one person in the line-up has the characteristics of the perpetrator, the witness’ attention will be focused on that person. State v. Guillot, supra.

Out of the fifteen persons depicted in the photographs, three had mustaches and goatees. One of these three appears to be much older than early twenties, and is also overweight. Another of the three appears young enough to have been in his early twenties, but is very overweight. Only the photograph of defendant depicts a young man with a goatee who was “kind of, not stout, but kind of on the slim side too.” Thus, defendant was the only person out of the fifteen persons depicted in the photographs who could possibly have been the third subject described by Williams. For that reason, the witness’ attention would naturally have focused on the photograph of defendant. We conclude that a sufficient resemblance of characteristics of the persons in the fifteen photographs did not exist to reasonably test the identification, and therefore, the photographic display presented to Williams was unduly suggestive.

However, the fact that the identification procedure used in defendant’s case was suggestive does not automatically result in reversal or end our inquiry. Even if an identification procedure is suggestive, an identification is admissible if the totality of the circumstances demonstrate that the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Guillot, supra. The likelihood of misidentification violates due process, not merely the suggestive procedure. Manson v. Brathwaite, supra; State v. Guillot, supra. Factors to be considered in determining the reliability of an identification include:

“. . . the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.”

Manson v. Brathwaite, supra; State v. Guillot, supra.

An application of this analysis to the facts of the instant case follows. (1) The opportunity to view: Both the witness and Jesse Ford testified that the room was lighted well enough to see. This testimony is corroborated by the fact that the murders took place during the day (late afternoon). Although the witness had the opportunity to view the defendant for only IV2 to 2 minutes, this fact is offset by the close proximity of the witness to defendant. (2) The degree of attention: The witness was not a casual or passing observer, but was a victim whose attention surely was directed to the defendant. (3) The accuracy of the description: Williams’ description included information as to the third subject’s race, age, facial hair, height, body build and style of hair. This description of physical characteristics matched the physical characteristics of defendant. (4) The witness’ level of certainty: Williams testified that he was positive of his identification of the defendant. When asked at trial if he could have identified the killer that day if he had not seen the photographs, he replied, “Yes, I could have. I want to say one thing. How can you forget someone got a pistol that was going to shoot you? How can you forget a face? Do you think you can forget a face like that?” When again asked if he could have identified defendant without the photographs, he interrupted defense counsel to reply that he could have. There is no question that Williams was certain of his identification of defendant. (5) The time between the crime and the confrontation: Williams viewed the photographs only seven days after the offense was committed. In addition, another indicia of reliability is the fact that Williams correctly identified the other two killers. He identified Jesse Ford, who turned state’s evidence, as the first subject, and he identified Clarence Davis, who pleaded guilty to the attempted murder of Williams, as the second subject.

Considering the totality of the circumstances dealing with reliability, we do not believe that there is a substantial likelihood of misidentification. Therefore, the introduction of the out-of-court identification did not violate due process and the trial court did not err in denying the motion to suppress the identification.

Defense counsel also contends that an in-court identification of defendant was erroneously admitted into evidence because the in-court identification was the product of the suggestive out-of-court photographic show-up. An in-court identification is admissible if it has a source independent of the suggestive out-of-court identification. State v. Taylor, 347 So.2d 172 (La.1977); State v. Guillot, supra. We have already concluded the out-of-court identification was reliable. In addition, the witness testified he could have identified the defendant without viewing the photographs.

This assignment is without merit.

Assignment of Error Number 6

Defense counsel contends defendant was denied due process when the state allowed Williams to testify that defendant shot him without disclosing that Williams testified at the earlier trial of David Joseph Sylvester, the man who paid for the murders, that Clarence Davis shot him.

The defense relies upon Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), in which the United States Supreme Court found a violation of due process where a prosecutor, who had promised a key state witness consideration in exchange for his testimony, failed to disclose that fact following the witness’ testimony that he had received no consideration.

The purported prior inconsistent statement could be found in the transcripts of David Joseph Sylvester’s trial and thus, the defense had as much access to this information as did the state.

This assignment lacks merit.

Assignment of Error Number 7(b)

Defense counsel contends the prosecution and conviction of defendant was illegal because the second degree murder statute, in effect at the time of the amendment of the indictment to charge defendant with second degree murder, did not include specific intent killing. At the time of the offense, specific intent killing without aggravating circumstances was classified as second degree murder.

This assignment lacks merit. See La.R.S. 24:171; State v. Meshell, 352 So.2d 1020 (La.1977); State v. Terrell, 352 So.2d 220 (La.1977); State v. Paciera, 290 So.2d 681 (La.1974).

Assignment of Error Number 8

Defense counsel contends defendant was deprived of his right to be arraigned for the crime for which he was charged (second degree murder) because there was no rearraignment following the amendment of the indictment.

The arraignment’s function is to notify the defendant of the charge against him. C.Cr.P. art. 551; State v. Bluain, 315 So.2d 749 (La.1975). In Bluain, this Court concluded that an amendment to an indictment does not necessitate rearraignment where the amendment does not alter the nature of the crime. In the instant case, the indictment was amended to charge the defendant with a lesser and included offense of the graver offense initially charged (see discussion of Assignments of Error Numbers 1 and 7(a), supra). Under those circumstances, defendant can hardly assert lack of notice of the crime for which he is charged, since all the elements of the lesser offense are included within the greater. It cannot be said the amendment of the indictment to charge second degree murder altered the nature of the crime charged.

This assignment lacks merit.

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

AFFIRMED.

       Honorable Edward A. de la Houssaye, III participated in this decision as Associate Justice Ad Hoc.

      . The state contends the defense failed to contemporaneously object to the amendment’s unconstitutionality. However, error in institution of prosecution of capital cases by bill of information rather than by grand jury indictment is error discoverable by mere inspection of the pleadings, and can be noticed ex proprio motu. State v. Stevenson, 334 So.2d 195 (La.1976).

      . La.Acts 1975, No. 327 amending La.R.S. 14:30.

      . La.Acts 1975, No. 380 amending La.R.S. 14:30.1.


author:
WATSON, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Joel A. VERNON.
    No. 66186.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied July 7, 1980.

      Mark H. Kramar, Leesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Howat A. Peters, Jr., Dist. Atty. Ad Hoc, for plaintiff-appellee.
   WATSON, Justice.

Defendant, Joel A. Vernon, was charged by grand jury indictment with first degree murder in violation of LSA-R.S. 14:30. He withdrew his initial plea of not guilty and entered pleas of not guilty and not guilty by reason of insanity. Following trial by jury, he was convicted of the lesser included offense of second degree murder and sen-teneed to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for forty years. He appealed to this court with twenty-six assignments of error. Six of these assignments were declared abandoned in oral argument. Only eight of the remainder warrant discussion, the others being without merit and involving no novel or unsettled questions of law.

PACTS

Vernon was the owner of the Cave Bar in Leesville, Louisiana. On Halloween night, 1978, he, James Regallis and Timothy Bray were in the back room of the bar with Michael Melcher. Melcher was pressed to repay some debts. A gun was pointed at him, and there was a minor fracas in which Melcher received a small cut on the head.

Vernon, Regallis and Bray then ordered Melcher into Vernon’s stationwagon and took him to the Vernon Parish sanitary landfill.

At the landfill, Vernon hit Melcher first, striking him in the stomach with a stick one and a half to two feet long and about an inch in diameter. Melcher’s jacket was pulled down to immobilize his arms and the three men took turns kicking and beating him with the stick and a club almost six feet long and two inches in diameter. There was testimony that the men played baseball with Melcher: Vernon umpired, Regallis pretended to pitch and Bray swung the club, hitting Melcher. They also engaged in Russian roulette, Regallis and Vernon each firing a shot about a foot above Melcher’s head.

Melcher was left lying on his back, rolling his head from side to side and moaning. The other three returned to the Cave Bar.

A short time later, Bray, Regallis and Dale Slama went back to the landfill in Vernon’s car. Melcher had pulled off his belt and thrown it aside and had completely unbuttoned his shirt. He felt cold and didn’t appear to be breathing. Slama removed Melcher’s money and identification from his pockets and, with Bray’s help, moved the victim deeper into the woods. Regallis set fire to the area of the beating to conceal blood, and the three men returned to the Cave Bar.

On November 2, 1978, Melcher’s charred and beaten body was discovered by hunters at the landfill site.

ASSIGNMENTS OF ERROR NUMBER ONE, NINETEEN, TWENTY, AND TWENTY-ONE

Defendant contends that the trial court should have suppressed his confession. Vernon argues that he gave written statements because he was assured that the most serious offense for which he could be tried was aggravated battery. At trial, Vernon testified that, if he had known he would be charged with murder, he would have requested that a lawyer be present to advise him. (Tr., Vol. VII, p. 848).

This contention is without merit. Vernon was approached by the police for questioning in connection with the Melcher murder as he sat eating in a cafe in Leesville. He was taken into custody for carrying a concealed weapon and was advised of his rights. At the Vernon Parish Sheriff’s office, he signed a pre-printed rights form as well as a consent to questioning form, indicating that he fully understood his rights, that he was willing to answer questions, and that no threats or promises were made. A verbal interview was conducted, and Vernon then gave a five page written statement typed by a police officer containing full Miranda warnings and Vernon’s signature on each page. He was placed under arrest for murder after giving the written statement. After the arrest, he gave a tape recorded statement which was substantially the same as his earlier written statement.

The police officers present at the time the written statement was given testified that Vernon at no time indicated that he was tired or sleepy or that he wished to discontinue the interview. He was given food, drink and cigarettes and allowed to go to the restroom as he desired. They testified that no promises had been made to induce him to talk but one officer admitted telling Vernon that, if he cooperated, it would be brought to the attention of the district attorney’s office. That same officer stated that the subject of aggravated battery came up when Vernon, prior to giving the written statement, asked a police detective if he might be charged with an offense less serious than first degree murder. The detective advised Vernon that the police would charge him with first degree murder although the grand jury could indict him for a lesser offense.

High standards of proof for waiver of constitutional rights apply to in-custody interrogation. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When a statement is taken without the presence of an attorney, there is a heavy burden on the State to demonstrate that the accused knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. State in the Interest of Dino, 359 So.2d 586 (La.1978). Moreover, before a confession or inculpatory statement may be introduced into evidence, the State must prove affirmatively and beyond a reasonable doubt that the statement was free and voluntary and not made under the influence of fear, duress, menaces, threats, inducements, or promises. LSA-Const. 1974, Art. I, § 13; LSA-R.S. 15:451; LSA-C.Cr.P. art. 703(C); State v. LeJeune, 352 So.2d 619 (La., 1977); State v. McGraw, 366 So.2d 1278 (La.1978).

The State has met its burden. Defendant was adequately advised of his rights and consented to questioning. He acknowledged that he had not been promised anything in return for a statement. The testimony of the police officers specifically rebutted defendant’s allegation that he had been promised a charge of aggravated battery. The mere fact that one officer told Vernon that the district attorney would be advised of any cooperation cannot be considered sufficient inducement to vitiate the free and voluntary nature of the confession. Vernon’s claim is further eroded by his admission that he made a tape recorded statement after being charged with first degree murder.

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER SIXTEEN

Defendant contends that the trial judge erred in allowing into evidence photographs of the victim’s body at the landfill site.

The test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. Matthews, 354 So.2d 552 (La.1978). Photographs which illustrate any fact or which shed light on an issue, or are relevant to describe the person, place or thing involved are generally admissible. State v. Valentine, 364 So.2d 595 (La.1978). Photographs of a deceased victim may be relevant to prove the corpus delicti, to corroborate other evidence of the manner in which the death occurred, to establish the location, number and severity of the wounds and to establish the victim’s identity. State v. Williams, 343 So.2d 1026 (La.1977); State v. Myles (La.S.Ct., 1979, Docket Number 63,567).

The photographs of Melcher corroborate testimony describing the scene of the crime, the severity of the beating, and the victim’s clothing. The State did not attempt to use the photographs to prove that Vernon was in any way responsible for the burns. While the photographs show burns on the victim’s body, the evidence at trial clearly indicated that defendant was not present when the fire was set. The photographs are distasteful and unpleasant but not so gruesome as to inflame the jury against defendant. The probative value of the photographs outweighs any prejudicial effect which may have resulted from their display.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SEVENTEEN

Defendant contends that evidence of his arrest on a charge of carrying a concealed weapon was improperly adduced by the State during the examination of arresting officer, Harold Stork. He assigns as error the trial judge’s refusal to declare a mistrial on the ground that the requirements of State v. Prieur, 277 So.2d 126 (La.1973) were not satisfied. See LSA-C.Cr.P. art. 770.

Generally evidence of extraneous offenses is inadmissible because of the prejudicial effect upon the accused’s constitutional presumption of innocence. State v. Prieur, supra; State v. Morris, 362 So.2d 1379 (La.1978); Pugh, Louisiana Evidence Law 30 (1974). Such evidence is excluded to ensure that a defendant will not be presumed guilty because of past offenses. See McCormick on Evidence, Section 190 (2d Ed., 1972) Wigmore on Evidence, Sections 55, 57, 194 (3rd Ed., 1940).

LSA-R.S. 15:445, 446, sets out three purposes for which other crimes evidence may be introduced — to prove knowledge, intent and system. If the State intends to introduce evidence of other crimes as allowed by that statute, notice of that intent must be given to defendant and it must be proved that the evidence meets the constitutional, statutory, and jurisprudential guidelines for admission. State v. Prieur, supra; State v. Morris, 362 So.2d 1379 (La.1978).

Testimony was adduced at the motion to suppress evidence that Vernon was initially arrested for carrying a concealed weapon, so the prosecutor should have anticipated Detective Stork’s answer. Detective Stork’s statement cannot be excused as unsolicited. See State v. Foote, 379 So.2d 1058 (La.1980). Pretrial notice should have been given of the State’s intent to introduce the evidence and a determination should have been made of its admissibility.

Nevertheless, introduction of the evidence does not constitute reversible error. In light of the entire record, we cannot say that knowledge of Vernon’s arrest for carrying a concealed weapon would so enflame the jury that it would unjustifiably convict the accused of second degree murder. See State v. Abercrombie, 375 So.2d 1170 (La.1979).

ASSIGNMENT OF ERROR NUMBER TWENTY-TWO

Defendant contends that the trial court erred in denying his Motion for Mistrial when he was asked if he had testified at the trial of James Regallis. It is argued that since the State may not comment on a defendant’s post-arrest silence (Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) or his failure to testify in his own defense (State v. Johnson, 345 So.2d 14 (La.1977), the State is also barred from commenting on his failure to testify at the trial of another.

When a defendant in a criminal case takes the stand to testify in his own defense, he is subject to all the rules applicable to other witnesses and may be cross-examined on the whole case. LSA-R.S. 15:462. State v. Rhodes, 337 So.2d 207 (La.1976) stated:

“[A] defendant who chooses to waive his fifth amendment privilege by testifying may certainly be required to answer possibly incriminating questions pertinent to the case under consideration, if relevant. He may be cross-examined on the whole case.” 337 So.2d 209.

However, the United States Supreme Court has held that a defendant’s silence when arrested and advised of his Miranda rights may not be used to impeach an explanation subsequently offered at trial. Doyle v. Ohio, supra. The court in Doyle quoted Mr. Justice White, who concurred in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975):

“. . . when a person under arrest is informed as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the ease at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony." 422 U.S. 182-183, 95 S.Ct. 2139-2140, 45 L.Ed.2d 108.

By analogy, it would seem impermissible to allow defendant’s silence at the trial of another to be used against him at his own trial.

However, testimony was never before the jury which affirmatively showed that defendant did not testify at Regallis’ trial. Vernon was asked if he had been requested to testify at that trial and answered affirmatively. When asked if he actually had testified, he was precluded from answering by the objection of his attorney. (Tr., Vol. VII, p. 832). The trial judge admonished the jury to disregard the references to his testimony or lack thereof at Regallis’ trial and denied defendant’s motion for mistrial. In light of these circumstances, we cannot say that the State impermissibly referred to defendant’s failure to testify in his own defense so as to warrant a mistrial under LSA-C.Cr.P. art. 770. The trial judge’s admonition to the jury to disregard the question was sufficient to assure defendant a fair trial.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWENTY-FIVE

This assignment relates to the trial court’s refusal to grant a mistrial when reference was made to defendant’s religious background. He contends that the prosecutor initiated an irrelevant line of questioning for the sole purpose of informing the jury that Vernon was Jewish.

LSA -C.Cr.P. art. 770 provides that a mistrial is mandated, upon motion of defendant, when a remark or comment by a judge, prosecutor or court official refers to religion, if the remark is not material and relevant and might create prejudice against defendant in the mind of the jury.

Here, the issue of religion was raised by the defense. Defendant’s mother testified on direct examination that Vernon had not been a rowdy or violent child and that, while in the service, had been an assistant to a chaplain. On cross-examination, after stating that her son had attended church while growing up, she was asked to specify which church he had attended. She answered “Temple B. Zion” (Tr., Vol. IX, p. 925). No mention was made that Temple B. Zion was a Jewish congregation or that Vernon himself was Jewish.

The testimony in question was relevant and material in that it was offered to show that defendant was taught the difference between right and wrong. Because it had been stated on direct examination that defendant was an assistant to a chaplain, the subject of religion was a logical one to raise on cross-examination. There was no showing that the remark would create prejudice in the mind of the jury and the trial court correctly denied the motion for mistrial.

This assignment lacks merit.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent. The test of admissibility of a so-called “gruesome photograph” is whether its probative value outweighs its probable inflammatory effect. State v. Gilmore, 332 So.2d 789 (La.1976). In this case, the prejudice to defendant outweighs the probative value of the photos. The pictures are obviously gruesome. Their probative value is minimal because they do not show with any clarity evidence of beatings inflicted on the victim by Vernon and his cohorts. The body of the victim had been badly burned by a fire set by Vernon’s cohorts after he had left the scene and withdrawn from participation in their activities. Since it is clear that Vernon was not involved in the setting of the fire, prejudicial effects of the photos clearly outweighed their probative value.

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

      . Detective Harold Stork testified on the circumstances surrounding the arrest of Joel Vernon. He stated that he and Detective Jody Dowden approached Vernon and Timothy Bray in a Leesville cafe to question them about the murder. Vernon and Bray consented to the questioning and were advised of their rights. When asked what transpired prior to their departure for the Sheriff’s office, Stork stated that a frisk of Vernon revealed a .32 caliber revolver on his person. (Tr., Vol. VI, p. 681).


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Charles J. EDSALL.
    No. 65900.
    Supreme Court of Louisiana.
    May 30, 1980.
    Rehearing Denied July 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Greg Fowler, Edward E. Roberts, Asst. Dist. Attys., for plaintiff-appel-lee.
    Gravel, Roy & Burnes, Richard V. Burnes, Alexandria, for defendant-appellant.
   DENNIS, Justice.

Defendant, Charles J. Edsall, pleaded guilty to armed robbery, La.R.S. 14:64, following an unsuccessful motion to suppress evidence, and reserved his right to appeal. See State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to serve twenty-five years imprisonment at hard labor. He appealed and assigns as errors the trial court’s rulings on the merits and procedural aspects of his motion to suppress.

At the conclusion of the motion to suppress hearing the trial judge dictated his reasons for judgment. His findings of fact, for which there is warrant in the record, are as follows:

"The pertinent and salient facts to this motion show that between 8:30 and 8:40 P.M. on Tuesday, May 15, 1979, the victim, Mack Bloodworth, Jr., after closing his business of Mack’s Exxon Service Station located in the Lee Heights Community of Rapides Parish, was inside the station at his counter, counting his day’s receipts and had his .357 Magnum revolver on the counter. He noticed a large 18-wheeler truck stop in front of his station and he saw this defendant come to his door and request admittance to obtain some ice. The victim allowed Charles J. Edsall to enter and went to the back of the station to fulfill this request. Upon returning with the ice, he was met by Edsall, whom he identified in court, holding his, Bloodworth’s .357 Magnum. Ed-sall shot him in the left side and stomach area, tied him up and left him in the bathroom, taking the cash, daily receipts, and Bloodworth’s pistol. Bloodworth worked himself free and at 8:53 P.M. called Michael D. Williams, the radio dispatcher of the Pineville Police Department who relayed the call to the Rapides Parish Sheriff’s Department base station in Alexandria and its Tioga Branch.
“Deputy Sheriff Herbert Mount, Shift Commander on duty at this time, immediately assigned Detective Deputy William Earl Hilton who proceeded to the scene and arrived at approximately 9:00 P.M. Other officers had preceded Hilton to the scene and had put out radio transmissions of a very general description of the suspect and of the vehicle which had been seen in front of the station. Hilton, in talking to the victim and two witnesses who had observed the truck in front of the station just prior to and during the incident in question, radioed a description of the truck and the suspect to Shift Commander, Herbert Mount, who transmitted same to the surrounding base stations and to patrol units telling them of the robbery and to be on the lookout for a ‘White’ (and that’s brand name) freight liner, dark brown or purple with gold trim pulling a silver van-type trailer being driven by a white male with dark hair, five feet six inches in height, fairly young and heavy-set wearing blue jeans and some type of T-shirt and armed with a .357 Magnum.
“Among the officers hearing the call were the Chief of Police of Ball, Louisiana and his deputy, Officer Mark Musser. These two officers had proceeded southerly on U.S. 165 pursuant to the earlier description given and upon receiving this transmission from Deputy Mount, recalled seeing a vehicle of that description traveling northerly on U.S. 165 a few minutes before. They turned around, gave pursuit, and overtook the vehicle just after it passed over an overpass entering Pollock, Louisiana, in the neighboring parish of Grant. At this time Deputy Sheriff W. A. Paul of the Grant Parish Sheriff’s Department who was on patrol in and around the town of Pollock had also received radio communications about the suspect vehicle and the description of the subject. He saw a brand type ‘White Freight Liner’ matching the description placed in the communication in Pollock and fell behind said truck determining to stop said vehicle outside the corporate limits of Pollock. Paul had no difficulty in identifying the type truck or the coloring by reason of the fact that this intersection in Pollock where he saw the truck is a well-lighted intersection and the truck equally passed in front of his headlights which were on.
“The Ball police unit occupied by Chief Moore and his deputy at this point were following the Grant Parish unit which turned on its flashing lights and pulled over the suspect truck. As the radio communication had warned that the subject was probably armed, they used loudspeakers and stayed in protective positions and ordered the driver from the truck. The defendant exited the driver’s side of the vehicle with his hands cupped, with what later turned out to be a wallet. The officers ordered him to raise his hands and come to the rear of the trailer where he was spread-eagled against the truck and frisked and his mobility and freedom of movement were restrained. According to Chief Moore, it was clear that the driver of the truck matched the description of the robber given over the radio transmission. After this occurred, Officer Musser went to the cab of the stopped truck to determine if there was another robber and looked in with his flashlight and saw on the passenger’s seat a .357 Magnum. It was similar to a Magnum that he used in his police work. The gun was removed by Musser and a Louisiana State Police officer arrived on the scene and transmitted the description of the gun through the Rapides base station to Detective Hilton at the scene of the crime. The gun was described on return communication which matched the gun found in Edsall’s truck. He was then formally arrested and placed in Deputy Paul’s vehicle. The officers then returned to the cab of the truck, entered same, and noted a Rapides Bank moneybag on top of the sleeper behind the seats and U.S. currency sticking out from under the mattress of the sleeper. Upon raising the sleeper, they found an additional zipper moneybag, additional currency, and credit card receipts to Mack’s Exxon as well as personal checks payable to the establishment and other paperwork taken by the robber.”

1. The Search and Seizure Were Lawful

When we apply the pertinent rules of law to these facts we conclude that (a) the officers lawfully detained the defendant for questioning because they had reasonable cause to suspect that he had committed the robbery; (b) the officer observed the .357 magnum in “plain view” because he was entitled as a safety precaution to a general visual survey of the vehicle from his position outside to determine if there was an accomplice in the truck; (c) the officers’ search of the truck came within the ambit of the “automobile exception” to the constitutional requirement of a warrant because they had probable cause to believe the vehicle contained contraband or evidence of a crime and there were exigent circumstances requiring an immediate warrantless search.

A law enforcement officer may stop a person in a public place for questioning whom he reasonably suspects is committing, has committed or is about to commit an offense. La.C.Cr.P. art. 215.1. Reasonable cause for an investigatory stop or detention is something less than probable cause. Nevertheless, it requires the detaining officer to have articulable knowledge of particular facts sufficient reasonably to suspect the detained person of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Wilson, 366 So.2d 1328 (La.1978).

In the present case the detaining officer did have articulable knowledge of particular facts sufficiently reasonable to suspect the defendant of having committed an armed robbery at Mack’s Exxon Service Station in Alexandria. The officer knew that the robbery had been committed approximately thirty to seventy minutes earlier that evening by a person driving an 18-wheel “White freight liner.” The defendant’s vehicle fitted in detail one of the police radio descriptions of the robber’s truck. When the defendant dismounted, the detaining officer- could see that he matched one description of the armed robber which had been broadcast over police radio.

In order for the “plain-view” doctrine to be applicable there must have been a prior justification for an intrusion into a protected area, in the course of which evidence was discovered inadvertently, or an officer must have inadvertently observed evidence of a crime from a vantage point without intrusion upon a protected area, and it must have been immediately apparent without close inspection that the items were evidence or contraband. When an officer observes evidence of a crime before entering a protected area, he may not seize the evidence without first obtaining a warrant, absent exigent circumstances or another exception to the warrant requirement. State v. Brown, 370 So.2d 525 (La.1979); State v. Parker, 355 So.2d 900 (La.1978).

Here, the officer observed the .357 magnum on the seat of the truck without entering a protected area. As we observed in State v. Brown, supra, 370 So.2d at 527, which presented similar circumstances, the officer “was entitled as a precaution for his own safety to a general visual survey of the vehicle from his position outside to determine if there was anyone in the car.” Our conclusion is not altered by the fact that in the present case the officer had to step up on the side of the truck to shine his flashlight into its cab. Under the circumstances of this case, in which policemen were searching for an armed robber who had seriously wounded his victim, and in which the possibility of an accomplice had not yet been ruled out, a general survey of the vehicle for the protection of the officers reasonably called for the officer’s actions. Likewise, as in State v. Brown, supra, the .357 magnum was immediately recognizable as the same kind of weapon that had been used in the armed robbery.

Consequently, the officers, who knew that the descriptions of the defendant, his 18-wheeler, and his weapon all matched those reported by witnesses, had probable cause to believe that the defendant was the armed robber and that the truck contained contraband or evidence of the crime. Thus, it only remains to be shown that the officers’ entrance into the truck and seizure of the evidence therein was permissible under the “automobile exception” to the constitutional requirement of a warrant.

This Court has explained its view of the “automobile exception” in several recent cases. For example, in State v. Lewis, 378 So.2d 396 (La.1979), we said:

“In a line of decisions, beginning with Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Supreme Court has recognized a so-called ‘automobile exception’ to the constitutional requirement of a warrant. Under the exception, a search warrant is unnecessary where the police have probable cause to search an automobile stopped on the highway and the circumstances require immediate action; the underlying reasons for the exception are that ‘the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970).
“Because of the preference for a magistrate’s judgment, it could be argued that, even though the police have probable cause to search and there is danger the vehicle and its contents will disappear, only the immobilization of the car should be permitted until a search warrant is obtained. This argument was recognized and rejected, however, by the Supreme Court, which stated in Chambers v. Maroney:
‘[AJrguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which is the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.’ 399 U.S. at 51-52, 90 S.Ct. at 1981.
“This Court has also applied the Carroll doctrine and has not required a search warrant in cases falling under the ‘automobile exception.’ State v. Wilbourn, 364 So.2d 995 (La.1978); State v. Guzman, 362 So.2d 744 (La.1978); State v. Lain, 347 So.2d 167 (La.1977); State v. Williams, 347 So.2d 231 (La.1977); State v. Tant, 287 So.2d 458 (La.1973).
“Neither Carroll nor any other case in the Supreme Court requires or suggests, however, that in ‘every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords.’ Chambers v. Maroney, supra, 399 U.S. at 50, 90 S.Ct. at 1981. See also State v. Colvin, 358 So.2d 1250 (La.1978); State v. Parker, 355 So.2d 900 (La.1978). Furthermore, a clear rule for determining when the police may invoke the automobile exception has yet to be fashioned by a majority of the high court. A plurality in Coolidge, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 stated that the lack of a warrant invalidated a search of a car after it was seized from the defendant’s driveway under circumstances in which there was no possibility that the car would be moved or any evidence destroyed. Therefore, ‘no possible stretch of the legal imagination [could make the case into one] where “it [was] not practicable to secure a warrant.” ’ Coolidge, supra, 403 U.S. at 462, 91 S.Ct. at 2036. A different plurality in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), however, approved a warrantless seizure of an automobile for the purpose of inspecting its exterior and tires, and obtaining paint scrapings, emphasizing that the auto, unlike the Coolidge car, ‘was seized from a public place where access was not meaningfully restricted.’ 417 U.S. at 593, 94 S.Ct. at 2470.” 378 So.2d at 398.

Although the high court has not established a clear definition of the automobile exception, we think the facts of the present case bring the search here within its ambit. Probable cause to search the truck existed, as we have seen, because it was linked to the robbery by its own description and that of the defendant and the robbery weapon. Furthermore, under the facts of this case, the officers were faced with exigent circumstances requiring that they either seize and hold the vehicle before presenting the probable cause issue to a magistrate or carry out an immediate search without a warrant. The truck was stopped in a public place, on the side of U.S. Highway 165 near the small town of Pollock, Louisiana. It was therefore accessible to anyone who might have a reason to move it or remove evidence from it. Under all of the circumstances, the election of the officers to conduct an immediate search was a reasonable course and does not require that we invalidate their action.

2. The Alleged Violation of Sequestration Does Not Require Reversal.

The defendant contends that the trial court erred in failing to preclude the testimony of witness Leslie Graham because of a violation of a rule of sequestration. The hearing on defendant’s motion to suppress spanned two days: Friday, September 21, 1979 and Tuesday, September 25, 1979. Several witnesses, including Officer William Hilton, were placed under a rule of sequestration, with the judge explaining to the witnesses that they were not to discuss the case with anyone until the matter was concluded. On Monday, September 24, 1979, the district attorney held a meeting in his office which included four officers, who were not under the rule of sequestration, and Officer Hilton. At the meeting Hilton took part in a discussion about Leslie Graham, an individual Hilton remembered talking to on the night of the robbery. One officer present at the meeting, Officer Woodson, remembering that Graham had given a good description of the truck used in the robbery, discussed this description with the district attorney. Officer Hilton also picked up Leslie Graham at an airport in Alabama and brought him back to testify-

The defendant contends, based upon these violations of the rule of sequestration, that the testimony of Graham should be excluded. While an order of sequestration is intended to assure that a witness will testify as to his own knowledge of a case, not every violation of a sequestration order must result in exclusion of the witness’ testimony. State v. Lewis, 367 So.2d 1155 (La.1979). In the present case the trial judge ruled that Graham’s testimony should not be precluded. We affirm his ruling because there is no evidence that either Graham’s or Hilton’s testimony was tainted by the violation. Although Hilton testified after his violation, his initial testimony, which occurred prior to the violation, completed the most significant part of his testimony, namely, his testimony as to the description of the truck used in the robbery. Although Officer Hilton picked up Graham at the airport when he was brought back to testify, Hilton denied talking to Graham about the robbery and the defense failed to introduce any evidence which would indicate the contrary.

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

AFFIRMED.

       The Honorable Edward A. de la Houssaye, III participated in this decision as an Associate Justice pro tempore.


author: WATSON, Justice.

text:
    STATE of Louisiana ex rel. Jerry Lynn PECK v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 65995.
    Supreme Court of Louisiana.
    June 5, 1980.

      Joseph P. Williams, Jr., Metairie, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, J. Marvin Montgomery, Asst. At-tys. Gen., Judy F. Pierce, Staff Atty., Paul Carmouche, Dist. Atty., for defendant-respondent.
   WATSON, Justice.

Relator Jerry Lynn Peck was paroled from Angola on May 21,1974. On March 8, 1976, he was arrested on charges of forgery and parole violation and placed in the Cad-do Parish Jail. Peck escaped, but was apprehended, convicted of forgery and escape and returned to Angola with his parole revoked. A writ was granted to consider the argument that the Department of Corrections (DOC) improperly cancelled all the good time Peck had earned prior to his release on parole.

Without question, relator is subject to forfeiture of 180 days of good time because of the revocation of his parole. La.R.S. 15:571.4(B), as amended by Acts 1974, No. 200. The DOC went further, however, to cancel all good time credits earned by relator before his parole, acting under authority of the provision that “an inmate who escapes from custody will forfeit all good time earned on that portion of the sentence served prior to escape.” Id., See also La. R.S. 15:571.8.

Peck argues that his escape from the parish jail was not an escape from DOC custody. The DOC contends that Peek was in constructive custody at the time of the escape because of his parolee status and the total forfeiture was proper. Relator’s position is correct. Peck was not in the custody of the Department of Corrections when he escaped.

Theoretically, the DOC retains custody of its parolees. LSA-R.S. 15:574.-7(A). Despite this, parolees do not earn diminution of their sentences for parole good time, and conversely, should not forfeit good time while on parole. The Department had a further interest in Peck during his incarceration in the parish jail because he was awaiting trial on a felony charge. Upon conviction, his parole would have been revoked, LSA-R.S. 15:574.10. However, there had been no conviction when the escape occurred.

Peck had not been transferred to the custody of the Department of Corrections. While an inmate can be in the Department’s custody but not actually confined within the four walls of a prison, as, for example, when a DOC inmate is admitted to an outside hospital or clinic for medical treatment, that is not the case here. An institution housing a parolee is not an arm of the DOC, except when it is serving as an extension of the Department.

This interpretation of the forfeiture provision is in harmony with the policy underlying the good time law: to provide a disciplinary tool for prison officials. See State v. Hallal, 351 So.2d 97 (La.1977). Prison discipline, essentially a matter of internal housekeeping, should not be invoked for transgressions outside the system.

Accordingly, relator’s escape from Caddo Parish Jail did not authorize a forfeiture of good time credits earned from the DOC before his parole; he is entitled to have those credits reinstated, with the exception of the 180 days forfeited for revocation of parole.

The writ is made absolute and the Department of Corrections is ordered to set aside the forfeiture of good time credits earned by relator prior to his escape from Caddo Parish Jail with the exception of the 180 days forfeited for revocation of parole.

      . Under State v. Curtis, 363 So.2d 1375 (La.1978), the forfeiture provisions in effect at the time of the forfeiting conduct govern the computation of relator’s good time.