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

text:
    Lorenza WILSON v. EBASCO SERVICES, INC. and Employees National Insurance Company.
    No. 80-C-1507.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      John S. Keller, New Orleans, for plaintiff-applicant.
    Paul Deal and Darryl Foster, Lemle, Kel-leher, Kohlmeyer & Matthews, New Orleans, for defendants-respondents.
   DIXON, Chief Justice.

At issue in this worker’s compensation litigation are the consequences of severe and constant pain as a result of an employment related injury, and the extent to which an employer may be required to furnish medical treatment.

Plaintiff is in her early thirties, and is a graduate of high school and a vocational program where she received secretarial training. She began employment with defendant in June, 1975 as a clerk-typist. Shortly after beginning her job with defendant, plaintiff was given the task of delivering mail throughout defendant’s offices. This job involved lifting and carrying metal mail containers weighing approximately twenty-five pounds when loaded, and required plaintiff to climb stairs.

In February, 1976, after complaining of dizziness and alternating pain and numbness in her legs, plaintiff was hospitalized for treatment of anemia and thrombophle-bitis. She was discharged from the hospital and returned to work, but remained under the care of a cardiologist, who prescribed various medications as well as support hose for plaintiff’s condition.

On June 29, 1977, while lifting a metal mail container, plaintiff injured her back. Her employer was notified of this accident. Plaintiff consulted the physician who had been treating her for phlebitis, and was advised that she was suffering from a lumbar sacral sprain. In October, 1977, after appearing in a hospital emergency room complaining of back pain radiating down her legs, plaintiff was again hospitalized. The swelling in her legs and the tenderness of her calves was suggestive of phlebitis in an acute stage, but an orthopedic surgeon was also consulted in regard to plaintiff’s complaints of back pain. Plaintiff was given medication and was discharged from the hospital approximately two weeks later with a corset for her back, and was thereafter regularly examined by the orthopedic surgeon.

In November, 1977 plaintiff was fired from her job by defendant, Ebasco Services, Inc., on the basis of her “continuing absence” from work. In January, 1978 plaintiff obtained employment at an airport, conducting security checks on passengers’ baggage. She quit work after two or three weeks because of the pain in her legs and back. Between January and July, plaintiff was conservatively treated for her back problem by the surgeon, who believed that plaintiff’s condition was caused by a simple lumbar sprain. In July, however, after a myelogram was conducted, the physician treating plaintiff diagnosed the possibility of ruptured discs in plaintiff’s spine. A laminectomy was performed, and two ruptured discs were removed from plaintiff at the lumbar and lumbosacral levels. It is not disputed that this surgery was necessitated by the employment related injury more than a year before. Plaintiff was hospitalized for the last time in October, 1978 for treatment of her back and a possible recurrence of phlebitis.

In order to alleviate the constant pain in her back following surgery, plaintiff had been supplied with a “transcutaneous neural stimulator” (T.N.S.), a device which is designed to short circuit the feeling of pain by means of electrodes implanted near the affected nerves. The T.N.S. device, a relatively new treatment, is said to be beneficial because it obviates the need for long-term medications which have a tendency to be addictive. However, the treating physician stated that plaintiff’s pain and discomfort would be permanent, even though she might eventually be able to cope with it.

Plaintiff filed suit against her former employer and its compensation insurer, claiming that she was permanently and totally disabled. The trial court concluded that plaintiff was partially disabled, and awarded her compensation under the terms of R.S. 23:1221(3).

After trial was held, plaintiff filed a separate suit in which she sought a court order requiring her employer’s insurer to furnish a letter of financial responsibility so that could gain admittance to the Mercy Hospital Pain Clinic for rehabilitative treatment. This action was dismissed on an exception of no cause of action, erroneously styled an exception of lis pendens and res judicata when filed with the district court. On both matters the judgment of the district court was affirmed by the Court of Appeal. Wilson v. Ebasco Services, Inc. et al, 386 So.2d 371, 386 So.2d 375 (La.App. 4th Cir. 1980). Plaintiff petitioned this court for review. We reverse.

Two issues are presented for consideration. The first is whether the courts below were in error in failing to find that plaintiff is totally disabled under the terms of R.S. 23:1221(1-2). The second issue is whether error was committed in upholding defendant’s exception of no cause of action, effectively denying plaintiff the rehabilitative therapy which might assist her in rejoining the labor force.

Total Disability

The record clearly establishes the validity of plaintiff’s claim for total disability. At trial, the depositions of four doctors were introduced into evidence. The two depositions introduced by plaintiff were taken from the two physicians who had treated her, Drs. Levy and Adatto. Of the two depositions introduced by defendant, one was taken from a doctor who had never examined plaintiff, although he reviewed her medical records; the other deposition was taken from a physician who had examined plaintiff both before and after surgery. Dr. Adatto, the orthopedic surgeon who performed the laminectomy on plaintiff, stated that plaintiff would always experience pain and discomfort on a permanent basis as a result of her surgery. The only hope held out by Dr. Adatto was that plaintiff would learn to adjust to her pain with the help of the T.N.S. device and therapy. At the time his deposition was taken, shortly before trial, Dr. Adatto was unwilling to state that plaintiff could return to work, although he did state that plaintiff should never perform any task that involved lifting, stooping or bending. Dr. Levy, the internist and cardiologist who treated plaintiff for phlebitis, deferred to Dr. Adatto’s opinion regarding the prognosis for plaintiff’s recovery from back surgery.

Defendant introduced the deposition of Dr. Williams, a thoracic and cardiovascular surgeon who had reviewed plaintiff’s medical records. He expressed his opinion that the back surgery did not necessarily aggravate the preexisting phlebitis. Dr. Stokes, an orthopedic surgeon, actually examined plaintiff. It was his belief that plaintiff could eventually return to work, but, like Dr. Adatto, suggested that she refrain from any activity that involved bending, stooping or lifting. He further stated that, although some degree of pain would be unavoidable, the amount of pain which plaintiff experienced would depend upon the type of work that she did. Even though Dr. Stokes concluded that plaintiff was in good condition “mechanically,” he expressed no doubt that she was actually suffering’ considerable pain, and was satisfied that plaintiff’s complaints were sincere.

At the trial itself, plaintiff testified that her pain was too severe to return to work. She stated that she would be willing to resume employment if her physician recommended it, but that she would be unable to work if her pain remained at its present level. Her testimony was corroborated by her mother, who explained that plaintiff was unable to do anything but the lightest of chores around the house, and that plaintiff was even unable to push a grocery cart without incurring apparent pain.

The trial judge offered no written reasons for his judgment that plaintiff was only partially disabled. The only justification for this conclusion seems to be that plaintiff may be able to adjust to her pain, eventually, so that she could hold a job that would not involve any physical stress to her back. The Court of Appeal, while acceding to the trial judge’s factual determination, also noted that some of plaintiff’s pain and difficulty was caused by phlebitis, not the back condition. The court stated that: “If the phlebitis had been caused or aggravated by her injury her case for total disability would be much stronger.” 386 So.2d at 374. While that conjecture is not incorrect, the record reflects that much needless effort was expended by counsel for both parties in inquiring into the causal connection between the phlebitis and the laminectomy.

Plaintiff’s phlebitis, which is basically an inflammation of the veins, was a preexisting, recurrent condition, and one which caused intermittent pain. From the record, it would certainly appear that plaintiff’s employer was aware that plaintiff suffered from this partially debilitating condition. Although there is some indication that the back surgery may have aggravated the phlebitis, the causal connection between the two is simply not relevant. The two conditions did not produce two discrete experiences of pain, but combined. Although there is sufficient evidence in the record to conclude that plaintiff’s back pain, by itself, is sufficiently acute to prevent her from returning to work, it makes no difference if it is actually the combination of pain that is disabling. The case is like that of a worker who had only one good eye: if the sight in the good eye is lost through an employment related accident, the employer must bear the burden of furnishing compensation for the resulting blindness.

The legislature, in 1974, provided for such cases with a “Second Injury Fund” (R.S. 23:1371 et seq.), which entitles an employer to reimbursement for compensation under certain circumstances. See R.S. 23:1378. The purpose of the Second Injury Fund is to encourage the employment of handicapped persons “by protecting employers and insurers from excess liability for workmen’s compensation for disability when a subsequent injury to such an employee merges with his preexisting permanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone.” R.S. 23:1371. It is interesting to note that the legislature specifically designated thrombophlebitis as one example of a preexisting permanent partial disability. R.S. 23:1378(F)(21). If it is true that part of plaintiff’s pain and discomfort is caused by phlebitis and not by her back condition, the employer is nevertheless liable to compensate her for the full extent of the disability produced by the two physical problems. Rather than exploring the medically uncertain link between plaintiff’s phlebitis and her back surgery, it might have been more efficient to explore the possibility of qualifying this case under the Second Injury Fund.

Whether it is the back condition alone which causes plaintiff’s pain, or a combination of the back condition with the preexisting phlebitis, it is clear that plaintiff was totally disabled at the time of the trial. A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Dusang v. Henry Beck Builders, Inc., 389 So.2d 367 (La.1980); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d. 1093 (La.1980), and cases cited therein. Recently we have recognized that the jurisprudence relating to “working in pain” cases is merely an embodiment of the broader concept expressed in the “odd-lot doctrine.” See Calogero v. City of New Orleans (80-C-2336) (La. 1980); Turner v. American Mutual Ins. Co., 390 So.2d 1330 (La.1980); Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980); Dusang v. Henry Beck Builders, Inc., supra.

Essentially, the odd-lot doctrine entitles an employee to compensation for total disability when, as a result of a com-pensable injury, he is rendered unable to perform any service for which a reasonably dependable market exists. The term “any gainful employment for wages,” as used in R.S. 23:1221(1-2), must be understood to mean any gainful occupation which, as a practical matter, affords an injured worker an opportunity for employment. If such employment is not available to the worker because of the worker’s injury and other individual factors, the odd-lot doctrine mandates that compensation be paid for total disability. It is in this sense that the injured worker who performs his tasks in pain falls within the ambit of the general odd-lot concept: an employee who experiences substantial pain when performing routine physical tasks may find that employment opportunities are severely limited. Normally, an employer would find it less desirable to hire someone who must endure serious pain while working than someone who does not; the fact of pain may restrict the scope of activities in which an employee can be engaged, and may result in the functional inability to perform certain duties. Moreover, recurrent pain may cause frequent absenteeism on the part of the disabled worker, either because of the inability to work when the pain is particularly intense or because of the necessity of seeking medical treatment. These factors, along with others, place the employee who must work in pain at a competitive disadvantage to healthy workers in finding employment. See Malone & Johnson, Workers’ Compensation (2d ed. 1980), § 277 at 628-29. There is also a possibility that the injured employee may be more susceptible to a second injury, or that the prior injury may be aggravated in the course of employment, making the employer liable for the resulting disability. Depending upon the circumstances of the case, a worker who seeks employment despite the presence of severe and continuing pain may find that employment opportunities are gravely limited. In such a case, the injured worker is entitled to an award for total disability.

In the present case the circumstances are somewhat different from those addressed in Turner, Oster and Dusang, supra. In Turner, the claimant was a mentally retarded common laborer with a severe foot injury who was unable to return to his former employment. An initial award of partial disability benefits was made because of the possibility that he could find other gainful employment. This court remanded the case so that the district court could determine, in light of the plaintiff’s physical and mental limitations, whether plaintiff could successfully obtain regular employment at some other job within his locality. In Oster, a sixty-one year old bookbinder with a serious hand injury was awarded total disability benefits by this court because her age and lack of training effectively denied her the opportunity for other employment; she was unable to return to her former occupation. In Dusang, this court found that an injured welder who continued to work after his accident would be able to find regular employment in the future, even though his injury required him to work in some degree of pain. An award of partial disability was made.

The facts of the present case are significantly different from those in Turner, Oster and Dusang. Here, the plaintiff is a relatively young woman who has acquired job skills enabling her to find employment in a fairly stable market. Unlike the plaintiffs in Turner and Oster, she is not handicapped by reason of her age, intelligence or training. However, unlike the plaintiff in Du-sang, her pain has prevented her from seeking any other employment whatever. And, should plaintiff’s disabling pain eventually subside, or should she become adjusted to it, she will still be unable to engage in any type of employment that involves stress to her back. The light secretarial work for which plaintiff is fitted by her training and experience is the most obvious employment available to her, and involves work which would not necessarily aggravate her back injury. Should plaintiff’s pain be brought under control in the future, there is the possibility that she could return to an occupation that involves light clerical or secretarial work. Depending upon her ability to cope with pain, then, plaintiff may not necessarily qualify as an odd-lot worker.

However, the judgment should not be based upon speculation. At the time of trial, there can be no doubt that plaintiff was totally disabled. She was unable to perform the simplest of physical tasks without incurring substantial pain. No showing was made that any employment would be suitable for the plaintiff. Considering the level of pain which plaintiff apparently endures, there was sufficient proof that she would not be able to engage in any gainful occupation for wages.

On the record before us, plaintiff is permanently and totally disabled, and is entitled to compensation under the terms of R.S. 23:1221(2). If her condition becomes ameliorated to the extent anticipated by her physician, and if she is then able to find regular employment that does not involve any aggravation to her back, it would be appropriate for her former employer to seek modification of this judgment. R.S. 23:1331. The possibility that plaintiff may improve and find suitable employment is too tenuous a basis upon which to rest a judgment granting compensation for partial disability only.

Medical Treatment

Approximately a year after surgery, plaintiff was referred to the Mercy Hospital Pain Clinic by Drs. Levy and Adatto. She was evaluated at the clinic and it was recommended that she be admitted to the “pain unit program” so that she could obtain “pain coping skills” that would increase her range of activities and minimize her disability. Personnel from the clinic then contacted the employer’s compensation insurer requesting a letter guaranteeing payment for services to be rendered. The defendant insurer refused to provide the guarantee: plaintiff cannot gain admittance to the program without such an assurance of financial responsibility. Suit was filed demanding a guarantee of payment, but the suit was dismissed on an exception of no cause of action.

R.S. 23:1203 states in part that it is the employer’s duty to “furnish all necessary medical, surgical and hospital services, and medicines, or any nonmedical treatment recognized by the laws of this state as legal.” The Court of Appeal, following a long-standing jurisprudential rule, determined that the liability for an injured employee’s medical bills under this statute only arises when such expenses are actually incurred: “A workmen’s compensation claimant is not entitled to an award for future medical expenses, but the right to claim such expenses is reserved to her.” 386 So.2d at 376. See Andersen v. Eagle Asbestos Co., 355 So.2d 1082 (La.App. 4th Cir. 1978). See also Malone & Johnson, supra, § 287, n. 34-35. Plaintiff contends that she is not requesting an award of future medical expenses, but only a guarantee that her former employer will be liable for future medical expenses when incurred. This position is sound. The rule applies to an award of medical expenses, not a judicial determination that the employer will be liable for the expense of future medical treatment. In many hospitals admittance is contingent upon the patient’s ability to pay. The refusal of an employer or insurer to guarantee payment for necessary treatment effectively denies admittance to the patient. If an employee cannot gain admittance for treatment, no expenses will be incurred. And, under the appellate court’s ruling, if no expenses are incurred the employee cannot seek a judgment determining the employer’s liability for the expenses of future treatment. The humanitarian purposes of the workers’ compensation act are not served by keeping an injured employee out of a hospital with such revolving door logic. As a practical matter, the failure to furnish a guarantee of financial responsibility under circumstances such as this is tantamount to violating the statutory duty to “furnish all necessary medical ... services.” R.S. 23:1203 (emphasis added).

Moreover, R.S. 23:1203 should be read in pari materia with R.S. 23:1314. The latter statute sets forth the allegations which are necessary to validate a petition for compensation. One such allegation provided for by the statute is the claim “that the employee has not been furnished the proper medical attention” by the employer. If this allegation is made, the complaint cannot be dismissed as premature. Instead, a judicial proceeding must be held to determine the merits of the complaint:

“. .. when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegation[s] of .. . failure to render medical attention . .. [are] justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.” (R.S. 23:1314).

Plaintiff’s petition falls within the scope of this statute, since she alleged that the compensation insurer’s refusal to guarantee payment of her anticipated medical expenses deprived her of proper medical treatment recommended by her physicians. Because the petition fits within the scope of the statute, and sets forth an allegation sufficient to avoid dismissal on the basis of prematurity, the exception of no cause of action should not have been sustained. Indeed, the legislative intent was clearly to permit a hearing on the merits of the issue raised — whether the employee has been furnished the proper medical attention by the employer.

On the narrow issue before us — whether the plaintiff’s suit sets forth a cause of action — we reverse the judgment below. However, we are not able to determine whether treatment at the pain clinic is actually necessary on the sparse record before us, since the case was decided on exceptions. A determination of what constitutes “necessary” and “proper” medical treatment should be based upon all relevant factors.

The case is remanded to the district court for a determination of the merits on this issue. If the court should find that treatment at the Mercy Hospital Pain Clinic is a necessary medical service in plaintiff’s case, that judgment will amount to a declaration of defendant’s obligation to furnish necessary and proper medical treatment.

The judgments of the Court of Appeal are reversed, and the cases are remanded for further proceedings. All costs of this proceeding are taxed to defendants.

MARCUS, J., dissents in part and concurs in part and assigns reasons.

BLANCHE, J., dissents in part and concurs in part and will hand down reasons.

LEMMON, J., concurs.

MARCUS, Justice

(dissenting in part and concurring in part).

I agree with the courts below that plaintiff was partially disabled. La.R.S. 23:1221(3). I disagree with the majority that plaintiff proved that she was totally disabled under La.R.S. 23:1221(2). At the very least, I consider that the case should be remanded to the trial court to permit further evidence for a determination as to the applicability of the “odd lot” doctrine prior to making a finding of total disability. See Calogero v. City of New Orleans, 80-C-2336 (La., Dec. 23, 1980). I agree with the majority that plaintiff’s suit sets forth a cause of action for a determination of whether the employer will be liable for the expenses of future medical treatment. Accordingly, I dissent in part and concur in part.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The first issue presented was one of fact. The trial court found plaintiff’s pain was not so substantial as to render her totally and permanently disabled. The court of appeal reviewed the evidence and determined there was no manifest error in the trial court’s award of benefits for partial disability. The third review by this Court decides that the lower courts were wrong and couple her back injury with her phlebitis and find her totally and permanently disabled. There was no reason to reverse the lower courts on this issue. Neither was manifestly erroneous in their judgment as to the extent of plaintiff’s disability.

On the second issue concerning medical treatment, I concur that the employer should guarantee medical expenses when incurred as this is in keeping with the letter and spirit of the act requiring the employer to furnish all necessary medical services. R.S. 23:1203.

I therefore dissent on the issue of the extent of plaintiff’s disability and would affirm the decisions below, and concur with this opinion’s treatment of medical expenses and would reverse the judgment below on this issue.

      . The bill for this period of hospitalization was not paid by the employer’s insurer on the grounds that treatment was provided only for phlebitis, not plaintiffs back condition. The Fourth Circuit, finding a sufficient connection between the back injury and the hospitaiization, required payment. The insurer does not seek review of this judgment.


source: Caselaw Access Project

author:
DIXON, Chief Justice.
     LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Lloyd B. JOHNSON.
    No. 80-K-1519.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Patrick G. Quin-lan, Asst. Atty. Gen., for plaintiff-relator.
    J. Stuart Douglass, New Orleans, Richard L. Edrington, LaPlace, for defendant-respondent.
   DIXON, Chief Justice.

The defendant Lloyd B. Johnson, Sheriff of St. John the Baptist Parish, stands indicted by the grand jury of that parish for violation of the election code. R.S. 18:1461(A)(17). The charge results from an investigation undertaken by the district attorney of the parish at the suggestion of the sheriff, who alleged in a letter published in the newspaper that certain offenses had been committed in the primary election for sheriff held October 27, 1979, and that an investigation should be launched. The three candidates were subpoenaed to appear at the district attorney’s office on November 12, 1979, and were asked what they knew of election irregularities. At the conclusion of his conversation with one of the assistant district attorneys, as they were about to depart, the sheriff stated that he had offered another candidate (Arthur Du-hon) money and a job in exchange for his endorsement in the second primary. Told that this might constitute a violation of the election code, he remarked, “That doesn’t matter, everybody does that.”

Three days later, the sheriff was brought before the grand jury and indicted. He then moved to have the inculpatory statement suppressed, on the ground that he had not been given Miranda warnings before he was questioned. After an evidentiary hearing, the trial judge granted the motion. The judge found that the sheriff’s statement was voluntary and spontaneous, and that the district attorney’s office had undertaken the investigation with no suspect in mind. However, in his opinion, the critical question was “whether or not the investigation, the interview, or whatever it might be, was custodial.” He concluded that because the assistant district attorney knew of facts which could be the basis for a charge before his conversation with the sheriff, it was incumbent upon him to advise the defendant of his rights.

The state now invokes the supervisory jurisdiction of this court and seeks to have the judge’s ruling reversed. The state admits that it did not advise the defendant of his rights prior to the November 12 interview, but it contends that a warning was not necessary because the interview did not constitute a custodial interrogation. Rather, the interview represented the first step in a general investigation aimed at obtaining information about the alleged election irregularities. The state says that the sheriff was subpoenaed with the other candidates because he might know of election irregularities, not because he was a suspect. It emphasizes that the defendant was not asked any incriminating questions, but offered his statement voluntarily and spontaneously at the conclusion of his conversation with the assistant district attorney.

The defendant argues that the interview constituted a custodial interrogation, because the subpoena compelled his attendance, and hence the Miranda warnings were required. He also claims that the warnings were called for because he was a suspect when he was questioned, candidate Duhon having alleged in his earlier interview that the defendant had offered him money and a job for his endorsement.

Our examination of the record in this case leads us to conclude that the interview cannot be characterized as a custodial interrogation requiring Miranda warnings. We believe that the sheriff made his statement voluntarily in a noncoercive atmosphere, and we hold the statement is admissible.

The rules announced in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were established to protect the privilege against self-incrimination in the face of the compulsions the court found inherent in custodial interrogation, “questioning initiated by law enforcement officers after a person [was] taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. The court realized that coercion could be mental as well as physical and noted that modern in-custody interrogation techniques tended in fact to be psychologically oriented. It was well aware that interrogation of an individual held incommunicado in an unfamiliar police dominated atmosphere tended to “subjugate the individual to the will of his examiner.” 384 U.S. at 457, 86 S.Ct. at 1619, 16 L.Ed.2d at 714. To combat the pressures which worked to undermine the individual’s will to resist and which tended to compel him to speak where he would not otherwise do so freely, the court established the Miranda safeguards, holding that any suspect in custody was to be advised of certain rights before he was questioned by the police. Any confession or admission obtained in the custodial interrogation of a suspect not apprised of his rights was not to be admissible in court.

However, the Miranda court restricted the application of the principles it announced to situations in which an individual was subjected to interrogation while in custody at a police station or otherwise deprived of his freedom of action in a significant way. 384 U.S. at 477, 86 S.Ct. at 1629, 16 L.Ed.2d at 725. Its decision was not intended to hamper police in their traditional investigatory functions. The court specified that its holding was not to affect general on-the-scene questioning or other general questioning of citizens in the fact finding process, because the compelling atmosphere inherent in the process of in-custody interrogation was not present in those situations. 384 U.S. at 477—478, 86 S.Ct. at 1629-1630, 16 L.Ed.2d at 725-726. The court noted that:

“... the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.” 384 U.S. at 461, 86 S.Ct. at 1621, 16 L.Ed.2d at 716.

In United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), the court held that false statements made by a witness under oath to a grand jury need not be suppressed in a subsequent perjury prosecution because the prosecutor failed to give the witness Miranda warnings before he testified. The Court of Appeals had acknowledged that, as a general rule, a grand jury witness was not entitled to Miranda warnings, but concluded that the warnings were required when a witness was a virtual or putative defendant by virtue of the fact that the investigation had passed beyond the general inquiry stage and had focused on him. In the view of the Court of Appeals, the prosecutor’s treatment of the witness smacked of entrapment, since the prosecutor had specific information concerning the witness’ participation in an attempted sale of heroin, and knew that the witness could only respond to his questions by committing perjury or by incriminating himself, since he was not informed of his right to remain silent. The Court of Appeals concluded that elemental fairness required suppression of the perjured testimony. 496 F.2d 1050 (5th Cir. 1974). The Supreme Court held that the Court of Appeals had applied the Miranda standards erroneously. It stressed that the Miranda doctrine had been “aimed at the evils seen by the Court as endemic to police interrogation of a person in custody.” 425 U.S. at 579, 96 S.Ct. at 1778, 48 L.Ed.2d at 224. The court pointed out that the Miranda court did not regard judicial inquiries and custodial interrogation as equivalents. In its view, extending the Miranda principles to questioning before a grand jury constituted “an extravagant expansion never remotely contemplated by this Court in Miranda.” 425 U.S. at 580, 96 S.Ct. at 1778, 48 L.Ed.2d at 224.

In other decisions, the Supreme Court has stressed that it is the custodial nature of interrogation which triggers the need for the Miranda warnings. In Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), the petitioner argued that the Miranda doctrine should be extended to cover interrogation in noncustodial circumstances after a police investigation had focused on the suspect. The court disagreed, remarking that the petitioner’s argument ignored completely that Miranda was grounded squarely in the court’s explicit and detailed assessment of in-custody interrogation. 425 U.S. at 346, 96 S.Ct. at 1616, 48 L.Ed.2d at 7. The court regarded the issue presented in Miranda as a narrow one — the admissibility of statements obtained from individuals subjected to custodial police interrogation. The court concluded that the failure to give Miranda warnings did not render inadmissible statements made by the defendant to Internal Revenue Service agents during a noncustodial interview, even though the investigation may have focused on the defendant when he was interviewed in the sense that his tax liability was under scrutiny. Extension of the Miranda requirements, it thought, “would cut [the] Court’s holding in that case completely loose from its own explicitly stated rationale.” 425 U.S. at 345, 96 S.Ct. at 1615, 48 L.Ed.2d at 7.

This court has recognized that there are situations which fall short of a formal placing in arrest in which the accused may be said to be under significant restraint. Whether a defendant is so deprived of his freedom to act that he must be deemed under custodial restraint must be decided in a case by case basis. State v. Roach, 322 So.2d 222 (La.1975). In that case we delineated four factors which we would consider in assessing whether Miranda warnings were required: (1) the presence of probable cause to arrest the accused; (2) statements or actions by the police indicating an intention to hold or restrain him; (3) statements or actions by the accused indicating a reasonable belief that he is in custody; (4) the extent to which the investigation has focused on the accused.

In this case, the district attorney’s office had no probable cause to arrest the defendant prior to the interview with him. The district attorney had only an accusation made by another candidate interviewed earlier that same day. The record is devoid of any statement or action indicating an intention to restrain the defendant; at the close of the interview he left without hindrance. There are no indications in the record that the defendant believed himself to be in custody. The investigation could hardly be characterized as having focused on the defendant; the fact finding process had just commenced and the accusation against the sheriff had just been made. All the candidates, not just the defendant, had been subpoenaed to give information. The subpoena compelled the defendant to appear, under penalty of contempt, but the Mandu-jano holding suggests that a subpoenaed appearance is not considered sufficient restraint to require Miranda warnings. Furthermore, Mandujano and Beckwith suggest that even if the defendant was a suspect in the sense that his conduct had been called into question by another candidate’s accusation, this status alone would not trigger the need for Miranda warnings.

We conclude that the Miranda warnings were not required because the defendant was not questioned in circumstances constituting custodial interrogation. However, we recognize that law enforcement officials may on occasion compel involuntary confessions in noncustodial situations. Where such a claim is made, we must “examine the entire record and make an independent determination of the ultimate issue of voluntariness.” Davis v. North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895, 898 (1966). In the present case, there is no evidence that any coercion whatsoever was exerted on the defendant. He was not subjected to any coercive interrogation techniques. He was not asked a multitude of questions over a long period of time. He was not held incommunicado in a hostile atmosphere: he was interviewed in the office of one of the assistant district attorneys, in a casual manner, and in the company of his deputy, who remained in the room throughout the interview.

Nor was the defendant compelled to testify, much less incriminate himself. The assistant district attorneys testified that they deliberately refrained from asking the defendant any questions which might lead him to incriminate himself. The subpoena obtained by the district attorney could compel the defendant to appear, but it could not compel him to testify. In re Baer, 299 So.2d 804 (La.1974).

The record leads us to conclude that the defendant made his statement freely and spontaneously at the conclusion of his conversation with the assistant district attorney. “Any statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence.” 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

For these reasons, the judgment of the district court sustaining the motion to suppress the inculpatory statement is reversed, and the motion to suppress is denied; the case is remanded to the district court for further proceedings.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is clearly inapplicable here. As the majority opinion points out, the deterrent purpose of the Miranda decision is not served by suppressing the statement under the circumstances of this case, and I agree the warnings mandated by Miranda and La.Const. art. 1, § 13 (1974) were not required in this case.

Nevertheless, this court historically has protected the privilege against self-incrimination of witnesses compelled to appear and testify before grand juries. See State v. Harrell, 228 La. 434, 82 So.2d 701 (La.1955); State v. Wallace, 321 So.2d 349 (La.1975). Even before the Miranda decision, this court recognized that a targeted person who is required to appear before a grand jury (performing its inquisitional role in the prosecution) should formally be advised of the privilege against self-incrimination. Absent a waiver of the privilege or a grant of immunity, this court treated the questioning of a potential defendant before a grand jury as an infringement of his privilege against self-incrimination. See State v. Nattin, 316 So.2d 115 (La.1975); State v. Smalling, 240 La. 915, 125 So.2d 409 (La. 1960); State v. Jemison, 240 La. 787, 125 So.2d 363 (La.1960).

Although the present case involved a subpoena to appear before the district attorney, rather than the grand jury, the subpoena purported (as does a grand jury subpoena) to compel both the appearance and the testimony of the witness. Thus, I cannot agree with the court’s conclusion that this subpoena did not compel the defendant to testify. Because the official command (subpoena) ordered appearance and testimony, this court’s earlier cases, requiring an affirmative waiver of the privilege in comparable grand jury situations, are controlling and should either be followed or overruled.

       Judges Edmond L. Guidry, Jr., J. Burton Foret and P. J. Laborde, Jr. of the Third Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lem-mon.

      . R.S. 18:1461 reads in pertinent part:
      “A. No person shall knowingly, willfully, or intentionally:
      (17) Give or offer to give, directly or indirectly, any money or thing of present or prospective value to any person who has withdrawn or who was eliminated prior or subsequent to the primary election as a candidate for public office, for the purpose of securing or giving his political support to any remaining candidates or to candidates for public office in the primary or general election.”

      . Arthur Duhon also signed a written statement to this effect in the office of assistant district attorney John Crum. However, there is some confusion as to the date that statement was signed. The record says November 3, 1979, but the state claimed at oral argument before this court that the date was November 30, 1979.

      . It is not clear from the record whether the assistant district attorney who interviewed the defendant even knew of the Duhon allegation at the time of the interview. Both assistant district attorneys testified at trial that one of them (Crum) had interviewed Duhon and the other (Almerico) interviewed the defendant. The confusion is compounded by the ambiguity regarding the date that Duhon signed the written statement admitting the defendant’s offer. If it was November 3, 1979, as the record indicates, then the officials may have been alerted to a possible violation by the defendant before the interview with him. If it was November 30, 1979, as the state contended at oral argument, then the first notice the state would have had of a possible impropriety on the part of the defendant would have been on the day of the interviews, November 12, 1979. The Manduja-no holding suggests that the date is ultimately immaterial to the determination of whether Miranda warnings were required.

      . C.Cr.P. 66 authorizes the attorney general or district attorney to subpoena witnesses to appear for questioning concerning any offense under investigation by them. It was thought that the use of subpoenas enforceable by contempt proceedings would be helpful when witnesses ignored the “District Attorney’s Notice,” a printed form ordering attendance at the district attorney’s office, but enforceable only through threat of further action, such as a grand jury subpoena.
      “Upon written motion of the attorney general or district attorney setting forth reasonable grounds therefor, the court may order the clerk to issue subpoenas directed to the persons named in the motion, ordering them to appear at a time and place designated in the order for questioning by the attorney general or district attorney respectively, concerning any offense under investigation by him. The court may also order the issuance of a subpoena duces tecum.
      The contumacious failure or refusal of the person subpoenaed to appear is punishable as a contempt of court.
      The attorney general or district attorney, respectively, may determine who shall be present during the examination and may order all persons excluded, except counsel for the person subpoenaed.” C.Cr.P. 66.

      . The subpoena in this case is reproduced below (emphasis supplied):
      STATE OF LOUISIANA
      PARISH OF ST. JOHN THE BAPTIST
      TO: Mr. Lloyd Johnson_
      P. O. Box 457 (Sheriffs Office)
      LaPlace, Louisiana
      You are hereby commanded to appear before the District Attorney in and for this Parish at the private office of John M. Crum, Jr., Assistant District Attorney, located in LaPlace, St. John the Baptist Parish, Louisiana, on the 12 day of November 1979 at _5_
      or any time thereafter o’clock P_ M to testify to the best of your knowledge on matters then and there to be made known.
      BY ORDER OF THE 29TH JUDICIAL DISTRICT COURT.
      Edgard, Louisiana, Nov. 12 . 1979.
      /s/ Harold L. Monteeut Clerk of Court
      PRIVATE OFFICE LOCATED AT #1 Ormond Blvd in LaPlace, Louisiana

      . Whether the subpoena exceeded the authority granted by the Legislature in enacting C.Cr.P. art. 66 is not the question presented.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Burnell LAWSON.
    No. 80-KA-1640.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Grisbaum & Kleppner, Ferdinand J. Kleppner, Metairie, for defendant-appellant.
   MARCUS, Justice.

Burnell Lawson was charged in separate bills of information with possession with intent to distribute piperidinocyclohexane-carbonitrile (PCC) and phencyclidine (PCP) in violation of La.R.S. 40:966 and 40:967. After trial by jury, defendant was found guilty as charged and sentenced to serve three years at hard labor on each count with the sentences to run concurrently. On appeal, defendant relies on eight assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in permitting the state to amend the bills of information after trial had begun.

After several jurors had been selected, the state moved to amend the informations to correct the dates of the alleged offenses from October 17, 1979 to September 17, 1979. The state also moved to amend the information charging defendant with possession of phencyclidine (PCP) with intent to distribute to state a violation of La.R.S. 40:967 rather than 40:966. The trial judge ordered the amendments. Defendant made no objection. Thereafter, upon rearraignment, defendant waived the reading of the amended informations.

This court has consistently held that an objection not contemporaneously raised in the lower court or ruled on by the trial judge cannot be availed of on appeal. La. Code Crim.P. art. 841; State v. O’Blanc, 346 So.2d 686 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977). Hence, absent an objection here, nothing is presented for our review.

In any event, the date or time of the commission of an offense need not be alleged in the indictment, unless the date or time is essential to the offense. La.Code Crim.P. art. 468. The court may cause an indictment to be amended at any time with respect to a defect of form. La.Code Crim.P. art. 487. A mistake respecting the date on which the offense occurred has been held to be such a defect of form when not essential to the offense. State v. Dye, 384 So.2d 420 (La.1980); State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979). The dates are not essential to the offenses charged here. Therefore, the mistakes respecting the dates on which the offenses occurred were ones of form which may be amended at any time. Additionally, La. Code Crim.P. art. 464 provides that an error in the citation of the statute which defendant is alleged to have violated shall not be ground for dismissal of the indictment or for reversal of a conviction if the error did not mislead defendant to his prejudice. Here, defendant made no showing of prejudice resulting from the erroneous citation of the statute violated, and the information clearly stated the offense with which defendant was charged, that is, possession of a controlled dangerous substance, to-wit: phencyclidine, with intent to distribute. Hence, the trial judge did not err in allowing the state to amend the informations.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion for a continuance on the ground that he was no longer indigent and desired to substitute retained counsel for that previously appointed by the court.

At the arraignment on October 22, 1979, defendant was not represented in court by an attorney but informed the court that Mr. Gordon Hackman represented him. Mr. Hackman represented defendant at a pretrial conference on November 29, 1979, but was allowed to withdraw as counsel on December 10, 1979 upon defendant’s failure to make adequate financial arrangements. On February 6, 1980, the date set for trial, defendant informed the court that he was unrepresented and the court, finding him financially unable to employ counsel, appointed Mr. Steven Caillouet to represent him. However, following a recess, Mr. Cail-louet was permitted to withdraw as counsel because of a conflict of interest. The court then appointed Mr. Bernard Knobloch, Jr. to represent defendant, and he subsequently represented him at at pretrial conference on February 27,1980 and at a bail reduction hearing on March 3, 1980. On the day set for trial, April 7, 1980, defendant was represented by Mr. Knobloch and the jury was selected. Upon agreement of the parties, the court declared a recess to allow the state to secure the appearance of a witness. On the morning that trial resumed, April 10, 1980, the court was contacted by telephone by Mr. Ferdinand Kleppner who stated that he had been retained to represent defendant but, due to previous commitments, he was unable to participate in the trial on that day or the next and was requesting a continuance. At trial, Mr. Knobloch moved for a continuance to allow the substitution of Mr. Kleppner as defendant’s counsel. The trial judge denied the motion and ordered that Mr. Knobloch’s appointment be continued through the course of the trial.

Defendant’s right to the assistance of counsel is guaranteed by both state and federal constitutions. U.S.Const. amend. VI; La.Const. art. 1, § 13. The right of a defendant to counsel of his choice has been implemented by La.Code Crim.P. art. 515, which provides in pertinent part:

Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned by this court.

This court has, however, consistently interpreted this right as one which cannot be manipulated to obstruct the orderly procedure in our courts and which cannot be used to interfere with the fair administration of justice. The right of defendant to counsel of his choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system of which it is a part. State v. Lee, 364 So.2d 1024 (La.1978).

In the instant case, defendant waited until after commencement of trial to assert his right to be represented by another attorney. Retained counsel was not present in court or able to proceed with his client’s defense at that time. Defendant had been adequately represented by appointed counsel in two pretrial matters. The case had previously been delayed by defendant’s inability to make financial arrangements with other retained counsel. Given these facts, we cannot say that the trial judge erred in denying defendant’s motion for a recess to allow substitution of retained counsel.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in allowing the state to elicit testimony from Trooper Richard Hazelwood concerning additional criminal activity by him. He argues that if the testimony was admissible, the state failed to provide him with pretrial notice of its intent to introduce such evidence as required by State v. Prieur, 277 So.2d 126 (La.1973).

During direct examination, Trooper Ha-zelwood testified that on the night in question, he and a DEA agent met with defendant and arranged to purchase a gram of phencyclidine (PCP). After agreeing on the price, the officers and defendant discussed the availability for purchase of an additional ounce of PCP. Defendant objected to this testimony on the ground that it was not relevant. The trial judge overruled the objection. Trooper Hazelwood then stated that upon showing defendant four thousand dollars in one hundred dollar bills, defendant stated that he could get the officers a pound of PCP if they wanted it and that he was sure he could obtain that amount “because his connection in New Orleans made the stuff.” Thereafter, defendant agreed to obtain an ounce of PCP for the officers and arrangements were made to meet two days later in Raceland for the purpose of going to New Orleans to make the purchase.

Evidence of crimes related to the offense with which a defendant is charged in inadmissible except under special exceptions. La.R.S. 15:445-446 provide statutory exceptions for evidence of other criminal acts relevant to show intent, knowledge or system. In the instant case, it is clear that defendant’s agreement to obtain additional PCP in the future and to sell it to the officers was directly probative of defendant’s guilt in the commission of the crimes charged, that is, the knowing and intentional possession of controlled dangerous substances with the intent to distribute. Further, defendant’s agreement as to the future transaction made at the time of the sale upon which this prosecution is based forms one continuous transaction and as such constituted part of the res gestae of the offenses charged. La.R.S. 15:448. What forms any part of the res gestae is always admissible in evidence. La.R.S. 15:447. Hence, the trial judge did not err in overruling defendant’s objection to the other crimes evidence.

As Trooper Hazelwood’s testimony as to defendant’s statements was independently admissible as res gestae of the charged offenses, the state was not required to provide defendant with pretrial notice of its intent to introduce such evidence at trial. State v. Prieur, supra; State v. Brown, 340 So.2d 1306 (La.1976).

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 6

Defendant contends the trial judge erred in accepting Mary Sue Brown as an expert in the analysis of controlled dangerous substances (Assignment of Error No. 4) and in allowing her to testify concerning the results of a mass spectrophotometer test performed on the drugs in question (Assignment of Error No. 6).

At trial, Ms. Brown, a forensic scientist, testified as to her qualifications as an expert in the analysis of controlled dangerous substances. She stated that she had been assigned to examine the drugs in question. The drugs were submitted to three tests: an ultraviolet spectrophotometer, a gas chromatograph, and a mass spectrophotometer. She testified that she had administered the first two tests for which she had been trained and, although her supervisor had performed the third test (mass spectrophotometer), she had handed the sample to her for injection into the machine and was present and watched the performance of the test. Although the supervisor had operated the computer keyboard to set the sample, the temperature and time run for the test, Ms. Brown knew how the mass spectrophotometer operated and was trained to read the resulting graphs. Defendant objected to the acceptance of Ms. Brown as an expert in the analysis of controlled dangerous substances by stating that, while he was willing to accept her as an expert in the “operation of the ultraviolet test and with regard to the gas chromatograph,” he would object “to her testimony as — to blanket testimony as a witness on the analysis of controlled dangerous substances.” After further questioning by the court, Ms. Brown was accepted as an expert witness in the analysis of controlled dangerous substances at which time defendant again noted his objection. Ms. Brown then testified that the results of the three tests indicated that the substance contained PCP and that the mass spectrophotometer test indicated that the substance also contained PCC. Subsequently, the state introduced in evidence the tests run by Ms. Brown, including the mass spectrographs, and the control with which the graphs were compared. The court inquired if defendant had any objection to the introduction of this physical evidence, to which defendant replied in the negative.

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert, his competency so to testify must have been established to the satisfaction of the court. La.R.S. 15:466. We have consistently held that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Drew, 360 So.2d 500 (La. 1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979); State v. Lewis, 353 So.2d 703 (La.1977). The record discloses that Ms. Brown had worked as a forensic scientist for the Louisiana State Police Crime Lab specializing in the analysis of controlled dangerous substances for one and one-half years. She held a bachelors degree in zoology from LSU and had three years of college chemistry including organic, inorganic, and quantitative analysis. She had undergone six months additional training at the lab including training in handling evi-deuce, preparing reports and analyzing different types of drugs. She had run tests for PCP approximately twenty times before and the test for PCC was the first conducted by the lab for that drug. She had been accepted by a court as an expert in the analysis of controlled dangerous substances on a previous occasion. We cannot, therefore, find that the trial judge abused his discretion in overruling defendant’s objection to Ms. Brown’s qualifications as an expert in this field.

Defendant further contends the trial judge erred in admitting the testimony of Ms. Brown concerning the results of the mass spectrophotometer test because she had not actually performed the test. The record reflects that defendant objected only to Ms. Brown’s “blanket testimony as a witness on the analysis of controlled dangerous substances.” He did not state that his objection was based on the fact that Ms. Brown had not performed the mass spectrophotometer test. Moreover, when the results of the mass spectrophotometer test were introduced in evidence, he made no objection. Consequently, we consider that defendant waived any objection to Ms. Brown’s testimony as to the reliability of the testing procedure or the results. Ms. Brown was clearly qualified as an expert in his field and was competent to offer opinion testimony based on the graphs resulting from the test. Moreover, Ms. Brown was present during the entire performance of the test and was knowledgeable as to how the mass spectrophotometer operated. Under these circumstances, we are unable to say that the trial judge erred in allowing Mr. Brown to testify concerning the results of the mass spectrophotometer test performed on the drugs in question.

Assignments of Error Nos. 4 and 6 are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in admitting in evidence the drugs in question on the ground that the state failed to establish a proper chain of custody.

Trooper Richard Hazelwood testified that he purchased from defendant a clear plastic package triangular in shape which contained a coarse brown powder which resembled PCP. Following the transaction, Trooper Hazelwood placed the package in a state police evidence envelope which he initialed, dated and sealed with the special seal used for this purpose. The envelope was then transported to the Louisiana State Police Crime Lab in Baton Rouge for analysis. On the basis of crime lab records, Mary Sue Brown, a forensic scientist with the Louisiana State Police Crime Lab, testified that this envelope had been received from Trooper Hazelwood by the evidence technician there. He then placed the envelope in the evidence locker. Ms. Brown later took the envelope from the locker to analyze the contents. She testified that the envelope still bore the special state police seal which she then broke. The testing consumed approximately two-tenths of a gram of the substance which was identified as PCP and PCC. The remainder of the substance in the plastic package was then placed inside Trooper Hazelwood’s envelope which was then placed inside another envelope and sealed by Ms. Brown. On the day of trial, Ms. Brown returned the evidence to Trooper Hazelwood who broke the seal in open court and identified the envelope he had sent to the crime lab and the plastic package containing a coarse brown powder which he had purchased from defendant. Ms. Brown also identified the envelopes and the clear plastic package containing the substance which she tested. The envelopes, plastic package and its contents were subsequently admitted in evidence by the trial court as State Exhibit Number One.

To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the trier of fact. State v. Paster, 373 So.2d 170 (La.1979); State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979).

In the instant case, we find that the state adequately established identification of the drugs by chain of custody, that is, by establishing custody of the drugs from the time they were recovered from defendant until offered in evidence. Hence, the trial judge did not err in admitting the drugs in evidence.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the trial judge erred in denying his motion for a new trial based on certain grounds previously considered in Assignments of Error Nos. 2 and 4. For the reasons assigned therein, Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

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

Following defendant’s convictions on charges of possessing POP and PCC with intent to distribute, the trial judge sentenced defendant to three years at hard labor on each count, said sentences to run concurrently. Pursuant to the requirements of La.Code Crim.P. art. 894.1, the trial judge stated at length for the record the considerations taken into account and the factual basis therefor in imposing sentence.

La.Const. art. 1, § 20, prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Spencer, supra; State v. Sepulvado, supra.

In the instant case, after reviewing the trial judge’s reasons for imposing sentence contained in the record, we are unable to say that the sentences are excessive. Clearly, the trial judge did not abuse his discretion.

Assignment of Error No. 8 is without merit.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.

       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 in by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . A jury trial commences when the first prospective juror is called for examination. La. Code Crim.P. art. 761. Hence, trial had begun here.

      . Since the motion was made after the selection of the jury, trial had commenced. La.Code Crim.P. art. 761. Since a continuance cannot be granted after trial has commenced, the trial judge properly treated the motion as one for a recess. La.Code Crim.P. art. 708,

      . The penalty provisions of La.R.S. 40:966 and 967 provide that a person convicted of violating those statutes shall be sentenced to a term of imprisonment at hard labor for not more than ten years and may be required to pay a fine of not more than fifteen thousand dollars.


author: DENNIS, Justice. WATSON, Justice,

text:
    Ashton P. GIRON v. The HOUSING AUTHORITY OF the CITY OF OPELOUSAS.
    No. 80-C-1681.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      Gerald H. Schiff, Sandoz, Sandoz & Schiff, Opelousas, for plaintiff-applicant.
    Felix A. DeJean, III, Opelousas, for defendant-respondent.
   DENNIS, Justice.

The principal issue in this case is whether a plaintiff who sues for specific enforcement of a contract by injunction thereby irrevocably elects his remedy and is prohibited from later amending his petition to sue for damages for breach of contract. The trial court permitted the plaintiff to amend his petition to pray for damages instead of an injunction and awarded him damages after a trial on the merits. The court of appeal reversed, holding that the plaintiff’s election of the injunctive remedy precluded him from changing his action to a suit for damages. We reverse and reinstate the trial court’s judgment. Article 1151 of the Code of Civil Procedure permits the amendment of a petition after the filing of answer within the discretion of the trial judge. In fashioning this simple rule, the legislature sought to avoid any rule dependent upon the nebulous and impractical concept of “altering the substance of the demand.” The trial court did not abuse its discretion by permitting the amendment in the present case because the moving party had not been guilty of bad faith and was not acting for the purpose of delay, the opposing party was not unduly prejudiced, and the trial of the issues was not unduly delayed.

The plaintiff, a fifty-seven year old man, had worked for the Housing Authority for approximately seventeen years at the time of the trial. He began work as a maintenance employee and received several promotions through the years before eventually becoming maintenance superintendent. In May of 1976, the five member board of commissioners of the Housing Authority appointed Giron executive director and executed an employment contract securing his services for a term of five years. At a special meeting held on March 21, 1977, however, the board relieved plaintiff of his duties as executive director, hired a third party to succeed the plaintiff, and relegated Giron to his former position as maintenance superintendent. On March 23, the plaintiff filed suit seeking a permanent injunction to restrain the board from removing him as director without just cause. He was granted both a temporary restraining order and a preliminary injunction against the board. On June 30,1977, the plaintiff with leave of court amended his suit against the Housing Authority to substitute a plea for monetary damages in place of his earlier prayer for injunctive relief, deeming it best to return to his former position as maintenance superintendent as the board had directed.

After a trial on the merits, the trial court upheld the validity of the plaintiff’s employment contract and found that the defendant had breached it without legal justification. Further, the court concluded that the plaintiff’s initial request for specific performance did not estop him from converting his suit to an action for damages; and that plaintiff’s actions in amending his petition and vacating his executive position did not constitute an abandonment of his cause of action based on defendant’s breach of contract. The trial court calculated his damages as the difference between his salary as maintenance superintendent and as executive director.

The court of appeal affirmed the trial court ruling that the employment contract was valid. However, the court accepted the defendant’s argument that the plaintiff, by seeking and obtaining injunctive relief, had destroyed any cause of action he may have had for damages.

We are called upon to decide whether the plaintiff irrevocably elected his remedy by first suing for an injunction specifically enforcing his employment contract; whether the preliminary injunction “cured” the defendant’s default; and whether the plaintiff defaulted upon his obligation to perform by vacating his executive position. The defendant has abandoned its argument that the employment contract itself is invalid or that it dismissed the plaintiff for just cause.

1.

There is no prohibition against a plaintiff amending his petition with leave of court to alter the substance of his demand after filing of answer. Article 1151 authorizes such an amendment within the sound discretion of the trial court, evidencing a legislative aim to abolish the former rule which provided that the plaintiff’s amendment may not “alter the substance of his demand, by making it different from the one originally brought.” See, Code of Practice 1870, art. 419; La.Code Civ.P. art. 1151, Official Revision Comments.

Even prior to the adoption of the Code of Civil Procedure, our courts showed increasing liberality in permitting amendments to uphold substantive rights. See, Breaux v. Laird, 230 La. 221, 88 So.2d 33 (1956); Douglas v. Haro, 214 La. 1099, 39 So.2d 744 (1949). Now under our more modern procedural scheme, the legislature has expressly directed that the procedural rules are to be construed liberally with due regard for the fact that these rules are not an end in themselves, but rather implement the substantive law. La.Code Civ.P. art. 5051. That liberality is particularly appropriate in the amendment process according to leading Louisiana scholars and jurists. See, McMahon, Summary of Procedural Changes in Chapter 1, 3 L.S.A.: Code of Civil Procedure 2, 3 (1960); McMahon, The Louisiana Code of Civil Procedure, 21 La.L.Rev. 1, 29 (1960); Tate, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211, 217 (1969); Tucker, Proposal for Retention of the Louisiana System of Fact Pleading: Expose des Motifs, 13 La.L.Rev. 395, 425, 435 (1969).

Liberal allowance of amendments is also in accord with the treatment given Rule 15(a) of the Federal Rules of Civil Procedure from which article 1151 of the Louisiana Code of Civil Procedure is in part derived. See, Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); 3 Moore’s Federal Practice § 15.08(2). That an amendment involves a departure from the facts previously alleged or a change in the theory of recovery or the relief requested is no bar to its allowance, since consistency in pleading is not required. 3 Moore’s Federal Practice § 15.08(2). Recognizing that the entire spirit of the rules is to the effect that controversies shall be decided on the merits, the federal courts have not been hesitant to allow amendments for the purpose of presenting the real issues of the case, where the moving party has not been guilty of bad faith and is not acting for the purpose of delay, the opposing party will not be unduly prejudiced, and the trial of the issues will not be unduly delayed. Foman v. Davis, supra, 371 U.S. at 182, 83 S.Ct. at 230, 9 L.Ed.2d at 226; 3 Moore’s Federal Practice, § 15.08(2).

Furthermore, there is no requirement that a plaintiff choose irrevocably between the remedies of specific performance and damages when he files suit based on a contract. See, La.C.C. arts. 1926-27; Manning v. Cohen, 124 La. 869, 50 So. 778 (1909); Bonfield v. Tichenor, 189 So. 635 (La.App. Orl. Cir. 1939). In fact, except for a prohibition against cumulation of petitory and possessory actions, the Code of Civil Procedure expressly provides that a petition may set forth two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive. La.Code Civ.P. art. 892. If a plaintiff may assert inconsistent causes of action based on differing legal or factual bases by pleading them alternatively, he certainly may substitute with leave of court, a demand for damages for breach of contract in place of his initial demand for specific enforcement. Although a demand for damages is in one sense inconsistent with one for specific performance, it actually is based upon the same cause of action, having identical legal and factual bases; a substitution of demands based on the same cause of action presents less problems for a defendant than cumulation of causes of action based on inconsistent or mutually exclusive legal or factual bases.

Accordingly, the common law election of remedies doctrine is inconsistent with the modern procedural concepts embodied in our present code of civil procedure, although it may have had some validity under our former procedural scheme requiring technical consistency and assertion of a theory of the case. McMahon, The Work of the Louisiana Supreme Court for the 1950-1951 Term, Civil Procedure, 12 La.L.Rev. 184, 198-99 (1952). Similar conclusions have been reached by federal jurists and scholars regarding Rule 8(e) of the Federal Rules of Civil Procedure from which Louisiana Code of Civil Procedure article 892 was patterned. For example, the Court of Appeals in Bernstein v. United States, 256 F.2d 697, 706 (10th Cir. 1958), held “that there is no room for its application under applicable rules of procedure, according to which every pleading is a simple, concise statement of the operative facts on which relief can be granted or any sub-stainable legal theory ‘regardless of consistency, and whether based on legal or on ethical grounds or on both.’ ” Leading commentators on the federal rules have also stated that present practice under Rule 8(e)(2) permits a party to seek inconsistent remedies in his claim for relief without being required to elect between them at the pleading stage of the litigation. C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1283, p. 375 (1969 and Supp. 1979); 2A Moore’s Federal Practice § 8.32 (Supp. 1980).

Furthermore, even if the doctrine were available in Louisiana, it would not prevent the plaintiff in the present case from amending his petition with leave of court to alter his demand to pray for damages. The doctrine of election of remedies is regarded as being an application of the law of estoppel, upon the theory that a party cannot in the assertion of his right occupy inconsistent positions in relation to the facts which form the basis of his respective remedies. However, when a certain state of facts under the law entitles a party to alternative remedies, both founded upon the identical state of facts, these remedies are not considered inconsistent remedies. In such a case the invocation of the one remedy is not an election which will bar the other, unless the suit upon the remedy first invoked shall reach the stage of final adjudication or unless by the invocation of the remedy first sought to be enforced the plaintiff shall have gained an advantage thereby or caused detriment or change of situation to the other. Abdallah v. Abdallah, 359 F.2d 170 (3d Cir. 1966). Applying these precepts to the present case, we conclude that plaintiff made no election of a remedy which barred his invocation of the remedy finally sought. The alternative remedies were founded on the identical state of facts, the suit for specific performance did not reach the stage of final adjudication, and the plaintiff gained no advantage and caused no detriment or change of situation to the defendant by converting his demand to a prayer for damages.

Reviewing the record, we conclude that the plaintiff made no irrevocable election of remedies and that the trial judge did not abuse his discretion by permitting plaintiff’s amendment. We find no legal bar to plaintiff’s amendment. Neither, under the facts in this case, did the trial judge err in finding that the defendant was not unduly prejudiced by the amendment and that the amendment was not made in bad faith or for dilatory purposes.

2.

The plaintiff’s decision to voluntarily vacate the executive position and sue for damages did not constitute a default of his contractual obligation. The defendant remained adverse to his continuation as executive director. The preliminary injunction maintained him in office provisionally only and was not intended by the parties or the trial court as a resolution of the merits of his controverted removal from office. For the same reason, the preliminary injunction was not res judicata as to the questions of whether defendant breached the employment contract and damaged the plaintiff.

The plaintiff upon showing that his employment contract was breached by the defendant’s wrongful removal of him from office was entitled either to damages or specific enforcement of the contract or to a dissolution of the contract, and in all these cases damages may be given where they have accrued. La.Civ. Code art. 1926. Because the action asserted in plaintiff’s amended petition arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in his original pleading, the amendment related back to the date of filing the original pleading. La.Code Civ.P. art 1153. Accordingly, plaintiff’s demand was precisely what it would have been had he originally prayed for damages for breach of contract instead of specific performance. See, Reeves v. Globe Indemnity Co. of New York, 185 La. 42, 168 So. 488 (1936); Tate, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211, 231 (1969).

The preliminary injunction was not a final judgment having the force of res judi-cata as to whether the employment contract was breached by the defendant. Generally, a preliminary injunction is only an interlocutory judgment because it does not determine the merits and is issued to prevent irreparable injury during the pendency of an action by maintaining the status quo until the rights of the parties are ultimately determined. La.Code Civ.P. arts. 1841, 3601; Southwest Sales and Mfg. Co., Inc. v. Delta Express, Inc., 342 So.2d 281, 384 (La. App.3d Cir. 1977); Whalen v. Brinkmann, 258 So.2d 145 (La.App. 1st Cir. 1972). We have held, however, that if the parties submit the entire case to the trial judge who then passes on the merits of the case and effectively disposes of all issues presented, the judgment denying the preliminary injunction is a final judgment that, after delays, has preclusive force. State ex rel. Guste v. City of New Orleans, 363 So.2d 678 (La.1978); see, Southwest Sales, supra, 342 So.2d 281 (La.App.3d Cir. 1977).

Our review of the record in this case reveals that the hearing on the request for a preliminary injunction was not intended to, and did not in fact, determine the merits of plaintiff’s action. The trial judge sustained plaintiff’s attorney’s objection to any testimony regarding whether the Housing Authority had just cause to terminate the plaintiff, stating that this matter would be proper in a trial on the merits, but not as to whether a preliminary injunction should issue. At the conclusion of the hearing the judge ruled that the plaintiff had made a prima facie showing of entitlement to a preliminary injunction and ordered the defendant not to impair plaintiff’s contractural rights until a hearing on whether just cause existed for plaintiff’s termination. The judge expressly stated that he was not prepared to pass on the merits at that time. The judgment granting the preliminary injunction was, therefore, an interlocutory judgment and never acquired the authority of the thing adjudged. Therefore, the trial court properly rejected defendant’s res judi-cata argument.

Neither do we believe that the court’s issuance of a preliminary injunction operated to deprive the plaintiff of his hearing on the merits and monetary relief under any alternate theory the defendant has presented. The preliminary injunction did not grant the plaintiff all the relief he requested before amendment, and thus, the subsequent monetary award does not cause a double recovery. The injunction sustained the plaintiff in his position only temporarily. He had no assurance the court would not find just cause for his termination or that permanent injunctive relief was inappropriate. The defendant did not acquiesce in this matter though it did not appeal the granting of the preliminary injunction. Rather, both parties looked toward trial on the merits and have sharply contested this matter at each successive stage of the litigation. The defendant continued to question even the validity of the employment contract before the court of appeal.

The defendant has not contested the quantum of damages awarded by the trial court, only whether plaintiff is entitled to recover any damages at all.

For the reasons stated above, the court of appeal judgment is reversed and the trial court judgment is reinstated.

REVERSED AND RENDERED.

MARCUS, J., dissents.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

The plaintiff acquiesced in his demotion from executive director to his former position as maintenance superintendent after having been granted both a temporary restraining order and a preliminary injunction. Therefore, he has no complaint and no cause of action to claim damages as a result.

I respectfully dissent.

      . Of course, by signing the petition, an attorney represents that to the best of his knowledge there exist good grounds to support his allegations. La.Code Civ.P. art. 863.

      . The cases relied upon by the court of appeal are inapposite. In both Bone v. Smither, 8 So.2d 148 (La.App. Orl. Cir. 1942), and Garrett v. Girardian Ins. Co., 155 So.2d 284 (La.App.2d Cir. 1963), the court estopped the defendant insurance company from maintaining at trial that it had terminated its former agent under a particular contractual clause that effected a forfeiture of renewal premiums otherwise accruing to the agent when the company earlier had manifested that another clause was relied upon. The court allowed recovery by applying the election of remedies doctrine to force the defendant to adhere to its earlier choice of substantive contractual rights. In Radiophone Service, Inc. v. Crowson Well Service, Inc., 309 So.2d 393 (La.App.2d Cir. 1975), the plaintiff sued for past due rent and rescission of the lease as of a certain date as allowed under the contract. In a second suit, the plaintiff sought rent in part for months after the rescission date earlier requested. Since both suits were consolidated for trial and the trial court granted the relief originally requested, the plaintiff was properly denied a double recovery.