author: BLANCHE, Justice. DIXON, Chief Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Edward BODLEY.
    No. 80-KA-1440.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Sheila Myers, Louise S. Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Alan P. Dussouy, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Edward Bodley, was indicted in connection with the first degree murder of Louise Williams. Bodley’s first trial ended in a mistrial during the prosecution’s opening statement to the jury. A second trial ended in a jury deadlock, and a mistrial was again granted. At the conclusion of the third trial, defendant was found guilty as charged. He was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant lodged this appeal, urging eight arguments as grounds for reversal of his conviction and sentence.

On the morning of Monday, July 11,1977, John Richardson drove to the North Tonti Street residence of his mother-in-law (by common law relationship), Ms. Louise Williams, for the purpose of giving defendant, Edward Bodley, a ride to work. Bodley had been living with Ms. Williams, his aunt, since his arrival in New Orleans some few weeks previous and had been hired by Richardson as a laborer at the CFW Construction Company. On this particular morning, Richardson’s knocks went unanswered, so he assumed that Bodley must have been driven to work by James Pitts, another CFW employee and a boarder in the Williams’ house.

Upon arriving at work, Richardson questioned Pitts as to Bodley’s whereabouts, only to discover that Pitts had seen neither Ms. Williams nor Bodley upon his return from Birmingham the previous evening. During the course of the conversation, Richardson recalled the inability of Dorothy Barnes, his common law wife, to reach her mother by phone on the previous day. Becoming worried, Richardson returned to the residence with Mr. Pitts. Pitts unlocked the back door to the residence and the two men then walked through Pitts’ bedroom and the common kitchen to a door which separated Ms. Williams’ bedroom and living room from the rest of the house. Richardson peered through a window in this door and observed a large bundle of bedspreads lying on the floor. Richardson then pulled on the door, breaking the latch lock which kept it closed. Entering the front bedroom, Richardson nudged the bundle with his foot and realized that it contained a body. Both he and Pitts immediately exited the house and asked a neighbor to call the police.

When New Orleans City Police Officer Earl Augustine arrived at the Williams residence, Mr. Pitts opened the front door and allowed the officer to enter. Augustine immediately recognized the odor of decaying flesh and notified both the coroner’s office and the Homicide Division. Thereafter, investigating officers unwrapped Ms. Williams’ nude body, revealing a single stab wound to the left side of her chest. They also discovered that Ms. Williams’ legs had been amputated at the knee joints and placed in a plastic garbage bag found in the victim’s bedroom. During their investigation, officers recovered items believed potentially relevant to the solution of the crime.

The defendant never returned either to the residence or to work, thereby abandoning personal possessions and a paycheck. He was eventually arrested by a U. S. Customs Official while attempting to enter Laredo, Texas from Mexico on November 22, 1977. Extradition, trial and conviction followed.

Assignment of Error Number 1

Defendant contends that the trial court erred in refusing to suppress the introduction into evidence of a pair of damp blue jeans seized from a clothes hamper located in the bathroom and a knife seized from near the kitchen sink of the victim’s apartment. He claims that this warrantless seizure of evidence was per se unreasonable in violation of art. 1, § 5 of the Louisiana Constitution.' Alternatively, he claims that under no recognized exception to the warrant requirement could the seizure of the blue jeans be justified.

It is well settled that a warrantless search conducted pursuant to a valid consent is permitted by the Louisiana and United States Constitutions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Dowling, 387 So.2d 1165 (La.1980); State v. Wilkerson, 367 So.2d 319 (La.1979); State v. Wagster, 361 So.2d 849 (La.1978); State v. Mitchell, 360 So.2d 189 (La.1978). Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). This common authority stems not so much from one's property interest, “... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Matlock, supra, 94 S.Ct. at 993, fn. 7.

In the present case, James Pitts had rented the rear bedroom of the Williams home for a period of several months. Under the terms of the arrangement, Pitts shared the kitchen and the bathroom while the rest of the house (consisting of a living room and a bedroom) remained “locked off” for Ms. Williams’ exclusive use. Thus, he had mutual access and control over the areas from which the evidence was seized. Further, the positions of the knife and clothes basket in plain view within the common areas indicates that the residents had assumed the risk that one of their members might permit the common area to be searched.

The record also indicates that consent for the police to search and seize the evidence was impliedly granted by Mr. Pitts and Mr. Richardson. After discovering Ms. Williams’ body, the pair ran out of the house and requested a neighbor to call the police for assistance. When the first officer arrived at the scene, Mr. Pitts, after entering from the rear, opened the front door of the apartment and allowed the officer to enter. It is readily apparent that Pitts and Richardson requested the presence of the police at the apartment and wanted them to investigate the suspected homicide. State v. Dowling, supra. Thus, there was both consent to allow the search and authority over the areas from which the objects were obtained.

Assignments of Error Numbers 2, 7 and 8

By these assignments, defendant contends that the trial court erred in allowing testimony as to various telephone conversations in which he allegedly participated when no foundation for such testimony had been laid and where the state had failed to provide notice of its intent to use said conversations at trial.

The first witness called to the stand by the state was Dr. Monroe Samuels, the Chief Consultant Pathologist for the Orleans Parish Coroner’s Office. Dr. Samuels testified that he had performed an autopsy on Louise Williams’ body at 9:00 a. m. on July 11,1977, approximately one hour after discovery of the body by New Orleans Police officers. This examination revealed that the cause of death was a stab wound in the lower left chest which had pierced both the pulmonary artery and the aorta. Dr. Samuels further testified that Ms. Williams had been dead at least 24 hours (and perhaps 48 hours) prior to his examination.

In order to demonstrate defendant’s presence in the Williams’ house after the victim’s murder, the state called several witnesses to testify as to alleged telephone conversations with the accused. John Richardson testified that defendant had called his house at about eight o’clock on Sunday, July 10th. After informing Richardson that “they” would be coming over for dinner, defendant asked to speak to Dorothy Barnes.

When Ms. Barnes got on the phone, defendant inquired as to her plans for the day. Ms. Barnes told defendant that she was going to church and asked him where her mother was. When the accused responded that she was sleeping, Ms. Barnes agreed to call back later. Ms. Barnes then testified that she called her mother a second time between 10:00 and 10:30 that morning. According to Ms. Barnes, defendant answered the phone and told her that Ms. Williams had gone to the laundromat.

Coupling Dr. Samuels’ opinion as to the time of Ms. Williams’ death with other testimony that the only phone in the Williams residence was located in the room in which the decedent was found, it becomes apparent that defendant Bodley was standing over the deceased’s corpse at the time Ms. Barnes called the Williams’ residence. Under these circumstances, the further attempt to mislead Ms. Barnes as to the whereabouts of her mother was at least circumstantially suggestive of the accused’s guilt.

Later during trial, Lorraine Candice, Ms. Williams’ mother and Bodley’s grandmother, testified that the defendant had called his mother’s house in Mobile, Alabama at about 10:00 a. m. on July 11th — the same day that Ms. Williams’ body was discovered. In response to Ms. Candice’s inquiry, defendant stated that Ms. Williams was doing fine and that she had gone to work that morning. Again this conversation suggested an active attempt to conceal the fact of Ms. Williams’ death while the accused made good his escape.

By this appeal, defendant argues that testimony as to these telephone conversations was not admissible unless the state had sufficiently demonstrated each witness’ familiarity with defendant’s voice. With respect to Ms. Barnes, such a predicate was laid. Ms. Barnes, in response to the prosecutor’s questioning, indicated that she spoke with defendant almost every day, sometimes by telephone, and that she did not have any difficulties recognizing his voice. With respect to John Richardson and Lorraine Candice, the defense failed to object at trial to the lack of testimony concerning voice recognition. A claim of such an irregularity cannot be availed of after verdict unless it is objected to at the time of its occurrence and the specific ground is stated. C.Cr.P. art. 841; State v. Davis, 357 So.2d 1125 (La.1978); State v. O’Blanc, 346 So.2d 686 (La.1977).

By this assignment, defendant also reurges his contention that testimony regarding the accused’s telephone conversations with Barnes, Richardson and Candice was rendered inadmissible by the state’s failure to provide the defense with written notice of its intent to use said conversations. C.Cr.P. art. 768. This contention is grounded in the mistaken assumption that defendant’s statements, since damaging at trial, are necessarily inculpatory in character. Such is not the case. As used in art. 768, the term “inculpatory statement” refers to an out-of-court admission of incriminating facts made by the defendant after the crime has been committed. State v. Berain, 360 So.2d 822 (La.1978); State v. Labostrie, 358 So.2d 1243 (La.1978); State v. Brent, 347 So.2d 1112 (La.1977). An incriminating statement is one which admits a fact tending to establish guilt, or from which guilt may be inferred. State v. Rogers, 375 So.2d 1304 (La.1979); State v. Brumfield, 329 So.2d 181 (La.1976).

In the present case, the accused’s telephone statements concerned the whereabouts of the victim. Defendant made no statements of fact which establish any element of the crime of murder of their own force. Rather, the statements were exculpatory in nature. State v. Rogers, supra. They were not damaging to the defense until coupled with Dr. Samuels’ opinion that the victim was already dead at the time the alleged statements were made. Under these circumstances, the defendant’s sole avenue of discovery was provided by C.Cr.P. art. 716(B) , which provides as follows:

“B. Upon motion of the defendant, the Court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at trial, with the information as to when, where and to whom such oral confession or statement was made.”

Here the defense did file a motion for bill of particulars which incorporated an art. 716 request for statements by the accused. In answering this motion, the state advised the defense, in open court, that it intended to introduce one or more telephone conversations, occurring one or two days prior to the discovery of the victim in this case, and which were allegedly participated in by the defendant. The state refused to disclose the names of persons to whom the defendant’s remarks were addressed, but did provide the defense with a list of witnesses which the prosecution intended to call at trial.

Though the state undoubtedly erred in failing to disclose the identity of these individuals, the defense has made no allegation as to how this nondisclosure may have prejudiced its case. In State v. Bonanno, 373 So.2d 1284 (La.1979), this Court found that the failure to give an art. 716 notice should be analyzed for prejudice where, as here, the prosecution has given notice of its intent to use telephone conversations of the accused within a day or two of the offense and, in addition, supplies the defense with a list of its witnesses, it is reasonable to assume that the defense was fully apprised as to the parties involved in these conversations. In fact, at the hearing on defendant’s motion to suppress, Mr. Richardson referred to a phone call which he received on July 10th — the day of Ms. Williams’ murder. Inquiry into the content of this call was halted by defense objection. Further, prior to the declaration of mistrial at the first trial of this matter, the state mentioned in its opening statement that it intended to call Ms. Barnes to testify to telephone conversations she had with the defendant at the time when Ms. Williams was dead.

This assignment lacks merit.

Assignments of Error Numbers 3 and 10

By these assignments, defendant argues that the trial court erred in admitting photographs of Ms. Williams’ dismembered body and in allowing testimony of Dr. Sam-uels as to the post-mortem amputation of the victim’s legs.

In State v. Vernon, 385 So.2d 200, 204 (La.1980), this Court stated:

“The test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. Matthews, 354 So.2d 552 (La.1978). Photographs which illustrate any fact or which shed light on an issue, or are relevant to describe the person, place or thing involved are generally admissible. State v. Valentine, 364 So.2d 595 (La.1978). Photographs of a deceased victim may be relevant to prove the corpus delicti, to corroborate other evidence of the manner in which the death occurred, to establish the location, number and severity of the wounds and to establish the victim’s identity. State v. Williams, 343 So.2d 1026 (La.1977); State v. Myles [389 So.2d 12 (La.1980)].”

See also State v. Landry, 388 So.2d 699 (La.1980).

In the instant case, the state introduced two large black and white photographs, one depicting the victim’s bloody, swollen body lying on her bedroom floor atop a bedspread and another showing the deceased’s legs partially wrapped in a plastic garbage bag. The defendant argues not only that these photographs unnecessarily inflamed the jury’s sensibilities, but also that they were irrelevant in view of his willingness to stipulate as to the identity of the victim and “anything further concerning these photographs.” While the existence of an offered stipulation necessarily bears upon a balancing of the probative value of the photographs against their prejudicial effect, the decision nevertheless remains one for the trial court. State v. Landry, supra; State v. Sterling, 377 So.2d 58 (La.1979).

The probative value of the pictures and testimony greatly outweighs the possible prejudice to the jury. Since the identity of the murderer was the key issue of the case in which there were no apparent witnesses, any evidence which would significantly narrow the field of suspects would be considered highly relevant. The testimony of Dr. Samuels was that the victim’s legs had been severed by incise wounds without bruising or tearing of the cartilage surrounding the knee. The photographs were corroborative of this testimony. When coupled with the testimony of Mr. Benny Justice concerning defendant’s experience as a butcher, the photographs and related testimony were strongly suggestive of the accused’s guilt. Furthermore, the depiction of the victim’s decomposed state corroborated Dr. Samuels’ testimony as to the time of death of the victim.

This assignment is without merit.

Assignments of Error Numbers 4 and 5

By these assignments, defendant challenges the denial of a motion to quash based upon double jeopardy grounds. The motion had been filed after the first trial of this matter ended in mistrial.

Prior to the first trial of this matter, the state requested notice of alibi. C.Cr.P. art. 727. The trial judge granted a defense request for a list of state witnesses in order that the defense might ascertain whether or not alibi testimony would be presented as part of the accused’s case. The request was granted because the state was unable to state, with any degree of certainty, the time at which the offense was alleged to have occurred.

After the prosecutor had given defense counsel the list, she decided to use Mr. Benny Justice, a butcher and former employer of defendant, as a witness. In order to establish a link between the dismemberment of the victim and defendant, the prosecutor intended to have Mr. Justice testify that he taught defendant how to butcher cattle at his slaughterhouse and that defendant was skilled at the art of butchering.

The prosecutor filed an amended witness list containing Mr. Justice’s name with the court, but she failed to provide the defendant with the information. Thus, the defense first became aware that Mr. Justice would be a witness for the state during the prosecutor’s opening statement. Defense counsel objected immediately.

Outside the presence of the jury, the trial judge indicated his inclination to grant a mistrial should the defense request one. The defense attorney indicated that, contrary to his advice to the defendant, the defendant had requested counsel not to seek a mistrial and, therefore, he did not feel that he could move for a mistrial. The judge then asked the defendant himself if he would object should the court declare one. The defendant indicated that he was opposed to the granting of a mistrial. At that point, the judge decided to grant a recess to allow defense counsel time to produce witnesses to rebut the testimony of Mr. Justice. Defense counsel then requested leave to withdraw as counsel. Upon hearing the request, the trial judge then changed his mind and granted a mistrial sua sponte. The court, at defendant’s request, however, allowed defense counsel to continue to represent defendant. The same counsel then filed the motion to quash, which became the basis of these assignments.

Although C.Cr.P. art. 592 provides that “when a defendant pleads not guilty, jeopardy begins when the first witness is sworn at the trial on the merits”, the U.S. Supreme Court has clearly stated that as a matter of Constitutional law jeopardy attaches in a jury trial when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Thus, by the time the prosecution began its opening statement at the first trial, jeopardy had attached. Once jeopardy has attached, C.Cr.P. art. 591 governs the circumstances under which a subsequent trial for the same offense is permissible. The article states:

“No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.”

Code of Criminal Procedure art. 775 states:

“A mistrial may be ordered, and in a jury case the jury dismissed when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
“A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.”

The defendant contends that the trial judge granted a mistrial that was not authorized by art. 775 and, therefore, that art. 591 prevents a retrial for the same offense. State v. Coffil, 377 So.2d 106 (La.1979). We disagree.

Before a person may be validly convicted and punished by imprisonment, he must be accorded the right to the assistance of counsel. The purpose of this right is to insure that a defendant embroiled in our accusatory system of justice, probably untrained in law, can utilize every advantage which the law grants him. The intercession of an independent person trained in law in behalf of the accused serves to require the state to meet every procedural and substantive hurdle before a conviction can be obtained. His job is to cross examine the prosecution’s witnesses so that the defendant receives the benefit of any inconsistencies or gaps in their testimony. Counsel is further charged, when possible, with going forward with whatever exculpatory evidence the defendant might be aware of or any other defense recognized by the law. All of this is best done by one with knowledge of what legal significance attaches to what witnesses state or fail to state.

Equally important is the general ability of defense counsel to make informed tactical choices between alternative courses of action. Sometimes it is better to forego immediate advantage in the hope of greater reward later. It may be better for the defendant to stand upon the weakness of the prosecution’s case, for example, than to go forward with a defense witness that has a good story but very serious credibility problems. The same considerations are present when the defense must decide whether, to seek a mistrial or not. The advantage to the defendant is that the state is forced to go to the trouble of gearing up for a new trial while the defendant sits back and prepares to meet the evidence which he then knows a great deal about. In the meantime, the prosecution’s witnesses might forget their testimony, die or be otherwise unavailable. The state may even reassess it chances of successfully prosecuting the defendant in light of the evidence and economic and manpower considerations. The disadvantage is that the defendant may have to live for extra months with the threat of a pending prosecution.

While an indigent defendant has a right to counsel as well as the opposite right to represent himself, he has no constitutional right to be both represented and representative. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Daniels, 572 F.2d 535 (5th Cir. 1978); United States v. Conder, 423 F.2d 904 (6th Cir. 1970), U.S. cert. den. 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267; United States v. O’Looney, 544 F.2d 385 (9th Cir. 1976), U.S. cert. den. 429 U.S. 1023, 97 S.Ct. 642, 50 L.Ed.2d 625. With regard to trial tactics, the federal courts have clearly stated that once a person is represented by counsel, he is bound by his attorney’s decisions at trial unless the attorney’s actions effectively deny the defendant his Sixth Amendment right to assistance of counsel. United States v. Daniels, supra; see also Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). While this rule is an interpretation of a federal statute, it sets up the constitutional boundaries of a trial court’s discretion. Using the rule, federal courts have stated that a defendant has no right to enter his own personal objections to testimony after he has accepted the pre-trial assistance of counsel, Conder, supra; no fundamental right to require that a particular witness be called at trial, Daniels, supra; nor a right to object to his attorney’s decision to request a special verdict in a criminal case, O’Looney, supra. In United States v. Conder, supra, at 908, it was stated:

“While it may be within the discretion of a District Court to permit both a criminal defendant and his attorney to conduct different phases of the defense in a criminal trial, see United States v. Burkeen, supra, [355 F.2d 241] for purposes of determining whether there has been a deprivation of constitutional rights a criminal defendant cannot logically waive or assert both rights. The defendant must make a choice, and he should not be permitted to manipulate his choice so that he can claim reversible error on appeal no matter which alternative he chose in the District Court. See United States v. Plattner, supra, 330 F.2d [271] at 276.”

In the absence of a state statute or constitutional provision to the contrary, we hold that the same principles are applicable in the present case.

The record indicates that the state failed to comply with a court order by not revealing Mr. Justice’s name to the defendant. The testimony to be given by the witness was highly prejudicial to the defense because it tended to narrow the class of persons who could have committed the crime to one of which defendant was a member. Through this witness, the state was prepared to attempt to show that only a person with the expertise possessed by the defendant could have dismembered the victim’s legs in such a fashion. Counsel objected and complained that he relied on the witness list furnished to it by the state, was surprised by this testimony, and was not prepared to meet such prejudicial evidence on such short notice. For that reason, defense counsel declined to go forward with the case on the ground that to do so would be in violation of his professional duty to his client.

We regard the refusal of counsel to go forward with the case as a reasonable course of action, when the drastic consequences of such testimony are considered, and do not understand why counsel should be bound by his client’s wishes to proceed to trial under such adverse conditions and contrary to his best professional advice. Thus, we completely disregard counsel’s deference to his client’s wishes in a matter which the client was not competent to decide and which was contrary to his professional judgment and advice. We likewise regard counsel’s insistence and refusal to proceed with the trial and to be relieved as counsel if the trial judge did proceed over his objection as constituting trial conduct which we regard as an application to the court for a mistrial.

It cannot be denied that counsel’s conduct successfully obtained a continuance of the trial after jeopardy attached to the defendant’s advantage. Counsel was able to interview all of the out-of-state witnesses who were present in court, was given time to prepare for Mr. Justice’s testimony, and given the further right to continue as defendant’s counsel. As noted by the trial judge, counsel was not entitled to the best of both worlds, i. e., to rely on trial and error on the one hand if the trial proceeded and escape judgment on a technical objection that jeopardy attached because of his client’s objection to delay the trial although not in his best interest.

We find that the defendant, through counsel, requested the mistrial, which was properly granted. Thus, C.Cr.P. art. 591 did not bar retrial. This assignment is without merit.

Assignment of Error Number 5

By this assignment defendant urges that it was error for the trial court to deny his pre-trial motion to quash based upon the denial of a speedy trial.

The right to a speedy trial is guaranteed by both the federal and state constitutions. State v. Nowell, 363 So.2d 523 (La.1978). This right attaches when an individual becomes an accused, either by formal indictment or bill of information or by arrest and actual restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Fraise, 350 So.2d 154 (La.1977); State v. Nowell, supra. This Court has adopted the test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the United States Supreme Court weighed the conduct of both the prosecutor and the defendant in light of four factors: length of delay, reasons for delay, assertion of the right, and prejudice to the defendant. State v. Nowell, supra; State v. Kemp, 359 So.2d 978 (La.1978); State v. Bullock, 311 So.2d 242 (La.1975).

The record indicates that the defendant was indicted on August 2,1977. Defendant was not captured until November 22, 1977 but was not extradited and returned to New Orleans until February 22, 1978. Counsel was appointed to represent defendant on March 15. Arraignment took place on the 30th of that month. On April 11, the defense filed several preliminary proceedings. The trial court ruled on the sufficiency of the state’s answers on April 21, 1978, and also appointed a defense requested Lunacy Commission. On May 23, 1978, defendant was held to be presently sane.

The defense initiated a second round of discovery requests on June 15,1978, when it filed motions to suppress and motions for production of tangible items. The state filed answers to the defense requests, and the skirmish ended August 4 when the trial court ruled on the motions.

Apparently the trial of the matter was set for November 20,1978, for on that date the prosecution filed a motion to continue the trial. The trial was continued until December 14, when the prosecution filed another motion to continue the trial. The motion was granted over defense objection and the trial continued until January 18, 1979. On that date, trial was begun but ended in a mistrial. The defendant then filed in March two motions to quash, one alleging the denial of a speedy trial. On March 15, the second trial ended in a deadlocked jury and a mistrial was granted on motion of the defense. On April 9, 1979, counsel of record from arraignment to date requested to withdraw from the case and leave was granted. On May 30-31, 1979, the instant trial took place, resulting in defendant’s conviction.

From the foregoing, it is readily apparent that most of the 18 month delay between arrest and the third trial was caused by defense motions. The amount of delay attributable to the prosecution was only two months, which is reasonable considering the prosecution’s necessity to have witnesses come from out of state to testify. Further, defendant did not complain of the delay until one month prior to the first trial. Finally, the defendant can demonstrate no prejudice which occurred as a result of the alleged denial of speedy trial other than a generalized complaint of inability to prepare a defense.

Assignments of Error Numbers 6 and 9

By these assignments, defendant contends that the trial court erred in allowing testimony by Ms. Dorothy Barnes and Mr. Benny Justice concerning the accused’s expertise in the business of butchery. Defendant claims that the probative value of such testimony was outweighed by its prejudicial effect and that, for this reason, the testimony of these witnesses should have been excluded.

The relevance of this testimony has been discussed previously. By demonstrating the accused’s proficiency in butchering and the peculiar manner in which the victim’s legs had been amputated, the state sought to suggest the defendant’s involvement in the killing. Though circumstantial, this evidence was highly probative as to the issue of the murderer’s identity — at least once the accused’s presence in the deceased’s home was established. Thus, the trial court did not abuse its wide discretion in permitting this testimony. State v. Alford, 384 So.2d 761 (La.1980); State v. Echols, 376 So.2d 1244 (La.1979).

Defendant also argues that, since Ms. Barnes’ testimony concerned another alleged conversation with the accused, the state’s failure to disclose its intent to use this conversation at trial rendered the witness’ testimony inadmissible. C.Cr.P. art. 716(B); see Assignments 2, 7, 8, supra. At trial, Ms. Barnes related the details of a discussion which took place in her home about four or five days after the accused’s arrival in New Orleans. During the course of this conversation, defendant told Ms. Barnes that he had learned how to be a butcher in the job corps; he then drew the leg of a cow on a piece of paper and showed her where to cut the leg so as to make a “nice clean cut of meat”.

While the state did indeed fail to provide notice of its intent to use defendant’s statements to Ms. Barnes it is clear that this failure in no way prejudiced the defense. C.Cr.P. art. 921; State v. Bonanno, supra. Prior to the instant trial, defendant’s case had been tried twice, with the state’s intent to use evidence of the accused’s expertise in butchery becoming apparent at least at the first trial. Furthermore, Ms. Barnes’ testimony was merely cumulative when viewed in light of extensive testimony by Mr. Justice, of whose testimony defendant had actual notice, regarding defendant’s training as a butcher. Thus, there is no showing here that the absence of notice prevented the accused from properly preparing his strategy for trial. State v. Sneed, 316 So.2d 372 (La. 1975).

This assignment is without merit.

Assignment of Error Number 11

By this assignment, defendant argues that the trial court erred in refusing to declare a mistrial when the state allegedly made reference to the accused’s failure to testify. C.Cr.P. art. 770(3).

During closing argument on rebuttal, the prosecution emphasized the apparent fact that defendant was standing near the deceased’s body at the time of his second telephone conversation with Ms. Barnes:

“Would anybody who was innocent who was not involved in something stand over the telephone as you saw it. It’s not a house with four telephones. He had to be in her bedroom on that telephone, stand over the dead body of his aunt right there on the floor on the phone, tell her daughter, ‘Aunt Louise went to the washer.’ Would an innocent person do that? Of course not. If they just walked in and saw this, ‘Oh my God, your mother’s dead!’ Just what Mr. Pitts did. What Mr. Richardson did. ‘Oh, my God!’ and run out and call the police. That’s what everybody would do. He can’t explain to you why he lied. Why did he call early in the morning? I’ll tell you, to find out what they were going to do. To find out if they were coming over to see Aunt Louise.”

Defense counsel immediately objected to this latter statement as being a reference to the accused’s failure to take the stand. Out of the jury’s presence, the trial court then listened to a tape of the prosecutor’s remarks and concluded that the statement “he can’t tell you why he lied” was actually a reference to defense counsel’s failure, during closing argument, to give some explanation for his client’s apparent lie regarding Ms. Williams’ whereabouts. Nevertheless, to ensure that this remark would not be construed as a reference to defendant’s failure to testify, the trial court agreed to instruct the jury regarding the construction to be placed upon the prosecutor’s remark.

We agree with the trial court’s interpretation of the prosecutor’s remark. At the beginning of the state’s rebuttal argument, the prosecutor made it clear to the jury that the purpose for such argument was to allow the state “... the opportunity to address itself to you on points made by defense counsel.” The prosecutor made no fewer than 14 references to defense counsel by name prior to the time of the objection, usually when juxtaposing what the state sought to prove with what defense counsel said to rebut it. The last reference to the defense counsel by name prior to the objection is found in the transcript, just 38 lines before the objection. There, the prosecutor stated “... Mr. Doussoy can’t explain to you defendant’s actions in those phone calls.” This language makes it perfectly clear that the later remark was really a reference to defense counsel’s failure to explain why the defendant lied during the telephone call and, therefore, was not a reference to the accused’s failure to take the stand. C.Cr.P. art. 770(3). Rather, it was a permissible referencé to the weaknesses of the defense theory of the case. C.Cr.P. art. 774.

Assignment of Error Number 12

In this assignment, defendant challenges the sufficiency of the state’s evidence identifying him as Ms. Williams’ murderer.

This assignment lacks merit. A review of the record containing the testimony and evidence previously discussed in the factual summary and other assignments of error, when viewed in the light most favorable to the prosecution, convinces us that any rational trier of fact could have found, beyond a reasonable doubt, that the defendant is guilty. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Hartman, 388 So.2d 688 (La.1980).

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

AFFIRMED.

DIXON, J., dissents with reasons.

DENNIS, J., concurs with reasons.

LEMMON, J., concurs and will assign reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent, finding error in the jeopardy assignment.

LEMMON, Justice,

concurring.

When defendant rejected his attorney's advice that additional time was needed to prepare rebuttal for Mr. Justice’s unanticipated testimony and insisted on proceeding with the trial, defense counsel concluded he could no longer furnish effective representation and sought to withdraw. This ruptured relationship between defendant and his lawyer presented the trial judge with the type of situation in which there was “manifest necessity” to declare a mistrial without the defendant’s consent. See Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

The judge obviously declared the mistrial in order to assure defendant a fair trial. Not only was the judge’s action clearly beneficial to defendant, but also the ruling was rendered in defendant’s interest. When the judge was confronted at an early stage of the trial with choosing whether to allow the trial to proceed under the unfavorable conditions (as defendant requested) or to declare a mistrial over defendant’s objection, the judge chose to abort the proceedings in order to allow defense counsel a fair opportunity to meet the state’s evidence. As Justice Black wrote in Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949),

“[DJefendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” 336 U.S. at 689, 69 S.Ct. at 837.

Under these circumstances the protection afforded by the double jeopardy clause of the state and federal constitutions does not require dismissal of the present charges against the defendant.

      . We note that in State v. Bonanno, 373 So.2d at 1288 (La.1979), this Court stated, in dicta, that notice is required by C.Cr.P. art. 716 for the same types of statements for which notice is required by C.Cr.P. art. 768. Article 768 applies only to confessions or inculpatory statements while Article 716(B) is applicable to any oral confession “or statement of any nature”. Thus, while Article 716 permits discovery of statements covered by Article 768, it is broader in scope than the latter.

      . A defendant has a constitutional right to testify in his own behalf. La.Const. art. 1, § 16.

      . C.Cr.P. art. 729.5 also allows a trial judge to grant a mistrial upon motion of the defendant when the state fails to comply with discovery orders issued pursuant to C.Cr.P. art. 716 et seq. The discovery provisions do not give a trial judge express authority to require disclosure of state witnesses to facilitate the giving of notice of alibi. In light of our holding, however, the issue of implicit authorization need not be reached.

      . The trial judge correctly decided to allow the state to call the witness, despite the state’s failure to include the witness’ name on the list provided to the defense. The state was not required by C.Cr.P. art. 727 to reveal its intent to call Mr. Justice, because that witness could not refute an alibi defense. Mr. Justice could only testify concerning defendant’s knowledge of the art of butchering cattle, and a witness’ testimony showing special knowledge of the defendant is not within the scope of C.Cr.P. art. 727B.

      . The mistrial was granted before the first witness was sworn. Although under Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) jeopardy had attached for federal constitutional purposes, jeopardy under state law (C.Cr.P. art. 592) had not attached, and C.Cr.P. arts. 591 and 775 do not compel a finding of double jeopardy.
      Thus, the only question is whether retrial in this case violates the federal constitutional protection afforded by the double jeopardy clause of the Fifth Amendment and not any additional protection provided by state law. Compare State v. Birabent, 305 So.2d 448 (La. 1974), cert. den., 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41. See Illinois v. Somerville, above.


source: Caselaw Access Project

author:
FORET, Justice Ad Hoc.
     LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Robert FIELDS.
    No. 80-K-1658.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, W. C. Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-respondent.
    William H. Daume, Gretna, for defendant-relator.

       Watson, J., would grant a rehearing. Blanche, J., did not participate in rehearing.

   FORET, Justice Ad Hoc.

Robert Fields was convicted of attempted theft of $500.00 or less, a violation of LSA-R.S. 14:27:67. The trial court sentenced the defendant to serve six months in the parish prison with credit for time served following a pre-sentence investigation. Defendant now appears before this Court on a grant of supervisory writs pursuant to LSA-Const. (1974), Article 5, §§ 2 and 5, and LSA-C. Cr.P. Article 894.1 urging two assignments of error.

ASSIGNMENTS OF ERROR

1. The district court committed error when it sentenced applicant to a prison sentence without a hearing, without reciting a factual basis for its sentence, and without good cause shown.

2. The district court committed error when it sentenced applicant to six months in prison on a first offense.

FACTS

On March 13, 1980, a security officer from the Sears Oakwood store reported that Robert Fields had purchased $389.54 worth of merchandise with a Sears credit card belonging to Clarence Hemple. The defendant attempted to purchase other merchandise valued at approximately $400.00, but was unsuccessful. The security officer stopped the defendant as he left the store with the merchandise, and defendant told him that the credit card belonged to his stepfather. It was later discovered that the owner of the card had reported it stolen in December of 1979. Defendant admitted that he found a wallet containing no money, but a Sears credit card while drinking one night, and thereafter used the card to purchase merchandise at Sears.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial judge failed to comply with the sentencing guidelines set forth in LSA-C.Cr.P. Article 894.1 because the court failed to state for the record the considerations taken into account and the factual basis for the imposed sentence.

He further argues that the sentence imposed is excessive. However, for reasons which will be made clear, we pretermit consideration of this issue raised by defendant’s second assignment of error.

LSA-C.Cr.P. Article 894.1 provides:

“Art. 894.1 Sentence guidelines; generally
A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

Added by Acts 1977, No. 635, § 1.”

The trial judge, in attempting to comply with the guidelines of LSA-C.Cr.P. Article 894.1 used a standardized form which restates those guidelines in such a manner that the trial judge simply checked off those present or absent in the case before him. Similarly, the trial judge stated the following at the sentencing hearing:

“Okay, Mr. Fields, I have ordered a pre-sentence investigation in this case which involves an attempted theft of three hundred and eighty-nine dollars on a plea, involving a credit card that was stolen, according to this pre-sentence report. According to your statement, you found the credit card, but you went ahead and purchased stuff anyway and you know you shouldn’t have. The Court finds that there is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime; the defendant is in need of correctional treatment or custodial environment that can be provided most effectively by his commitment to an institution. And a lesser sentence will deprecate the seriousness of the defendant’s crime. The Court will sentence you to six months in the Parish Prison.”

In the instant case, the trial court court judge used a check-off form, the pertinent parts thereof, reproduced below.

The trial court simply tracked the provisions of LSA-C.Cr.P. Article 894.1(A), sub-paragraphs (1), (2), and (3), the language of which appears hereinabove. The trial judge articulated no reasons why he felt that there was an undue risk that during the period of a suspended sentence or probation the defendant would commit another crime, or why the defendant was in need of correctional treatment or a custodial environment, or why he considered that a lesser sentence would deprecate the seriousness of the defendant’s crime.

Simply checking off aggravating or mitigating factors on a standardized form sheet is not adequate compliance with Article 894.1. The article is designed to provide guidelines in considering the circumstances of each case. Although it is not necessary that the trial court consider every aggravating and/or mitigating circumstance, the sentence, however, should be individualized, i. e., adapted to the offender as well as to the offense. State v. Jackson, 360 So.2d 842 (La.1978). Checking off factors does not lend itself to a thorough consideration of the particulars of an individual case, nor does it leave room for the presentation of the precise factual basis underlying a conclusion that the factors are applicable. This Court has held in the past that to merely recite factors set forth in the sentencing statute which support imprisonment, but not to state considerations taken into account or the factual basis therefor in imposing sentence, does not satisfy Article 894.1. State v. Little, 377 So.2d 332 (La. 1979); State v. Watson, 372 So.2d 1205 (La. 1979).

In State v. Sepulvado, 367 So.2d 762 (La. 1979), we stated that the statutory criteria provided by LSA-C.Cr.P. Article 894.1 are appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous alternatives. We further noted that the trial judge’s reasons in imposing sentence, as required by this statute, are an important aid to this Court when called upon to exercise its constitutional function to review a sentence complained of as excessive. Absent compliance with LSA-C.Cr.P. Article 894.1 as in the instant case, we lack the necessary information by which to measure whether the sentence imposed is excessive. See also State v. Bourgeois, 388 So.2d 359 (La.1980); State v. Daranda, 388 So.2d 759 (La.1980).

We conclude that the trial judge failed to comply with LSA-C.Cr.P. Article 894.1(C).

Accordingly, we vacate defendant’s sentence and remand the case to the trial court with instructions to properly consider the sentencing guidelines in the statute before imposing sentence.

DECREE

For the reasons assigned, the sentence imposed on defendant is vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant in accordance with law.

SENTENCE VACATED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

This decision does not proscribe the use of printed forms in complying with C.Cr.P. art 894.1. However, whether by completing a printed form or by dictating a statement into the record, the trial judge must “state for the record ... the factual basis” for the considerations taken into account in imposing sentence.

       Judges Edmond L. Guidry, Jr., J. Burton Foret, and P. J. Laborde, Jr. of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . e* REASONS FOR SENTENCING

      . In remanding this case for a new sentencing hearing, we do not pass or comment on whether or not the sentence was excessive. We are remanding because the use of a check-off form does not furnish enough information to this Court about the defendant and surrounding circumstances to enable us to properly review the excessiveness vel non of the sentence imposed.


author: PER CURIAM.

text:
    STATE of Louisiana v. Michael LOUVIERRE.
    No. 80-KA-1980.
    Supreme Court of Louisiana.
    Feb. 4, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Ronnie D. Cox, Charles Brandt, Asst. Dist. Attys., for plaintiff-appellee.
    Harold L. Savoie, Lafayette, counsel, for defendant-appellant.
   PER CURIAM.

Affirmed.

MARCUS and BLANCHE, JJ., dissent; the time limitation on closing argument was unreasonable.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Albert PEREA.
    No. 81-K-0174.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In Re: Albert Perea applying for Writ of Certiorari, Parish of West Baton Rouge, Nos. 86-431, 86-432.

Denied.

DENNIS, J.,

concurs in the denial but notes the defendant may be entitled to exculpatory evidence in response to a proper Brady request upon the District Attorney.

LEMMON, J., would grant the writ.


author: DIXON, C. J.,

text:
    GULF FEDERAL SAVINGS AND LOAN ASSOCIATION OF JEFFERSON PARISH v. FEDERAL HOME LOAN BANK BLDG.
    No. 81-CC-0331.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In Re: Certification from the United States Court of Appeal, Fifth Circuit, No. 78-2549. (Jefferson Parish)

Certification declined.

DIXON, C. J.,

concurs in the denial. There is no issue of law presented here which is peculiar to Louisiana, and which is determinative of the cause independently of any other questions involved in the case.


text:
    Murlon WEBB v. POLK CHEVROLET, INC.
    No. 81-C-0311.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In Re: Murlon Webb, applying for Writs of Certiorari, Mandamus, and/or Prohibition, Parish of E. Baton Rouge, No. 214,632.

Not considered. Not timely filed. See, La. S.Ct. Rules, Rule 10, Section 5(b).

DIXON, C. J.,

concurs in the action of this Court, and is of the view that relator still has time to obtain an order from the district court to fix a reasonable time to file the application in this Court. See, Rule 10, Section 1 and Rule 10, Section 5(b).


author: LEMMON, J.,

text:
    In re Grand Jury Return in INVESTIGATION OF Mark BENTZ.
    No. 80-K-2917.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In Re: State of Louisiana, through the District Attorney W. Gregory Amette, applying for writs of certiorari, prohibition and mandamus, Parish of Jefferson Davis.

Denied.

LEMMON, J.,

concurs. The trial judge properly refused to accept language which exceeded that within the grand jury’s power to act. C.Cr.P. 444.

DIXON, C. J., agrees with the concurrence of LEMMON, J.

WATSON, J., would grant the writ, being of the opinion that the grand jury could return a report of simply “no true bill.”


text:
    Ben ROY v. STATE of Louisiana, DEPARTMENT OF LABOR, OFFICE OF EMPLOYMENT SECURITY.
    No. 80-C-2310.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Administrator of the Office of Employment Security, Louisiana, Department of Labor, applying for certiorari, or writ of review. Parish of East Baton Rouge. No. 226-209.

Denied.


text:
    STATE of Louisiana ex rel. John L. ROBERTS, Sr. v. Honorable Samuel T. ROWE, Judge, 21st District Court, Livingston Parish, Louisiana.
    No. 80-KH-2219.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Samuel T. Rowe, applying for writ of mandamus. Parish of Livingston. No. 31272.

Denied.


text:
    Doris JORDAN v. LEON PICKARD CHEVROLET, INC., et al.
    No. 80-C-2311.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Doris Jordan and Roy Jordan, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. No. 13483. Parish of Livingston.

Denied.

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


text:
    STATE of Louisiana ex rel. Robert STEWART v. Charles R. WARD, Judge, Criminal District Court, Parish of Orleans.
    No. 80-KH-2355.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Robert Stewart, applying for remedial writs. Parish of Orleans. No. 206-570/571.

Denied. If and when relator should complain here on the ruling below this Court will determine whether to order furnished here transcript of evidentiary hearing.


text:
    STATE of Louisiana ex rel. Michael COMERY v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2424.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Michael Comery, applying for remedial writs. Parish of Ascension. No. 6.

Denied.

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


text:
    STATE of Louisiana ex rel. Byron SCOTT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2450.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Byron Scott, applying for writs of certiorari, prohibition, mandamus and habe-as corpus. Parish of Orleans. No. 243-264.

Writ denied.


text:
    STATE of Louisiana v. Carroll Louis BRAZZEL, Phillip Townsend, James Howard Foley and Joseph Edgar Pipes, III.
    No. 80-K-2459.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Carroll Brazzel, Phillip Townsend, James Foley and Joseph Pipes, III, applying for supervisory and remedial writs. Parish of Caddo. No. 113989.

Writ denied.

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


text:
    STATE of Louisiana ex rel. Manuel HENRY v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 80-K-2468.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Manuel Henry, applying for remedial writs. Parish of Iberville. No. 3044-80.

Denied.


text:
    RAMSEY RIVER ROAD PROPERTY OWNERS ASSOCIATION, INC. v. Charles E. REEVES et al.
    No. 80-C-2261.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Charles E. Reeves, Larry J. Green & Frank M. Burns, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 387 So.2d 1194.

Granted.


text:
    STATE OF Louisiana v. Tommie BATTIE.
    No. 80-K-2482.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Tommie Battie, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 80-940.

Denied.


text:
    STATE of Louisiana v. Bennie G. SMITH.
    No. 80-K-2560.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Bennie G. Smith, applying for writs of certiorari, prohibition, review, and mandamus. Parish of Tangipahoa. Nos. 44458, 44459 and 44460.

Denied.


text:
    Mr. and Mrs. Byron TASSIN and Jacqueline Carr v. SLIDELL MINI-STORAGE, INC., et al.
    No. 80-C-2378.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Mr. and Mrs. Byron Tassin and Jacqueline Carr, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 388 So.2d 67.

Granted.


text:
    Vernon T. DENHAM et ux. v. SEARS, ROEBUCK & COMPANY, et al.
    No. 80-C-2204.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Vernon T. Denham, et ux., applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 386 So.2d 687.

Denied.

LEMMON, J., would grant the writ.


text:
    Jessie SINCLAIR et al. v. LUMBERMEN’S MUTUAL CASUALTY COMPANY et al.
    No. 80-C-2235.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Jessie Sinclair, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. 388 So.2d 417.

Denied.

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


text:
    Mary Elizabeth CLARKE v. Frank Henry BRECHEEN.
    No. 80-C-2262.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Mrs. Ivia U. Anderson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1297.

Denied.

BLANCHE, J., would grant the writ.


text:
    DIXIE CARRIERS, INC. v. OTTO M. LIPSCOMB, INC., Ohio Barge Line, Inc., Warrier & Gulf Navigation Company, XYZ Barge Company, ABC Towing Company and DEF Insurance Company. Randall L. ROMINE v. CAJUN MARINE SERVICE, INC., et al.
    No. 80-C-2307.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Cajun Marine Services, Inc., Highlands Insurance Company, and Dixie Carriers, Inc., applying for certiorari, or writ of review to the Court of Appeal, First Circuit. St. Mary Parish. 387 So.2d 1357.

Denied.


text:
    Worth GRYDER v. Sheila CARUSO et al.
    No. 80-C-2312.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Worth Gryder, applying for certio-rari, or writ of review, to the Court of Parish of East Baton Appeal, First Circuit. Rouge. 388 So.2d 90.

Denied.


text:
    Mary Elizabeth CLARKE v. Frank Henry BRECHEEN.
    No. 80-C-2314.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Frank H. Brecheen, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1297.

Denied.


text:
    Leon HORTON and Emily Winn Mitchell v. Jesse BUTLER.
    No. 80-C-2315.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Walton J. Barnes, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1315.

Writ denied.


text:
    Samuel J. LEWIN v. FIRST PARATRANSIT CORP., d/b/a Yellow Cab, Bellefonte Ins. Co., and Julius Nesmith, Jr.
    No. 80-C-2324.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re First Paratransit Corp. d/b/a Yellow Cab, and Julius L. Nesmith, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1254.

Denied.


text:
    The ROMAN CATHOLIC CHURCH OF the ARCHDIOCESE OF NEW ORLEANS; The Congregation of St. Julian Eymard Roman Catholic Church, and Brothers of the Sacred Heart (Brother Martin High School) v. STATE of Louisiana, DEPARTMENT OF LABOR, OFFICE OF EMPLOYMENT SECURITY.
    No. 80-C-2325.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Office of Employment Security of the Louisiana Department of Labor, through Herbert L. Sumrall, Administrator, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1248.

Denied.


text:
    STATE of Louisiana v. Albert McBRIDE.
    No. 80-K-2617.
    Supreme Court of Louisiana.
    Nov. 11, 1980.
   In re Albert McBride, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 278-642.

Granted. The ruling quashing the subpoena duces tecum is vacated.

MARCUS, BLANCHE and LEMMON, JJ., dissent.


text:
    STATE of Louisiana ex rel. Donnie Ray BROWN v. Frank C. BLACKBURN, Warden.
    No. 80-KH-1838.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Donnie Ray Brown applying for writ of certiorari. Parish of Natchitoches. No. 41080.

Denied.


text:
    STATE of Louisiana ex rel. Victor MATTHEWS v. STATE of Louisiana.
    No. 80-KH-1854.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Victor Matthews, applying for remedial writ. Parish of Terrebonne. No. 78042.

Denied.


text:
    STATE of Louisiana ex rel. Freddie NERO v. Frank BLACKBURN, Warden.
    No. 80-KH-1960.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Freddie Nero, applying for motion to proceed in forma pauperis and writ of mandamus. Parish of East Baton Rouge. No. 1-73-2695, Sect. II.

Denied.


text:
    STATE of Louisiana ex rel. Master Fard MUHAMMAD, formerly Ralph K. Holmes, Jr. v. Warden Roger AUCOIN, Sheriff Al Amiss, et al.
    No. 80-KH-2357.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Master Fard Muhammad, formerly Ralph K. Holmes, Jr., v. Warden Roger Aucoin et al. East Baton Rouge Parish. No. 1-79-353.

Writ denied.


text:
    STATE of Louisiana ex rel. Therman M. BRAXTON v. Frank BLACKBURN, Warden.
    No. 80-KH-2000.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Therman M. Braxton, applying for writ of certiorari. Parish of East Baton Rouge. No. 3-11-75-220.

Denied.


text:
    STATE of Louisiana ex rel. Charles CARTER v. CRIMINAL DISTRICT COURT, ORLEANS PARISH, SECTION H.
    No. 80-KH-2004.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Charles Carter, applying for remedial writs. Parish of Orleans. No. 270-077.

Denied.


text:
    STATE of Louisiana ex rel. Robert H. MURRAY v. Charles Ray WARD, Judge, Section A, Criminal District Court, Parish of Orleans.
    No. 80-KH-2005.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Robert H. Murray, applying for writ of mandamus. Parish of Orleans. No. 254-329.

Denied.


text:
    STATE of Louisiana ex rel. Joseph THOMPSON v. Honorable Frank SHEA, Judge, Criminal District Court, Section G.
    No. 80-KH-2043.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Joseph Thompson, applying for supervisory and remedial writs. Parish of Orleans. No. 268-238.

Denied.


text:
    STATE of Louisiana v. John OATIS.
    No. 80-K-2150.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re John Oatis, applying for writs of certiorari. Parish of Orleans. No. 255-484.

Writ denied.


text:
    STATE of Louisiana ex rel. Andre SORINA v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2197.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Andre Sorina, applying for writs of certiorari and habeas corpus. Parish of Orleans. No. 237-612.

Denied.


text:
    STATE of Louisiana ex rel. Isaac Glen SMITH v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2220.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Isaac Glen Smith, applying for remedial writs. Parish of Ouachita. No. 38014.

Denied.


text:
    STATE of Louisiana v. Thomas MARTIN.
    No. 80-K-2252.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Thomas Martin, applying for supervisory writ. Parish of West Feliciana. No. W-80-4-449.

Denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Rickie JONES.
    No. 80-K-1688.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Rickie Jones, applying for writs of certiorari, prohibition, and mandamus to the Criminal District Court. Parish of Orleans. Court of Appeals. No. 268-617.

Granted.


text:
    STATE of Louisiana v. Stephen Douglas EDWARDS.
    No. 80-K-2308.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Stephen Douglas Edwards, applying for writs of certiorari and review. Parish of Sabine. No. 26072.

Denied.

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


text:
    STATE of Louisiana v. Radcliff WILLS, Sr.
    No. 80-K-2381.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re State of Louisiana through the District Attorney, Duncan Kemp, applying for writs of certiorari, prohibition and mandamus. Parish of Tangipahoa. No. 80-905.

Denied.


text:
    STATE of Louisiana v. Wayne J. BURTON.
    No. 80-K-2415.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Wayne J. Burton, applying for writs of review and certiorari. Parish of Iber-ville. No. 2221-80.

Writ denied.

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


text:
    Dinna Bannister MILES, Individually and as Natural Administratrix of the Estate of the Minor Donny Miles & Sherry Miles Crocklen v. ILLINOIS CENTRAL GULF RAILROAD CO., Kansas City Southern Railway Co., Inc., Southern Railroad Co., Magor Railcar, Division of Fruehauf Cor., Citadel Cement Cor., Cecil Brown, and ABC, DEF, GHI, & XYZ Insurance Companies.
    No. 80-C-2437.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Dinna Bannister Miles, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 389 So.2d 96.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    Larry RUSSELL et al. v. LAKE SHERWOOD ACRES, INC.
    No. 80-C-2313.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Larry Russell, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 388 So.2d 822.

Denied. The result is correct.

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


text:
    Obie Glenn SIMS v. Nora Roberts SIMS.
    No. 80-C-2532.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Obie Glenn Sims, applying for writs of certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 388 So.2d 428.

Writ denied.

LEMMON, J., would grant the writ.


text:
    DEPARTMENT OF CULTURE, RECREATION AND TOURISM OF the State of Louisiana v. FORT MACOMB DEVELOPMENT CORPORATION, Chef Enterprises, Inc., and National American Bank of New Orleans.
    No. 80-C-2018.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Department of Culture, Recreation and Tourism of the State of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 385 So.2d 1233.

Denied.

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


text:
    CIRCLE, INC. v. BOARD OF SUPERVISORS, SEWERAGE DISTRICT NO. 2, ST. BERNARD PARISH, Louisiana.
    No. 80-C-2390.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Circle Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 387 So.2d 606.

Writ denied.


text:
    VERMILION CORPORATION v. Freddie BROUSSARD.
    No. 80-C-2457.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Freddie Broussard, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 387 So.2d 703.

Granted.

WATSON, J., recused.


text:
    VERMILION CORPORATION v. Larry J. BROUSSARD.
    No. 80-C-2456.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Larry Broussard, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 387 So.2d 702.

Granted.

WATSON, J., recused.


text:
    VERMILION CORPORATION v. Norman VAUGHN.
    No. 80-C-2455.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Norman Vaughn, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Vermilion Parish. 387 So.2d 698.

Granted.

WATSON, J., recused.


text:
    James DORRY v. Goldman LAFLEUR.
    No. 80-C-2440.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re James Dorry, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 387 So.2d 690.

Granted.


text:
    Rev. Albert BOURGEOIS, Victoria Taylor, Cora Marzette and Clarence Walker v. Rev. Lawrence LANDRUM and Ebenezer Baptist Church of New Orleans.
    No. 80-C-2411.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Rev. Albert Bourgeois, Victoria Taylor, Cora Marzette and Clarence Walker, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 387 So.2d 611.

Granted.


text:
    Mary Elizabeth SAUNDERS v. NEW ORLEANS PUBLIC SERVICE, INC., and Powell Blair, Jr.
    No. 80-C-2409.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re New Orleans Public Service Inc., and Powell Blair, Jr., applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 387 So.2d 603.

Denied.

MARCUS, J., would grant the writ. LEMMON, J., recused.


text:
    Edward J. LAGRAIZE, Jr. v. NEW ORLEANS ARMATURE WORKS et al.
    No. 80-C-2410.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re New Orleans Armature Works, et al., applying for certiorari, or writ ,of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 387 So.2d 687.

Denied.

BLANCHE, J., would grant the writ. LEMMON, J., recused.


text:
    STATE of Louisiana in the INTEREST OF Kendra BROWN.
    No. 80-C-2492.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 387 So.2d 1366.

Denied.

BLANCHE, J., would grant the writ. LEMMON, J., recused.


text:
    Clara Sue COBB et al. v. INSURED LLOYDS et al. Clara Sue COBB et al. v. J. P. SAUER & SOHN & HAWES FIREARMS COMPANY.
    No. 80-C-2147.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re J. P. Sauer and Sohn and Hawes Firearms Co., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 387 So.2d 13 and 387 So.2d 21.

Denied.

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


text:
    Lydia Harrison RYAN, William H. Harrison, Jr., as Executor of the Estate of William H. Harrison, Shirley Harrison Hyde, Katherine Harrison and Richard Harrison v. Saviour A. PEKINTO, Edward J. Pekinto et al.
    No. 80-C-2333.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Saviour Pekinto, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 387 So.2d 1325.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. John W. EVANS v. Ross MAGGIO, Warden.
    No. 80-K-1489.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re John W. Evans, applying for writs of certiorari, prohibition, mandamus, habeas corpus, and remedial. Parish of Lafourche. No. 83699.

Writ granted and an evidentiary hearing is ordered. The trial judge is ordered to appoint counsel for the defendant to represent him at said hearing.


text:
    STATE of Louisiana ex rel. Clarence COLLINS v. CLERK OF COURT, ORLEANS PARISH CRIMINAL DISTRICT COURT, SECTION B.
    No. 80-KH-2162.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Clarence Collins, applying for writs of certiorari and mandamus. Parish of Orleans. No. 274-219.

Writ granted. The trial court is ordered to furnish the defendant with a copy of his Boykin transcript.


text:
    Larry DAVENPORT v. McCULLOUGH SERVICES BAROID DIVISION, N. L. INDUSTRIES, INC. and Employers National Insurance Company, in Solido.
    No. 80-C-2503.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Larry Davenport, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bossier. 388 So.2d 453.

Denied.


text:
    Lillie Grant RAMEY, in her Capacity as Tutrix for Minors, etc., v. CITY OF MONROE et al. Connie VANCE and Belinda Sue Lewis v. CITY OF MONROE et al. Irma WRIGHT in her Capacity as Tutrix for Minor, Sonja Shevetta Wright v. CITY OF MONROE.
    No. 80-C-2536.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Lillie Grant Ramey, Connie Vance, et al., and Irma Wright, applying for certio-rari or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 388 So.2d 834.

Writ denied.


text:
    Carroll ELLZEY v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY et al.
    No. 80-C-2481.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Panola-Harrison Electric Cooperative, Inc., Employers Mutual Liability Insurance Company of Wisconsin, Benjamin K. Taylor and Aetna Casualty & Surety Company, applying for certiorari or writ of review to the Court of Appeal, Second Circuit. Parish of Caddo. 388 So.2d 843.

Writ denied.


text:
    Samuel DUNCAN, Jr. v. J. C. PENNEY LIFE INSURANCE COMPANY.
    No. 80-C-2470.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re J. C. Penney Life Insurance Company, applying for writ of certiorari or review, to the Court of Appeal, Second Circuit. Parish of Winn. 388 So.2d 470.

Writ denied.

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


text:
    Janet Hamrick DONALDSON. v. Holman Elwood DONALDSON.
    No. 80-C-2549.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Janet Hamrick Donaldson, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 389 So.2d 1375.

Denied.


text:
    COLUMBIA GULF TRANSMISSION COMPANY v. Paul R. ROSTEET and Eleanor Rosteet Hamilton.
    No. 80-C-2533.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Columbia Gulf Transmission Company, applying for writ of certiorari, and/or review, to the Court of Appeal, Third Circuit. Parish of Cameron. 389 So.2d 778.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    Andrew MILLER, Jr. et al. v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 80-C-2534.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Andrew Miller, applying for remedial writs. Parish of Orleans. Civil District Court. No. 79-3896.

Denied.


author: STOKER, Judge.

text:
    Kent RODRIQUEZ, Plaintiff-Appellee, v. AMERICAN INTERNATIONAL INSURANCE COMPANY et al, Defendants-Appellants.
    No. 7745.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    On Rehearing Feb. 4, 1981.

      Voorhies & Labbe, Gregory Voorhies, Lafayette, for defendants-appellants.
    Francis E. Mire, Lake Charles, for plaintiff-appellee.
    Before FORET, STOKER and LA- . BORDE, JJ.
   STOKER, Judge.

This is a worker’s compensation suit. Plaintiff, Kent Rodriquez, sued his employer, Penrod Drilling Company, and its compensation carrier, American International Insurance Company, to recover benefits under the Louisiana Workmen's Compensation Law. The trial court awarded plaintiff twenty-nine weeks of compensation, medical expenses for this period and penalties and attorney’s fees. Defendants appealed this judgment. Plaintiff answered this appeal. We amend the trial court’s judgment and affirm it as amended.

The issue presented is whether plaintiff has been disabled since the date on which the payment of compensation benefits was discontinued.

On July 21, 1978, Kent Rodriquez was employed by Penrod Drilling Company as a roughneck. On that day Rodriquez while helping a Penrod driller load iron fell from a forklift. Rodriquez was treated at Baton Rouge General Hospital for abrasions, contusions and rib injuries. He was unable to return to work that day. On July 24, 1978, Dr. Thomas Lacour examined Rodriquez in Alexandria.

Appellant American International Insurance Company paid compensation benefits and medical expenses from the date of the accident until August 22,1978. No benefits have been paid to Rodriquez since this date. This suit was instituted on March 2, 1979.

At the trial court the issue was appellee’s disability. The basis of the dispute was the conflict in the medical findings of the three physicians who examined appellee. Rodriquez contended that at the time of trial on June 12, 1979, he was still disabled as a result of the injury he sustained on July 21, 1978. American International Insurance Company contended that Rodriquez’s disability ceased on August 15, 1978, when Dr. Lacour released Rodriquez to return to work.

On appeal appellants complain that the evidence in the record does not support the trial court’s finding that plaintiff-appellee was disabled for a twenty-nine week period following his injury. In addition, appellants argue the trial court found as fact that the appellee was not disabled on August 15, 1978, when he was released by Dr. Lacour to return to work and that appellee was not disabled on December 4,1978, when he was examined by Dr. Beurlot. Accordingly, appellants urge the trial court judgment granting appellee compensation benefits through January of 1979 is contrary to the trial court’s factual findings contained in its written reasons for judgment. Appellants also maintain that the trial court erred in awarding penalties and attorney’s fees.

In answering the appeal the appellee argues that the evidence supports a finding of total and permanent disability or alternatively temporary total disability. Appellee also maintains that he is entitled to recover all medical and travel expenses for the period of his treatment. Appellee prays for an increase in attorney’s fees.

The record consists of the testimony of plaintiff-appellee and the depositions of the three physicians who examined him.

Dr. Thomas Lacour of Alexandria is plaintiff-appellee’s family physician. Dr. Lacour, a general practitioner, treated the appellee within three days of the accident. He stated that his initial examination of plaintiff-appellee revealed abrasions of the chest and right leg. According to Dr. Lac-our the appellee did not complain of back pain until a visit on August 8, 1978. Dr. Lacour ordered x-rays which revealed a first degree spondylolisthesis, a developmental problem unrelated to the July accident. As of August 15, 1978, Dr. Lacour felt that the appellee was not disabled and could return to work as a roughneck. At the time of the deposition, Dr. Lacour had last examined appellee on February 22, 1979. At this time Dr. Lacour reviewed the reports of Dr. Oates and in spite of these reports was still of the opinion that appellee was able to work.

Dr. Ray Beurlot, an orthopedist, examined the appellee on December 4, 1978, at the request of defendant American International Insurance Company. Dr. Beurlot diagnosed the appellee’s condition as “resolving cervical strain”. He explained that terminology:

“Q I can’t figure out what you mean by resolved cervical and lumbar strain. Do you mean that he had completely recovered; is that it?
A By that I meant that I was not denying the possibility that he could have sustained a cervical and/or a lumbar strain at the time of his injury, but that, if he had, his physical findings had come to the point where we felt that he had probably recovered.”

Dr. Beurlot stated that he felt that appel-lee could return to his former occupation as a roughneck and would place no restrictions on appellee’s activities. It was Dr. Beur-lot’s opinion that appellee might have some discomfort at work upon his return until he got back into condition after not working for awhile. Dr. Beurlot x-rayed the appel-lee and found spondylolysis but no narrowing of the disc space or other signs of back injury.

Dr. James Oates, a specialist in physical medicine and rehabilitation, examined ap-pellee at the behest of appellee’s counsel. Dr. Oates first examined appellee on January 18, 1979. On that day he performed a combination neurological and orthopedic examination in order to determine the source of appellee’s back pain. Appellee again visited Dr. Oates on February 7,1979. At this time, Dr. Oates performed an electromyo-graph to determine if appellee had nerve damage. Based upon his clinical examination and the electromyograph, Dr. Oates concluded that the appellee had injured a lumbosacral disc and sustained damage to the fifth lumbar nerve roots. In Dr. Oates’ opinion appellee could not return to work as a roughneck or to work requiring bending and lifting.

The appellee testified that he had returned to work about five or six weeks after the accident and had worked for two companies setting stakes and hooking pipe. Appellee testified that he was in pain both on the job and off. At the time of trial appellee stated he was in great pain which prevented him from working and that he was still being treated by Dr. Lacour.

DISABILITY

On the question of appellee’s disability, the three medical experts in this case disagreed. Dr. Lacour and Dr. Beurlot recognized that appellee had a spondylolisthesis, a developmental problem, which did not stem from the on the job injury on July 21, 1978. They both felt that appellee could return to work as a roughneck and that his physical activities need not be restricted. Dr. Oates, as a result of his examinations of appellee in early 1979, was of the opinion that the appellee was disabled as a result of the July 21, 1978, accident. Dr. Oates felt that this accident injured the lumbosacral disc and fifth lumbar nerve roots. As a result of this damage, Dr. Oates thought the appellee could not return to work as a roughneck or to any job which required lifting or bending.

The trial court found the appellee disabled through January of 1979. This finding indicates that the lower court rejected the testimony of Dr. Oates and accepted the testimony of Drs. Lacour and Beurlot.

The trial judge may accept or reject an opinion expressed by any medical expert depending on how impressed he is with the qualifications, credibility, and testimony of the expert. In evaluating the testimony of medical experts of nearly equal qualifications, considerable weight must be attached to the opportunities each doctor had for observation of the patient and the doctor’s familiarity with the patient and his history. The testimony of a treating physician who has had the benefit of repeated examinations and sustained observation of a patient under his direct care is to be accorded greater weight and probative value than that of a physician who has not undertaken treatment of the patient but has merely examined him a few times preparatory to giving expert testimony regarding the patient’s condition. The testimony of a physician who examines and treats the claimant from the inception of injury is entitled to greater weight than the opinion of one who examines the claimant later. Turner v. American Mutual Insurance Company, 375 So.2d 113 (La.App. 3rd Cir. 1979), writ granted, 376 So.2d 1271 (La.1979); Meshell v. Rivers, 348 So.2d 203 (La.App. 3rd Cir. 1977), writ denied, 350 So.2d 1210 (La.1977).

Dr. Lacour’s deposition reflects that he felt appellee’s disability ended on August 15,1978. At this time appellee was released to return to work. It is our opinion that appellee’s disability ceased on this date. The trial court awarded appellee compensation benefits through January of 1979. We do not find that this award is supported by the record. It is our opinion that careful scrutiny of the evidence warrants a finding that appellee was disabled as a result of his on the job accident from July 21,1978, to August 15,1978. We feel that the trial court was clearly wrong under the test of Arceneaux v. Domingue, 365 So.2d 1330 (La.1979) in allowing compensation beyond this latter date. Defendant American International Insurance Company paid appellee compensation benefits and medical expenses for the period of July 21, 1978, to August 22, 1978. We are of the opinion that the discontinuation of these benefits on August 22, 1978, was not arbitrary, capricious, or unreasonable.

PENALTIES AND ATTORNEY’S FEES

The trial judge awarded penalties and attorney’s fees pursuant to LSA-R.S. 22:658. He based this award on the finding that the defendants knew or should have known that plaintiff was disabled at “the time of receiving the report of Dr. Beurlot, presumably consistent with his testimony.” This report of Dr. Beurlot does not appear in the record. However, we take it that any report by Dr. Beurlot would reflect his deposition testimony. In his deposition, Dr. Beurlot stated that at the time of his December 4th examination the appellee had probably recovered from his cervical strain and could return to work as a roughneck. We would not award penalties and attorney’s fees on the same basis as the trial court, as we feel defendants acted reasonably in terminating benefits on August 22, 1979. However, appellee has made a claim for travel expenses incurred in traveling to and from Alexandria to seek treatment. A claimant’s travel expenses in seeking medical attention form a part of the medical expenses claim and are subject to the statutory penalty provisions provided for by LSA-R.S. 22:658. Jack v. Fidelity & Casualty Co. of New York, 326 So.2d 584 (La.App. 3rd Cir. 1976), writ denied, 330 So.2d 295 (La.1976); Bonnette v. Travelers Insurance Company, 367 So.2d 1261 (La. App. 3rd Cir. 1979).

During the July 21 through August 15 period of disability, appellee made five trips to Dr. Lacour’s office in Alexandria from his home in Pitkin. Appellee testified that the round trip is 110 miles. In addition appellee made a trip to Alexandria at the request of defendants to the office of Dr. Beurlot. We find appellee entitled to recover travel expenses for six trips to Alexandria at 110 miles per round trip. We feel that 20 cents a mile is an adequate sum for mileage. Accordingly, we award appellee $132.00 as medical travel expenses and find defendants subject to penalties and attorney’s fees for failure to pay this amount.

Appellee has asked this court to increase the award of attorney’s fees. The trial court awarded appellee $2,000 in fees. Based on our action in this court, we feel that the award of $2,000 should stand.

For the foregoing reasons we affirm the trial court’s judgment except insofar as it grants plaintiff compensation at the rate of $130.00 per week for 29 weeks subject to a credit for amounts previously paid and insofar as it failed to award plaintiff his travel expenses incurred in meeting medical examinations. Therefore, we recast the judgment.

IT IS NOW THEREFORE ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Kent Rodriquez, and against defendants, American International Insurance Company and Penrod Drilling Company, awarding plaintiff workmen’s compensation benefits at the rate of $130.00 a week for three weeks, subject to a credit for amounts previously paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff is entitled to legal interest and penalties of 12% on all overdue and unpaid medical and travel expenses and also attorney’s fees in the amount of $2,000. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff be allowed to recover the costs of taking the deposition of Dr. James R. Oates, in the sum of $131.80 and defendants are to pay all medical expenses incurred through August 15, 1978, and travel expenses in the sum of $132.00.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the expert fees of Drs. James R. Oates, Thomas A. Lacour and R.J. Beurolot, Jr. are fixed at $100 each and taxed as costs. All costs of this proceeding are to be paid equally by plaintiff and defendants.

All costs of this appeal are to be paid equally by plaintiff-appellee-appellant and defendants-appellants-appellees.

AMENDED AND AFFIRMED AS AMENDED.

ON REHEARING

We granted a limited rehearing in this case restricted to the question of penalties and attorney’s fees. On original hearing we granted penalties and attorney’s fees based on the insurer’s failure to pay medical travel expenses. We based our decision on the cases which hold travel expenses to be a part of medical expense claims subject to the statutory penalty provisions. Although not cited in our original opinion we also relied on Norris v. Southern Casualty Insurance Company, 342 So.2d 874 (La.App. 3rd Cir. 1977), writ refused, 344 So.2d 670 (La. 1977), wherein a panel of this court held a defendant-insurer liable for penalties and attorney’s fees because of its failure to furnish the plaintiff with travel expenses even though plaintiff had not requested payment of these expenses prior to trial.

On reconsidering the issue of penalties and attorney’s fees we feel the better rule of law to be that a defendant-insurer is not liable for penalties and attorney’s fees for failure to pay medical travel expenses unless the insurer arbitrarily, capriciously, or without probable cause refuses to pay the claimant after he has submitted an itemized statement to the insurer listing all expenses incurred while traveling to receive medical treatment. See Burgess v. Southern Casualty Insurance Company, 203 So.2d 434 (La.App. 3rd Cir. 1967).

For the reasons assigned we were in error in our original opinion wherein we held American International Insurance Company liable for penalties and attorney’s fees.

We now recall and set aside our decree rendered on original hearing. For the foregoing reasons we now recast our original judgment to read as follows:

IT IS NOW THEREFORE ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of plaintiff, Kent Rodriquez, and against defendants, American International Insurance Company and Penrod Drilling Company, awarding plaintiff workmen’s compensation benefits at the rate of $130.00 a week for the period beginning July 21, 1978, and ending August 15,1978, subject to a credit for amounts previously paid, together with legal interest on each weekly payment from its due date until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff be allowed to recover the costs of taking the deposition of Dr. James R. Oates, in the sum-of $131.80 and defendants are to pay all medical expenses incurred through August 15, 1978, and travel expenses in the sum of $132.00.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the expert fees of Drs. James R. Oates, Thomas A. Lacour and R.J. Beurlot, Jr. are fixed at $100 each and taxed as costs. All costs of this proceeding are to be paid equally by plaintiff and defendants.

      . Plaintiff offered the office records of Dr. Lac-our as part of the trial record (P — 4) which the trial court admitted subject to objection. In its reasons for judgment the trial court ruled that the objections were good and sustained the objections to this evidence. The trial court observed that the medical records of Dr. Lac-our, offered for impeachment purposes, had not been brought up in the taking of Dr. Lacour’s testimony by deposition. Therefore, the trial court ruled plaintiff had failed to lay a foundation for introduction of the medical records. Plaintiff also submitted with his brief a copy of a' letter from Dr. Lacour dated October 2, 1978. This letter cannot be considered, of course, as it is outside of the record. Plaintiff urges that the medical records of Dr. Lacour, which contained his notes and comments, and the letter submitted with his brief show that plaintiff does indeed suffer back pain. We express no opinion as to whether such documents, if they could be considered, would show that any pain experienced by plaintiff is causally related to his accident or that they impeached the testimony of Dr. Lacour. Under LSA-R.S. 23:1331 a worker’s compensation case may be reopened if a medical opinion relied upon to plaintiffs prejudice is based on erroneous medical conclusions, as for example, errors in diagnosis or evaluation which result in an incorrect medical diagnosis. Zachary v. Bituminous Casualty Corp., 371 So.2d 1249 (La.App. 3rd Cir. 1979).

      . LSA-R.S. 22:658 provides as follows:
      All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all loses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.