author: MARCUS, Justice.

text:
    STATE of Louisiana v. Eddie L. PHILLIPS.
    No. 81-K-2763.
    Supreme Court of Louisiana.
    April 5, 1982.
    Robert L. Kennedy and Thomas G. Wilson, of Law Offices of Robert L. Kennedy, Colfax, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Joseph P. Beck, Dist. Atty., Gregory N. Wampler, Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Eddie L. Phillips was charged by bill of information with contributing to the delinquency of a juvenile in violation of La.R.S. 14:92(A)(8). During trial by a judge, defendant made a motion for a judgment of acquittal, pursuant to La.Code Crim.P. art. 778, after the close of the state’s evidence. The trial judge denied the motion. Defendant offered no evidence in defense. The trial judge found defendant guilty as charged and sentenced him to serve six months in the parish jail. On defendant’s application, we granted a writ of review under our supervisory jurisdiction. Defendant asserts two assignments of error for reversal of his conviction and sentence. Finding merit in one of the assigned errors, we need not consider the other.

Defendant contends that the trial judge erred in denying his motion for acquittal in that the state failed to produce any evidence that he intentionally permitted the juvenile to absent herself from home without authority of her parents. Hence, the evidence was insufficient to sustain his conviction.

The evidence adduced at trial established the following facts. On October 19, 1980, Deputy Sheriff Colleen Ingles, whose primary duties involve juvenile investigations, received an anonymous telephone call indicating that Vanessa Thompson, a juvenile, had left home and could be found at a certain address which the deputy later determined to be the residence of Betty Tannehill Chapman. Deputy Ingles telephoned Vanessa’s parents to corroborate the tip and they advised her “that Vanessa was not at home and they didn’t know where she was.” Deputy Ingles then went to the Chapman house to find Vanessa where she learned from an unidentified man who answered the door that Vanessa and another female juvenile who lived at that address were at defendant’s residence; whereupon, she proceeded to defendant’s home accompanied by Deputy Morgan Briggs. Upon arrival, the deputies knocked at the door. When defendant was informed of their identity, he voluntarily opened the door. While initially disclaiming knowledge of Vanessa’s whereabouts, when Deputy In-gles advised him that she had information that Vanessa was there, he went into another room and brought Vanessa to the deputies who transported her to the sheriff’s office.

Vanessa Thompson testified that for a couple of days prior to October 19, 1980, she, then age 16, had been staying at the Chapman house with Dorothy Tannehill who was also a juvenile. She further stated that on October 19, she and Dorothy were on their way to the store when they decided to go to defendant’s residence. Defendant was a friend of Dorothy’s whom Vanessa had not met before that day. Vanessa testified that she had been at defendant’s house about one to two hours talking and listening to the stereo before the deputies arrived and escorted her from the house. When asked by the state: “Did your parents give you permission to go to Eddie Phillips’ home?” Vanessa replied: “No, sir.” The state further asked: “You were absent from your house in Pollock.” She answered: “Yes, sir.” The state then asked: “And you were absent without the authority or permission of your parents, is that correct?” She replied in the affirmative. Vanessa’s parents did not testify at trial.

On October 20, 1980 (the next day), Deputy Sheriff W. A. Paul arrested defendant who was later charged with contributing to the delinquency of the juvenile, Vanessa Thompson.

La.R.S. 14:92(A)(8) defines contributing to the delinquency of juveniles as

the intentional enticing, aiding or permitting, by anyone over the age of seventeen, of any child under the age of seventeen, and no exception shall be made for a child who may be emancipated by marriage or otherwise, to:
Absent himself or remain away, without authority of his parents or tutor, from his home or place of abode; .... (Emphasis added.)

Since the word “intentional” is included in the above definition of contributing to the delinquency of juveniles without a qualifying provision, only general criminal intent is required as an essential element of the crime. La.R.S. 14:11; State v. Elias, 357 So.2d 275 (La.1978), rev’d on other grounds, State v. Bosworth, 373 So.2d 152, 155 (La.1979); State v. Hardy, 232 La. 920, 95 So.2d 499 (1957); cf. State v. Davis, 371 So.2d 788 (La.1979); State v. Liggett, 363 So.2d 1184 (La.1978). General criminal intent is present when “the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La.R.S. 14:10. Though intent is a question of fact, it may be inferred from the circumstances of the transaction. La.R.S. 15:445.

The evidence adduced at trial establishes only that sixteen-year-old Vanessa Thompson and a friend with whom she had been staying for two days stopped at defendant’s home enroute to the store and visited with him, talking and listening to the stereo for less than two hours. There is nothing in the record to indicate that defendant under these circumstances should have averted to the prescribed criminal consequences as reasonably certain to result from his permitting Vanessa, nearly an adult, to visit in his house for such a short period of time. He had no reason to know that Vanessa was absent from her home without the authority of her parents. Clearly, viewing the evidence in a light most favorable to the prosecution, we are unable to say that a rational trier of fact could have inferred intent, an essential element of the crime, from these circumstances beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hathorn, 395 So.2d 783 (La.1981). Hence, the trial judge erred in denying defendant’s motion for acquittal as there was insufficient evidence to sustain a conviction. We must reverse.

When a reviewing court reverses a conviction on the ground of evidentiary insufficiency, as distinguished from trial error, the double jeopardy clause of the fifth amendment precludes a second trial and requires the direction of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Davis, supra; State v. Liggett, supra. Hence, defendant must be ordered discharged in this case.

DECREE

For the reasons assigned, the conviction and sentence are annulled and set aside and a judgment of acquittal is rendered as to the charge of contributing to the delinquency of the juvenile, Vanessa Thompson.

      . La.Code Crim.P. art. 778 provides:
      In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
      If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.

      . 409 So.2d 676 (La.1982).

      . State v. Byrd, 385 So.2d 248 (La.1980), wherein this court held that discharge of a defendant on the ground of insufficiency of the evidence is not necessary or proper when the evidence supports a conviction on a lesser and included offense which is a legislatively authorized responsive verdict, is not applicable to the instant case where the evidence is insufficient to sustain a conviction of an offense which has no lesser and included offenses.


source: Caselaw Access Project

author: BLANCHE, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Keith BROWN.
    No. 81-K-2896.
    Supreme Court of Louisiana.
    April 5, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, William J. O’Hara, III, John Craft, Asst. Dist. Attys., for relator.
    Ronald J. Rakosky, New Orleans, for respondent.
   BLANCHE, Justice.

Defendant Keith Brown was indicted by an Orleans Parish Grand Jury with the aggravated kidnapping (R.S. 14:44) and armed robbery (R.S. 14:64) of Gloria Vietia. Prior to trial, defendant filed a motion to suppress evidence seized pursuant to a warrant authorizing the search of his automobile. From a ruling by the trial court sustaining the motion to suppress, the state has applied to this Court. We granted writs, and reverse the judgment of the trial court granting the motion to suppress.

The motion to suppress challenged the validity of the authorizing warrant, contending that it failed to describe the automobile to be searched with sufficient particularity. Both the United States and Louisiana Constitutions provide that no warrant shall issue unless based on probable cause, supported by oath or affirmation “and particularly describing the place to be searched * * U. S. Constitution, Amendment IV; Louisiana Constitution, Article I, Section 5; see also Louisiana C.Cr.P. art. 162; State v. Cobbs, 350 So.2d 168 (La.1977).

The object of the particularity requirement is to prevent the search of the wrong premises. As this Court said in State v. Cobbs, supra, at 171:

If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable probability that the police will not search the wrong premises, the description is sufficient.

In the instant case, the warrant authorizing the search of defendant’s automobile contained the following language: “Affidavit(s) having been made before me by Detectives Patrick Jones and Don Hoyt, That he has good reason to believe that on or in the (vehicle) located at 5505 Bundy Rd. # 179, within the Parish of Orleans, State of Louisiana, and more fully described in the application for this warrant (emphasis added), there is now being concealed certain property. ..”

The application in support of the issuance of the warrant read: “That a search warrant should be issued for the search of the following described (vehicle) A 1981 Chevrolet Z-28 Camaro brown in color bearing vehicle identification number 1G1A)87L9BL162296; with a temporary Louisiana license in the name of Keith Brown address 5505 Bundy Apt. # 179.” Also included in the application was the affidavit by Detectives Jones and Hoyt stating the reasons and facts for the request of the warrant. The affidavit recounts the victim’s description of her abduction and concludes with the following paragraph:

It should be known that after Brown was positively identified by the victim, a police car was dispatched to the residence listed on the application filled out by him for issuance of his permit, 5505 Bundy RD. Upon arrival at 5505 Bundy Rd, the vehicle described above was located at 5505 Bundy, parked in spot # 179. In the rear window of the vehicle, was a temporary La. License laying face down. On the rear of the license was the name of Keith Brown address 5505 Bundy RD, apt. # 179.

The state contends that the detailed description of the vehicle to be searched contained in the application for the warrant served to particularize the description of the vehicle contained in the warrant itself. We agree.

In State v. Smith, 397 So.2d 1326 (La.1981), we noted that, “In some instances this Court has found that information contained in the affidavit may serve to ‘particularize’ an otherwise general or misleading description in the warrant such that the warrant description is sufficient.” The warrant in Smith authorized the search of 1821 Carondelet Street in New Orleans. Defendant’s residence, though contained in the same building, was at 1819 Carondelet Street. Although the warrant purportedly authorized the search of the wrong premises, the affidavit in support of the warrant contained additional information which made it clear that the officers had observed suspected activity at 1819. This information, coupled with the fact that the affiants were the executing officers, insured that the correct address would be searched. On this basis, we affirmed the trial court’s denial of a motion to suppress evidence seized in a search of 1819 Carondelet Street.

State v. Hysell, 364 So.2d 1300 (La.1978) involved the sufficiency of a description which designated a street address, but did not indicate which of the two apartments at that address was to be searched. Observing that in the affidavit the officers identified the place to be searched as “on the east side above Alice’s Beauty Salon closest to [the street]” and that an informer had pointed out the east side apartment, this Court stated, “Under these circumstances we find that the description in the warrant was sufficient to insure that the officers who in fact were to search the apartment would not search the wrong apartment.” 364 So.2d at 1305.

In the instant case, information contained in the affidavit eliminated the possibility that the wrong vehicle would be searched pursuant to the warrant. The warrant itself specifically referred to the detailed description given of the vehicle to be searched in the attached application and affidavit. The affiants were also the executing officers of the warrant. In light of our holdings in Smith and Hysell, supra, the trial judge erroneously ordered the suppression of the evidence seized in the search of defendant’s automobile.

Accordingly, the ruling of the trial court on the motion to suppress is reversed, and the case remanded.


author: WATSON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Roberto MELTON.
    No. 81-K-2946.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William Credo, Kerry Hogan, Asst. Dist. Attys., for plaintiff-relator.
    Sheldon G. Fernandez, Gretna, for defendant-respondent.
   WATSON, Justice.

The issue is whether the trial court erred in suppressing forty Quaaludes seized from the defendant, Roberto Melton.

At the hearing on the motion to suppress, the only witness was Officer Bobby Hollings-worth of the Gretna Police Department. Hollingsworth, a two year employee assigned to the traffic division, was off duty on the evening of May 4, 1981. When he entered the restroom of Spanky’s Disco, he observed defendant Melton standing with a clear plastic “ziplock” sandwich bag containing a large number of pills. When Melton saw Hollingsworth, he put the plastic bag in his left boot. Hollingsworth identified himself as a police officer and asked Melton to step outside where Detective Davis was located. The two had Melton place his hands on the wall, searched him, found forty pills in his boot and placed him under arrest.

Hollingsworth did not know what kind of pills were in the plastic sandwich bag when he first observed it but believed that the pills were illegal drugs. Davis subsequently pinpointed the identification. Hollings-worth testified that he was under the impression that there were numerous narcotics present in Spanky’s Disco. He acknowledged that Melton would have been detained if he had tried to leave the premises.

The trial court granted the motion to suppress on the grounds that there was no arrest, no consent and no probable cause for the search. The State’s application was granted to review the ruling.

The State contends that the search is analogous to that in State v. Keller, 403 So.2d 693 (La., 1981). However, Keller involved a search for weapons similar to that in State v. Wade, 390 So.2d 1309 (La., 1980). Here, the only purpose of the search was to find the bag of contraband which had previously been observed in “plain view”. There was no reason to believe that there were weapons present. The officer did not allege that he was in danger of life or limb or that he was searching for a dangerous weapon. LSA-C.Cr.P. art. 215.1. Officer Hollings-worth was not acting from fear for his own safety. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Compare Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

A search preceding an arrest cannot serve as justification for the arrest. Sibron, supra. When the actual arrest takes place is a question of fact. Peters v. New York, companion case to Sibron, supra. Even though the technical arrest occurs after the search, a defendant may, for purposes of constitutional justification, have been arrested before the search commenced. Sibron-Peters, supra, 392 U.S. 40 at 67, 88 S.Ct. 1889 at 1905, 20 L.Ed.2d 917 at 937; State v. Rawls, 376 So.2d 117 (La., 1979).

Hollingsworth did not physically intrude into a constitutionally protected area. The common area of the public restroom in a discotheque is not a place where one has a legitimate expectation of privacy. State v. Lund and Matthews, 409 So.2d 569 (La., 1982). Hollingsworth observed what appeared to be contraband on the person of Melton. The defendant was in a public place and not in his home or on other constitutionally protected premises. A law enforcement officer, who has a right to be where he is may seize evidence inadvertently observed. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Sanders, 374 So.2d 1186 (La., 1979). Compare State v. Byers, 359 So.2d 84 (La., 1978). The contents of this plastic sandwich bag were, of course, completely visible and defendant had no reasonable expectation of privacy in its contents. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). Officer Holl-ingsworth believed that the bag contained narcotics.

To have probable cause there must be facts and circumstances justifying a reasonable belief that the suspect is committing an offense. Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Melton’s detention amounted to an arrest and required probable cause. State v. Rawls, supra, points out that an arrest turns on whether the liberty of an accused has been restrained, rather than the precise timing of a statement that an arrest has occurred. Here Melton was in fact restrained and arrested when the search was made even though the magic words had not been stated. He was not free at that time. Hollingsworth admitted that, if Melton had not voluntarily accompanied him outside the restroom, Melton would have been forcibly detained. See United States v. Miller, 589 F.2d 1117 (1 Cir. 1978) cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771.

Did Melton’s possession of a large quantity of pills in a plastic bag and his concealment of them in an unusual place supply probable cause for arrest? If Officer Holl-ingsworth had probable cause to believe that Melton had committed a crime when he searched him, the search was permissible. The only thing revealed by the search was the contraband which had already been seen. The search did not add any additional grounds or justification for the arrest. Sibron, supra.

Hollingsworth relied solely on first hand observation. While there was no testimony about Hollingsworth’s expertise on the appearance of Quaaludes, the large quantity of pills in a plastic bag indicated an illicit drug. Aspirin or prescription drugs are not generally carried in this manner. The fact that the disco itself had a reputation as an establishment where narcotics were present is relevant. See People v. McRay, 51 N.Y.2d 594, 435 N.Y.S.2d 679, 416 N.E.2d 1015 (N.Y.App., 1980).

The question is not whether the formal act of arrest took place after the search was made, but whether probable cause for arrest existed before the search. If an arrest is justified before the search, it is not unreasonable for the search to be made before instead of after the arrest. See People v. Simon, 45 Cal.2d 645, 290 P.2d 531 (1955). The arrest, search and seizure must be “contemporaneous”. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). When there is probable cause but no formal arrest, a limited search to preserve evidence is justified. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). A limited search such as this is lawful if there is probable cause for arrest, regardless of whether the arrest comes before or after the search. Officer Hollingsworth believed the pills to be illegal drugs. His belief under the circumstances was reasonable. Therefore he had probable cause to believe that Melton possessed contraband and was justified in the warrant-less detention/arrest and search. LSA-C. Cr.P. art. 213. Subsequently, Detective Davis confirmed that the pills were, in fact, contraband.

For the foregoing reasons, the ruling of the trial court is reversed; the motion to suppress is overruled; and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

There is no justification in this record for reversing the trial judge’s ruling. The police officer admitted that he did not know what kind of pills or tablets were in the plastic bag carried by the defendant. The tablets were indistinguishable from aspirin. The police officer obviously arrested the defendant on mere suspicion and not probable cause. When a trial judge who has seen the witnesses and heard them testify makes a determination that is not clearly erroneous, this court should affirm the trial judge’s ruling, regardless of whether he decided for or against the state.

      . Compare DiPasquale v. State, 43 Md.App. 574, 406 A.2d 665 (1979) which held that there was no probable cause because the officer did not suspect when he seized a baggie of marijuana that it contained anything other than cigarette tobacco.

      . The trial court apparently did not rule on the basis of an assessment of the officer’s credibility but on the fact that the search and seizure preceded the arrest.
      “THE COURT: Alright, the Court is going to have to grant the Motion to Suppress. He wasn’t placed under arrest and that there was no consent search to it.
      “MR. LASSUS: No probable cause?"
      “THE COURT: And no probable cause.” (Tr. 10)


author: CALOGERO, Justice. DIXON, Chief Justice

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 81-CA-2997.
    Supreme Court of Louisiana.
    April 5, 1982.

      M. Robert Sutherland, Herschel L. Abbott, Jr., of Jones, Walker, Waechter, Poi-tevent, Carrere & Denegre, New Orleans, for plaintiff-appellee.
    Marshall B. Brinkley, Michael R. Font-ham, of Stone, Pigman, Walther, Wittman & Hutchinson, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

The Louisiana Public Service Commission appeals from a decision of the Nineteenth Judicial District Court which held that South Central Bell Telephone Company did not have to pay a fee of the Commission’s special counsel. The slightly over twenty thousand dollar fee is for services performed by the Commission’s special counsel in connection with the Commission’s intervention in an appeal on the side of those challenging a decision of the Federal Communication Commission in Computer and Communications Industry Association v. Federal Communications Commission and the United States of America, No. 80-1471 (D.C.Cir.1980) (Known as “Computer II,” or “Second Computer Inquiry). Computer II had come to the attention of the Commission’s special counsel in the course of the Commission’s examining an application for a rate increase filed by South Central Bell. After the fee for intervening in the appeal of Computer II was certified to South Central Bell “in connection with [its] rate application,” the telephone company filed a rule in the district court to test the right of the Commission to charge them that item. The Commission argued that Computer II was a “rate making” case under La.R.S. 45:1180. There was no dispute as to the reasonableness of the fee itself; the dispute was over whether South Central Bell should be made to pay the expense incurred by the Commission in its intervention in the Computer II appeal.

After a hearing, the district court concluded that while the outgrowth of the Computer II decision might arguably at some later point affect rates of Louisiana telephone subscribers it was not a case for which the certification of the Commission’s special counsel fees to the utility was authorized under La.R.S. 45:1180 et seq. The district court thus entered judgment for South Central Bell and against the Commission.

On appeal, the Commission argues that the certification of fees to South Central Bell is authorized under the Commission’s plenary authority granted to it in the La. Const, of 1974, art. IV § 21 as well as under R.S. 45:1180 et seq. We find neither constitutional nor statutory authority for the Commission’s certification for payment to South Central Bell of the fee for special counsel to intervene in Computer II on behalf of Louisiana consumers.

The factual background of this case is as follows:

On May 19, 1980, South Central Bell filed with the Commission an application for an increase of its intrastate rates and charges for telephone service in the gross amount of $183,062,000. The Commission hired special counsel to review and evaluate the application. On January 21,1981, the Commission issued its order on South Central Bell’s application. The minutes of its meeting of April 22, 1981, some three months after issuance of Order No. U-14673, reveal that the Commission “authorized the employment of [counsel] to intervene on behalf of the Commission in FCC proceedings involving the telephone industry, particularly in regard to deregulation of certain aspects of terminal equipment and the depreciation and separations manual ... with the fees of Special Counsel ... to be assessed to .. . South Central Bell . .. . ” The Commission moved to intervene in May of 1981 in Computer II, on appeal in the United States Court of Appeal, D.C. Circuit. On July 23, 1981, special counsel’s bill for legal services was tendered to South Central Bell. A narrative was annexed detailing the activities of special counsel in connection with the Commission’s intervention in the Computer II appeal.

In response to a rule protesting the charges which South Central Bell filed pursuant to La.R.S. 45:1181, the district court found the charges not proper since the court believed that the Computer II inquiry was not a rate making case or the judicial review thereof.

The Commission appeals that decision arguing that it “unduly circumscribes the constitutional power of the Commission, runs counter to the plain meaning of an applicable statute and unjustifiably substitutes the court’s interpretation of the nature of the federal proceeding for that of the Commission.”

THE CONSTITUTIONAL QUESTION

The powers and duties of the Louisiana Public Service Commission first appeared in the 1921 Louisiana Constitution as Art. VI § 4. Amended in 1964, the provision reads:

The Commission shall have and exercise all necessary power and authority to supervise, govern, regulate and control all common carrier railroads, street railroads, interurban railroads, steamboats and other water craft, sleeping car, express, telephone, telegraph, gas, electric, light, heat and power, water works, common carrier pipelines, canals (except irrigation canals) and other public utilities in the State of Louisiana, and to fix reasonable and just single and joint line rates, fares, tolls or charges for the commodities furnished, or services rendered by such common carriers or public utilities, except as herein otherwise provided; .. .
The power, authority, and duties of the Commission shall affect and include all matters and things connected with, concerning, and growing out of the service to be given or rendered by the common carriers and public utilities hereby, or which may hereafter be made subject to supervision, regulation and control by the Commission, ... The right of the Legislature to place other public utilities under the control of and confer other powers upon the Louisiana Public Service Commission respecting common carriers and public utilities is hereby declared to be unlimited by any provision of this Constitution.
The said Commission shall have power to adopt and enforce such reasonable rules, regulations, and modes of procedure as it may deem proper for the discharge of its duties, and it may summon and compel the attendance of witnesses, swear witnesses, compel the production of books and papers, take testimony under commission, and punish for contempt as fully as is provided by law for the district courts.

The 1974 Constitution streamlined the language of the provision but essentially afforded the Louisiana Public Service Commission the same powers and duties which it had under the former constitution. La. Const. art. IV § 21(B) provides:

The commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.

So, under each constitutional provision, the Public Service Commission had the power and authority to regulate the common carriers and public utilities of this state and to accomplish that end, it could adopt and enforce reasonable rules regulations and procedures.

While the language in the 1974 Constitution is different from that in the 1921 Constitution, there was no intention on the part of the delegates to the 1973 Constitutional Convention, nor on the part of the citizens of the state who voted to adopt the 1974 Constitution to change the authority of the Public Service Commission. Delegate Louis Lambert reported to the Convention that “the committee worked hard . .. not to make any substantive change basically in that provision. The reasons for that was that apparently it had worked fairly well in the past. We didn’t see any particular reason to tamper with it.” Volume IX. Records of the Louisiana Constitutional Convention of 1973 at 3008. Later in the discussion immediately preceding final adoption of the provision, delegate Pat Juneau reiterated the intent to “not make any change whatsoever in the present authority and jurisdiction of the Public Service Commission.” Supra at 3347. Particularly is this likely as relates to the Public Service Commission’s authority to bill the regulated utility for special counsel fees, considering that the Convention debated the Public Service Commission’s constitutional authority only six months after this Court rendered its decision in United Gas Pipe Line Company v. Louisiana Public Service Commission, 279 So.2d 195 (La.1973). In United Gas, we declared that absent express statutory authority, the Commission did not have the power to assess to the utility the fees of special counsel whose services for the Commission were those “normally performed by a lawyer, services which had they not been performed by Mr. Berkeley would likely have been performed by the Commission’s regular counsel.” 279 So.2d at 198.

In any event, the question is two fold:

(1) Does the constitutional power and duty to regulate all common carriers and public utilities include the right to charge the utility the Commission’s counsel fees?

(2) Does the constitutional directive that the Commission adopt and enforce reasonable rules, regulations and procedures necessary for the discharge of its duties empower the Commission by instituting such rules, regulations, or procedures to charge the regulated utility the Commission’s counsel fees?

Our answer to each of the foregoing questions is in the negative.

The express language of the 1974 Louisiana Constitution reasonably interpreted does not allow the charging of the Commission’s expenses for special counsel to the utility under its regulatory power. In Richland Gas Co. v. Hale, 169 La. 300 at 307, 125 So. 130 at 133, it was noted:

The commission possesses no other power than that conferred upon it by the law of its creation, and under that law it has at the utmost only the power that is conferred in express terms or by necessary or fair implication. Western Union Telegraph Co. v. Railroad Commission of Louisiana, 120 La. [758] 761, 45 So. 598, 599.

Additionally the historical development of the Commission up to the adoption of the 1974 Constitution reveals a lack of fee assessing authority, except for those instances which were expressly provided for by the legislature. Over the years, there have been complaints that the Commission was not sufficiently staffed to meet the demands of its regulatory activities. See generally: W. M. Barrow, Report to the Attorney General, 31 (August 15, 1921); Nat B. Knight, Jr., The Louisiana Public Service Commission, 16 Tul.L.Rev. 1 (1941). In turn, the legislature has responded to the financial problems of the Commission. See e.g. La.R.S. 45:1177, La.R.S. 45:1180, La. R.S. 45:1181, La.R.S. 45:1197. However, nowhere during its history, nor that of its predecessor the Railroad Commission of Louisiana has the Commission been given or exercised an independent constitutional power to fund its activities.

A review of the constitutional and statutory provisions relating to the Commission’s fee imposing authority is revealing. The 1898 and 1913 Louisiana Constitutions contained provisions concerning the Railroad Commission of Louisiana. Besides conferring on the legislature the power to enlarge the powers and duties of the Commission, and providing for “clerical or other assistance .. . deemed necessary for the discharge of [its] duties,” the constitution also allowed the Attorney General and district attorneys to aid the Commission in legal matters for a percentage not to exceed 25% of all fines and forfeitures collected, or to hire other attorneys under similar terms. La.Const. § 288 (1913).

In the 1921 Constitution, the Public Service Commission was required to appoint a Secretary and fix his salary, but also could appoint other employees should the legislature so provide. Additionally, the commissioners, their attorneys and employees received actual travelling expenses when travelling on the Commission’s business. La.Const. art. VI § 3 (1921). Furthermore the 1921 Constitution declared the right of the legislature to “confer other powers upon the Louisiana Public Service respecting common carriers and public utilities .. . to be unlimited by any provision of th[e] Constitution.” (La.Const. art. VI § 4 (1921)). Apparently it was this constitutional . power delegated to the legislature which was utilized to pass Act 171 in 1962 which allowed the Commission to hire its own lawyer and to pay such counsel from the fees generated by the Commission. La. R.S. 45:1177 as amended, appears to be the statutory counterpart to the 1913 constitutional provision which had provided for the using the Attorney General, district attorneys or specially employed attorneys as legal counsel for the Commission.

Additionally, the Commission was given the power under La.R.S. 45:1180 to pass on the expenses for “engineers, consultants, accountants or clerical assistants” incurred by the Commission in the investigation of the affairs of a public utility “for the purpose of fixing and regulating the rates charged”. When that statute was interpreted in United Gas, however, we found that it did not allow the certification of fees for additional counsel hired to perform typically legal work during the Commission’s investigation of a utility. The United Gas decision may have prompted the Legislature in 1975 to amend La.R.S. 45:1180 to allow the Commission to retain “[attorneys or special counsel ... for the purpose of evaluating and reviewing proposed rate increases, and for representing the Public Service Commission in rate making cases or the judicial review thereof.” The full implications of the statutory law on this case will be explored in the next part of the opinion. For purposes of this discussion of the constitutional provisions, it is sufficient to say that the historical development of the law does not support the position of the Commission.

Nor can the power to assess counsel fees for the Commission’s intervention into the Computer II appeal to South Central Bell be supported by relying on the rule-making powers of the Commission. The Commission’s reference to Louisiana Consumer’s League, Inc. v. Louisiana Public Service Commission, 351 So.2d 128 (La.1977) and a Colorado case, Mountain States Telephone & Telegraph Co. v. Public Utilities Commission, 195 Colo. 130, 576 P.2d 544 (1978) is not helpful to their position since neither bear significantly upon the issue here. The Louisiana Consumers’ League involved a procedural question, and while the court found that the Commission did not have to follow the procedures set forth in the Administrative Procedures Act, it did not determine that the Commission had unfettered discretion nor autonomous powers as relates to funding. Article IV, § 21(B) of the 1974 Constitution required that the Commission enact “reasonable” rules and the Court struck down the Commission’s rule that barred intervention by the Louisiana Consumers League as being unreasonable. The case of Mountain States Telephone & Telegraph Co. involved litigation arising out of a telephone rate making proceeding before the Colorado Public Utilities Commission, a situation unlike the Computer II inquiry. Furthermore the Colorado Supreme Court was interpreting a provision of the Colorado Constitution different from the provisions of our Louisiana Constitution. Finally the court in Mountain States determined that there was statutory authority for the award as well. 576 P.2d at 547. Were we to find statutory authority for the Commission’s certification of the counsel fee in Computer II to the utility, we too would be able to affirm the award in this case.

STATUTORY AUTHORITY

Alternatively, the Commission contends that R.S. 45:1180 facilitates their charging the special counsel fees to the utility. Prior to 1976, only two statutes addressed attorney’s fees in regard to the Louisiana Public Service Commission. La. R.S. 45:1177 provides for the Commission’s retaining an attorney whose salary and expenses are to be derived from the fees collected by the Commission. La.R.S. 45:1198 provides for the payment of attorney’s fees in suits for damages when a commission’s order has been violated.

In 1976, apparently in response to the United Gas decision, the legislature added the following paragraph to La.R.S. 45:1180:

Attorneys or special counsel may be retained by the commission for the purpose of evaluating and reviewing proposed rate increases, and for representing the Public Service Commission in rate making cases or the judicial review thereof.

Under the express provisions of this statute and under amended La.R.S. 45:1181 to which the words “attorneys or special counsel” were added in 1976, counsel may be retained and the fees certified (1) to evaluate and review proposed rate increases, and (2) to represent the Public Service Commission in rate making cases or the judicial review thereof.

The Commission cites numerous cases where the Commission’s special counsel fees for the examination of a utility’s affairs and for rate making proceedings have been certified to the applicable utility without question or incident. However, the common thread linking the cases (other than the assessment of fees against the utility) is that in each instance the utility to which the fee was certified was a party and the appearance directly involved rate making matters. Monochem, Inc. v. Louisiana Public Service Commission, 253 La. 1047, 221 So.2d 504 (1969); South Central Bell Telephone Co. v. Louisiana Public Service Commission, 352 So.2d 964 (La.1977); South Central Bell Telephone Company v. Louisiana Public Service Commission, 352 So.2d 999 (La.1977). In Computer II, South Central Bell’s involvement was only peripheral and its rates at that point were only indirectly and prospectively affected. Furthermore, a decision had been rendered by the Commission on South Central Bell’s rate application (i.e., in a rate making case) three months before the Commission’s intervention in Computer II, and testimony on the rule in the district court revealed that the unresolved depreciation question was unrelated to the Computer II inquiry. The intervention did not involve an evaluation or review of proposed rate increases, did not concern Public Service Commission’s involvement in a rate making case, or in the judicial review of a rate making case.

The Commission argues that Computer II was indeed a “rate making” case, within the meaning of La.R.S. 45:1180. However, it is clear from the record of the proceedings and from the testimony at trial that Computer II did not set any rates, either intrastate or interstate.

The judicial history and the statutory language of La.R.S. 45:1180 and its amendment do not support the suggestion that the Commission has the right to charge the expense of its intervention in a case heard before the United States District of Columbia Circuit Court of Appeals to a local, only indirectly involved utility because the Commission believes that the outcome of such proceedings will affect the rates of Louisiana consumers. Admittedly Louisiana may have a public interest in such proceedings and there is no question but that the Public Service Commission’s involvement in Computer II is in the interest of the Louisiana consumer. However, if the legislature has not adequately provided for the funding of the Commission to allow it to carry out scrupulously its responsibilities in the public interest, it is for the legislature to remedy the matter. The statutes do not direct that the utilities pay for special counsel fees which are not “for the purpose of evaluating and reviewing proposed rate increases and for representing the Public Service Commission in rate making cases or judicial review thereof.”

JUDICIAL REVIEW OF THE COMMISSION’S BILLING SOUTH CENTRAL BELL

As a final argument, the Commission challenges the power of this Court to decide independently the meaning of the phrase “rate making case.” They call to our attention two cases wherein the court deferred to the expert judgment of the Commission. The deference afforded the Commission in both cases, however, was to the Commission’s expertise in issuing orders actually fixing- rates. At issue in Monochem Inc. v. Louisiana Public Service Commission, 253 La. 1047, 221 So.2d 504 (1969) was a monthly charge for foreign exchange telephone circuits. The lower court had declared the $75 fee invalid. In South Central Bell Telephone Co. v. Louisiana Public Service Commission, 352 So.2d 964 (La.1977), the lower court had amended an order of the Commission and ordered a rate increase. Certainly the orders and findings of the Commission in rate applications are entitled to great weight and should not be overturned on judicial review unless shown to be arbitrary, capricious or an abuse of the Commission’s authority. Louisiana Power & Light Co. v. Louisiana Public Service Commission, 392 So.2d 658 (La.1980); Beauregard Elec. Co-op Inc. v. Louisiana Pubiic Service Commission, 378 So.2d 404 (La.1979); Central Louisiana Elec. Co., Inc. v. Louisiana Public Service Commission, 377 So.2d 1188 (La.1979).

There is a distinction between the Commission’s issuing and interpreting its own general orders and the Commission’s interpreting the language of a statute passed by the legislature. As noted in Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 370 So.2d 497 (La.1979):

The Commission is an expert within its own specialized fields and its interpretation and application of its own General Orders, as distinguished from legislative statutes and judicial decisions, deserve great weight, because the Commission is in the best position to apply its own General Orders.

The question of whether the Commission is given the power to certify particular special counsel fees under the language of La. R.S. 45:1180 is clearly one of statutory interpretation. The remedy for challenging such certification is the filing of a rule pursuant to La.R.S. 45:1181. South Central Bell filed a rule so challenging the certification. The matter is properly before this court and subject to judicial review.

Decree

Finding that the Commission lacked the authority to certify the legal fees for its intervention into the Computer II inquiry to South Central Bell, we affirm the judgment of the district court in favor of South Central Bell and against the Louisiana Public Service Commission.

AFFIRMED.

DIXON, C. J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The 1921 Constitutional provisions cited by the majority gave the Public Service Commission the power to employ special counsel and charge the affected utility:

“The power, authority, and duties of the Commission shall affect and include all matters and things connected with, concerning, and growing out of the service to be given or rendered by the ... public utilities hereby, or which may hereafter be made subject to supervision, regulation and control by the Commission... .
The said Commission shall have power to adopt and enforce such reasonable rules ... as it may deem proper ...” Art. 6, § 4 La.Const. 1921.

United Gas Pipe Line Co. v. Louisiana Public Service Commission, 279 So.2d 195 (La.1973) dismissed this constitutional article as irrelevant, and narrowly construed the applicable statutes. Three members of this court disagreed with the opinion at that time. In my view, unless the 1974 Constitution is interpreted to narrow and restrict the powers of the Public Service Commission, the United Gas case should be overruled, and we should approve the action of the Commission in assessing fees for special counsel in the “Computer II” intervention against South Central Bell.

      . Computer II, a rule making inquiry, explored the effect of increased competition from unregulated industries in the field of data processing and computer services involving telecommunications equipment and the procedures by which to implement in the public interest the deregulation of the sale of terminal equipment and enhanced (such as long distance) services.

      . La.R.S. 45:1180 provides in pertinent part:
      Attorneys or special counsel may be retained by the commission for the purpose of evaluating and reviewing proposed rate increases, and for representing the Public Service Commission in rate making cases or the judicial review thereof.

      . Neither party argues, nor do we find, that the Commission did not have the authority to intervene in Computer II on behalf of Louisiana consumers. The dispute centers on who should pay for such intervention. An amicus curiae brief filed by the Louisiana Consumer’s League, Inc. argues that if the utility is not held responsible for the fee, the Commission might be unable to intervene in cases like Computer II, since there is no alternate means of funding.

      . Hearings were conducted on November 12, 13, 17, 18 and 19, 1980, and December 8 and 9, 1980. In reviewing the application, the Commission addressed the following issues: (1) evidence suggesting a strategy of selective curtailment of service; (2) the proper disposition of the rate increase request; (3) proposed restructuring and repricing private line services (4) special issues having a potential impact on future rate levels, including (a) proposed changes in depreciation rates (b) negotiations aimed at developing uniform methods of separating the interstate and intrastate plant of the company and (c) proposed implementation of South Central Bell’s so-called “market pricing process” for certain services.

      . Order No. U-14673 directed South Central Bell (1) to take various detailed steps to provide full service, (2) to increase its tariffs in amounts directed by the Commission sufficient to increase its gross annual revenues by $52,-408,000, (3) to restructure and reprice its private line services subject to stated modifications, but otherwise consistent with the company’s proposal. No action was taken on several special issues presented but the following activ¡ties were suggested. The Commission directed that special counsel and the consultants of the Commission develop data and positions to be presented at public hearings to be held prior to the usual “three way meetings” between the company, federal regulatory officials and state regulatory officials to negotiate changes in depreciation. Special counsel and consultants were advised to participate in a study then being conducted by a joint board of the National Association of Regulatory Utility Commissioners and the Federal Communications Commission to develop a uniform method of dealing with separations. Finally, although the presented request for a market pricing process was rejected, special counsel and consultants for the Commission were directed, should South Central Bell again request adoption of the “market pricing process,” to review and analyze that request.

      . The portions of the article which we delete for ease of review both have to do with the 1964 amendment which gave to the legislature the exclusive power to regulate the direct sales of natural gas to industrial users for fuel or for utilization in any manufacturing process.

      . Incidentally, no such rules have been adopted by the Commission, nor, given the outcome of this case, would the adoption of such rules allow the Commission to assess the utility the fees for intervention in the Computer II appeal.

      . South Central Bell was not a party to Computer II although American Telephone and Telegraph and other utilities throughout the country petitioned the FCC for reconsideration of its decision and intervened in the appeal.

      . The Computer II appeal arose out of a federal rule making proceeding of the Federal Communications Commission in the D.C. Circuit. The Final Decision, 77 F.C.C.2d 384, (Released May 2, 1980) contained the following summary of the proceeding:
      Under consideration are issues addressed in the Notice of Inquiry and Proposed Rule-making (Notice), 61 FCC 2d 103 Supplemental Notice of Inquiry and Enlargement of Proposed Rulemaking (Supplemental Inquiry and Rulemaking (Tentative Decision), 72 FCC 2d 358 adopted in this proceeding. Commonly referred to as the “Second Computer Inquiry,” this proceeding focuses on regulatory issues emanating from the greater utilization of computer processing technology and its varied market applications. The thrust of this proceeding is threefold: a) to determine whether enhanced services which are provided over common carrier telecommunication facilities should be subject to regulation and, if so, to what extent, b) to examine the competitive and technological evolution of customer premises equipment, with a view toward determining whether the continuation of traditional regulation of terminal equipment is in the public interest; and c) to determine, consistent with the statutory mandate set forth in the Communications Act of 1924, as amended, 47 U.S.C. § 15, the role of communication common carriers in the provision of enhanced services and customer-premises equipment.


author: DENNIS, Justice. BLANCHE, Justice

text:
    STATE of Louisiana v. Danny GOODSON.
    No. 81-K-3094.
    Supreme Court of Louisiana.
    April 5, 1982.

      S. Patrick Phillips, Indigent Defender Office, Bossier City, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Dist. Atty., for respondent.
   DENNIS, Justice.

The question presented here is whether the relator, who is charged in the Twenty-Sixth Judicial District Court for the Parish of Bossier with the aggravated rape of a Bossier City woman, should be granted a change of venue because a fair and impartial trial cannot be obtained in that parish due to the media publicity concerning his involvement in numerous rapes in a neighboring parish.

In Caddo Parish, beginning in November, 1980, a white man between 25 and 33 years old committed a series of rapes in an 8 to 10 block section of the city of Shreveport known as the Highland area. A number of months after the first offense the Shreveport police and the news media began to refer to the assailant as the “Highland Rapist.” During the next ten months, nine rapes and three attempted rapes within the area were attributed to the Highland Rapist. The police conducted what their chief claimed was the most intensive investigation in the history of the department, at one point flooding the Highland area with twenty plainclothes officers. Hypnosis of victims, community seminars, and wholesale street encounters were resorted to in an effort to break the case. The news media made thorough reports of each crime and the law officers’ efforts to apprehend the rapist. As the rapist continued to elude the police and the dread of the local residents mounted, the story of the Highland Rapist received increasingly prominent coverage by both electronic and print media.

In August of 1981, authorities in neighboring Bossier Parish were reported to be comparing notes with Shreveport detectives in Caddo Parish to determine if there was a possible link between the Highland Rapist and the perpetrator of two rapes in the Old Bossier section of Bossier City. A Shreveport detective was quoted in the local media as stating that there was a “possibility” that the two cities’ rape cases were related “but from what I’ve compared so far, they are totally different cases.” Shreveport, the site of the Highland area rapes, is located on the western bank of the Red River in Caddo Parish. Bossier City, the site of the rape which is the subject of this case, is located across the river from Shreveport in Bossier Parish. Bossier Parish is 53 miles long and has a population of approximately 80,700. Circulation and broadcast areas of Shreveport newspapers and television stations extend over neighboring Bossier Parish.

Relator, Danny Goodson, was arrested on September 7, 1981 in the backyard of a house in the Highland area shortly after another rape had occurred nearby. After receiving a prowler report from a house in the vicinity, police officers stalked Goodson with a tracking dog and in dramatic climax ran him down on foot. During the next three days Goodson was interrogated and confessed to twelve rapes, burglaries, and attempted rapes in the Highland area in the preceding ten months. The Shreveport Chief of Police announced that “the Highland rapist is now in the jail in Shreveport, Louisiana.” On September 29, 1981, Good-son was indicted by a Caddo Parish grand jury in an eleven count indictment charging him with six counts of aggravated rape, two counts of attempted aggravated rape, two counts of aggravated crime against nature and two counts of attempted aggravated burglary and simple burglary. Goodson entered a not guilty plea to each of the charges against him during his arraignment in Caddo Parish on October 9, 1981. All of these events were well publicized by Shreveport newspapers, television and radio. Goodson was identified by name in each news story and his photograph appeared in the newspapers on several occasions.

Following Goodson’s arrest in Shreveport, he was interviewed by Bossier City police officers. On September 9, 1981, in at least one newspaper article and a television news broadcast, Goodson was reported to have admitted his involvement in the July rape of a Bossier City woman. On September 25, 1981 he was indicted on one count of aggravated rape by a Bossier Parish grand jury. On October 5, 1981 he was arraigned and pleaded not guilty. His trial was set for October 26, 1981 but continuances were granted to November 30, 1981 and December 4, 1981. Relator filed a motion for a change of venue which, after a hearing, was denied on November 17, 1981. This court granted a supervisory writ to review the trial court’s ruling for constitutional error on December 8, 1981.

At the hearing on the motion to change venue, the defendant did not call any witnesses. However, he introduced without objection thirty-five Shreveport newspaper articles and one hundred and eight pages of transcripts of newscasts by Shreveport television stations. The newspaper articles in the record were published between June 1, 1981 and October 21, 1981. Until relator’s arrest on September 7, 1981, the articles were concerned solely with the activities of the Highland Rapist, the Shreveport police, and the residents in the Highland area of Shreveport. With the relator’s arrest he was immediately identified as the person the police believed to be the Highland rapist. The publicity of his confessions, his indictments in both Bossier and Caddo Parishes, and the related pretrial proceedings most certainly identified him in the public mind as the notorious Highland rapist. Television and newspaper reports indicated that Goodson was suspected of two rapes in Bossier Parish, and that he had admitted involvement in and been indicted for one of them which is the subject of this case. However, because the Bossier City rapes were considered isolated incidents at the time of their commission, news reports which later linked Goodson to them were less sensationalized than reports linking him to the more publicized series of rapes in the Highland area of Shreveport.

The trial judge found that although the media publicity had been extensive, and the Shreveport media has coverage over the entirety of Bossier Parish, the relator had not shown that the reports were inflammatory or that prejudice existed against him in the Bossier Parish public mind. The trial court also noted that the jury would be drawn from the entire parish of Bossier, much of which is situated some distance from the Highland area of Shreveport in Caddo Parish and the site in Bossier City where the charged offense occurred.

The constitutional standard of fairness requires that a defendant have “a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Qualified jurors need not, however, be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

“ ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ Irvin v. Dowd [366 U.S.] at 723, 81 S.Ct. 1639 [1642], 6 L.Ed.2d 751.” Murphy v. Florida, 421 U.S. at 800, 95 S.Ct. at 2036, 44 L.Ed.2d at 595.

At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality. Murphy v. Florida, supra, at 800, 95 S.Ct. at 2036.

In unusual circumstances prejudice against the accused may be presumed. Prejudice was presumed in the circumstances under which the trials in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), were held. As the high court in Murphy v. Florida, supra, explained:

“ * * * In those cases the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings. In Rideau the defendant had ‘confessed’ under police interrogation to the murder of which he stood convicted. A 20-minute film of his confession was broadcast three times by a television station in the community where the crime and the trial took place. In reversing, the Court did not examine the voir dire for evidence of actual prejudice because it considered the trial under review ‘but a hollow formality’ — the real trial had occurred when tens of thousands of. people, in a community of 150,000, had seen and heard the defendant admit his guilt before the cameras.
“The trial in Estes had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment. Similarly, Sheppard arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob. * * * To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner’s trial was not fundamentally fair.” Murphy v. Florida, 421 U.S. at 799, 95 S.Ct. at 2036, 44 L.Ed.2d at 594.

That prejudice against the accused may be presumed from unusual circumstances is recognized by Louisiana law. In deciding whether to grant a change of venue the court must consider whether prejudice, influence, or other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial. La.C.Cr.P. art. 622. See State v. Rodrigue, 409 So.2d 556 (La.1982); State v. Bell, 315 So.2d 307 (La.1975); State v. Felde, 382 So.2d 1384 (La.1980).

Applying these precepts, we conclude that the relator has failed to show that there is either actual or presumed prejudice against him to a degree that will render a fair trial impossible. As there has not yet been a voir dire examination, it is impossible to decide at this point whether actual prejudice against the accused exists on the part of prospective jurors. Relator’s argument that the extensive coverage by the media will deny him a fair trial rests entirely upon the quantum of publicity which the events received. He has failed to present us with any evidence from which we can reasonably presume that Bossier Parish jurors will be prejudiced by the publicity which largely concerns the Caddo Parish crimes. We cannot say based on this record that the publicity is of such a character that a Bossier Parish juror exposed to it will be presumed prejudiced regardless of whether he says he can remain impartial. Under Murphy, extensive knowledge in the community of either the crimes or the putative criminal and his prior crimes is not in itself sufficient to render a trial constitutionally unfair. Unfairness of a constitutional magnitude cannot be presumed in the absence of a “trial atmosphere ... utterly corrupted by press coverage.” Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida, supra. The present record in this case does not justify a presumption that the trial atmosphere in Bossier Parish has been so affected.

Nevertheless, because serious questions of possible prejudice have been raised in this case, the trial judge’s order refusing to change the venue shall be vacated, and the trial judge is instructed to defer ruling thereon until completion of voir dire in this case, which shall be governed by the following guidelines based upon the standard proposed by the American Bar Association’s Standards Relating to Fair Trial and Free Press § 8-3.5 (1978).

Since there is a significant possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to exposure shall take place outside the presence of other chosen and prospective jurors. An accurate record of this examination shall be kept by court reporter or tape recording whenever possible. The questioning shall be conducted for the purpose of determining what the prospective juror has read and heard about the case and how any exposure has affected that person’s attitude toward the trial, not to convince the prospective juror that an inability to cast aside any preconceptions would be a dereliction of duty.

Both the degree of exposure and the prospective juror’s testimony as to state of mind are relevant to the determination of acceptability. A prospective juror testifying to an inability to overcome preconceptions shall be subject to challenge for cause no matter how slight the exposure. If the prospective juror remembers information that will be developed in the course of the trial, or that may be inadmissible but does not create a substantial risk of impairing judgment, that person’s acceptability shall turn on the credibility of testimony as to impartiality. If the formation of an opinion is admitted, the prospective juror shall be subject to challenge for cause unless the examination shows unequivocally the capacity to be impartial. A prospective juror who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge for cause without regard to the prospective juror’s testimony as to state of mind.

The trial court’s ruling on the motion to change venue is vacated, and the case is remanded for further proceedings. In the interest of justice, however, the trial court is directed to defer ruling on the motion-until completion of voir dire and to apply the foregoing guidelines in conducting the voir dire.

RULING VACATED; REMANDED WITH INSTRUCTIONS.

MARCUS, J., concurs.

BLANCHE, J., concurring in part and dissenting in part for reasons assigned.

WATSON, J., dissents being of the -opinion that change of venue should be granted.

BLANCHE, Justice

(concurring in part; dissenting in part).

I concur in this opinion’s holding that defendant has failed to show that there is actual or presumed prejudice against him so as to render a fair trial in his case impossible.

Although this Court’s advice to the trial judge as to how the voir dire examination should be conducted seems fair it is, nevertheless, based on American Bar Association standards and may or may not have been the product of the adversary concept of judicial proceedings.

Furthermore, this writer feels that some trial judges may elect to play it safe and excuse anyone who ever heard about the “Highland rapist” and his identification as the accused in order to avoid a mistrial.

Therefore, I dissent from this portion of the opinion insofar as it remands the case for further proceedings in accordance with the majority’s instructions.


author:
DIXON, Chief Justice.
     NED E. DOUCET, Justice Ad Hoc

text:
    STATE of Louisiana v. Alvin SAM.
    No. 81-KA-0897.
    Supreme Court of Louisiana.
    April 6, 1982.

      William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-appellee.
    Preston N. Aucoin, Ville Platte, for defendant-appellant.
   DIXON, Chief Justice.

Defendant, Alvin Sam, was indicted for the second degree murder of Milton Leday in violation of R.S. 14:30.1. After a trial by jury, defendant was found guilty as charged and sentenced to life imprisonment without benefit of probation, parole or suspension. Defendant appeals, asserting thirteen assignments of error.

On November 30, 1979 Alvin Sam joined a poker game in the “gambling shack” of the Happy Landing Club in Ville Platte, Louisiana. Sam sat down next to Milton Leday and an argument over the rules of the game soon developed between the two men. The victim stood up and slapped defendant on the side of the head. Sam fell back against a handrail, pulled a .22 caliber handgun and fired one shot into Leday’s abdomen. On December 2, 1979 the victim died from the gunshot wound.

Assignment of Error No. 5

Defendant asserts that a mistrial should have been granted because of questions asked during the state’s cross-examination of Sam. The following exchange occurred between the district attorney and defendant:

“Q. Now why did you refuse to give a statement when they first asked you? Why did you refuse to tell them what happened on the night you were arrested? Tell us why?
A. Because I had decided I wasn’t going to give no statement until I get a lawyer in my presence.
Q. Why?
A. To advise me of my rights.
Q. Well you were already advised of your rights, weren’t you?
A. Yeah, but I needed a legal counsel, you know, attorney, you know. I wanted to talk to first before I gave a statement.
Q. Now, were you or were you not advised of your rights when you arrested that man?
A. They advised me of my rights.
Q. And who advised you?
A. One of the officer. They read it to me.
Q. And then you refused to give a statement?”

Defense counsel claims that the district attorney badgered Alvin Sam about the exercise of his constitutional right to remain silent thereby creating prejudice against him in the minds of the jurors.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the prosecutor sought to impeach the defendant’s exculpatory trial testimony by cross-examining him about his failure to tell the story after given Miranda warnings at the time of his arrest. The court held that the use of an accused’s post-arrest silence after receiving Miranda warnings for purposes of impeachment violated the due process clause.

This court followed Doyle v. Ohio, supra, in State v. Montoya, 340 So.2d 557, 560 (La.1976). In that case, the arresting police officer was asked by the prosecutor whether the accused told the officer where he had procured drugs involved in the arrest. This court held:

“In the instant case the defendant did not take the stand. Thus, there is even less justification here for the State to call attention to his silence at the time of arrest than there was in Doyle, because the argument cannot be made that he was under cross-examination and thus fair game for impeachment by use of his silence at the time of his arrest. Therefore, we conclude it was clearly reversible error for the trial court to permit the State to use the arrested person’s silence against him at trial... . ”

In a later case, State v. Mosley, 390 So.2d 1302, 1305-06 (La.1980), the court addressed this question again. The prosecutor was allowed to ask two police officers called by the state if the defendant had been advised of his constitutional rights upon arrest. The conviction was upheld despite the court’s disapproval of the conduct of the prosecuting attorney because the reference to the accused’s silence was oblique and obscure:

“Although we disapprove of the conduct of the prosecuting attorney in this case, we cannot say that the oblique and obscure reference to the defendant’s post-arrest silence amount to reversible error. We agree with the defendant that whether he was advised of his rights at the time of arrest was irrelevant. However, the prosecutorial examination did not stress the right to remain silent or attempt to elicit testimony regarding defendant’s failure to respond to police questioning. The prosecutorial actions in this case, albeit improper, cannot be said to have resulted in prejudice to the defense of the accused.”

Most recently, in State v. Brown, 395 So.2d 1301 (La.1981), the prosecution introduced a blank rights form into evidence. This court found no prejudice had resulted to the defendant because the form was offered only to show that he had been advised of his constitutional rights. No attempt was made by the prosecution to elicit testimony concerning the accused’s failure to respond to police questioning; in fact the accused made several exculpatory statements during the interrogation. Further, the defense had opened the door to the defendant’s attitude upon arrest, thereby entitling the state to produce evidence to rebut the defense’s contention.

In the case before us the prosecutor emphasized Sam’s refusal to give a statement after his arrest. Although the defendant can be fully cross-examined when he takes the stand and is subject to impeachment by use of his silence under certain circumstances, it is fundamentally unfair to allow the arrested person’s silence to impeach him at trial, as explained in Doyle v. Ohio, supra:

“. .. The warnings mandated by [Miranda], as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 41 L.Ed.2d 182, 94 S.Ct. 2357 [2363] (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, [422] U.S. [171], at 177, 45 L.Ed.2d 99, 95 S.Ct. 2133 [2137 (1975)]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, supra, at 182-183, 45 L.Ed.2d 99, 95 S.Ct. 2133 [2139], put it very well:
‘[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.... Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.’ ” (Footnotes omitted). 426 U.S. at 617, 96 S.Ct. at 2245, 49 L.Ed.2d at 97-98.

Here, the defendant took the stand and offered an otherwise plausible explanation to explain his conduct. To impeach him by casting doubt on his defense, using his constitutional right to silence to establish an inference that the defense was fabricated, constitutes reversible error.

To aid in a retrial of this case, other meritorious assignments raised by defendant will be discussed.

Assignments of Error Nos. 4 and 6

Defendant urges that the trial court erred in forbidding his testifying about pri- or incidents between himself and the victim’s relative, Melvin Leday. The trial court instructed defendant not to mention any trouble between himself and the victim’s family because only incidents between the victim and defendant were relevant to show the victim’s violent character.

Defendant argues that this testimony was relevant to show why defendant began carrying a pistol and was not offered as evidence of the victim’s dangerous character. As Sam, himself, told the judge (the jury had been removed):

“But Your Honor, what I was trying to say, that’s the main reason I was carrying a gun because I was mistreated and I was abused by the Ledays. I mean I was afraid of the Ledays. That’s why I was carrying a gun.”

When offered to prove the reason defendant was armed, this testimony would bear directly on the self-defense theory and would be relevant.

The defense also sought to introduce a logbook entry from the sheriff’s office which showed that Sam came in on November 26, 1977 and declared that the Ledays beat him with chairs at the Happy Landing. The court refused to allow this entry into the record for the same reasons noted above. We cannot rule on all the evidentia-ry questions which might be raised by such an offering, but it is not irrelevant.

Assignment of Error No. 7

By this assignment, defendant contends that the trial court erred in not allowing the introduction of a knife found in the area where the victim had lain after the shooting. The defense called Wilson Joseph who testified that he was present at the Happy Landing on the night of the shooting and that he found an open pocket knife on the ground outside the tavern. He stated that the knife displayed in court was the one he found at the scene. Joseph picked up the knife and put it in his pocket; Sam’s sister and another man purportedly observed Joseph’s actions. Defendant argues that the knife is crucial to show the decedent was armed and that Sam acted in self-defense.

In order to introduce demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case; lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Williams, 362 So.2d 530 (La.1978); State v. Provost, 352 So.2d 661 (La.1977). It appears that a proper foundation for admission of the knife was laid; whether or not the knife belonged to the decedent is a question of fact for the jury.

Assignment of Error No. 8

By this assignment, defendant submits that error was committed by the court’s refusal to allow the accused to introduce the victim’s record of prior convictions to demonstrate that the victim had a dangerous character. Defendant relies on R.S. 15:482 which provides:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

Evidence of “hostile demonstration or of overt act” was presented by the defense. Defendant claims that this provision permits introduction of criminal records. The state argues that this provision must be read in conjunction with R.S. 15:479 which states:

“Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him."

It is the state’s position that dangerous character cannot be proven by specific acts, such as conviction records, but only by evidence of general reputation. The trial court agreed with the prosecution.

In State v. King, 347 So.2d 1108, 1111 n.3 (La.1977), this court observed:

“With respect to the admissibility of the decedent’s criminal record, the traditional rule is that character evidence is established by general reputation, not by specific acts. La.R.S. 15:479. Nevertheless, evidence of specific acts is relevant when a plea of self-defense is raised to show the defendant’s state of mind, which is a material issue in such cases. La.R.S. 14:20. See State v. Lee [331 So.2d 455 (La.1976)], supra. Therefore although prior threats and violent acts, whether against the accused or against others, might be inadmissible as character evidence, they are admissible if the defendant knew of them at the time of the offense. Thus, in the instant case, the victim’s prior record would be inadmissible unless there was a showing that the defendant knew of the record at the time of the homicide.”

Under State v. King, supra, the victim’s prior record may be admitted if a showing is made that Sam knew of the record at the time of the shooting. In this instance, the traditional rule against proof of character by specific acts, R.S. 15:479, gives way to permit a defendant to prove his knowledge of the victim’s violent propensity. No showing was made that Sam knew of the acts contained in Milton Leday’s police record; however, Sam testified that he knew the victim “had hurt several people before” and had “beat up and cut up a dude across town.” He also stated that Paul Richard and Valmond Bellard had been victimized by the decedent. There is no indication whether these individuals are named as victims in Leday’s police record or whether the incidents referred to by Sam are contained in the record. If such a connection can be made upon retrial, the victim’s record may be admissible.

For these reasons, defendant’s conviction is reversed and the case remanded to the district court for a new trial.

KLIEBERT and KLEES, JJ. ad hoc, dissents.

DOUCET, J. ad hoc, dissents with reasons.

NED E. DOUCET, Justice Ad Hoc

(dissenting).

I disagree with my learned brethren that the exchange between the Prosecutor and the Defendant, complained of in Assignment of Error Number 5, constituted reversible error.

I do agree that Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) specifically prohibits the prosecutor from using a defendant’s post-Miranda warning silence to impeach the defendant.

I do not agree that in this case the prosecutor did so, or attempted to do so. While cross examining the defendant, the prosecutor asked a short series of questions concerning Sam’s silence after having been advised of his rights, as set forth in Miranda.

In this case, the District Attorney was clearly not seeking to impeach but rather was seeking to establish that the defendant had been properly advised of his rights at the time of his arrest. Only one question concerned Sam’s not having given a statement. The other questions complained of by the defense addressed the sufficiency of the warnings. While I do not wish to encourage prosecutors to indulge in this type of questioning, I do not agree that in this case the questions were impermissible under Doyle, supra. It is my opinion, rather, that these questions fall squarely within this Court’s holding in State v. Brown, 395 So.2d 1301 (La.1981); that these questions were designed to show the sufficiency of the post-arrest warnings, and that there resulted no prejudice to the defendant.

Therefore, I respectfully dissent.

       Judges Ned E. Doucet, Jr. of the Third Circuit and Thomas J. Kliebert and Robert J. Klees of the Fourth Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . In Doyle v. Ohio, supra, the court noted one such circumstance:
      “It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378, 1383 (CA5 1975).” Id. at 619-620 n. 11, 96 S.Ct. at 2245 n. 11, 49 L.Ed.2d at 98-99 n. 11.

      . The trial judge admonished defendant:
      “Mr. Sam. Excuse me. If you had any difficulty with Milton Leday, you can talk—you can say about that but you must not say about Melvin Leday. You understand? You’re not to mention that. You can say about Milton. If you had any difficulty with him before, if you had a fight with him before, you can elaborate on that but you must not talk about what happened with you and Melvin.”

      . Alvin Sam testified that the decedent attacked him on the night in question “in a violent way.” Also, Lionel Hebert testified that Milton Leday struck defendant with his right hand causing defendant to fall against a railing. Valmond Bellard and Edwin Paul Richard both testified that they knew the decedent and that he had beaten them in the past.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Julius X. JOHNSON, Respondent.
    No. 81-B-1998.
    Supreme Court of Louisiana.
    April 15, 1982.
   ORDER

The foregoing Petition, the premises, and the law considered

IT IS ORDERED, ADJUDGED, AND DECREED

That Julius X. Johnson be allowed to surrender his license to practice law; that the name of Julius X. Johnson be stricken from the Rolls of Attorneys; and that Julius X. Johnson be and hereby is disbarred on his consent, and that the cost of these proceedings are taxed to Julius X. Johnson.


author: CALOGERO, J.

text:
    STATE of Louisiana ex rel., Cleveland MITCHELL v. CLERK OF COURT, Hon. Edwin Lombard.
    No. 82-KH-0737.
    Supreme Court of Louisiana.
    April 16, 1982.
   Re: Cleveland Mitchell, applying for Remedial Writs to the Parish of Orleans, Criminal District Court, No. 277-838.

Denied.

CALOGERO, J.

concurs in the denial. The transcript of the hearing on the motion to suppress identification and its presentation to relator is not required for as much as review in this Court of the trial transcript in his pending appeal reveals that no evidence was introduced at trial concerning identification of defendant other than the victim’s identifying defendant in court at trial, and, concerning that identification there was no contemporaneous objection as required by La.C.Cr.P. art. 841.


text:
    STATE of Louisiana v. Benjamin A. BERRY.
    No. 82-K-0347.
    Supreme Court of Louisiana.
    Feb. 19, 1982.
   In re Benjamin A. Berry, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 78-2151.

Denied.

BLANCHE, J., recused.

DIXON, C. J., concurs in the denial. C.Cr.P. 929 is the only provision for depositions, and it does not contemplate discovery depositions.


text:
    Linda Trahan WHIPPLE v. Keith M. WHIPPLE.
    No. 82-C-0214.
    Supreme Court of Louisiana.
    Feb. 19, 1982.
   In re Keith M. Whipple, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 398 So.2d 1296, 408 So.2d 390.

Not considered; not timely filed. See Rule 10 § 5.


text:
    Edmond E. DUFRENE, Jr., et al. v. CHEM-HAULERS, INC., et al.
    No. 82-C-0213.
    Supreme Court of Louisiana.
    Feb. 19, 1982.
   In re Edmond E. Dufrene, Jr., applying for certiorari, or writ of review, to the Court of -Appeal, Fourth Circuit. Parish of St. Charles. No. 12939.

Not considered. See Supreme Court Rule X, Section 5.


text:
    STATE of Louisiana ex rel. Dwight POWELL v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3315.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Dwight Powell, applying for remedial writs. Parish of Orleans. No. 279-514.

Denied.


text:
    STATE of Louisiana ex rel. Ervin Joseph LOUIS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3322.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Ervin Joseph Louis, applying for writ of mandamus, certiorari, prohibition and habeas corpus, to the 16th Judicial District Court. Parish of St. Mary.

Writ denied.


text:
    STATE of Louisiana ex rel. Derwin W. BOURGEOIS v. Michael L. BEAUBOUEF, Warden.
    No. 82-KH-0001.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Derwin W. Bourgeois, applying for remedial writs. Parish of Orleans. No. 263-653.

Denied.


text:
    STATE of Louisiana ex rel. Reginald AMBROSE v. STATE of Louisiana.
    No. 82-KH-0006.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Reginald Ambrose, applying for supervisory and remedial writ. Parish of Orleans. No. 257-866.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Iley DOTCH v. Frank C. BLACKBURN, Warden.
    No. 82-KH-0016.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Iley Dotch, applying for remedial writs. Parish of East Baton Rouge. No. 78145.

Denied.


text:
    STATE of Louisiana ex rel. Joe MAXWELL v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 82-KH-0017.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Joe Maxwell, applying for writ of mandamus. Parish of Orleans. No 267-752.

Writ denied.


text:
    STATE of Louisiana, ex rel. William HILLS, III v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0115.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re William Hills, III, applying for writs of mandamus and habeas corpus. Parish of East Baton Rouge. No. 8-73-5861.

Denied.


text:
    STATE of Louisiana ex rel. Reinier NESLO v. STATE of Louisiana.
    No. 82-KH-0172.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Reinier Neslo, applying for remedial writ. Parish of Orleans. No. 276-264.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Albert ALLEN a/k/a Ahmad Na’eem Abdul Rasheed v. STATE of Louisiana.
    No. 82-KH-0173.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Albert Allen, a/k/a Ahmad Na’eem Abdul Rasheed, applying for writs of certio-rari and mandamus. Parish of Iberville. No. 24635-“A”.

Writ denied. Relator must first make application to the Court of Appeal.


text:
    STATE of Louisiana ex rel. James L. FINE v. STATE of Louisiana.
    No. 82-KH-0336.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re James L. Fine, applying for writ of mandamus. Parish of Franklin. No. 110268.

Denied.


text:
    Succession of Willard Hansford KILPATRICK. Succession of Katherine Terrill KILPATRICK.
    No. 82-C-0450.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re The Travelers Indemnity Company, applying for writs of certiorari or review. Parish of Jackson. Nos. 3409 and 3637.

Denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    John GUILLORY v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 82-C-0480.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re John Guillory, applying for writs of review and certiorari, and stay order, department of civil service, state civil service commission. No. 2673. Iberville Parish.

Writ denied.


text:
    STATE of Louisiana v. Herbert James BRADLEY.
    No. 82-K-0491.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Herbert James Bradley, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. 40379.

Writ denied.


text:
    STATE of Louisiana v. Billy V. SMITH.
    No. 82-K-0500.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Billy V. Smith, applying for writs of certiorari, prohibition, and mandamus. Parish of East Baton Rouge. Nos. 5-81-495, 496.

Denied.


text:
    STATE of Louisiana ex rel. Clinton C. HOWARD, Jr. v. STATE of Louisiana, Criminal District Court, Frans J. Labranche, Jr., Clerk of Court.
    No. 82-KH-0503.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Clinton C. Howard, Jr., applying for writ of mandamus. Parish of Orleans.

Denied.


text:
    Daniel DAIGLE, et al. v. Richard H. FRIEDBERG, et al.
    No. 82-C-0575.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Richard H. Friedberg and Michael Stern, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 248982.

Denied. The trial judge did not refer the exception to the merits of the case, but rather deferred decision on the exception until the exception was set for trial on its merits.


text:
    STATE of Louisiana v. Carey LASSEIGNE.
    No. 82-K-0600.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Carey Lasseigne, applying for writs of certiorari and for a stay order. Parish of St. Martin. No. 63577.

Denied.


text:
    STATE of Louisiana, ex rel. Jonas DAVIS, Jr. v. STATE of Louisiana.
    No. 82-KH-0605.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Jonas Davis, Jr., applying for remedial writs. Parish of Orleans. No. 269-121.

Writ denied. The trial court has fixed relator's appeal bond in the sum of $25,-000.00.


text:
    Charles N. LOFTON v. LOUISIANA PACIFIC CORPORATION.
    No. 82-C-0472.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Louisiana Pacific Corporation, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 410 So.2d 1171.

Writ denied.


text:
    Succession of Ulysses Samson LOEB.
    No. 82-C-0489.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Julian J. Loeb and Emmanuel J. Loeb, applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 410 So.2d 282.

Writ denied.

WATSON, J., would grant the writ.


text:
    Clarence ELLIS v. FLUOR CONSTRUCTORS, INC., and Employers National Insurance Company.
    No. 82-C-0422.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Employers National Insurance Company, applying for writ of certiorari, or review. Parish of St. John the Baptist. No. 11445.

Denied.

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


text:
    Henry J. BROCK v. ST. JAMES PARISH COUNCIL, Paul K. Keller, Parish President Caston Bourgeois, Tax Collector for St. James Parish and St. James Parish School Board.
    No. 82-C-0437.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re St. James Parish Council, Paul K. Keller, Parish President Gaston Bourgeois, Tax Collector of St. James Parish School Board, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of St. James. 407 So.2d 1265.

Denied.


text:
    Mrs. Myrtle K. POCHE v. MARYLAND CASUALTY COMPANY and Ellen Poche.
    No. 82-C-0452.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Mrs. Myrtle K. Poche, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 407 So.2d 1237.

Denied.

DIXON, C. J., and LEMMON, J., would grant the writ.


text:
    FRATERNAL ORDER OF POLICE CRESCENT CITY LODGE NO. 2, William Roth, William Patin, Ronald Kennedy, Ira Austin, Sr., John Graham and Patricia Childress v. The CITY OF NEW ORLEANS, The City Civil Service Commission of New Orleans and the New Orleans Police Department.
    No. 82-C-0375.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Fraternal Order of Police Crescent City Lodge No. 2, et al., applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 409 So.2d 411.

Granted.


text:
    Dempsey ALLEN and Merlie Sue Prisock Allen v. SEARS, ROEBUCK AND COMPANY, et al.
    No. 82-C-0440.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Dempsey Allen and Merlie Sue Pri-sock Allen, applying for writ of certiorari or review, to the Second Circuit, Court of Appeal. Parish of Caddo. 409 So.2d 1268.

Granted. Summary judgment reversed. Case remanded for trial on the merits.

BLANCHE, WATSON and LEMMON, JJ., would deny the writ.


text:
    Linda P. REAGAN, Individually and on behalf of her Minor Children v. OLINKRAFT, INC. et al.
    No. 82-C-0411.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Linda P. Reagan, Individually and on Behalf of Her Minor Children, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Ouachita Parish. 408 So.2d 937.

Denied.


text:
    Sue HOWELL v. NEW ORLEANS PUBLIC SERVICE, INC. and Clarence Williams.
    No. 82-C-0470.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Sue Howell, applying for certiorari, or writ of review, the Court of Appeal, Fourth Circuit. Parish of Orleans. 408 So.2d 7.

Denied.

DIXON, C. J., and WATSON, J., would grant the writ.


text:
    Walter L. HENSLEY v. Clyde MILEY, et al.
    No. 82-C-0471.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Clyde Miley, Individually and d/b/a Miley Realty Company, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchi-toches. 408 So.2d 46.

Denied.


text:
    Richard B. SPANGENBERG, Robert W. Merrick and Boh Bros. Construction Co., Inc., a Joint Venture, d/b/a Industrial Property Development Company v. YALE MATERIALS HANDLING-LOUISIANA, INC.
    No. 82-C-0453.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Yale Materials Handling-Louisiana, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Jefferson Parish. 407 So.2d 1270.

Denied.


text:
    John C. BRAY v. ARTHUR TREACHER’S FISH & CHIPS, INC., et al.
    No. 82-C-0479.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Arthur Treacher’s Fish & Chips, Inc. and National Diversified Corp., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 409 So.2d 1274.

Denied.


text:
    Joe POTMESIL v. E. I. DUPONT DENEMOURS CO., INC., et al.
    No. 82-C-0490.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Joe Potmesil, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Natchitoches Parish. 408 So.2d 315.

Denied.

WATSON, J., would grant the writ.


text:
    Laurence Mallet BREAUX v. Addie Breaux DOMINGUES, et al.
    No. 82-C-0492.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Addie Breaux Domingues and Car-rol Breaux, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. St. Martin Parish. 407 So.2d 1369.

Denied.


text:
    Dolores FACIANE, Wife of/and Joseph C. DeBattista v. ARGONAUT-SOUTHWEST INSURANCE COMPANY, et al.
    No. 82-C-0493.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Dolores Faciane, Wife of/and Joseph C. DeBattista, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 410 So.2d 279.

Denied.


text:
    Roderick GRANGER v. MONTGOMERY WARD CO., INC., et al.
    No. 82-C-0494.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Gould, Inc. and Transportation Insurance Company, applying for writs of cer-tiorari or review to the Court of Appeal, Third Circuit. Parish of Evangeline. 408 So.2d 320.

Denied.


text:
    Anna Marie Braswell VINING v. STATE FARM LIFE INSURANCE COMPANY.
    No. 82-C-0497.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re State Farm Life Insurance Company, applying for writs of certiorari or review, to the Court of Appeal, Second Circuit. Parish of Webster. 409 So.2d 1306.

Writ denied.

LEMMON, J., would grant the writ.


text:
    Maxine B. MITCHELL v. RAPIDES PARISH POLICE JURY, et al.
    No. 82-C-0506.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Maxine B. Mitchell, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 408 So.2d 343.

Denied.

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


text:
    Gladney PRATT, et al. v. STATE of Louisiana.
    No. 82-C-0534.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Gladney Pratt, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Rapides. 408 So.2d 336.

Denied.

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