author: CAMPBELL, Judge.

text:
    CENTRAL FLORIDA MACHINERY CO., INC., a Florida corporation, Appellant, v. David J. WILLIAMS and Stanley, Durrance and Wines, P.A., Appellees.
    No. 81-2612.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.

      Ellis S. Rubin of Law Offices of Ellis Rubin and Bernard Young, Miami, for appellant.
    A.H. Lane of Lane, Trohn, Bertrand & Williams, P.A., Lakeland, for appellees.
   CAMPBELL, Judge.

Following the death of her husband in an industrial accident in 1975, Juanita Watson filed a wrongful death action against Central Florida Machinery Co. alleging negligence and breach of implied warranty. Mrs. Watson was represented by David J. Williams of Stanley, Durrance and Wines, P.A., in that action. Ultimately, the trial court granted summary judgment in favor of Central Florida and this court affirmed. Watson v. Lucerne Machinery & Equipment, Inc., 347 So.2d 459 (Fla. 2d DCA 1977), cert. denied, 352 So.2d 176 (Fla.1977).

Central Florida then filed a malicious prosecution action against the attorney and against the law firm. The trial court entered summary judgment in favor of the defendants, but this court later reversed that determination. See Central Florida Machinery Co. v. Williams, 400 So.2d 30 (Fla. 2d DCA 1981).

After remand, Williams and the law firm renewed their motion for summary judgment, and the trial court once again granted it, finding that there was probable cause for filing the wrongful death action. Central Florida appealed. We affirm.

Though not generally favored, an action for malicious prosecution will lie upon a showing by a plaintiff of the following six elements:

(1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff.

Tatum Bros. v. Watson, 92 Fla. 278, 288, 109 So. 623, 626 (1926). See also Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878 (1931). All six elements must be established for the maintenance of an action for malicious prosecution, Duval Jewelry, but the two elements most relevant to our consideration here are the absence of probable cause and the presence of malice.

Malice may be inferred from a lack of probable cause, Duval Jewelry; Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412 (Fla. 4th DCA 1980); Wilson v. O’Neal, 118 So.2d 101 (Fla. 1st DCA 1960). However, a bare showing of malice will not, in turn, permit an inference of lack of probable cause. Duval Jewelry; Applestein v. Preston, 335 So.2d 604 (Fla. 3d DCA 1976); Thompson v. Taylor, 183 So.2d 16 (Fla. 1st DCA 1966).

Here, appellees moved for summary judgment and, having done so, they had the burden of proving that there were no genuine issues of fact and that they were entitled to summary judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966). The bare allegations of lack of probable cause were sufficient to impute malice so as to cause us to reverse in the earlier appeal. Appellees referred in their motion to affidavits, depositions, and other record evidence, and specifically argued that a review of those articles would show the existence of probable cause sufficient for entry of summary judgment in their favor. They, therefore, discharged their burden. Holl.

On the other hand, from the time of the filing of the motion for summary judgment to the date set for hearing on the motion, appellant filed no affidavit or other evidence in opposition to the motion. Appellant was certainly not required to do so. Graff v. McNeil, 322 So.2d 40 (Fla. 1st DCA 1975); Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975). But if the party moving for summary judgment presents evidence showing undisputed material facts, that party is entitled to summary judgment unless the non-moving party can then produce evidence showing that material facts are at issue. Connell. The bare allegations of the complaint establish neither the absence of probable cause, nor the presence of malice. It was incumbent upon appellant to come forward with some showing of actual malice or complete lack of probable cause. It has not done so.

When the facts are undisputed in a malicious prosecution action, the existence or nonexistence of probable cause is a pure question of law for the court. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979). The trial judge viewed the undisputed facts before him and found, as a matter of law, that there was probable cause for filing the initial lawsuit. The affidavits reveal that Williams conducted a reasonable investigation of the facts prior to filing suit and that he developed sufficient information to support a reasonable and honest belief in a tenable claim.

An action for malicious prosecution is a serious matter and this is especially so when such an action is filed against the losing attorney in the earlier case supposedly giving rise to the action. Such actions could conceivably prohibit attorneys from pursuing and establishing new causes of action and could hinder the development of new legal theories. We commend the language of the California Court of Appeals in Norton v. Hines, 49 Cal.App.3d 917, 123 Cal.Rptr. 237 (1975), as descriptive of the standard that should obtain here:

“It is the attorney’s reasonable and honest belief that his client has a tenable claim that is the attorney’s probable cause for representation (citations), and not the attorney’s conviction that his client must prevail. The attorney is not an insurer to his client’s adversary that his client will win in litigation. Rather, he has a duty ‘to represent his client zealously .. . [seeking] any lawful objective through legally permissible means ... [and presenting] for adjudication any lawful claim, issue or defense.’ (Citations omitted.) So long as the attorney does not abuse that duty by prosecuting a claim which a reasonable lawyer would not regard as tenable or by unreasonably neglecting to investigate the facts and law in making his determination to proceed, his client’s adversary has no right to assert malicious prosecution against the attorney if the lawyer’s efforts prove unsuccessful.” (Emphasis in Norton.)

49 Cal.App.3d at 924, 123 Cal.Rptr. at 242 (footnote omitted) quoting from Tool Research & Engineering Corp. v. Henigson, 46 Cal.App.3d 675, 120 Cal.Rptr. 291.

Finally, we note that section 57.105, Florida Statutes (1979), requires an award of attorney’s fees to the prevailing party in a civil action if the court finds the complete absence of a justiciable issue raised by the losing party. This has been interpreted to mean that such an award can only be made if the action is frivolous. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). It seems to us incongruous to impose a standard of frivolousness for an award of attorney’s fees pursuant to section 57.105 and a standard invoking a lesser degree of care to support an award of damages for malicious prosecution.

AFFIRMED.

OTT, C.J., and BOARDMAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jack Y. WILLIAMS and G. Rita Ala, Appellants, v. John J. STEWART, Appellee.
    No. 82-32.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.
    See also, 424 So.2d 206.
    Joseph R. Miele, St. Petersburg, for appellant Williams.
    Jack S. Carey of Carey & Harrison, St. Petersburg, for appellant Ala.
    James E. Deakyne, Jr. and Robert F. Nunez, St. Petersburg, for appellee.
   CAMPBELL, Judge.

While attending a small social gathering, Dr. John Stewart met Jack Williams, a licensed, Florida real estate broker. Dr. Stewart told Williams he needed to shelter some income and asked Williams to find some property for him. Subsequently, Williams learned of the availability of the Plantation Inn through its listing broker, G. Rita Ala, and, after showing this property to Dr. Stewart, the parties entered into a contract for sale. This contract specifically provided that the seller was responsible for paying the broker’s commission to Ala and Williams.

At the doctor’s request, this contract was made subject to an engineering report on the property. Williams, accordingly, hired an engineer who reported that the property needed only minor repairs. The parties then set closing for February 27, 1978.

Sometime prior to closing, Dr. Stewart learned that the roof leaked, and, at the closing, he said he did not want to close because of the roof. He also complained that the contract was messy and that he wanted his brother, an attorney, to examine it. Williams and Ala offered to pay for a new roof even though they did not believe a new one was needed. The vendors also maintained that the building did not need a new roof. The closing never occurred, and Dr. Stewart later demanded return of his earnest money, which demand was refused.

The doctor then sued the brokers for damages arising from the loss of his earnest money. They answered and counterclaimed, alleging breach of the real estate contract, breach of an implied promise to complete the transaction, and breach of an agreement to pay a broker’s commission. The trial court entered summary judgment for the doctor on these counterclaims, and the case continued to trial on the remaining issues. The jury found for the brokers. Williams and Ala then appealed the entry of summary judgment on their counterclaims, and Dr. Stewart cross-appealed the adverse jury verdict.

Generally, absent some agreement to the contrary, a purchaser breaching a contract for sale of real property is not liable to the broker for his commission. Bruce v. American Development Corp., 408 So.2d 857 (Fla. 3d DCA 1982); Belk v. Oehlert, 324 So.2d 668 (Fla. 4th DCA 1975); Tutko v. Banks, 167 So.2d 110 (Fla. 3d DCA 1964). A broker must usually look to the vendor for his commission. Borinsky v. Cohen, 86 So.2d 814 (Fla.1956); Moss v. Sperry, 140 Fla. 301, 191 So. 531 (1939).

Here, the contract specifically stated that only the seller was obligated to pay the broker’s commission. Nevertheless, appellants have argued that appellee impliedly promised to complete the transaction and that this implied promise was a contract separate from the express written contract. There is only one contract here, that being the express contract signed by all the parties to the transaction. A conclusion that there was also an oral, implied promise by the purchaser to complete the transaction would violate the statute of frauds. In any event, where there is an express agreement, the law will not imply one. Jacksonville American Publishing Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940); Hazen v. Cobb-Vaughan Motor Co., 96 Fla. 151, 117 So. 853 (1928). The brokers provided the contract, and if they wished to make the purchaser liable for their commissions under certain circumstances, they could have done so. We recognize that other jurisdictions have reached contrary results regarding the liability of a purchaser for a real estate broker’s commission when he makes no express, written agreement to pay that commission. See, e.g., Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967). However, this is a minority view which does not obtain in Florida. See 30 A.L.R.3d 1395.

Finally, regarding the allegations that appellee breached the real estate contract, clearly he had the right to do so and to suffer, as a result, the loss of his earnest money deposit. All parties, including the broker, agreed in writing that this would be the appropriate remedy in the event of a breach by appellee. Therefore, appellants cannot now seek additional damages from appellee over and above the earnest money deposit. Accordingly, we affirm the summary judgment entered on appellants’ counterclaims.

We have examined the points raised by appellee on cross-appeal and find them to be without merit.

AFFIRMED.

OTT, C.J., and BOARDMAN, J., concur.


text:
    Jack Y. WILLIAMS and G. Rita Ala, Appellants, v. John J. STEWART, Appellee.
    No. 81-1466.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.
    See also, 424 So.2d 204.
    Joseph R. Miele, St. Petersburg, for appellant Williams.
    Jack S. Carey of Carey & Harrison, St. Petersburg, for appellant Ala.
    James E. Deakyne, Jr. and Robert F. Nunez, St. Petersburg, for appellee.
   CAMPBELL, Judge.

This appeal is an outgrowth of the same proceeding in the trial court that resulted in our decision of this same date also styled Williams v. Stewart, 424 So.2d 204 (Fla. 2d DCA 1983). We suggest reference to that decision for a full discussion of the facts involved here.

In this appeal, appellants seek reversal of the trial court’s award of attorney’s fees to appellee pursuant to section 57.105, Florida Statutes (1981). That statute, of course, provides that a court shall award a prevailing party reasonable attorney’s fees in a civil action in which the court finds a complete absence of a justiciable issue of either law or fact. Our supreme court in Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982), has construed that statute to justify a trial court’s finding of a complete lack of a justiciable issue where the attempt to create a controversy is frivolous. The court there said:

The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities. Such frivolous litigation constitutes a reckless waste of judicial resources as well as the time and money of prevailing litigants.

410 So.2d at 505. In this cause, appellee initiated the proceeding by filing his complaint seeking return of a deposit on a contract for the purchase of real property. The trial court awarded attorney’s fees on a finding of a lack of a justiciable issue of law regarding appellants’ counterclaim. The essence of this counterclaim was that appellee had refused to perform the contract, thereby breaching an implied agreement that he would perform, and therefore causing damages in the loss of the real estate commission appellants would have received had appellee performed. While Florida does not recognize a cause of action based upon that theory and those facts, as we pointed out in our companion decision, other jurisdictions do. See Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967).

We do not believe that the effect of the supreme court’s decision in Whitten was meant to allow an award of attorney’s fees in a case such as this where a counterclaim was involved which grew out of the contract which was the subject matter of the underlying complaint. We, therefore, REVERSE and REMAND.

OTT, C.J., and BOARDMAN, J., concur.


author: PER CURIAM.

text:
    Felicia L. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 82-196.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.
    Jerry Hill, Public Defender, Bartow and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation of probation, judgment and sentence imposed herein. The record, however, establishes that the lower court failed to state with particularity its justification for retaining jurisdiction over one-third of the sentence. We remand to the lower court with directions to either relinquish the retention of jurisdiction over one-third of Miller’s sentence or to state with particularity the justification for retaining jurisdiction as required by section 947.16(3)(a), Florida Statutes (1981). Hernandez v. State, 421 So.2d 1102 (Fla. 2d DCA 1982). Sanders v. State, 400 So.2d 1015 (Fla. 2d DCA 1981); Hicks v. State, 388 So.2d 357 (Fla. 2d DCA 1980).

OTT, C.J., and RYDER and DANAHY, JJ., concur.


author: RYDER, Judge.

text:
    NAPLES AWNING & GLASS, INC. and Allan L. McPeak, Appellants, v. L.R. CIROU, Appellee.
    No. 82-393.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.

      Robert E. Doyle, Jr., of Asbell, Hains, Doyle, Lewallen & Pickworth, Naples, for appellants.
    John L. Laskey, Naples, for appellee.
   RYDER, Judge.

Allan L. McPeak appeals from the order directing him to pay to appellee Cirou real estate rental receipts. We reverse.

Appellee Cirou’s efforts to foreclose the real property in question have been before this court twice before. Cirou v. Naples Awning & Glass, Inc., 376 So.2d 929 (Fla. 2d DCA 1979); Naples Awning & Glass, Inc. v. Cirou, 358 So.2d 211 (Fla. 2d DCA 1978). Following the second remand, the lower court ratified foreclosure in an order which also found that appellee Cirou was entitled to an accounting for mesne profits received on behalf of the defendant or its assignee for the benefit of creditors. Appellant McPeak was the assignee for the benefit of creditors. After final judgment was entered on that order, appellee filed a motion seeking to direct appellant assignee to deliver $30,000.00 in rental income from the property. A stipulation was then entered that appellant McPeak would, at final hearing, contest the motion on the grounds that he had paid all funds in his possession over to the trustee in bankruptcy for Naples Awning & Glass, Inc., and that appellee was not entitled to any rental receipts received before entry of the final judgment. The lower court granted the motion, found the defenses to be contrary to the terms of the final judgment, and ordered appellant McPeak personally to pay the amount demanded. McPeak now argues that the judgment below was void because he was never properly made a party to the action. We agree.

The final judgment, unappealed, provided that appellee was entitled to an accounting for mesne profits received by appellant Naples or its assignee for the benefit of creditors. McPeak had appeared as a witness below and held the property for a time under court order. McPeak, as assignee for the benefit of creditors, apparently acted under the authority of section 727.01, Florida Statutes (1981). While McPeak as assignee thereby stood in the shoes of his assignor to the extent of the assets transferred, nothing in chapter 727 indicates that McPeak assumed unlimited personal liability for the debts of Naples Awning & Glass, Inc. McPeak may be liable as would a trustee for obligations to third persons incurred on behalf of the assignor/settlor. Taylor v. Richmond’s New Approach Association, Inc., 351 So.2d 1094 (Fla. 2d DCA 1977). But McPeak was never personally made a party to the action below. No process was served to bring him into the action. The record before us does not show that McPeak ever participated in the litigation by invoking action of the court for his personal benefit. See First Wisconsin National Bank of Milwaukee v. Donian, 343 So.2d 943 (Fla. 2d DCA 1977); Green v. Hood, 120 So.2d 223 (Fla. 2d DCA 1960). McPeak, who as assignee took possession of the property under court order, may have been before the court in that capacity. But McPeak as assignee is not the same party as the McPeak named in the judgment appealed. See Stern v. Perma-Stress, Inc., 134 So.2d 509 (Fla. 1st DCA 1961); Thomas v. Martin, 100 Fla. 146, 129 So. 602 (1930).

Additionally, the lower court erred in finding the defenses asserted by McPeak to be insufficient. The defense that appel-lee was not entitled to the receipts occurring before final judgment appears not to have been settled against McPeak because he was not a party to that judgment. The defense that the monies were paid to the bankruptcy trustee also appears valid. A receiver is entitled to rents in Florida if the mortgage so provides. Bay Realty Corp. v. Becker, 157 So.2d 91 (Fla. 3d DCA 1963). Under the 1898 Federal Bankruptcy Act, the question of whether the mortgage security interest extends to rents and profits is one of state law. Butner v. U.S., 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). However, the Federal Bankruptcy Code in effect at the time of action below permitted the bankruptcy court to refuse, on equitable grounds, to give effect to a security interest covering rents acquired after commencement of a case. 11 U.S.C. § 552(b). If that is indeed what occurred below, the asserted defense has merit.

The order appealed is REVERSED.

OTT, C.J., and CAMPBELL, J., concur.


author: OTT, Chief Judge.

text:
    Huey Glenn HELMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-622.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.

      Milton E. Grusmark, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Huey Glenn Helms appeals his conviction and sentence for trafficking in cannabis. We hold that the trial court erred in allowing the prosecutor to continue questioning appellant about prior criminal convictions, and we therefore reverse.

At trial, appellant testified on his own behalf. On cross-examination, the prosecutor asked:

Q. Mr. Helms, have you ever been convicted of a crime, a felony in the State of Florida?

A. Yes, sir. I’ve been convicted of a crime.

Q. How many times?

A. All speeding tickets and log books and things like that?

Q. No. Felonies,

A. None legally.

Q. What do you mean none legally?

A. There was one time, but I pled...

Defense counsel asked for a bench conference, objected, and moved for a mistrial. At the bench conference it was pointed out that a previous conviction for arson had been set aside and a new trial ordered. The trial court denied the motion for mistrial, overruled the objection, and allowed the prosecutor to continue the line of questioning over a continuing objection by appellant’s counsel. In closing argument, the prosecuting attorney argued that the appellant had falsely denied any prior conviction, \yas forced to admit he had been convicted of a felony, was untruthful and unbelievable.

In Leonard v. State, 386 So.2d 51 (Fla. 2d DCA 1980), this court reaffirmed the long-standing rule in Florida concerning inquiry into a defendant’s prior convictions:

The rule in Florida has long been established that a defendant who testifies on his own behalf may be asked on cross-examination whether he has ever been convicted of a crime and, if so, how many times. Unless the defendant answers untruthfully, the prosecution’s inquiry along this line must stop. Fulton v. State, 335 So.2d 280 (Fla.1976); McArthur v. Cook, 99 So.2d 565 (Fla.1957); Mead v. State, 86 So.2d 773 (Fla.1956); Whitehead v. State, 279 So.2d 99 (Fla. 2d DCA 1973).

386 So.2d at 52. Evidence of pending charges against a witness is inadmissible for impeachment purposes. Fulton v. State, 335 So.2d 280 (Fla.1976). The prosecutor’s inquiry should have ended when the defendant truthfully answered he had no legal felony conviction.

We find no merit in the remaining points raised by appellant.

Accordingly, the judgment and sentence appealed are REVERSED and the cause REMANDED for new trial.

GRIMES and SCHOONOVER, JJ., concur.


text:
    Bernadette BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 82-696.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda R. James, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

The appellant was charged and convicted of grand theft and carrying a concealed weapon, a switchblade. We find no merit in the appellant’s claim that the trial court erred in granting an extension of the speedy trial time. Tucker v. State, 344 So.2d 284 (Fla.2d DCA 1977). Therefore, we affirm the judgment and sentence as to the grand theft conviction.

Due to a clerical error, however, the written judgment and probation order concerning the second charge stated that appellant was convicted and sentenced on a charge of carrying a concealed weapon, a firearm. Since the jury found her guilty as charged and the record shows the court adjudicated her guilty as charged, we strike the word “firearm” from the probation order and insert the word “weapon” in its place. We affirm that conviction and order as amended.

OTT, C.J., and DANAHY, J., concur.


text:
    Jerry L. HARVEY, Appellant, v. Otto John FISCHER, Appellee. Otto John FISCHER, Appellant, v. Jerry L. HARVEY, Appellee.
    Nos. 81-2550, 82-50.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 1983.

      Richard Bernstein of Layne, Bernstein, Brenner & Freitag, P.A., Miami, for Jerry L. Harvey.
    James F. McCollum of McCollum & Rhoades, Sebring, for Otto John Fischer.
   PER CURIAM.

A claim for damages for wrongful attachment cannot be prosecuted by a counterclaim in the same suit in which the attachment was obtained. Calcagni v. Mamber, 262 So.2d 467 (Fla. 3d DCA 1971); Martin v. Martin, 196 So.2d 26 (Fla. 2d DCA 1967); Ritter v. Miami Marine Agency, Inc., 133 So.2d 107 (Fla. 3d DCA 1961).

Therefore, we reverse the determination of wrongful attachment without prejudice to appellee to seek relief in a new suit.

The judgment is affirmed in all other respects.

BOARDMAN, A.C.J., and GRIMES and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Janet WILLIAMS, Appellee.
    No. 82-445.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

The state appeals the trial court's granting of a motion to suppress evidence seized from appellee’s purse and from the persons of two other individuals. The issue of the correctness of the search of persons other than the appellee is not appropriately addressed here, as those persons were not parties to the proceeding below, or here, and therefore there is no party before the court with standing to complain. Granting the appellee standing to complain, based upon the violation of rights of third persons, was error. Therefore, we reverse and remand.

The findings of fact as stated by the trial court in its order granting appellee’s motion to suppress are as follows:

The facts of the case are simple and undisputed. The policemen involved are both very competent officers and candid witnesses. The two officers circled the parking lot of the Lakeland Civic Center 15 minutes after the scheduled beginning of a rock concert. They observed a woman and two girls in their late teens at the rear of a vehicle while other adults were exiting the vehicle. The woman handed each of the girls something. The officers could not see what the items were but said they were not large enough to be a ticket or stick of chewing gum. Suspecting the items to be narcotics, the officers hurried to the group. As they did, one of the girls placed something in her mouth. The officers retrieved the items from the hand of one girl and the mouth of the other. As the items appeared to be quaa-ludes, the officers arrested the woman for delivery of the contraband. She wished to take her purse with her to the jail. The officers, therefore, inspected her purse and found additional illegal drugs.

Under these facts as found by the trial court, the appellee had no standing to complain of the search conducted upon the persons of the other two individuals. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Bakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, reh’g denied 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1978). The officers did not violate the appellee’s fourth amendment rights. Therefore, appellee has no standing to complain that the officers violated the fourth amendment rights of third parties. State v. Ferguson, 411 So.2d 963 (Fla. 3d DCA 1982). “ ‘ * * * suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing.’” Brown v. State, 245 So.2d 68, 74 (Fla.1971), quoting with approval from Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 965, 22 L.Ed.2d 176, reh’g denied 394 U.S. 939, 89 S.Ct. 1177, 22 L.Ed.2d 475 (1969).

Once the officers had seized what appeared to be “quaaludes” from the two girls after having observed the appellee give the items to the girls, they then had probable cause to arrest the appellee. The subsequent search of appellee’s purse incident to that arrest was, therefore, valid.

Accordingly, the order appealed from is REVERSED and the cause is REMANDED to the trial court for further proceedings.

HOBSON, A.C.J., and GRIMES and CAMPBELL, JJ., concur.


author: DIXON, Chief Justice. LEMMON, J., DENNIS, Justice,

text:
    STATE of Louisiana v. Juan SERRATO.
    No. 81-KA-2610.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 7, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Charles M. Brandt, Asst. Dist. Atty., for plaintiff-appellee.

      Arthur A. Lemann, III, James J. Adams, Fournet & Adams, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Juan Serrato was convicted of second degree murder in violation of R.S. 14:30.1 on April 3, 1981 and was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. Defendant’s motion for a new trial was denied. He now appeals his conviction and sentence arguing two assignments of error and one error patent.

On the morning of October 10, 1980, shortly after 11:00 a.m., Serrato, a helicopter pilot, decided to drive to New Iberia from his home in Lafayette to pick up his paycheck. His wife asked him to take their three year old daughter with him so she could get some sewing done. As Serrato was leaving, his wife hollered at him not to “stay down there all damn day long.” After putting his daughter into the car, Serra-to returned to the house to get a snack for her. Resolving to persuade his wife to accompany them, he found her seated at her sewing machine in their bedroom. Serrato playfully hugged her and asked her to join them. She angrily replied, “why don’t you just get the hell out of here. Those people down there mean more to you than I do.”

The next thing Serrato remembered was sitting on his bed trembling with his wife’s body sprawled next to him. He left the house without checking on his wife’s condition and drove to New Iberia. A neighbor later discovered Kathy Serrato lying on her bed strangled with a piece of cloth.

Assignment of Error No. 1

By this assignment defendant contends that the trial court erred in denying his motion to suppress his confession based on three grounds: (1) illegal detention; (2) right to counsel; and (3) free and voluntary standard.

In his pretrial motion, defendant recited, as his only ground to suppress, that the confession and other inculpatory statements were inadmissible since they were not made freely and voluntarily, but were made under the influence of fear, duress, intimidation and improper psychological coercion. The trial judge denied the motion to suppress on this ground without assigning any reasons.

Defendant now asserts as additional grounds to suppress that the confession was the product of an illegal arrest and was procured in violation of his right to counsel. These grounds were first raised by defendant on motion for a new trial. Defendant’s failure to address these two grounds in his pretrial motion does not preclude him from raising them now. In State v. Roach, 322 So.2d 222, 226 (La.1975), this court stated that, based on the former language of C.Cr.P. 703(C), “our scope of review should be limited to those grounds on which the motion to suppress was based." However, since that decision, C.Cr.P. 703 has been rewritten to shift the burden of proof on a motion to suppress an oral confession or other inculpatory statement. Prior to the 1978 and 1980 amendments to C.Cr.P. 703, the burden of proof rested with the defendant on a motion to suppress oral confessions or other statements and with the state to prove the admissibility of written inculpatory statements. Now the state has the burden of proving the admissibility of both written and oral inculpatory statements by the defendant. C.Cr.P. 703(D).

This court in State v. Roach, supra, concluded that new grounds could not be raised after the hearing on the pretrial motion since the burden of proof to suppress an oral confession rested with the defendant. However, since C.Cr.P. 703(D) has placed the burden of admitting both oral and written confessions on the state, this court can now properly review additional grounds to suppress fully argued later at trial on the merits or at a hearing on a motion for a new trial. In view of the fact that defendant in the instant case submitted two additional grounds to suppress in his motion for a new trial, they are properly before this court.

Illegal Detention

Defendant first came in contact with police officers when he returned from New Iberia by helicopter at approximately 1:30 p.m. He had rushed home to Lafayette after an investigating officer at the scene had answered his phone call, informing him that his wife was ill and that he should return home as soon as possible. Upon arrival he was met by several police officers, who refused to let him enter his house and who escorted him to his neighbor’s house.

At 3:30 p.m. Serrato voluntarily accompanied Detectives Broussard and Rickard to the police station where he was advised of his Miranda rights. After waiving his rights at 4:10 p.m., Serrato was interrogated by Broussard, Rickard and two officers, Sergeant Cormier and Lieutenant Boutte, until 8:30 that night. After the questioning, at approximately 9:00 p.m., he was formally arrested without a warrant and placed in a holding cell. The incriminating statements were obtained from the defendant almost twenty-four hours later.

A lawful arrest, whether warrant-less or pursuant to an arrest warrant, must be based upon probable cause. State v. Leatherwood, 411 So.2d 29 (La.1982); State v. Herbert, 351 So.2d 434 (La.1977); State v. Ranker, 343 So.2d 189 (La.1977). While the state’s burden of proving the lawfulness of an arrest is far less than its burden of proving a defendant’s guilt at trial, mere suspicion on the part of the arresting officer is not enough. State v. Haynie, 395 So.2d 669 (La.1981); State v. Thomas, 349 So.2d 270 (La.1977); State v. Randolph, 337 So.2d 498 (La.1976). The officer must have probable cause to arrest.

In State v. Leatherwood, supra at 32, this court defined probable cause as existing “when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense.” If probable cause for defendant’s arrest existed, the confession would be admissible if it was otherwise voluntary and was made after appropriate Miranda warnings. If no probable cause existed, the confession would be admissible only if the state could show that the connection between the arrest and the subsequent confession was so attenuated that the confession could not logically be considered as a fruit of the illegal arrest. State v. Leatherwood, supra; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Factors to be considered in making this determination are whether the defendant was advised of his Miranda rights prior to the confession, the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and the purpose and flagrancy of any official misconduct. State v. Giovanni, 375 So.2d 1360 (La.1979).

In the instant case, the record is not conclusive as to whether probable cause existed to arrest Serrato. Sergeant Cormier, the assigned supervisor of the homicide scene, testified that at least until 6:00 p.m. on October 10, the time all of the evidence had been seized from the scene of the crime, he had not determined that Serrato had killed his wife. What, if anything, occurred between 6:00 p.m. and 9:00 p.m. must be left to speculation.

Since the prosecution bears the affirmative burden of proving that probable cause to arrest existed, any doubts as to the sufficiency of proof must be resolved in favor of the defendant. In this case we are unable to ascertain from the record whether the state carried its burden of proving that probable cause existed at the time of the formal arrest. Accordingly, we must conclude that the arrest was illegal and determine whether the confession was sufficiently attenuated from the arrest in order to be admissible.

At the hearing on the motion for a new trial, the trial court stated that it did not feel as though the issue of illegal detention was properly before it. Nevertheless, in passing, the trial judge noted that “a sufficient time and a sufficient occurring of events between the detention period and the statement [had elapsed] so as to sufficiently attenuate any illegality of detention, and, thereby, any statement would not have been tainted.” We agree with this finding.

Whether the confession is sufficiently attenuated from the arrest is a question to be resolved in light of the facts of the particular case. In the instant case, Miranda warnings were administered a second time to defendant on October 11 between 4:30 and 5:00 p.m. Even though not decisive, the giving of this warning and a waiver of these rights are important factors to be considered in determining whether the illegal arrest tainted any subsequent confession. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Further, the “temporal proximity of the arrest and the confession” was fairly distant. Serrato began confessing to Sergeant Cormier at approximately 6:30 p.m. on October 11. Serrato had been formally arrested the previous day, October 10, at 9:00 p.m. Thus, over twenty-one hours had elapsed between the time of the formal arrest and the confession.

Serrato was transferred from the Lafayette City Police Department to the Office of the State Police on October 11. At 2:08 p.m. Serrato signed an interrogation agreement authorizing the Louisiana State Police to either interview him or to take his polygraph examination. He again signed his name to the agreement at 4:53 p.m. at the conclusion of the interrogation, certifying that he was well treated, submitted freely to the examination, and knowingly and intelligently waived his rights. This episode at the Office of the State Police was a sufficient intervening circumstance, considering the lack of any flagrant official misconduct, the time interval, and the giving of the Miranda warnings, to validate the subsequent confession obtained later at the detectives’ annex of the city police department. State v. Leatherwood, supra. Viewing all of the facts and circumstances of this case, it does not appear that the trial judge abused his discretion in concluding that the confession was sufficiently attenuated from any illegality of the detention. This allegation lacks merit.

Right to Counsel

Defendant next alleges that he was denied his right to counsel at the time he confessed to the crime. This ground, like that of illegal arrest, was introduced at the motion for a new trial. For the reasons already expressed in our analysis of the issue of illegal arrest, this additional ground to suppress will be considered.

On October 11 Serrato was questioned by both the State Police at their headquarters and by Detectives Broussard and Rickard back at the detectives’ annex, before Sergeant Cormier commenced interrogation of Serrato at 6:00 p.m. According to the prosecution, the questioning by Cormier ceased at 6:30 p.m. when Serrato began to implicate himself. At this point Cormier told Serrato that he would contact an attorney for him.

Serrato related a somewhat different version of the facts. He testified that he fainted at some point during the examination on the evening of October 11. After recovering from his fainting spell, Serrato asked Cormier either to provide him with an attorney or to recommend an attorney. Cormier responded that he was unable to comply and instead handed a telephone book to the defendant for the apparent purpose of finding an attorney. Because his vision was blurred due to his fainting spell, Serrato was unable to read the telephone directory. He was also unsuccessful at deciphering the attorney’s name on both his and his wife’s wills. He requested Cor-mier’s assistance, but Cormier replied that he didn’t know the names or anything on the wills.

Both Cormier and Serrato agreed that some effort was made to select an attorney from the telephone directory and to ascertain the name of the lawyer who had drafted the wills for the Serratos. When this effort proved to be fruitless, Cormier instructed Detective Broussard to contact the Indigent Defender Board.

After this episode, according to Serrato, several of the officers continued to question him on a rotating basis. Serrato was not informed that an attorney had been contacted. Rather, he was promised that it would be easier for him if he confessed.

Cormier, on the other hand, denied making any promises to Serrato or questioning him once an attorney had been summoned. He further maintained that he told Serrato “that there would be [a lawyer] on the way.”

Meanwhile, the director of the Indigent Defender Board, Michael J. Barry, received a call from the city police informing him that Serrato requested counsel “prior” to making any statements to the police. Barry called the residence of an attorney, John Smith (fictitious name), who was not home at the time. Shortly thereafter, when Smith returned home from a day of fishing, his wife, Mary (fictitious name), notified him that he was to represent Serrato. Smith stipulated that he left for the police station at approximately 7:15 p.m. after changing his shirt and consuming one highball.

Smith was delayed at the station for over one-half hour before being directed to the detectives’ annex across the street. At the annex he was detained by Detective Brous-sard, Lieutenant Boutte and Sergeant Cor-mier who inquired if he had been drinking. One of the officers sniffed his breath, exclaiming, “Ooh, smell him!” and then all of the officers began to laugh. The officers refused to allow Smith to confer with his client declaring that he was too intoxicated. Smith then called his wife, Mary, also an attorney, and asked her to come down to the station. Mary Smith arrived at the station “sometime after seven.” Two detectives escorted her to the cubicle where Serrato was waiting, suggesting that they “all sit down and have a friendly little conversation.” Instead, Mrs. Smith demanded a private conference with her client. Mrs. Smith spoke with a “quite emotionally overwrought” Serrato for thirty to forty minutes in a partially enclosed cubicle. She could hear voices in the adjoining room and assumed that they could overhear her conversation with her client. After their meeting, Mrs. Smith insisted on accompanying Serrato back to his cell since the officers refused to disclose their plans for him.

Later, at about 9:15 p.m., Michael Barry telephoned the Smith residence to check on the status of the case and then learned what had transpired at the police station. Barry, a former state trooper who had frequently arrested persons for driving while intoxicated, drove to the Smith home to verify personally Mr. Smith’s physical condition. He testified that Smith appeared to be tired and his eyes were bloodshot, but he was not intoxicated.

Article 1, § 13 of the 1974 Louisiana Constitution guarantees the right to the assistance of counsel. This guarantee includes the right of defendant to have counsel present during any post arrest interrogation should defendant express such a desire. State v. Matthews, 408 So.2d 1274 (La.1982). This court has held that when counsel has been retained or appointed to represent a prisoner, governmental authorities cannot deny the lawyer reasonable access to his client, nor can they ignore his request for a conference with his client before the interrogation. Confessions taken in violation of these principles are constitutionally inadmissible, since the interrogation would have been undertaken without an informed waiver of defendant’s right to the assistance of counsel and his right to remain silent. State v. Trevathan, 414 So.2d 316 (La.1982); State v. Matthews, supra; State v. Jackson, 303 So.2d 734 (La.1974), citing Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

The facts of the instant case indicate that the police officers failed to honor scrupulously defendant’s right to the assistance of counsel. Even though defendant had waived his right to counsel the previous day, it appears from the record that he reconsidered his waiver on his second day in custody. Clearly the defendant somehow communicated to the officers on October 11 that he desired an attorney. Cormier's actions in contacting the Indigent Defender Board on behalf of defendant support this contention. Once counsel was summoned, defendant should have been returned to his cell, and the interrogation should have ceased until the attorney’s arrival. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Once counsel has been obtained for the defendant, he has the right to be informed that an attorney is available and willing to assist him. Statutorily, a defendant has the right to consult with counsel from the moment of his arrest. C.Cr.P. 230. Counsel is entitled to have free access to his client, in private, at reasonable hours. C.Cr.P. 511. Based on these statutes and La. Const. Art. 1, § 13, “it is the policy of this state to welcome and encourage an attorney to confer with his client in order that he may intelligently exercise his rights during custodial interrogation.” State v. Matthews, supra at 1278.

In the instant case, John Smith arrived at the police station prepared to render assistance to his client. The police refused to grant him access to his client, alleging that he was intoxicated. Smith, Mrs. Smith and Michael Barry sharply disputed this finding of intoxication. Regardless of whether Smith was intoxicated, the police officers exceeded the scope of their authority in preventing this privileged meeting between the attorney and his client.

Article 1, § 13 assures the defendant of the right to the assistance of counsel of his choice. Once an attorney has been selected to represent a defendant, the police are not empowered to pass judgment on his abilities as a legal adviser. There is no provision in the statutes nor in the Constitution of Louisiana that would permit the police to arbitrarily prevent or impede communication between a prisoner and an attorney who has been requested to represent the accused. Only the defendant has the right to reject or waive the assistance of counsel. The police must allow counsel a private consultation with the accused, provided that the time is reasonable. C.Cr.P. 511. When a person in custody is interrogated by police officers, the time is always reasonable for counsel to have free access to meet in private with his client.

If an identified attorney is actually available and seeking an opportunity to render assistance to defendant, and the police neglect to convey that fact to defendant, any statement obtained after the police themselves know of the attorney’s efforts to assist the arrested person cannot be rendered admissible on the theory that the person knowingly and intelligently waived counsel. State v. Matthews, supra at 1278.

However, Serrato first implicated himself prior to the invocation of the right to counsel. The record suggests that Cor-mier interrupted the confession after Serra-to admitted to the strangulation. At trial Cormier testified that Serrato revealed what happened up until his actions in New Iberia before Cormier interrupted the confession. Cormier testified at trial only as to the inculpatory statements made by Serrato prior to the invocation-of the right to counsel. He did not relate any incriminating statements made by Serrato after the Indigent Defender Board had been contacted. Cormier’s testimony at trial must be found to be accurate since Serrato, on direct questioning, agreed with Cormier’s recital of the facts. Because the jury did not have before it any tainted statements and relied on only the inculpatory statements made prior to the invocation of counsel, there was no error in the use of these statements at trial.

Free and Voluntary Standard

At the motion to suppress defendant asserted as his original ground that the incul-patory statements were not made freely and voluntarily. The trial judge denied the motion without assigning reasons.

The prosecution has the burden of proving that the confession was freely and voluntarily made before it can be admitted into evidence. R.S. 15:451 provides:

“Before what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

The question of voluntariness of a confession, including a determination of the defendant’s state of mind, must be resolved from the facts and circumstances of the particular case. State v. Williams, 383 So.2d 369 (La.1980) cert. denied, Williams v. Louisiana, 450 U.S. 971, 101 S.Ct. 1493, 67 L.Ed.2d 622 (1981). The trial judge must consider the “totality of the circumstances” in arriving at his finding that the confession is admissible. See State v. Volk, 369 So.2d 128 (La.1979); State v. Glover, 343 So.2d 118 (La.1977).

The defendant alleged that he was questioned continuously on October 10 from the time he arrived at the station until his formal arrest at 9:00 p.m. After his arrest he was stripped of his shoes and socks and placed in a holding cell. Late the next morning, after being fed for the first time since his detention, Serrato was transferred, handcuffed and without shoes or socks, to the highway patrol office for further questioning. He was then returned to the detectives’ annex for the last phase of his interrogation. Serrato lost consciousness briefly during this examination, which was attributed to his being without his ulcer medicine since the previous day. Sometime after his “weak spell,” counsel was sent for.

The trial judge apparently concluded that the facts and circumstances presented at the hearing confirmed that the confession was given freely and voluntarily. The officers involved repeatedly testified as to their treatment of the defendant, their lack of coercion, their reading of the Miranda warnings, and their voluntary action in obtaining counsel for the defendant. They denied that defendant was physically or mentally abused in any manner whatsoever. The judge accorded greater weight to the credibility of the police officers than the defendant in arriving at his finding. We find no error in the trial judge’s determination that the totality of the circumstances established that the confession was made freely and voluntarily.

In addition to the “totality of the circumstances” argument, defendant suggests that the confession was procured by promises or inducements. If a confession is obtained as the result of promises or inducements, it is not admissible. State v. Petterway, 403 So.2d 1157 (La.1981); State v. Dison, 396 So.2d 1254 (La.1981). Once a defendant asserts that his confession was obtained in such a manner, the state must rebut the defendant’s allegations to carry its burden of proving the voluntariness of the confession. The state cannot rely merely on general disclaimers of inducements or promises; rather, it must rebut specifically each of defendant’s allegations. State v. Petterway, supra; State v. Dison, supra.

During the period prior to the appearance of Mrs. Smith, Serrato claimed that the police informed him that it would be easier for him if he confessed. Defendant’s version of the substance of the conversation is as follows:

“Q. Were you ever given any promises or were any promises ever implied to you that you can remember?
A. Yes, Sergeant Cormier told me that if things worked out for me the worse that could happen to me would be I would be sent to Pineville, Pineville, yeah, or that I would, if I cooperated I would have a shorter sentence and maybe end up as a trustee.
Q. Did you know what a trustee was?
A. No, sir.
Q. Were you ever threatened with ultimate conviction?
A. Yes. Sergeant Cormier, no — Lieutenant Boutte was the one who said that he knew absolutely, there was no doubt in his mind.
Q. He knew absolutely, there was no doubt in his mind?
A. Right.”

In addition, defendant declared that Detective Rickard reeled off questions to him very rapidly and when not satisfied with the response, the detective “would take a pack of cigarettes and throw it against the wall or slap his pen down on the table, ‘Aw, come on,’ ...” However, defendant testified that he was never physically threatened during his interrogation.

The state specifically rebutted Ser-rato’s allegations of threats, inducements and promises. Therefore, the trial court’s finding that defendant was not coerced into confessing by any actions of the police, is not unsupported by the evidence. Our review of the entire record supports the finding of the trial judge that the confession was made freely, voluntarily and without coercion.

Defendant’s first assignment of error lacks merit.

Assignment of Error No. 2

By this assignment defendant contends that the trial court erred in denying his motion for a new trial. Defendant moved for a new trial on the basis of newly discovered evidence that showed that he was suffering from posttraumatic stress disorder resulting from his service as a helicopter pilot in Vietnam. The trial court denied defendant’s motion for three reasons: (1) defendant failed to exercise due diligence in obtaining evidence of the defense; (2) in assessing the medical testimony, it did not appear that it would have changed the verdict rendered below; and (3) since defendant had not asserted a plea of not guilty by reason of insanity the medical testimony could not have been admitted into evidence.

Two psychiatrists, Drs. Hayes and Ritter, testified at the hearing that Serrato suffered from posttraumatic stress disorder and did not know right from wrong when he killed his wife. The defendant was tried and convicted in late March and early April, 1981. He was examined by Dr. Hayes in November, 1980 and in January, 1981 and by Dr. Ritter in August, 1981 and in December, 1981. Hayes suspected that Serra-to was suffering from posttraumatic stress disorder after his examinations, but because Serrato denied any symptoms associated with this disorder, Hayes was unable to make that diagnosis at that time. Instead, he diagnosed him as suffering from a severe depressive neurosis. In October, 1981 Drs. Hayes and Ritter discussed Serrato’s condition. New information provided by Ritter confirmed Hayes’ earlier suspicions that Serrato was a victim of posttraumatic stress disorder. Ritter testified that Hayes’ failure to diagnose the condition was due to Serrato’s involuntary and automatic denial of suffering from any mental defect or disease.

Hayes admitted that he became aware of the psychiatric condition known as post-traumatic stress disorder in 1980 after learning of it from the desk manual generally used by the psychiatric profession, The Diagnostic and Statistic Manual III. The manual was first released in unfinished form in early 1980 and was recommended to the American Psychiatric Association for use in diagnosis and treatment in July, 1981. Ritter testified that the Veteran’s Administration did not recognize posttrau-matic stress disorder as a treatable disease until October, 1980.

Defendant asserts that the testimony of the two doctors was sufficient to warrant a finding that a new trial was required under C.Cr.P. 851(3). As this court recently observed in State v. Fuller, 414 So.2d 306, 308 (La.1982):

“On a motion for a new trial based upon newly discovered evidence, the defendant has the burden to show that the evidence could not have been discovered before or during trial through the exercise of reasonable diligence. La.C.Cr.P. art. 851(3); State v. Simms, 410 So.2d 1040 (La.1982). The ruling on a motion for a new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only when there is a clear showing of abuse of that discretion. State v. Spell, 399 So.2d 551 (La.1981); State v. Manning, 380 So.2d 54 (La.1980).”

Defendant contends that he failed to discover the defense because his own psychiatric condition automatically and subconsciously led him to deny that the condition existed. This defense mechanism prevented Hayes from properly diagnosing him. However, Hayes admitted that “[o]ne of the classic symptoms of this disorder is the denial of its symptoms ...” He also knew prior to trial that Serrato had served in Vietnam, and he was familiar with post-traumatic stress disorder and its classic symptom.

It would appear that the failure of the defendant to assert this defense at trial was due to both the failure of Hayes to properly diagnose Serrato as suffering from post-traumatic stress disorder and defendant’s lack of due diligence in seeking further psychiatric evaluation or follow up.

In addition to the finding of lack of due diligence, the trial judge concluded that it did not appear that the medical testimony would have changed the verdict rendered below. Dr. Hayes testified that the information upon which he relied in diagnosing Serrato’s disease as posttraumatic stress disorder was obtained directly from Serrato and from Dr. Ritter. Dr. Hayes never personally verified the fact that Serrato was a veteran of the Vietnam war nor did he examine his combat record. Neither Dr. Hayes nor Dr. Ritter ever spoke with any of Serrato’s “companions in arms who were present at the time that he underwent these alleged traumatic experiences in Vietnam.” Other than defendant’s recollections of his experiences, there was no independent verification that he suffered any trauma in Vietnam.

Dr. Hayes admitted that he had not read the transcript of the trial and so was not aware that defendant had confessed to Cor-mier that he had strangled his wife. Serra-to had informed the doctor that he did not remember strangling his wife.

Further, Dr. Hayes testified that immediately before his wife’s death, Serrato was able to understand the difference between right and wrong since “he went into the kitchen and had the forethought to get a cookie that he promised to give his daughter and bring it back to the car to her.”

Dr. Ritter stated that Serrato did not possess all of the symptoms associated with posttraumatic stress disorder. There was no indication of any “memory impairment or trouble concentrating, avoidance of activities that allow recollection of the traumatic event, [or] intensification of symptoms by exposures to events that symbolize or resemble the traumatic event.”

Examining the inconclusive testimony of these psychiatrists, it is extremely doubtful whether their perceptions would have persuaded the jury to render a verdict of not guilty.

“In considering a motion for new trial based on newly discovered evidence, the test to be used is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached.... ” State v. Motton, 395 So.2d 1337, 1350 (La.1981), cert. denied 454 U.S. 800, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981).

The newly discovered evidence presented by these two psychiatrists does not meet this stringent test. A trial judge may accept or reject an opinion of a medical expert depending on how impressed he is with the qualifications, testimony and credibility of the expert. Where credibility is involved, the trier of fact is best situated to make that determination. In this case the trial judge felt that the testimony of the medical experts was not so material that it ought to produce a different verdict. Since there is no clear showing of abuse of discretion, the ruling of the trial judge will not be disturbed.

In addition to the foregoing reasons, the trial judge pointed out that defendant had never entered a plea of not guilty and not guilty by reason of insanity. However, even if defendant had entered this plea timely, the trial judge concluded “that the evidence would probably not have changed the verdict of guilty.” We agree with this finding.

Upon consideration of the facts of this case, we cannot say that the trial judge abused his discretion in concluding that the belated diagnosis of posttraumatic stress disorder did not qualify as newly discovered evidence. This assignment of error lacks merit.

Error Patent

Defendant asserts as error patent that the trial court denied in open court his motion to suppress his confession without the presence of either his attorneys or himself. C.Cr.P. 834 addresses the right of a defendant to be present at the making, hearing and ruling on preliminary motions directed solely to the court. This article provides in part:

“The defendant has a right to be present, but his presence is not essential to the validity of any of the following proceedings in a criminal prosecution:
(1) The making, hearing of, or ruling on a preliminary motion or application addressed to the court.”

Thus, even though it is better procedure for the defendant and his counsel to be present at rulings on preliminary motions, C.Cr.P. 834(1) does not require their presence. C.Cr.P. 831 is inapplicable to the present case for it does not pertain to preliminary motions.

Accordingly, we find no error in the trial judge’s ruling on the preliminary motion outside of the presence of defendant and his attorneys.

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

LEMMON, J.,

concurs in the result, not necessarily agreeing that the defendant can raise, for the first time on appeal, new grounds for the suppression of a confession.

DENNIS, J., concurs in part and dissents in part with reasons.

DENNIS, Justice,

concurring in part and dissenting in part.

I respectfully concur in part and dissent in part.

The circumstances of this case do not support the conclusion that Serrato’s confession was made -without exploitation of the prior illegal arrest and by means distinguishable to be purged of the primary taint. State v. Bennet, 383 So.2d 1236, 1242 (La.980) citing Maguire, Evidence of Guilt, 221 (1959) cited in Wong Son v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963).

The majority can only point to two factors which support the conclusion that the confession made by Serrato was not tainted by his prior illegal arrest: (1) the lapse of twenty-one hours between the time of his arrest and the confession, and (2) the administration of Miranda warnings and the execution of an interrogation agreement. The majority hints that the change in scenery from the Lafayette City Police Department to the Office of the State Police, with the defendant’s subsequent return to the City Police Department, is such an intervening circumstance that its combination with these other two factors is sufficient to attenuate the taint of the illegal detention.

While temporal proximity is certainly a factor to be considered, the majority places too great a weight upon the passage of twenty-one hours. See State v. Giovanni, 375 So.2d 1360 (La.1979) where we suppressed statements made seven days after an illegal arrest. This is particularly true in light of the fact that no intervening circumstance of significance occurred to interrupt the continuous custodial detention. The majority points to a change in locale as an intervening circumstance. But, this is hardly the type of event contemplated by the Supreme Court in Brown v. Illinois when the test for attenuation was first articulated. In Johnson v. Louisiana, 406 U.S. 35, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), cited in Brown as an example of a case without intervening circumstances, the court was concerned with the fact that defendant did not appear before a magistrate until after the confession and booking procedures. 92 S.Ct. 1626, 32 L.Ed.2d at 161. See also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) where the release on recognizance of defendant and his subsequent voluntary surrender was an intervening event of signifi-canee. To compare a change in location to the intervention of an impartial magistrate is to stretch the Brown formulation beyond its limits. The only other factor utilized by the majority is the presence of Miranda warnings and the defendant’s signature on an interrogation agreement. These are certainly relevant, but over-reliance on them may betray a lingering confusion between voluntariness for purposes of the Fifth Amendment and the “causal connection” test established in Brown. Dunaway v. New York, 442 U.S. 200, 219, 99 S.Ct. 2248, 2260, 60 L.Ed.2d 824, 840 (1979).

The overriding message of both Brown and Dunaway is a concern for whether the authorities came at the confession by exploitation of the prior illegality such as to create a “causal connection” between the two. This is evidenced by a concern in both cases that the police had engaged in what was termed a “fishing expedition” by the arrest of the defendants, and interrogation with the hopes that some evidence might “turn up.” 442 U.S. at 218, 99 S.Ct. at 2259, 60 L.Ed.2d at 840.

The record in the present case is devoid of evidence concerning the reasons for the initial arrest of the defendant. This has led the majority to conclude that the state failed to establish that the arrest was supported by probable cause. Likewise, it leads me to conclude that this record fails to demonstrate that the confession was sufficiently attenuated from the taint of defendant’s illegal arrest that its introduction into evidence was in violation of both the Fourth Amendment and Article I § 5 of the Louisiana Constitution. State v. Edwards, 375 So.2d 1365, 1366 (La.1979); State v. Scott, 355 So.2d 231 (La.1978). The apparent reason for this void in the record is the defendant’s failure to raise this issue at the time of the original motion to suppress hearing. Under these circumstances, I think that the correct approach to resolution of this assignment is to remand the case for a reopened hearing giving both parties opportunity to address the serious question of the circumstances surrounding the defendant’s arrest and his interrogation.

      . C.Cr.P. 703(C) (prior to 1978 and 1980 amendments):
      “C. On the trial of a motion to suppress filed under the provisions of this article the burden of proof is on the defendant to prove the grounds of his motion, except that the state shall have the burden of proving that a purported written confession or written inculpato-ry statement was made freely and voluntarily and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

      . “D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.” C.Cr.P. 703(D).

      . The officer testified that he did not tell Serra-to that his wife was dead because he did not want to “alarm” him.

      . The record does not reveal whether defendant would have been restrained had he attempted to leave the police station prior to his formal arrest. It is not clear, therefore, whether defendant was actually arrested prior to his formal arrest within the meaning of C.Cr.P. 201, which provides as follows:
      “Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.”

      . From a review of the entire record, one can glean from the police activity on October 10 that Serrato’s car, which was left in New Iberia, was searched. However, the only known evidence retrieved from the car was a letter from Serrato to his girl friend. This document was introduced on cross-examination of Serra-to to attempt to impeach his testimony that he loved his wife. The police also observed some scratches on Serrato’s face on October 10. Serrato explained that he received the scratches while running with his daughter from the field where the helicopter landed on his return home from New Iberia.

      . Cormier admitted at trial that his suggestion was motivated by the fact that the attorney could witness a written confession. He further testified that Serrato never asked him for an attorney.

      . “The person arrested has, from the moment of his arrest, a right to procure and confer with counsel and to use a telephone or send a messenger for the purpose of communicating with his friends or with counsel.” C.Cr.P. 230.

      . “The accused in every instance has the right to defend himself and to have the assistance of counsel. His counsel shall have free access to him, in private, at reasonable hours.” C.Cr.P. 511.

      . Serrato withheld information from Dr. Hayes concerning “his continuous difficulty with remembrances of his war trauma, his experiences in Viet Nam, flash-backs and dreams, startled responses, his alienation from the majority of the society that he functioned in prior to the war, and a lot of other symptoms which obviously point to the so-called Vietnamese Syndrome and the post-traumatic stress disorder.”

      . “The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. The court, on motion of the defendant, shall grant a new trial whenever:

      (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.” C.Cr.P. 851(3).

      . Dr. Ritter, on the other hand, checked defendant’s service record simply to determine that he was in Vietnam.

      . “A defendant charged with a felony shall be present:
      (1) At arraignment;
      (2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
      (3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;
      (4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
      (5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
      (6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.” C.Cr.P. 831.


author: MARCUS, Justice. LEMMON, J., CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Roland ROUSSEL, Jr.
    No. 82-KA-0630.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 21, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty., Harry R. Morgan, Kurt Sins, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Julian R. Murray, Jr., Harry Morgan Murray, Murray, Ellis, Braden & Landry, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Roland Roussel, Jr. was indicted by the grand jury for first degree murder. Prior to trial, the indictment was amended to second degree murder (La.R.S. 14: 30.1). After trial by jury, defendant was found guilty of manslaughter and sentenced to serve twenty-one years at hard labor plus an additional term of two years imprisonment without benefit of parole, probation, suspension of sentence or credit for good time for the use of a firearm at the time of the crime. La.R.S. 14:95.2. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence.

FACTS

The record reveals that Roland Roussel, age 21, fatally shot his wife, Dara Ann Roussel. Although they had been married only four months, they had separated on several occasions due to Dara Ann’s alleged use of drugs which was contrary to Roland’s beliefs as a Jehovah’s Witness. Prior to the shooting, they had again separated. Testimony indicated that Dara Ann had been having an affair with another man. Dara Ann had spent several nights prior to the shooting at the trailer of her grandparents (the Oubres).

On the day of the shooting, Dara Ann picked up defendant at his place of employment. They returned to the trailer to get her belongings before returning home. While Dara Ann was packing, defendant left to purchase some beer at a nearby convenience store. Upon returning, Dara Ann’s behavior had dramatically changed to that consistent with her behavior when on drugs. She was extremely upset about losing her purse. Defendant called her cousin, Leatrice Mitchell, to come to the trailer which she did. David Mitchell followed his wife a short while later. According to his testimony, Dara Ann was visibly upset. Defendant was in possession of a .22 caliber revolver which he carried for protection in connection with his employment. Defendant removed the gun from his pants and placed it in the right pocket of his jacket. Defendant testified that David Mitchell was carrying a shotgun. Mitchell’s wife made him put the shotgun in the trunk of their car. At that point, Mr. Oubre arrived. According to his testimony, Dara Ann stated that Roland was going to kill her. Mr. Oubre told defendant to leave if he had a gun and then left to pick up his wife.

Mrs. Oubre testified that she questioned defendant about the gun when she arrived. Upon denying he had one, she suggested it would be better if he left. Defendant agreed to go but did not leave immediately because he wanted to explain to Mrs. Oubre that what Dara Ann was saying about him was not true. Several witnesses testified that defendant stated Dara Ann had too many people involved in her business. According to David Mitchell, defendant also said, “Now you have done it.” Then the phone rang; it was Dara Ann's mother. Dara Ann told her that defendant was going to kill her; Mrs. Oubre took the phone. Defendant asked to talk with Dara Ann’s mother. Mrs. Oubre passed him the phone but Dara Ann’s mother had hung up, whereupon defendant commented, “That’s the best thing you could have done.”

Defendant testified that he was very nervous and upset at this point and had decided to leave. The “noise and hostility” from his wife’s family had him crying and his hands were bunched in his pockets, his right hand wrapped around the outside of his pistol, squeezing it very tightly. He remembered walking toward Dara Ann and her grandmother (Mrs. Oubre) who were standing near the table where his belongings were located and hearing a shot fired, but did not know how it was fired, by whom, or that anyone was hit. The next thing he remembered he was on the floor being strangled by David Mitchell. He recalled that his gun was still in his pocket because he was trying to get it out to protect himself. Mitchell testified that after the first shot, defendant turned and tried to shoot him saying, “You’re next....” The gun jammed; defendant then took it out of his pocket and aimed it at Mitchell who tackled him and held him down until Mr. Oubre took the gun out of defendant’s hand. Mitchell held defendant down until the police arrived shortly thereafter. When they arrived, defendant was taken to the patrol car and informed of the charges against him and his Miranda rights. The arresting officer testified that defendant did not seem to be aware that he had shot his wife. Ballistics experts found that defendant’s gun could have been accidentally discharged by fingers curled around the outside of the trigger housing. They also confirmed Mitchell’s testimony that the gun had jammed.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in refusing to allow expert testimony relative to the genuineness of his purported amnesia. He argues that the testimony was offered solely to corroborate the credibility of his testimony as to his inability to remember the moment of shooting.

Defendant was initially indicted for first degree murder to which he entered a plea of “not guilty and not guilty by reason of insanity.” A sanity commission was appointed to evaluate his mental capacity to proceed and his mental condition at the time of the offense. Defendant stated that the sole reason for his insanity plea was his amnesia as to the moment of shooting. Two of the three psychiatrists on the sanity commission found defendant had repressive amnesia, limited to the moment of shooting. The third psychiatrist considered defendant’s “patchy” memory to be a sign that his purported amnesia was not genuine. All reported that defendant had the mental capacity to proceed and was capable of distinguishing right from wrong at the time of the offense. Because there was a possibility that defendant’s memory would return within six months, or under hypnosis or drugs, the court held its decision open until such measures could be taken. Dr. Scrig-nar, the member of the sanity commission who administered the hypnosis and drugs, found that defendant had no recollection of any intent to shoot anyone and could not remember the moment of shooting, although his memory of the events immediately before and after the shooting improved. After the hearing, the trial judge ruled that defendant had the mental capacity to proceed.

On the day of trial, the indictment was amended from first degree murder to second degree murder. Defendant withdrew his former plea of “not guilty and not guilty by reason of insanity” and entered a plea of “not guilty.” After the close of the state’s evidence, defendant took the stand in his own behalf. During direct examination, he was questioned as to his state of mind at the time of the offense. The state objected to any testimony, either from this witness or Dr. Scrignar (one of the psychiatrists on the sanity commission whom defendant intended to call as a witness), relative to a mental defect at the time of the offense. The state argued that in the absence of a special plea of insanity, evidence of a mental defect (amnesia in this case) was not admissible, either as a complete defense or for the purpose of negating a specific intent and reducing the degree of the crime. Defendant responded by asserting that he was not trying to show “reduced capacity or mental incapacity of any way, shape, or form” but rather only sought to introduce the evidence on the issue of credibility and agreed to a limiting instruction to that effect. The trial judge ruled that while defendant could testify as to his state of mind at the time of the shooting including his inability to remember the moment of shooting, neither he nor the psychiatrist could testify relative to the issue of amnesia.

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La.R.S. 14:30.1(1). La.Code Crim.P. art. 651 provides:

When a defendant is tried upon a plea of “not guilty”, evidence of insanity or mental defect at the time of the offense shall not be admissible.
The defenses available under a combined plea of “not guilty and not guilty by reason of insanity” shall be tried together.

In State v. James, 241 La. 233, 128 So.2d 21 (1961), we stated that “[tjhere can be no question that amnesia is a mental defect.” In James, defendant testified that he had a loss of memory (amnesia) during the commission of the murder for which he was charged. Subsequently, the trial judge sustained the state’s objection to the testimony of a psychiatrist relative to “mental defect, mental condition, or loss of memory” of the accused. In affirming the ruling of the trial court, we held that in the absence of a special plea of insanity, evidence of a mental defect at the time of the crime was not admissible. In State v. LeCompte, 371 So.2d 239 (La.1978), we held that under art. 651, evidence of a mental condition or defect is inadmissible when the defendant failed to plead not guilty and not guilty by reason of insanity. Moreover, a mental defect or disorder short of insanity cannot serve to negate specific intent and reduce the degree of the crime. On rehearing, in affirming our holding on this issue, we stated:

[B]y offering evidence of mental illness as vitiating intent as an essential element of the crime, the defendant attempts to come through the back door to prove lack of mental responsibility to commit the offense charged. The real danger in permitting psychiatric evidence of mental or emotional disorders short of insanity to negate intent is to practically destroy the M’Naughten rule and to clutter practically every trial with some sort of expert opinion evidence as to whether the defendant possessed the requisite intent to commit the crime charged.

In the instant case, we consider that the trial judge correctly refused to allow expert testimony relative to defendant’s amnesia. La.Code Crim.P. art. 651 clearly provides that when a defendant is tried upon a plea of “not guilty,” as here, evidence of insanity or mental defect at the time of the offense shall not be admissible. As previously noted, we have held that evidence of amnesia is a mental defect. James, supra. However, art. 651 deals with a mental defect “at the time of the offense.” Therefore, the question remains whether defendant’s mental defect (amnesia) occurred at- the time of the offense. Defendant recalled in detail the events immediately before and after the shooting. The only thing he did not recall was the shooting itself. Moreover, he could not remember the shooting immediately after it occurred when questioned by the arresting officer. Therefore, it is reasonable to infer from these facts that defendant’s amnesia as to the shooting began at the time of the offense. Although defendant argues that psychiatric testimony was intended solely to corroborate the credibility of his testimony as to his inability to remember the moment of shooting, we consider that the admission of such evidence would be accepted either as a complete defense or for the purpose of negating specific intent and reducing the degree of the crime despite a limiting instruction to the contrary. In sum, we consider defendant’s amnesia to be a mental defect that existed at the time of the offense and evidence thereof was properly excluded in the absence of an insanity plea. Hence, the trial judge correctly refused to allow expert testimony relative to defendant’s amnesia.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in admitting a hearsay statement of a witness in evidence.

On cross-examination, David Mitchell testified that defendant had stated, “Now you have done it” after the phone call from Dara Ann’s mother. The witness’ attention was then directed to a statement made by him to the police on the night of the shooting in which he had related that the comment was made by defendant before the phone call. Defendant asked the witness: “You didn’t change the facts around and make it sound a little worse for Mr. Rous-sel?” The witness acknowledged that his statement to the police was the correct one, that is, the comment was made by defendant before the phone call. On redirect, the state showed the witness the statement previously shown to him by defendant during cross-examination. Upon questioning the witness relative to the statement, defendant objected on the ground of hearsay, whereupon, the state offered the entire statement in evidence. The statement was admitted in evidence over defendant’s objection.

La.R.S. 15:281 provides that redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination. La.R.S. 15:496 provides that “when the testimony of a witness has been assailed as to a particular fact stated by him, similar prior statements, made at an unsuspicious time, may be received to corroborate his testimony.” La.R.S. 15:497 provides that such testimony is only admissible when charged to have been given under the influence of “some improper or interested motive, or to be of a recent fabrication.” The trial judge is often called upon to exercise discretion when part of a transaction, conversation or writing has been proved by the adversary and the re-examiner seeks proof of the remainder. The “rule of completeness” permits the judge to admit proof of the remainder so far as it relates to the same subject matter. C. McCormick Handbook of the Law of Evidence § 32, at 61 (1954).

In the instant case, defendant assailed Mitchell’s testimony relative to when the comment was made by defendant and inquired of him whether he had an improper motive for testifying differently from his statement to the police. Mitchell acknowledged that his prior statement was the correct one, making his trial testimony as to when the comment in question was made consistent with his previous statement. Moreover, the entire statement consisted of only a short paragraph and related to the events immediately before and after the shooting. The comment made by defendant was included and related to the facts recited in the statement. Under the circumstances, we are unable to say that the trial judge abused his discretion in admitting the entire statement in evidence for the purposes of corroboration and completeness. In any event, even if the statement was improperly received in evidence, defendant suffered no prejudice as Mitchell’s testimony covered all facts included in the statement.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in imposing an excessive sentence.

La. Const. art. 1, § 20 prohibits by law the imposition of excessive punishment. We have held that, even though it is within the statutory limits, a sentence may violate a defendant’s right against excessive punishment under the particular circumstances of the case. State v. Sepulvado, 367 So.2d 762 (La.1979). To determine if a given penalty is excessive we must find that, in light of the harm caused to society, the penalty is so grossly disproportionate to the crime as to shock our sense of justice. State v. Bonano, 384 So.2d 355 (La.1980); State v. Beavers, 382 So.2d 943 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980).

The pre-sentence report reveals that defendant, age 21, was reared in a very religious home as a Jehovah’s Witness. He had no juvenile or adult record. He was employed at a telephone rental company for the past three years since his graduation from high school. Although only “positive references” were made by community contacts, the report recommended that defendant’s sentence be stringent enough to deter the occurrence of a similar act yet lenient enough so as not to adversely affect him.

The trial judge, after complying with the sentencing guidelines (La.Code Crim.P. art. 894.1), concluded that a sentence of imprisonment should be imposed. He did not find that defendant acted under strong provocation, and, in his opinion, defendant should have anticipated the danger that could result from fooling around with a gun. Furthermore, he could not conclude that defendant’s conduct was unlikely to recur or that probation was likely to be effective. The trial judge noted that while the jury found defendant guilty of manslaughter, the facts indicated that defendant should have been found guilty of second degree murder. For these reasons, the trial judge imposed the maximum sentence of imprisonment (twenty-one years). Any lesser sentence would, in his determination, have deprecated the seriousness of the crime.

We are unable to say that the trial judge abused his discretion by imposing the maximum sentence in this case. The taking of Dara Ann’s life was senseless. Neither their personal problems nor the events immediately preceding the shooting constituted sufficient provocation for such conduct. Although the jury found defendant guilty of manslaughter, the trial judge considered that the evidence supported a verdict for second degree murder. In addition, defendant attempted to take the life of David Mitchell and but for the jamming of the gun, he might have taken the life of another person. Under the circumstances, despite defendant’s youth, good work history and lack of a prior record, we do not consider that the penalty imposed was so grossly disproportionate to the crime as to shock our sense of justice. Hence, we do not find the sentence excessive.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in imposing an additional term of two years imprisonment for the use of a firearm at the time of the crime under La.R.S. 14:95.2 without having been charged under this statute. As a result, he argues that he was denied notice and an opportunity to defend against it.

La.R.S. 14:95.2 is an article in the Criminal Code and provides for additional penalties for possession of a firearm or explosive device in the commission of certain enumerated crimes. The statute does not create a separate crime. Rather, it mandates that an additional penalty be imposed when a person uses a firearm or emplosive device at the time he commits certain crimes. It is based on the proof of that fact during trial. Defendant was charged with second degree murder and convicted of manslaughter. Both crimes are listed in La.R.S. 14:95.2. The evidence fully supports that a firearm (.22 caliber gun) was used in the commission of the crime for which defendant was convicted (manslaughter). The additional penalty was imposed at the sentencing hearing.

Accordingly, we find no substance to defendant’s contention that one must be separately charged under La.R.S. 14:95.2. Adequate notice and opportunity to defend against it are afforded to the accused.

Assignment of Error No. 4 is without merit.

DECREE

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

LEMMON, J.,

concurs, believing that any error in excluding psychiatric testimony was harmless in view of the overwhelming evidence of an intentional killing.

DIXON, C.J., dissents.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion being of the view that evidence of amnesia is not “evidence of insanity or mental defect at the time of the offense” such that its admissibility is prohibited by La.C.Cr.P. art. 651.

Even if we assume, for purposes of argument, that amnesia is a “mental defect” it is not one that exists “at the time of the offense.” Amnesia, by its very nature and definition, is the present inability to remember events of the past. It is a condition that occurs after the event, not before it or even simultaneously with it, having nothing to do with one’s mental state at the time of the event.

This case is distinguishable from State v. Lecompte, 371 So.2d 239 (La.1979), and it’s progeny, State v. Wade, 375 So.2d 97 (La.1979) and State v. Leatherwood, 411 So.2d 29 (La.1982). In all three of these cases, the defendant sought to introduce testimony to the effect that he was unable to form the specific intent required for the charged crimes. In the present case, defendant does not seek to introduce evidence concerning his mental state prior to or at the time of the commission of the crime, but rather, he seeks to show that he cannot now remember those events.

Defendant, who pled simply not guilty, testified on his own behalf at trial. He related the events of the evening up to a point just before the gun went off; he then stated that he could not remember anything about the moments just before and just after the gun discharged. To support that testimony, defendant wanted to have one of the examining psychiatrists testify that it was the psychiatrist’s opinion that the defendant was genuinely suffering from amnesia. The state, at that point, could have presented contrary testimony by the other examining psychiatrist. Utilization of this procedure would have left the factual and credibility determinations with the jury, where they belong, and would have been, in my view, the proper procedure.

For the foregoing reasons, I believe the trial court erred in excluding the testimony of the psychiatrist concerning defendant’s amnesia. I therefore dissent from the majority opinion.

DENNIS, Justice,

dissenting.

I respectfully dissent for the reasons assigned by Mr. Justice Calogero.

      . We note that State v. Jones, 376 So.2d 125 (La.1979), and State v. Veal, 326 So.2d 329 (La.1976), support this conclusion.