author:
      BLANCHE, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Robert Wayne WILLIAMS.
    No. 65563.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinquefield, Asst. Dist. Atty., for plaintiff-appellee.
    Marion Weimer, Wyatt & Weimer, Stephen E. Coveil, Coveil & Covell, Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

The defendant, Robert Wayne Williams, was charged with first degree murder in violation of La.R.S. 14:30. He was found guilty and sentenced to death. On appeal, the defendant urges seven assignments of error.

During the trial, the state adduced the following facts: On January 5, 1979, the defendant and Ralph Holmes entered the A & P Supermarket located at 3525 Perkins Road in Baton Rouge. Both men placed ski masks over their faces and Williams pulled out a 12-gauge sawed-off shotgun. They then approached the security guard, Willie Kelly, age 67, who was bagging groceries. Ralph Holmes tried to remove Kelly’s pistol from his holster. As Kelly made a move with his hand toward his pistol, Williams yelled “Don’t try it”, and immediately shot Kelly in the face at point blank range. Williams and Holmes then proceeded to. complete the robbery. During this process, Holmes pistol-whipped one of the customers, and Williams accidentally shot two people in their feet. The police received a telephone call from an informant implicating Holmes, Williams and Williams’ wife. Following their arrest, both Williams and his wife gave confessions which implicated themselves in the crime.

Assignment of Error Number 1

By this assignment, the defendant contends that the trial court erred in denying the defendant’s challenge for cause of the prospective juror Gladys Almand. The defendant argues that Mrs. Almand was a hardship case and should have been excluded from the jury. The voir dire examination revealed that Mrs. Almand was divorced with two children, ages 14 and 17, living at home. Both children attended school and Mrs. Almand indicated- that she had had small problems with the younger child at school. The defendant argues that the testimony of Mrs. Almand indicated that she was preoccupied with her children’s welfare and, as a result, could not devote her full attention to the trial. La.C.Cr.P. art. 783 provides in part as follows:

“B. If jury service, whether criminal or civil, would result in undue hardship or extreme inconvenience, the district court may excuse a person from such service either prior to or after his selection for the general venire, jury pool, or jury wheel. The court may take such action on its own initiative or on recommendation of an official or employee designated by the court.”

In ruling on such challenges, the trial court is granted broad discretion, and its ruling will not be disturbed on appeal absent a showing of an abuse of that discretion. See State v. Drew, 360 So.2d 500 (La.1978); State v. Monroe, 366 So.2d 1345 (La.1978). In the instant case, a review of the record of the voir dire examination does not show an abuse of that discretion. Although Mrs. Almand did have two teenaged children, nothing in her testimony indicated the type of circumstances which would render sitting on a sequestered jury a particular hardship.

For these reasons, the assignment is without merit.

Assignments of Error Numbers 4 and 5

By these assignments, the defendant argues that the trial court erred in failing to suppress his confession, and in allowing the introduction of the taped confession and signed waiver of rights form at trial.

The defendant asserts that his confession was not freely and voluntarily given. He does not claim that any overt or physical coercion or intimidation was involved; rather, he maintains that the confession was obtained in a psychologically coercive atmosphere. The defendant claims that the police officers intentionally left the door open to his wife’s interrogation room so that he could hear their questioning of her while he waited in the next room. Thus, he maintains that he was psychologically coerced into confessing because he could hear his wife crying.

La.R.S. 15:451 provides as follows:

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

The question of voluntariness of a confession, including a determination of the defendant’s psychological state of mind, will be answered from the facts and circumstances of each case. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Thus, the admissibility of a confession is, in the first instance, a question for the trial judge. His conclusions on the credibility and weight of the testimony will not be overturned on appeal unless they are not supported by the evidence. State v. Gaines, 354 So.2d 548 (La.1978).

Although the defendant claims that his confession was induced by his emotional disturbance over his wife’s interrogation, the evidence does not support such a conclusion. The evidence reveals that the defendant and his wife were. arrested at 10:30 a. m., at which time he was read his Miranda rights. Subsequently, the defendant gave a taped confession between 4:30 and 7:30. The defendant testified that he was upset during his interrogation, but there is no other indication that his emotional distress was so severe that he was unable to voluntarily give a statement. The police officers testified that the door to the interrogation room of defendant’s wife was closed, and that it was unlikely that the defendant heard much of what went on. Further, it should be noted that the defendant’s confession was essentially exculpatory in nature since he claimed that the shotgun went off accidentally.

For these reasons, we conclude that the trial court’s ruling as to the voluntariness of the confession was supported by the evidence. The assignments are without merit.

Assignment of Error Number 3

In this assignment,. defendant contends that the trial judge erred in allowing the introduction of evidence of the armed robbery. The defendant argues that, as he was charged with first degree murder, the evidence of the armed robbery served no probative purpose and was extremely prejudicial since first degree murder requires proof of specific intent to kill or cause great bodily harm, and proof of the armed robbery does not contribute to the proof of specific intent.

We find that the evidence was admissible as part of the res gestae. La. R.S. 15:448 provides:

“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

Thus, evidence that forms part of the res gestae is always admissible. Here, there is no doubt that the armed robbery was an immediate concomitant of the murder and formed, in. conjunction with it, one continuous transaction. See State v. Matthews, 354 So.2d 552 (La.1978); State v. Williams, 375 So.2d 364 (La.1979); State v. Donahue, 355 So.2d 247 (La.1978).

For these reasons, we find the assignment is without merit.

Assignment of Error Number 8

By this assignment, the defendant contends that the trial court erred in imposing the death sentence. He argues that the imposition of the death penalty violates both the eighth amendment to the United States Constitution and art. 1, § 20 of the Louisiana Constitution.

The United States Supreme Court has indicated that the death sentence, when imposed on a subject convicted of murder, is not necessarily unconstitutional. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Similarly, this Court has recognized in State v. Myles (La.1979) (No. 63,567) (rehearing granted), that art. 1, § 20 does not prohibit the imposition of the death penalty in appropriate cases.

For these reasons, we conclude that the defendant's argument that the death penalty is, per se, unconstitutional is without merit.

Assignment of Error Number 7

The defendant claims that the court erred in denying his motion in arrest of judgment. The defendant maintains that La.C.Cr.P. art. 905 is unconstitutional in that it does not give the jury an acceptable constitutional standard with which to make the determination that the death penalty should be imposed.

Our capital sentence law, following the decision in Roberts v. La., 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), was modeled upon the Georgia statute which was upheld by the U.S. Supreme Court in Gregg v. Georgia, supra. In State v. Martin, 376 So.2d 300 (La.1979), we found that our present sentencing scheme does provide adequate safeguards against the arbitrary imposition of the death penalty.

For these reasons, we find the defendant’s assignment without merit.

Assignment of Error Number 6

By this assignment, the defendant argues that the trial court erred in denying his motion for a new trial. The defendant maintains that a new trial should have been granted because the state failed to prove an essential element of the crime, i. e. specific intent to kill or to inflict great bodily harm.

The Louisiana Constitution limits this Court’s review of criminal convictions on appeal to questions of law. La.Const. art. 5, § 5(C). Thus, only when there is no evidence of an essential element of the crime charged can this Court’s appellate jurisdiction be invoked to reverse a conviction on an evidentiary review. State v. Valentine, 364 So.2d 595 (La.1978); State v. Tucker, 354 So.2d 521 (La.1978); State v. Main Motors, Inc., 383 So.2d 327 (La.1979).

La.R.S. 14:10 defines specific intent as follows:

“(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

La.R.S. 15:445 provides in part as follows:

“In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

Specific intent is a state of mind and as such, it need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. Thus, charging the victim in a threatening manner and trying to get at him with a knife over a bar as been found to be evidence of specific intent to kill. State v. Garner, 241 La. 275, 128 So.2d 655 (1961). Likewise, the pointing of a gun at the victim as it was fired has been ruled evidence of a specific intent to kill. State v. Procell, 365 So.2d 484 (La.1978).

The defendant herein armed himself with a sawed-off shotgun. He and his partner entered the A & P Supermarket and proceeded immediately toward Willie Kelly. His partner tried to disarm Kelly. At Kelly’s slightest movement, the defendant levelled the sawed-off shotgun within two feet of the victim’s face, screamed “Don’t try it”, and immediately shot Kelly’s face off at point blank range.

We find that there is ample evidence in the record to support the jury’s conclusion that there was specific intent to kill or to inflict great bodily harm. For these reasons, the assignment is without merit.

Sentence Review

Rule 905.9.1 requires a mandatory review by this Court of any case wherein the death penalty was imposed to determine whether it was excessive. The rule sets forth three criteria of review as follows:

“Section 1. Review Guidelines. Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine: (a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and (b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and (c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

Our review of the entire record does not reveal any factors which would indicate that sentence was imposed under the influence of passion, prejudice or any other arbitrary factors.

The jury found the following three aggravating circumstances:

“(a) the offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, aggravated arson, aggravated escape, armed robbery, or simple robbery; . . .(d) the offender knowingly created a risk of death or great bodily harm to more than one person; . (g) the offense was committed in an especially heinous, atrocious, or cruel manner; . . . ”

The evidence clearly supports the conclusion that the victim was murdered in the course of an armed robbery. The state witnesses’ testimony is unrefuted that the two assailants removed money from the store’s cash registers and safe while holding various people at gunpoint.

The jury having properly concluded that at least one statutory aggravating circumstance existed, it was within their power to return a recommendation of death without finding other aggravating circumstances. Thus, further inquiry as to whether these other aggravating circumstances were properly found to exist is merely cumulative and unnecessary to support the jury’s verdict.

In accordance with Rule 905.9.1, § 3, the trial court completed a Uniform Capital Sentence Report. We have reviewed this report in conjunction with the post-sentencing report. The defendant is a 27-year-old black male, married with one infant daughter. The evidence at trial shows that his wife drove the getaway car and her uncle, Ralph Holmes, was the defendant’s other accomplice. The defendant completed school through the tenth grade and psychiatric evaluation revealed that the defendant could distinguish between right and wrong and showed no behavioral disorders. The defendant does not have a significant prior criminal record. The defendant claims that he has been injecting prelu-din for six years and committed the robbery in order to obtain drugs. At the sentencing hearing, the defendant argued three statutory mitigating circumstances.

The defendant argues that his lack of a significant prior criminal record and his drug-induced mental disturbance were significant mitigating circumstances which required the imposition of a life sentence. We have previously affirmed death sentences imposed despite the absence of any significant prior criminal record. See State v. Williams (La.1980) (No. 64,987); State v. Martin, 376 So.2d 300 (La.1979). Further, this Court has affirmed á sentence of death where the defendant argued voluntary intoxication as a mitigating circumstance. State v. Prejean, 379 So.2d 240 (La.1979). Thus, we find that the arguable presence of these mitigating circumstances does not necessarily render this sentence disproportionate.

In conformity with § 4(b), the district attorney has compiled a sentence memoran-da which contains a synopsis of each first degree murder case in the district since January 1, 1976.

The sentence review memoranda shows that there have been. 28 murder prosecutions in East Baton Rouge Parish with eleven resulting in first degree murder convictions. Of these eleven, only three of the defendants were sentenced to death. These three cases are strikingly similar in that all three defendants were the actual killers and the crimes all arose during the perpetration of armed robberies. See State v. Williams, 383 So.2d 369 (La.1980) (No. 65,563); State v. Clark, No. 66,573, appeal pending.

Thus, a review of the sentences imposed in the same parish shows that in the cases most similar to the defendant’s, the death penalty was imposed. Our review also shows a dissimilarity between the defendant’s case and the other first degree murder convictions in that arguably, there are no aggravating circumstances or there were present mitigating circumstances which justified the jury’s recommendation of life imprisonment.

In light of the above considerations, we are unable to conclude that the sentence imposed here is disproportionate to that imposed in similar cases.

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

AFFIRMED.

DIXON, C. J., concurs, disagreeing with propositions stated in Assignment # 6.

DENNIS, J., concurs in part and dissents in part for reasons to be assigned.

DENNIS, Justice,

concurring in part and dissenting in part.

I concur in the majority’s affirmance of the defendant’s conviction, but I respectfully dissent from its refusal to set aside the death penalty and order a new capital sentence hearing. The jury found three aggravating circumstances, namely, that the murder occurred during the commission of an armed robbery, that the defendant knowingly created a risk of death or great bodily harm to more than one person, and that the murder was committed in an especially heinous, atrocious or cruel manner. See La.C.C.P. art. 905.4(a)(d) and (g). The record will not support beyond a reasonable doubt the findings that the defendant knowingly risked the lives of more than one ■person, nor that the murder was especially heinous. Our constitutional mandate to review death sentences with the utmost care requires that we remand this case for a new sentencing hearing to permit the jury to make its grave decision without consideration of erroneous and prejudicial findings of aggravating circumstances. I cannot say beyond a reasonable doubt that the jury, told that it may not consider this murder especially heinous or that it may not find that more than one life was knowingly risked, would persist in its recommendation of death.

Because of the qualitative difference between the death penalty and all others under the criminal law, a correspondingly greater need for reliability exists in the determination that a defendant must die for his crimes. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

The Due Process Clause and Article 1, § 2 of the Louisiana Constitution protect every accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Searle, 339 So.2d 1194 (La.1976). In view of our duty to ensure a greater degree of reliability when the death sentence is imposed, it is clear that a jury finding of an aggravating circumstance, as a matter of constitutional and statutory law, see La.C.Cr.P. art. 905.3, must be founded at least upon proof beyond a reasonable doubt. Lockett v. Ohio, supra. The critical inquiry of this Court in its review of a capital sentence must be whether the evidence in the record can reasonably support a finding of an aggravating circumstance beyond a reasonable doubt. Jackson v. Virginia, supra. Any error in the jury’s finding of aggravating circumstances must be scrutinized according to whether such error introduced an element of arbitrariness and capriciousness into the jury recommendation of death, which renders the death sentence constitutionally impermissible. See Lockett v. Ohio, supra; Gardner v. Florida, supra; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); State v. English, 367 So.2d 815 (La.1979); State v. Sonnier, 379 So.2d 1336, 1371 (La.1979) (separate opinion). We cannot approve a death penalty in the face of an error in the capital sentencing hearing unless we are convinced beyond a reasonable doubt that the mistake was harmless to the jury’s recommendation. See Lockett v. Ohio, supra; Gardner v. Florida, supra; Proffitt v. Florida, supra; see also, Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967).

The jury here clearly erred in finding that the murder was especially heinous and that the defendant knowingly created a risk of death or great bodily harm to more than one person. The proper standard for a finding of an especially cruel or heinous murder incorporates the notion that the murder must have been inflicted through torture or pitiless infliction of unnecessary pain on the victim. State v. English, supra, at 823. Such a limitation protects the statute defining this aggravating circumstance from constitutional attacks for overbreadth and vagueness. See Proffitt v. Florida, supra. Here, the victim was shot almost immediately after the defendant raised his gun; he died instantly. The defendant did not torture or inflict unnecessary pain upon the security guard. The jury’s finding of this aggravating circumstance cannot be supported by the record beyond a reasonable doubt.

As to the jury finding that the defendant knowingly created a risk of death or great bodily harm to more than one person, our analysis must focus on whether the defendant contemplated and caused the knowing creation of great risk of death or great bodily harm to more than one person. See State v. English, supra, 367 So.2d at 824; see also Proffitt v. Florida, supra. The defendant shot the security guard at pointblank range, and although customers stood nearby, there is no evidence that a danger existed to these other patrons. In fact, they apparently were further removed from the victim than Ralph Holmes, the defendant’s cohort, who was unstrapping the guard’s pistol at the time of the shooting. It is clear that the defendant intended to kill only the guard and, considering the point-blank range, it cannot be found beyond a reasonable doubt that the offender knowingly created a risk of death or great bodily harm to more than one person. Unless this statutory aggravating circumstance is strictly construed, the statute is subject to arbitrary interpretations inconsistent with the constitution. State v. English, supra; Proffitt v. Florida, supra.

The majority errs in basing its opinion on the premise that the death penalty must be upheld if the jury correctly finds “one or more” aggravating circumstances to exist. Apparently the majority sees the role of this Court in capital sentence review as a limited one of determining if there is at least one correctly found aggravating circumstance. This view is clearly in conflict with the Supreme Court’s decisions in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and Jackson v. Virginia, supra, and with our constitutional duties, Article 1, § 20 of the Louisiana Constitution, and our statutory responsibilities, La.C.Cr.P. art. 905, et seq. Under these principles, this Court is charged with reviewing the jury’s recommendation to determine if the sentence was influenced by passion, prejudice or any arbitrary factor. The presence of two erroneous findings of aggravating circumstances, especially since these factors relate to cruelty and the creation of a risk of death to more than one person, clearly introduces room for a jury to act through passion, prejudice, or arbitrariness.

I respectfully submit that, in order to impose a constitutional death sentence, this case should be remanded for a new sentencing hearing. In the proceeding on remand the jury should be permitted to weigh the single aggravating circumstance of which there was a reasonable evidentiary basis, i. e., the offender’s engagement in armed robbery, against the mitigating circumstances, e. g., Williams’ lack of a serious criminal record and his drug addiction, in determining whether the death sentence is appropriate in this case.

       Chief Judge PAUL B. LANDRY, Jr., retired, participated in this decision as Associate Justice Ad Hoc.

       This factual finding supports defendant’s conviction irrespective of the standard of review. See Jackson v. Virginia, 439 U.S. 1064, 99 S.Ct. 828, 59 L.Ed.2d 29 (1979).

      . In his sentence report, the trial judge noted that at the time of the defendant’s indictment, he outwardly exhibited possible mental, problems. Both doctors suspected the defendant was faking mental illness, especially since his behavior was normal when he was not being observed. After the sanity hearing, the defendant did not again raise the issue of sanity.

      . The defendant was previously convicted of resisting arrest and of misdemeanor theft.

      . Although both Michael Glover and Ralph Holmes, Jr. were convicted of first degree murder, they were not sentenced to death. However, both participated as principals, as distinguished from being the actual perpetrator, in the respective crimes committed with Colin Clark and Robert Williams.

      . State v. Collins, 378 So.2d 928 (La.1980); State v. Allen, 380 So.2d 28 (La.1980); State v. Foote, 379 So.2d 1058 (La.1980); State v. Spooner, 368 So.2d 1086 (La.1979).

      . State v. Edwards, 375 So.2d 1365 (La.1979); State v. Howard, 377 So.2d 1226 (La.1980); State v. Glover, 381 So.2d 832 (La.1980); State v. Holmes, No. 65,846 (appeal pending).


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    Bertha HICKERSON v. PROTECTIVE NATIONAL INSURANCE COMPANY OF OMAHA.
    Nos. 66118, 66132.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      John D. Lambert, Jr., Lambert, Nowalsky & Lambert, New Orleans, for defendant-applicant in No. 66118.
    Richard Creed, Jr., Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for defendant-respondent.
    Leonard A. Young, Micheline V. Gomila, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for defendant-applicant in No. 66132.
    Wayne M. LeBlanc, Metairie, for respondents in Nos. 66118 and 66132.
   WATSON, Justice.

At issue is interpretation of the Insurance Guaranty Association Law, LSA-R.S. 22:1375 through 22:1394, as it relates to uninsured motorist insurance coverage, LSA-R.S. 22:1406.

The facts are stipulated. Plaintiff, Bertha Hickerson, was injured in an automobile accident on December 23, 1974, when her car collided with an automobile owned by Essie Simmons and driven by Elizabeth Roberson. Damages were fixed at $3,000. The Hickerson car was insured by Protective National Insurance Company of Omaha, Nebraska. The Simmons car was insured by Manchester Insurance and Indemnity Company.

The trial court concluded that Manchester was de facto insolvent on October 14, 1975, when an ancillary conservator was appointed by a Louisiana court, and plaintiff, at that time, had a right to recover against her own insurer, Protective. Therefore, the trial court gave judgment in favor of Hickerson against Protective. However, Protective was not allowed to recover against the Louisiana Insurance Guaranty Association, substituted as defendant for Manchester, or the individual defendants.

The Court of Appeal, Fourth Circuit, affirmed Hickerson’s judgment against Protective. It decided that the trial court properly denied Protective a judgment against LIGA but reversed in part to give Protective a judgment against Simmons and Roberson. 375 So.2d 969.

Writs were granted at the behest of Protective, Simmons and Roberson to review the judgment.

The resolutory question is whether plaintiff Hickerson should have been given judgment against the Louisiana Insurance Guaranty Association as the statutory successor to the insolvent, insurer' of the individual defendants.

The purpose of the Insurance Guaranty Association Law is stated in LSA-R.S. 22:1376 as follows:

“The purpose of this Part is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.”

LSA-R.S. 22:1378 provides for a liberal construction to effect the statutory process. LSA-R.S. 22:1382(1)(b) states that the Louisiana Insurance Guaranty Association shall:

“Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent.”

This language indicates that LIGA should have been cast in judgment for Manchester’s obligations. However, despite LSA-R.S. 22:1382(1)(b), LIGA contends that plaintiff could not recover against the association because of LSA-R.S. 22:1386, entitled “Nonduplication of recovery”, which provides in part (1) that:

“Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under such policy. . . .”

It is contended that LSA-R.S. 22:1386(1) required plaintiff Hickerson to exhaust her uninsured motorist coverage before recovering against LIGA. The effect of giving this section that literal interpretation is that the uninsured carrier be-' comes entitled to reimbursement from the tort-feasors. The tort-feasors are cast in judgment because of the insolvency of their insurer, the result reached by the Court of Appeal here. The stated purpose of the act is to avoid financial loss to both claimants and policyholders, and that purpose is thwarted by requiring an injured party to proceed first against his or her own insurer. The policyholder with an insolvent insurer is not protected at all. The purpose of the “Nonduplication” provision was to prevent double recovery. It was designed to apply to ordinary insurance coverage and not to uninsured motorist coverage, which is required by public policy. Graham v. American Casualty Co. of Reading, Pa., 261 La. 85, 259 So.2d 22 (1972); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972). Any other interpretation would render LIGA’s function meaningless since an injured claimant would in all cases have to proceed first against his own insurer under the uninsured coverage mandated in Louisiana. The policyholders of the insolvent insurer would then be cast in judgment for the reimbursement claim of the uninsured carriers. No one would be protected except the Louisiana Insurance Guaranty Association, which has statutory immunity from subrogation claims in LSA-R.S. 22:1379(3).

The only statutory interpretation which will effect the purposes of the Insurance Guaranty Association Law is to deem LIGA the insurer with all the obligations of the insolvent insurer. To the extent of that coverage, the individual defendants were insured. LSA-R.S. 22:1382(1)(b). See Zinke-Smith, Inc. v. Florida Insurance Guaranty Association, Inc., 304 So.2d 507 (Fla.App., 1974). Compare Prutzman v. Armstrong, 90 Wash.2d 118, 579 P.2d 359 (1978).

LSA-R.S. 22:1406(D)(2)(a) provides that an uninsured motor vehicle shall “ . .be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.” However, since Manchester, the insolvent liability insurer, is able to make payment by dent of its membership in the Louisiana Insurance Guaranty Association, defendants’ vehicle was not uninsured within the meaning of the statute.

Since the Manchester policy limits on the Simmons’ car were sufficient to cover plaintiff’s damages and Manchester’s obligation is deemed to be that of the Louisiana Insurance Guaranty Association, the trial and appellate courts erred in awarding plaintiff Hickerson judgment against her uninsured carrier, Protective. The judgments of the trial and appellate courts are reversed insofar as they gave plaintiff Hickerson judgment against Protective National Insurance Company of Omaha, Nebraska. The judgment of the Court of Appeal, Fourth Circuit, is reversed insofar as it gave judgment in favor of Protective National Insurance Company of Omaha, Nebraska against owner Essie Simmons and driver Elizabeth Roberson. Judgment on plaintiff’s claim should have been granted against the Louisiana Insurance Guaranty Association.

LSA-R.S. 22:1385 provides in pertinent part that:

“. . . The association shall have no cause of action against the insured of the insolvent insurer for any sums it has paid out except such causes of action as the insolvent insurer would have had if such sums had been paid by the insolvent insurer. . . . ”

Therefore, the Louisiana Insurance Guaranty Association is not entitled to a judgment for reimbursement against the individual defendants, Simmons and Roberson.

For the foregoing reasons, IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Bertha Hickerson, and against defendant, Louisiana Insurance Guaranty Association, in the sum of $3,000.

REVERSED AND RENDERED.

         The Honorable Edward A. de la Houssaye, III participated in this decision as Associate Justice ad hoc.

      . This result makes it unnecessary to consider Protective’s motion to strike an appendix to LIGA's brief.


author: de la HOUSSAYE, Justice Ad Hoc.

text:
    STATE of Louisiana v. Alan B. McCABE.
    No. 65974.
    Supreme Court of Louisiana.
    April 7, 1980.
    As Amended On Denial of Rehearing May 19, 1980.

      Rollin W. Cole, Jr., Larry S. Butler, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., B. Woodrow Nesbitt, Jr., James C. McMichael, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   de la HOUSSAYE, Justice Ad Hoc.

Defendant McCabe was charged in the 1st Judicial District Court, Parish of Caddo, Gayle K. Hamilton, Judge, of violation of La.R.S. 40:966, and 40:967 for possession of LSD; possession of marijuana with intent to distribute, and possession of Phencycli-dine. After the judge denied his motion to suppress, he pleaded guilty to simple possession of LSD and Phencyclidine, reserving all rights of appeal. Upon receipt of the guilty plea, defendant received a suspended 5 year jail sentence, and was placed on supervised probation for five years, conditioned upon his entering and completing the Odyssey House Treatment Program. In addition, defendant was ordered to pay a fine of $300 plus costs, in default of which he would serve 60 days in parish jail.

Defendant then appealed the ruling of the district court judge denying to suppress the evidence on grounds of illegal search and seizure.

The sole issue on appeal is the correctness of the trial judge’s ruling in denying defendant’s motion to suppress the evidence on grounds of illegal search and seizure.

On Sunday, July 23, 1978 the defendant attended church services with his friends, the Roppolos. They agreed to meet later at the Roppolo’s home in order to show McCabe’s prize winning Doberman Pinscher to some friends. McCabe arrived at about 7:30 p. m. in his brown Ford pickup truck. The testimony is unclear, but it appears defendant parked in front of the Roppolo’s home, but partially blocking the driveway; then the truck was later moved to clear the driveway. As McCabe stepped from the truck, his dog escaped, but was caught by the Roppolo children.

The defendant was clearly in a state of intoxication, as he began walking down the street, raising his hands over his head, clenching his fists, and talking loudly, as observed by Hall and the neighbors. At one point he pulled off his shirt and threw it to the ground. He continued down the block and around the corner, and subsequently became involved in a disturbance. As a result, the Shreveport Police Department was notified, and defendant was placed under arrest and taken into custody for using profanity.

While defendant was around the corner, Mrs. Roppolo called McCabe’s physician, Dr. Carl Rice. Being concerned about defendant’s condition, she also spoke briefly to her next door neighbor, Mr. Norman Hall, who was outside watching his children play when defendant arrived. During their conversation, Hall was standing directly beside the truck, and looked into defendant’s truck. He saw a pistol lying on the seat of the truck. Being concerned about defendant’s displayed behavior, he opened the door to check the gun, and found that it was loaded. While examining the gun, he noticed a half-full whiskey bottle on the front seat, as well as an opaque plastic container with a syringe lying on top of it on the floorboard below the driver’s seat. Hall took the container out and inspected it, finding what appeared to be drugs and seeds inside. He showed this to Mrs. Rop-polo and returned it to the truck. Later, he again removed the container and showed it to Mr. Roppolo. Defendant’s doctor then also saw the container and wiped off fingerprints. He refused to call the police after Hall’s request that he do so. The container was again placed back into the truck, and Hall tried without success to lock the doors. Hall then called the police.

Narcotics agent A1 Brice arrived about 9:30 p. m. and learned of the items in the truck. Brice first decided to have the vehicle impounded until a search warrant could be obtained. He went next door to get the keys from the Roppolos. Hall again entered the truck, retrieved the container, and showed it and its contents to Brice, whereupon Brice re-entered the truck and placed the container back on the floorboard. Brice called authorities at the DA’s office, and after conversing with them, decided a search warrant and impoundment were no longer necessary. He then thoroughly searched the truck, and seized the tupper-ware container and its contents.

This search was conducted initially by a private citizen. Although Hall entered the truck on several occasions, it can be argued that the subsequent entries worked no greater hardship on the defendant than the first intrusion. Defense alleges that the search of a truck by a private citizen who had no legal or reasonable cause to do so violated defendant’s affirmative right to privacy as embodied in Article I Section 5 of the Louisiana constitution of 1974.

“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.” (emphasis added)

Defendant argues that the 4th Amendment of the U.S. Constitution operates as a restraint on direct government action. States may, however, extend greater rights than those provided by the U.S. Constitution. Therefore, notwithstanding searches made by private citizens have hitherto been considered beyond the scope of 4th Amendment protection, Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); McGuire v. U. S., 273 U.S. 95, 47 S.Ct. 259, 71 L.Ed. 556 (1927); State v. Bryant, 325 So.2d 255 (La.1975), defense is attempting to find protection through a broad interpretation of this Article of the State Constitution.

In the alternative, defendant contends that the contraband was seized by authorities pursuant to a warrantless search of defendant’s truck, absent exigent circumstances, when none of the narrowly delineated exceptions to the warrant requirement were applicable, following the initial search by the private citizen.

As to the first argument, this Court has never directly addressed the applicability of Louisiana’s prohibition against unreasonable searches and seizures conducted entirely upon the initiative of a private party. In State v. Hutchinson, 349 So.2d 1252 (La.1977), evidence of a crime was observed attached to the underside of defendant’s van by his employer, who reported to police. This search by a private citizen, leading to impounding of the vehicle by police, was upheld as not an unreasonable invasion of defendant’s privacy. However, this Court held:

“We are unwilling to hold that the rights safeguarded by Article 1, Section 5 of our constitution are merely coextensive with those protected by the Fourth Amendment to the federal constitution, or that private searches and seizures are not within the ambit of protection afforded by our state charter.” 349 So.2d at 1254.

But under the given facts of this case, we find it unnecessary to look to any interpretation of the scope of Article I Section 5. Defendant came into the neighborhood acting strangely and talking incoherently. He loosed a large dog upon a neighborhood full of children and young teenagers. Hall testified his boy was afraid of dogs. Defendant’s continuing strange behavior, coupled with Hall’s manifest concern justified his glancing into the truck, seizing and examining the pistol which led to his discovery of the liquor and drugs. We find this search was reásonable and that any privacy interest which defendant may have had was subordinated to Hall’s concern for the safety and welfare of his children.

In support of this position, we find that courts have frequently held that evidence obtained by a private search is ad-missable where a superior right or interest attaches to the individual conducting the search at that time or place. Gold v. U. S., 378 F.2d 588 (9th Cir. 1967). Thus, neither probable cause nor exigent circumstances need come into play.

As to defendant’s second argument, that the government search was illegal, we find that Officer Brice took every precaution to protect defendant’s Fourth Amendment rights. The Supreme Court has insisted upon probable cause as a minimum requirement for a reasonable search. As a general rule, it has also required the judgment of a magistrate on the probable cause issue and the issuance of a warrant before a search is made. There are few exceptions to searches conducted outside the judicial process. Katz v. U. S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Lewis, 378 So.2d 396, (La.1979); State v. Parker, 355 So.2d 900 (La.1978).

Warrantless searches of vehicles have been upheld where there exists interests superior to those of the citizen. In State v. Parker, 355 So.2d 900, this court noted that the citizen’s interest in the privacy of his automobile is somewhat less than his interest in the privacy of his home or structure.

A finding of exigency, such as the difficulty of obtaining a search warrant may justify a warrantless search where the police have probable cause to search a vehicle stopped on the highway and the circumstances require immediate action. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1975); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Wilbourn, 364 So.2d 995 (La.1978); State v. Lain, 347 So.2d 167 (La.1977); State v. Tant, 287 So.2d 458 (La.1978).

The facts here, as stated, support a finding of exigency. Officer Brice testified that it could have taken all night to obtain a warrant due to the small number of officers working on Sunday night. No other officers were available to assist in guarding defendant’s vehicle, hence the decision to impound the vehicle was thus clearly justifiable. Brice felt a search warrant no longer necessary since the previous invasions by a private citizen justified his subsequént search.

The propriety of the seizure of the drugs being at issue, it is necessary to state that the truck remained parked on a public street attended by a single officer. The defendant’s mother had earlier requested the keys to the truck which was parked in front of the home of the Roppolos, the same friends who had earlier failed to disclose the presence of narcotics in the vehicle. Thus, in spite of defendant’s earlier arrest on profanity charges, surrounding circumstances appeared sufficient to justify seizure of the evidence without a warrant. (Carroll v. United States, supra). As for the argument in favor of immobilizing the vehicle, we find this language in Chambers v. Maroney, supra, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419;

“Arguably, because of the preference for a magistrate’s judgment, only the ‘lesser’ intrusion is permissable until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 399 U.S. at 51-52, 90 S.Ct. at 1981.

We find no merit in defendant’s alternative argument.

DECREE

For the foregoing reasons, the decision of the district court denying defendant’s motion to suppress is upheld.

Affirmed.


text:
    Mary Agnes Pfister KIRSCH v. Wayne P. PARKER, Registrar of the Bureau of Vital Statistics of the City of New Orleans.
    No. 66162.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      Victor J. Bradbury, Metairie, for plaintiff-respondent.
    • H. M. Westholz, Jr., Dept, of Health and Human Resources, New Orleans, for defendant-applicant.
   EDWARD de la HOUSSAYE, III, Justice Ad Hoc.

Plaintiff filed.for Writ of Mandamus on November 16, 1977 in Orleans Parish Civil District Court to compel the production of her original birth certificate and Judgment of Adoption from the sealed records of the Registrar of Vital Statistics. The matter was heard by Judge Thomas A. Early, Jr. on July 10, 1978 who ruled in favor of the plaintiff requiring the Acting State Registrar of Vital Records to produce the certificate for plaintiff’s inspection.' Defendant appealed, and the Fourth Circuit Court of Appeal affirmed the lower court opinion by Judge William A. Redmann. Kirsch v. Parker, 375 So.2d 693 (La.App. 4th Cir. 1979). Rehearing denied. We granted certiorari to determine whether an adoptee has a right to inspect the original records of her birth. Kirsch v. Parker, 378 So.2d 437 (La.1979).

Plaintiff was born on October 7,1944 and adopted at age five on June 13, 1949 through a court order. Plaintiff asserted in her petition three compelling reasons for which she should be permitted to see the sealed certificate: (1) to determine her inheritance rights as established by Louisiana Civil Code Article 214; (2) to determiné the medical backgrounds of her parents in order to better diagnose and. treat any ailments she may have or may contract in the future; and (3) to know more of her background in order to alleviáte her mental anguish from flashbacks thought to be caused by her early childhood. La.R.S. 40:81(A). Other than her pleadings, no evidence was produced at the hearing for Mandamus other than the plaintiff’s testimony as to her medical history. Mrs. Kirsch testified that, in addition to her request for inheritance, she had a history of medical ailments including problems, of the urethra and kidney, r. h. negative factor, five miscarriages and an abnormal scar on her stomach which was unexplained at the time of her adoption. In addition, she asserted that she suffered from flashbacks of scenes which were of unexplained origin and certain phobias about closets and a fear of persons hiding beneath a bed. While she did not allege any emergency medical problem which at that time would require the certificate, she asserted that the medical information would also be useful for . her children.

Defendant answered and alleged Exceptions of No Cause of Action and Lack of Indisperisible Parties, those being the biological parents of the plaintiff. The trial judge overruled the exceptions and found compelling reasons had been offered by the plaintiff. He further ordered the defendant to disclose to plaintiff the names and addresses of her biological parents at the time of her adoption in conformance with the second requirement of La.R.S. 40:81(A), as the “extent necessary to satisfy such compelling necessity.”

After the conclusion of the trial, the state legislature amended La.R.S. 40:79, 40:80, 40:81(A), and R.S. 9:437(A), and added Article 5091.2 to the Code of Civil Procedure relative to the requirements for sealed records in adoption cases and the appointment of a curator-ad-hoc to assist the court in complying with the statutory requirements. The legislature provided under Section 78 that the amendments would have retroactive status and would apply to adoption decrees rendered prior, to, as well as after the date of the enactment.

While the trial court in the present case did not have the benefit of legislative guidance, the appellate court did. Additionally, we interpreted and upheld the new amendments in a related case, Massey v. Parker, 369 So.2d 1310 (La.1979), which was promulgated prior to the determination of the present case before the appellate court.

On appeal, the defendant urged that the interests and the right to privacy of the biological parents had been ignored by the trial court and that the plaintiff had not made a sufficient showing to compel the production of her certificate. Judge Red-mann, on behalf of the appellate court, reviewed the recent amendments to the sealed records’ provisions and found R.S. 40:81(A) effective in 1977, as being prospective in nature. Judge Redmann found the 1977 statute inapplicable to the plaintiff, inasmuch as she was given up for adoption at age five, some thirty years ago, and it could not be presumed that her parents did so with an expectation of privacy, which the 1977 statute’s purpose was designed to protect. The court found that earlier statutes in effect at the time the plaintiff was adopted had no such purpose. Additionally, Judge Redmann found the retroactivity of the 1978 statute denied equal protection in plaintiff’s case because of its overbroad inclusions of dissimilar classes of parents who had no expectation of privacy due to various reasons and parents who wished also to know the identity and whereabouts of their natural children. The statute was held to deny the accessibility of these persons to each other and thus, the state would have to prove a compelling interest to justify the unequal treatment given to those classes. On the basis of this analysis, the appellate court concluded that persons who were similarly situated to the plaintiff, that is, adopted after living some time with their biological parents, would not be held to the retroactive application of Act 450 of 1978.

While we appreciate our brother’s scholarly analysis of the present case, we are also cognizant of similar arguments made before the federal appellate bench in Alma Society v. Mellon, 459 F.Supp., 912 (S.D.N.Y.1978), aff’d, 601 F.2d 1225 (2d Cir. 1979). In this case, a statute which provided for the disclosure of confidential adoption records only after a hearing to determine justifiable reasons for the information was upheld as constitutional. The New York statute, similar to 42 other state statutes, was held as providing equal protection even in view of the fact that a few classes were burdened by the protection of privacy for other classes.

In the present case, the defendant reurged the original assignments made before the appellate court and assigned as additional errors that the court erred in finding R.S. 40:81(A), as established in 1977, to be prospective in nature and that it denied due process and equal protection.

We decline to analyze the constitutional basis of the statute having already found in Massey that the balancing of interests of the parties are procedurally protected by R.S. 40:81(A) as amended in 1978 in the appointment of a curator-ad-hoc to aid the court in its determination. Massey, supra, at 1313, 1314.

A reading of the 1978 statute indicates that the legislature clearly intended that adoptees’ rights to know their heritage would be balanced against the interests of those parents or parties who for one reason or another seek to remain anonymous. Our reading of earlier cases which discuss the amendments to the statute indicates that the statute afforded adoptees positive rights. We therefore recognize and hold that the statute in its present version provides broad rights to the petitioner and those rights will be enforced when the proper procedures are followed as specified in the statute. We also find that this statute is intended to be retroactive and therefore guarantees these positive rights to all adop-tees, including petitioner and others similarly situated.

In our most recent discussion of these rights, in Massey v. Parker, supra, a plaintiff alleged inheritance rights and obligations to his parents as compelling reasons for disclosing the names of his biological parents. We did not find obligations owed to blood parents as constituting a compelling reason. La.Civil Code Article 214. However, we concluded that the adopted person’s right of inheritance from blood parents may constitute a compelling reason for the opening of sealed records and remanded the ease to the trial court for further factual determinations relative to the existence of Mr. Massey’s inheritance rights. The court was instructed to appoint a curator to inspect the sealed records and determine whether blood parents or relatives were named and to report these findings to the court for its determination of other possible steps to be taken. The court was cautioned that other persons than the plaintiff may have an expectation of privacy and to devise a means by which the rights of all parties could be assured, appointing the curator, if need be, to represent the biological parents as indispensible parties. We concluded: .

“In any steps which are taken, the utmost discretion and confidentiality must be observed; the situation is not one in which plaintiff alone could have rights which the law will protect; the parents’ (and other relatives’) right to privacy is a right which must be recognized and protected as long as it is insisted upon. There also may be an obligation owed the parent or parents arising from an agreement between one or both of them and those acting for the state or the adoption agency at the time plaintiff was given up for adoption. There may be an obligation implied from the acts of the parties at the time of the adoption. Any such obligation cannot be breached without giving the parties a right to be heard and making provision for the exercise of their rights while at the same time assuring the protection of plaintiff’s right to inherit.”
Massey, supra, at 1315.

We find the situation in the present case similar to that found in Massey. Therefore, we find the appellate and trial courts erred in affirming the plaintiff’s right to inspect her original birth certificate on her own behalf. We affirm the trial court determination that possible inheritance rights constitute a compelling reason for the opening of the sealed records. However, we remand to the court with instructions for the appointment of a curator-ad-hoc in conformance with La.R.S. 40:81(A) to inspect the sealed records to the extent necessary to satisfy that compelling reason.

We also find that there was insufficient evidence presented at the trial court for an adequate determination of the medical problems alleged to constitute compelling reasons. While there may be compelling medical reasons for .the disclosure of certain information on plaintiff’s or any adoptee’s original birth certificate, it may be so determined only after adequate presentation of evidence sufficient for the trial court’s proper determination. It may be possible that after such a finding by the judge, a curator should be appointed to determine to what extent the confidential information on the birth record could satisfy that compelling necessity. ' We therefore remand for another hearing on the medical reasons asserted by the plaintiff.

We instruct the district judge to hold another hearing and appoint a curator in an expeditious manner. Our instructions serve to preclude any view that the procedures to be followed in La.R.S. 40:81(A) are to be looked upon as a “barrier” to the attainment of possible rights of adoptees.

DECREE

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment of the district court finding a compelling reason is affirmed in part and remanded in part for the appointment of a curator-ad-hoc to determine any possible inheritance rights of plaintiff. The judgment ordering the Registrar of Vital Records to open the birth record for plaintiff’s inspection is amended to order the Registrar to produce the record for inspection forthwith to the court appointed curator-ad-hoc.

IT IS FURTHER ORDERED that the case be remanded to the district court for another hearing to determine whether there are compelling medical reasons.

AFFIRMED IN PART, AMENDED IN PART, REMANDED IN PART.

DIXON, C. J., dissents, agreeing with Court of Appeal.

CALOGERO, J., dissents. The Court of Appeal opinion was correct.

      . La.R.S. 40:81(A), as established in 1977, in pertinent part reads as follows:
      “The state registrar shall seal and file the original certificate of birth with the certificate of the (adoption) decree. This sealed package may be opened only on the order of a competent court either upon its own motion, or upon the demand of the adopted child or the adoptive parent, or the state registrar, for compelling reasons and only to the extent necessary to satisfy such compelling necessity.”
      Act 659 of 1977, effective September 9, 1977, prior to plaintiff’s suit, amended La.R.S. 40:81(A) to include the dual requirement of establishing compelling reasons for the disclosure, and disclosure only to the extent necessary to satisfy such compelling reasons.

      . La.R.S. 40:81(A) was revised by Act 450 of 1978 in pertinent part to read:
      “This sealed package may be opened only on the order of a competent court either upon its own motion, or upon the demand of the adopted child or the adoptive parent, or the state registrar, for compelling reasons and only to the extent necessary to satisfy such compelling necessity. In satisfying the requirement that information shall be revealed only to the extent necessary to satisfy the compelling necessity shown, the court is authorized to use the services of a curator ad hoc appointed pursuant to Article 5091.2 of the Louisiana Code of Civil Procedure.”
      La.Code of Civil Procedure Article 5091.2:
      “In complying with the provisions of Louisiana R.S. 9:437, 40:79 and 40:81 and related statutes the judge of the competent court is authorized to appoint an attorney who shall serve as curator-ad-hoc who will assist the court in complying with the statutory requirements for maintaining the confidentiality of adoption records and proceedings.”

      . A history of the statutory revisions of sections pertaining to sealed records of adoptions and recent cases therein are contained in Massey v. Parker, 369 So.2d 1310 (La.1979) and Chambers v. Parker, 349 So.2d 424 (4th Cir. 1977).


author: PER CURIAM.

text:
    STATE of Louisiana v. William McCRAE and Jackie Davis.
    No. 65964.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., P. Michael Cullen, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Jack Quarles, Indigent Defender Board, 24th Judicial District • Parish of Jefferson, Gretna, for defendants-appellants.
   PER CURIAM.

Having reviewed all the assignments of error filed by the defendant, we find that they present no reversible merit and do not require published explanation because they do not present any question of unsettled law. Therefore, these assignments are discussed in an unpublished, but publicly recorded, appendix to this opinion.

The defendants’ convictions and sentences are affirmed.

AFFIRMED.

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


author: PER CURIAM .

text:
    STATE of Louisiana v. Edwin W. STERLING.
    No. 66103.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Louis A. Heyd, Jr., New Orleans, for defendant-appellant.
   PER CURIAM .

Edwin W. Sterling was Charged by bill of information with possession of a firearm after having been previously convicted of a felony (simple burglary) in violation of La.R.S. 14:95.1. Defendant entered a plea of not guilty at the arraignment. After a hearing, the trial judge denied defendant’s motion, to suppress physical evidence. Thereafter, defendant moved to withdraw his former plea of not guilty and to enter a plea of guilty as charged, expressly reserving his right to appeal the court’s denial of his pre-plea motion to suppress. The trial judge accepted the plea of guilty after determining that the plea was made voluntarily with understanding of the nature of the charge. Defendant was sentenced to serve five years at hard labor with credit for time served. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

Wé have reviewed the record and find no merit to defendant’s assignment of error. Accordingly, we affirm his conviction and sentence.

DECREE

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

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

      . State v. Crosby, 338 So.2d 584 (La.1976).


author:
WATSON, Justice.
     DENNIS, justice,

text:
    STATE of Louisiana v. H. M. “Mike” CANNON.
    No. 66219.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      Steve M. Marks, Frank J. Gremillion, Cyrus Greco, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., David Bourland, Robert Hester, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-respondent.
   WATSON, Justice.

Relator, H. M. “Mike” Cannon, Clerk of Court of East Baton Rouge Parish, was convicted of public salary extortion (LSA-R.S. 14:136(1)). He contends before this Court that there were deficiencies in proof, that the statute under which he was convicted is unconstitutional, and that he was subjected to double jeopardy.

Cannon was indicted for public salary extortion (LSA-R.S. 14:136(1) and public salary deduction (LSA-R.S. 14:135). The indictments were quashed because the grand jury was unlawfully constituted, State v. Cannon, 372 So.2d 1237 (La., 1979), and defendant was reindicted for the same offenses. When a mistrial was granted on motion of defendant, he was tried again and convicted of public salary extortion and acquitted of public salary deduction. A writ of certiorari issued to review defendant’s four assignments of error.

ASSIGNMENTS OF ERROR NUMBER ONE AND TWO

Defendant contends that the trial court erred in refusing to grant a motion for acquittal because the State did not prove essential elements of the offense. It is argued that there was no evidence of threats or offers of reward as required by LSA-R.S. 14:136(1). Defendant contends that there was no evidence of suggestion that a failure to contribute to his campaign fund would result in the “loss nor impairment of value” of his employees’ jobs, or that the payments by his employees were a “reward or remuneration” for their jobs.

The essential elements of public salary extortion are: (1) solicitation or receipt, or attempted solicitation or receipt, (2) of money or things of value from a public officer or employee, (3) either upon suggestion or threat that failure to pay will result in loss or impairment of value of the employment, or when the payment is given as a reward or remuneration for securing the employment.

Among the seven witnesses called by the State were six employees of defendant’s office. None of the State’s witnesses testified to overt threats by defendant. However, defendant, did ask the supervisors in his office to contribute a full month’s salary and the assistants to contribute a half month’s salary, promising that those who helped him would be helped in turn. When one employee asked what he meant, he replied “ . . . through evaluations when evaluation time came.” (Tr. 89) According to another witness: “He said that he would give us .a raise to make up any contribution to the pledge.” (Tr. 133) This employee was told to speak to others and “ . remind them that evaluation time was coming up and it would be appreciated.” (Tr. 133-134) The witness said: I was to report before January 15 which employees did or did not pledge.” (Tr. 160)

By mentioning the upcoming quarterly evaluations and their concomitant raises when discussing campaign contributions, Cannon gave the clear impression that there would be no raises unless the recommended month’s salary or half month’s salary was contributed to the campaign fund. The words were spoken in the context of an employer-employee relationship and the reasonable conclusion is that they were intended to intimidate. Although some witnesses testified that they felt no compulsion to contribute, other employees said they assumed that if they contributed they would receive raises.

Defendant contends that there was no evidence to show a threat or suggestion that failure to pay would result in the “loss or impairment of value” of the employment or in the alternative, that the payments were “reward or remuneration for securing” employment. We disagree.

“Impair” is defined as:

“To weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner.” Black’s Law Dictionary, Fifth Edition, page 677.

Defendant here clearly implied that those employees who agreed to contribute to his re-election campaign would receive salary increases and those who declined would receive no salary increases. Any refusal to cooperate would certainly affect the value of their employment in an injurious manner.

Defendant’s final contention with regard to these assignments is that implicit in the trial judge’s verdict of not guilty to the charge of public salary deduction is the finding that defendant did not offer his employees a pay raise in return for political contributions. This contention is without merit. Although defendant was acquitted of public salary deduction, that acquittal does not negate the finding that he offered his employees a pay raise in return for a contribution. The acquittal on the charge of public salary deduction simply means that defendant did not keep part of the employees’ pay checks for himself. Instead, he allowed the checks to be dispersed to his employees but expected reimbursement. Therefore, he did not “retain or divert” the funds and could not be found guilty of public salary deduction.

LSA-C.Cr.P. art. 778 governs the motion for acquittal. It provides:

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

The denial of such a motion may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion. State v. Vaughn, 378 So.2d 905 (La., 1979). After reviewing the record, we conclude that there was evidence of all essential elements and the trial judge did not abuse his discretion by denying the motion.

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant assigns as error the trial judge’s refusal to quash the indictment on the ground that LSA-R.S. 14:136(1) is unconstitutionally vague and overbroad.

A statute is unconstitutionally vague if men of common intelligence must guess as to its meaning. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). To meet due process requirements, the language of the statute must give adequate warning of the conduct proscribed and must also provide standards to enable judges and juries to fairly administer the law. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1951).

In State v. Dousay, 378 So.2d 414 (La., 1979) the court stated:

“With regard to the requirement of adequate notice, this court has held that the constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that a penal statute must describe unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. . . . The due process clause of the Louisiana Constitution has also been found to demand that words and phrases employed in statutes or regulations may not be so vague and indefinite that any penalty prescribed for their violation constitutes the taking of liberty or property without due process of law. . Similarly, a conviction under a criminal enactment which does not give adequate notice that the conduct charged is prohibited is violative of the due process clause of the Fourteenth Amendment of the United States Constitution. 27 . . . I (Citations omitted)
“Both the constitutional guarantees of procedural due process and the right to a fair trial embodied in Article 1, § 16 of the Louisiana Constitution also require that a criminal enactment contain an ascertainable standard of guilt and that it ‘mark[s] boundaries sufficiently distinct for judges and juries to administer the law in accordance with the legislative will.’ City of Baton Rouge v. Norman, 290 So.2d 865, 868 (La., 1974). The United States Supreme Court has held that ‘[a] law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it . leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.’ Giaccio v. Pennsylvania, 382 U.S. 399, 403, 86 S.Ct. 518, 520-521, 15 L.Ed.2d 447, 450 (1965).
“The constitutional requirement of definiteness is satisfied when the language of a criminal enactment ‘has a generally accepted meaning such that a person of ordinary intelligence would be given fair notice of what conduct is forbidden.’ State v. Defrances, 351 So.2d 133, 135 (La., 1977) or when ‘the crucial words [or] phrases in the criminal statute have a fixed and definite meaning for a person of ordinary intelligence.’ State v. Cloud, 248 La. 125, 130, 176 So.2d 620, 622 (1965).” 378 So.2d 416-417.

LSA-R.S. 14:136(1) clearly prohibits the solicitation or receipt, or attempted solicitation or receipt, of a payment from a public officer or employee when that payment is obtained or solicited upon suggestion or threat that the failure to pay will result in the loss of impairment of value of the employment, or when the payment is a reward or remuneration for securing the employment. Defendant had adequate notice that any attempt to use his employees’ jobs as leverage in the solicitation of contributions would bring him within the ambit of LSA-R.S. 14:136(1). The statute provides the trier of fact with sufficient standards to fairly determine defendant’s guilt or innocence. Only if a payment is solicited .or obtained from a public employee as a reward for securing employment or upon suggestion or threat that the failure to pay will have an adverse effect on employment may a defendant be found guilty. The statute gives notice to defendants and provides adequate standards for triers of fact; the statute is not unconstitutionally vague.

Defendant also contends that the statute is overly broad. The overbreadth consideration applies to statutory language which, though not vague, encompasses protected as well as unprotected conduct. Activities subject to state regulation may not be governed by unnecessarily broad means which invade protected freedoms. NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964).

Defendant bases his overbreadth argument on a decision of the Arizona Supreme Court invalidating a statute which defendant contends is functionally identical to LSA-R.S. 14:136(1). In Huerta v. Flood, 103 Ariz. 608, 447 P.2d 866 (1968), A.R.S. § 13-1021 was declared unconstitutional. That statute read:

“No public officer or public employee of the state, a state agency, or a political subdivision shall directly or indirectly command, ask, coerce, or attempt to coerce any officier or employee of the agency, department, or division, over which he has direct supervision, to pay, lend, or contribute any part of his salary or compensation or anything else of value to any party, committee, organization, agency or person for political purposes.”

There is a major distinction between the Arizona statute and the Louisiana statute in question here. The Arizona law prohibited any public officer or employee from seeking political contributions from public employees under his supervision. The Louisiana provision prohibits the use of a public employee’s job as leverage in soliciting contributions. While the Arizona statute prohibited the mere asking for contributions, LSA-R.S. 14:136(1) allows solicitation as long as there is no connection between the contribution and the security or value of the employee’s job.

Defendant contends that there was no evidence that he overtly threatened his employees and the trial court found that mere solicitation implied a threat. Therefore, defendant argues that the Louisiana statute, like the Arizona statute, prohibits mere asking and is unconstitutional. This contention is without merit. The trial judge may have well found that Cannon’s mere solicitation did not constitute a threat or suggestion, but rather that the solicitation coupled with the discussion of quarterly evaluations constituted the threat or suggestion required by the Louisiana statute. The connection between the contribution and the possible loss or impairment of employment was sufficiently explicit to make the conduct unlawful.

Defendant also contends that several key words in the Louisiana statute render it overly broad. LSA-R.S. 14:3 provides that words are to be “taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” The constructions defendant urges are strained and inconsistent with a reasonable reading of the statute. Read in its usual sense, the language of the statute does not' encompass protected conduct and is not overly broad.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends that the trial court erred in denying his motion to quash the indictment on the ground of double jeopardy.

The original trial commenced on September 20, 1979. The state produced seven witnesses prior to the noon recess. Judith Redden, called as a State witness, testified favorably to defendant. During the noon recess, one of the assistant district attorneys prosecuting the case had Ms. Redden arrested for perjury. Defendant moved to quash his indictment on the ground that defense witnesses would be afraid to testify for fear of arrest. The trial court denied the motion to quash and suggested that the appropriate motion would be for mistrial. Defendant objected to the denial of the motion to quash and moved for a mistrial. After the testimony of five witnesses, a mistrial was declared. Defendant contends that the prosecutor’s actions forced him to move for a mistrial and that the constitutional prohibition against double jeopardy bars his re-prosecution for the same offense.

In United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) the United States Supreme Court addressed the question of whether the Double Jeopardy Clause of the Fifth Amendment was violated by the retrial of a defendant whose original trial had ended in a mistrial at his request. Ordinarily, the Double Jeopardy Clause does not stand in the way of re-prosecution where defendant has requested a mistrial. However, in Dinitz, the court noted:

“The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ United States v. Jorn, supra, 400 U.S. [470] at 485, 91 S.Ct. [547] at 557, 27 L.Ed.2d 543 threatens the ‘[harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. Downum v. United States, 372 U.S. [734] at 736, 83 S.Ct. [1033] at 1034, 10 L.Ed.2d [100] at 102. 27 . . ” (Citations omitted) 424 U.S. 611, 96 S.Ct. 1081.

As was stated in United States v. Martin, 561 F.2d 135 (8th Cir. 1977):

“Thus where ‘prosecutorial overreaching’ is- present, United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547, the interests protected by the Double Jeopardy Clause outweigh society’s interest in conducting a second trial ending in acquittal or conviction. United States v. Kessler, 530 F.2d 1246, 1255-56 (5th Cir. 1976). See United States v. Wilson, 534 F.2d 76, 80 (6th Cir. 1976).” 561 F.2d 139.

The issue before us, therefore, is whether the arrest of Ms. Redden was such prosecu-torial overreaching as to bar further proceedings against defendant.

Mere negligence is not the type of overreaching contemplated by Dinitz. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Martin, supra. As was stated in United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976):

“To find ‘prosecutorial overreaching’ the Government must have, through ‘gross negligence or intentional misconduct,’ caused aggravated circumstances to develop which ‘seriously prejudice[d] a defendant’ causing him to ‘reasonably conclude that a continuation of the tainted proceeding would result in a conviction.’ United States v. Dinitz, supra, 424 U.S. at 608, 96 S.Ct. at 1080, 47 L.Ed.2d at 274, 44 U.S.L.W. at 4312.” 530 F.2d 1256.

Defendant contends that the prosecutor’s conduct was intended to provoke a mistrial to allow the State to obtain a more favorable position at a subsequent trial, or to force defendant to continue with the trial after defense witnesses had been seriously compromised.

There is no evidence that the State deliberately attempted to abort the trial. The State opposed defendant’s motion for mistrial and sought to elicit testimony from defense witnesses that they would tell the truth despite Ms. Redden’s arrest. (Tr. 146, 151, 157, 160 [9/20/79]). The record does not reveal that the State was losing its case and provoked a mistrial to gain an opportunity to begin anew. The prosecutor exhibited no bad faith; the most that can be said is that he was negligent.

Ms. Redden testified that she was arrested while sitting outside the courtroom when other witnesses were in the area. (Tr. 170, [9/20/79]) Although it would have been possible and preferable for the arrest to have taken place elsewhere, all the witnesses who knew of the incident swore that they would testify truthfully despite what they saw or heard. (Tr. 146, 151, 157, 160 [9/20/79]) While we cannot condone the prosecutor’s actions, there is no evidence that he acted in bad faith or that his conduct was so gross or wanton as to warrant the dismissal of these proceedings on the basis of double jeopardy. Because the witnesses all testified that the prosecutor’s action would not prevent them from telling the truth, there was no evidence that the action seriously prejudiced defendant.

This assignment lacks merit.

For the reasons assigned, the conviction is affirmed, and the case is remanded to the trial court for sentencing.

AFFIRMED AND REMANDED.

DENNIS, J., dissents with reasons.

DENNIS, justice,

dissenting.

I respectfully dissent from the majority opinion’s holding pertaining to the double jeopardy issue.

In this case a state’s witness who had given testimony favorable to the defendant was arrested for perjury in the presence of defense witnesses who had not yet testified. The prosecuting attorney who caused the arrest warrant to issue accompanied the officers during the arrest which occurred in the courthouse hallway during a recess. The prosecuting attorney testified that he assumed that other witnesses would be present in the hallway when the arrest was made. The record contains no explanation of why the prosecuting attorney felt it was necessary to arrest the witness at that particular time and place. The wi.tnesss was an employee of the clerk of court in the same courthouse and apparently had not been released from sequestration. The other defense witnesses testified that the event made them feel “seared,” “apprehensive” and caused them to speculate “if we don’t necessarily tell what the District Attorney wants to hear that we may be subject to perjury . . . .”

Although the defense witnesses, in response to cross examination by one of the prosecuting attorneys, testified that they would tell the truth if forced to testify, it is clear they were unwilling or reluctant to do so because they felt that their truthful testimony would provoke the assistant district attorneys to have them arrested for perjury. Consequently, the trial judge granted the defendant’s motion for a mistrial.

As correctly stated by the majority opinion, the Double Jeopardy Clause bars retrial where the prosecution through gross negligence or intentional misconduct, causes aggravated circumstances to develop which seriously prejudice a defendant, causing him to seek a mistrial because of his reasonable conclusion that a continuation of the tainted proceeding would result in a conviction. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Kessler, 530 F.2d 1246, (5th Cir. 1976). Applying this rule to the facts of this case, it is my opinion that the Double Jeopardy Clause does not permit a second trial.

The prosecuting attorney was at least grossly negligent in arresting ' a witness, who had testified favorably to the defendant, for perjury in a situation where defense witnesses who were about to testify were present or became immediately aware that the arrest had been made. He should have realized that such an arrest at this time and place would have a coercive effect, especially because of his own participation in the arrest. The- testimony of the defense witnesses solidly indicates that the prosecu-torial misconduct prejudiced the defendant’s case and that defense counsel’s conclusion that a continuation of the tainted proceeding would have resulted in an unfair trial was reasonable.

Accordingly, I agree with the majority opinion’s statement of law, but I respectfully suggest that it has not been applied correctly to the facts of the present case.

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

      . LSA-R.S. 14:136(1) provides:
      “Public salary extortion is committed when any person shall:
      “(1) Solicit or receive, or attempt to solicit or receive, either directly or indirectly, the payment of any money or other thing of value from any public officer or public employee to himself or any other person or political organization, through any means or form whatsoever and for any purpose whatsoever, when such payment is obtained or solicited upon suggestion or threat that the failure to make such payment shall result in the loss or impairment of value to such officer or employee of his office of employment, or when such payment shall be a reward or remuneration for securing such office or employment; and proof that such payments were collected from or paid by such officers or employees on a uniform or progressive percentage or amount basis, shall be presumptive evidence that payments were made under duress or upon the considerations set forth hereinbefore; or”.

      . LSA-R.S. 14:135 provides:
      “Public salary deduction is committed when any public officer, or public employee shall retain or divert for his own use or the use of any other person or political organization, any part of the salary or fees allowed by law to any other public officer or public employee.
      “Whoever commits the crime of public salary deduction shall be fined not more than one thousand dollars, or imprisoned for not more than six months, or both.”


text:
    STATE of Louisiana v. Aaron CABLE.
    No. 64977.
    Supreme Court of Louisiana.
    April 16, 1980.
    Rehearing Denied May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee,
    Walton J. Barnes, II, Zachary, for defendant-appellant.
   PER CURIAM.

Affirmed.

SUMMERS, C. J., ret., and STONE, J. pro tern., take no part.


text:
    STATE of Louisiana v. Gilbert CARTER.
    No. 65855.
    Supreme Court of Louisiana.
    April 16, 1980.
    Rehearing Denied May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, David J. Cortes, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Orleans Indigent Defender Program, Robert Barnard, Clyde D. Merritt; Tulane App. Advocacy Program, George M. Strick-ler, Supervising Atty., New Orleans, for defendant-appellant.
   PER CURIAM.

Affirmed.

EDWARD A. de la HOUSSAYE, III, J. ad hoc, takes no part.