author: PIKE HALL, Jr., Justice Ad Hoc.

text:
    STATE of Louisiana v. John R. EDMOND.
    No. 80-KA-2373.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Wiley Dial, Jeffrey Hollings-worth, Asst. Dist. Attys., for plaintiff-ap-pellee.
    A. Edward Hardin, of Middleton & Hardin, Baton Rouge, for defendant-appellant.
   PIKE HALL, Jr., Justice Ad Hoc.

Defendant was charged and convicted of indecent behavior with a juvenile, a violation of LSA-R.S. 14:81. He was given a two year suspended sentence and placed on active probation for two years, with the special conditions that defendant would pay the costs of a jury trial, $250, and pay a $150 fine. On appeal to this court, defendant specified nine assignments of error for reversal of his conviction; six are argued on appeal. Finding none of the assignments to be meritorious, we affirm the conviction.

By his second assignment of error, defendant contends that the trial court erred in refusing to suppress a confession obtained as a product of his warrantless arrest in his own home. In support of this argument, defendant relies principally on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and this court’s decision in State v. Brown, 387 So.2d 567 (La.1980).

Police investigation into this incident was prompted by a complaint from the victim’s parents. East Baton Rouge Sheriff’s Deputy Gerry Frey responded to the call, drove to the victim’s home and there interviewed the victim and the defendant’s daughter. The events giving rise to this prosecution occurred while the victim was spending the night with defendant’s daughter at defendant’s home. Defendant’s daughter was present but asleep at the time of the incident.

Deputy Frey then proceeded with another deputy to the home of the defendant where they were admitted by defendant’s wife or his brother. The deputies were led into the kitchen, where the defendant was sitting.

Deputy Frey informed the defendant that they were police officers and then Frey’s partner read defendant his constitutional rights. Deputy Frey then informed defendant that he had received a complaint and that they had already obtained a statement from the alleged victim. The defendant was then asked if he would like to give his side of the story, which defendant proceeded to do. Defendant generally admitted the occurrence of the events as related by the victim, and said he had been drinking and just got carried away.

After taking defendant’s statement, Deputy Frey arrested defendant. It is this warrantless arrest which defendant takes issue with. Defendant argues that the arrest, which took place on December 30, 1979, was an illegal arrest under Payton v. New York, supra, and State v. Brown, supra, and that his confession should be suppressed as a product of that illegal arrest. Defendant does not deny the voluntariness of the confession.

Defendant’s argument is without merit. Both Payton and Brown were decided subsequent to defendant’s arrest. In State v. Friddle, 396 So.2d 1242 (La.1981), this court declined to apply Payton and Brown retroactively. At the time defendant was arrested, his warrantless arrest was specifically authorized by Article 213 of the Louisiana Code of Criminal Procedure. The arrest was made on probable cause and in good faith reliance on what the officers believed to be a valid statute under previously announced standards. See United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975).

This assignment of error is without merit.

By his third assignment, defendant contends that the trial court erred in advising the assistant district attorney of the necessity of filing a notice pursuant to LSA-C.Cr.P. Art. 768. Defendant’s complaint arises from a question asked by the trial judge during the course of a hearing on defendant’s motion to suppress. Apparently in an effort to determine what evidence the defense was trying to have suppressed, the trial court asked the prosecutor if a 768 notice had been filed. The prosecutor responded that the notice had not yet been filed but that the state was prepared to file the notice prior to opening statements, which the state subsequently did.

Defendant contends that if the trial court had not prompted the prosecutor in this fashion, the state would not have filed the notice required by Article 768. The article provides that if the state fails to give the defendant written notice of its intention to introduce a confession or inculpatory statement prior to beginning the state’s opening statement, the confession or inculpatory statement shall not be admissible in evidence. Defendant contends that if the judge had not made the remark complained of, the state would have failed to file the proper notice and the court would have excluded defendant’s confession.

This assignment lacks merit. The record does not support defendant’s assertion that, absent the remark complained of, the state would not have filed the required notice. The notice was filed prior to the opening statements. It was not error for the trial court to inquire about the state’s compliance with a procedural requirement.

In assignments four and nine, defendant argues that the trial court erred in denying defense counsel the opportunity to cross-examine the victim regarding her pri- or sexual activity and in denying defense counsel the opportunity to impeach the credibility of the victim.

During the course of the trial, defense counsel asked the victim if she had ever had sexual relations with anyone. The state timely objected and the trial court sustained the objection on the basis of LSA-R.S. 15:491 which reads:

“When the general credibility is attacked, the inquiry must be limited to general reputation, and can not go into particular acts, vices or courses of conduct.”

Clearly, the trial court was correct in sustaining the state’s objection to this line of questioning because the victim’s chastity or lack of it is a particular course of conduct which, under LSA-R.S. 15:491, may not be delved into when general credibility is attacked. The trial court properly restricted cross-examination of the victim.

The court did not, as argued by defendant, sustain the objection on the basis of the rape shield statute, LSA-R.S. 15:498; therefore, we do not reach defendant’s argument regarding this statute.

The defense called only one witness who was to testify regarding the general reputation of both the defendant and the victim. After testifying that people in the community generally thought the defendant to be a good man, the witness was asked if he knew the general reputation of the victim in the community. At this point, the state objected and the court sustained the objection. No reason was given as to why the question was objectionable. Defense counsel did not further pursue the line of questioning.

The trial court did not err in sustaining the state’s objection. The question as asked was too broad. The question should have been limited to the witness’s knowledge of the victim’s general reputation for truth or moral character. LSA-R.S. 15:483, 490 and 491. The question as posed could well have elicited a response beyond the permissible scope of a credibility attack.

These assignments lack merit.

Defendant argues in Assignment of Error No. 5 that the trial court erred in permitting the victim’s father to testify regarding his daughter’s age at the time of the offense. Defendant’s objection that such testimony constituted hearsay was overruled by the trial court.

The witness’s testimony as to the date of birth of his daughter and her age at the time of the offense was properly admitted over defendant’s objection. Such testimony was based on the witness’s personal knowledge and does not fall within the definition of hearsay.

This assignment lacks merit.

By Assignment of Error No. 6 defendant contends the trial court erred in permitting a state witness to give inadmissible hearsay testimony. Over defense counsel’s objection, the victim’s father was allowed to testify that on the day following the offense, the defendant had told him, “I’m sorry for what I’ve done, I was drunk.”

The trial court’s ruling was not in error. Inculpatory statements are admissible as a recognized exception to the hearsay rule. State v. Godeaux, 378 So.2d 941 (La.1979).

This assignment lacks merit.

Decree

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

Affirmed.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc; joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lemmon.

      . Assignments of Error Nos. 1, 7 and 8 were neither briefed nor argued. We, therefore, consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . LSA-C.Cr.P. Art. 213 provides as follows:
      “A peace officer may, without a warrant, arrest a person when:
      “(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;
      “(2) The person to be arrested has committed a felony, although not in the presence of the officer;
      “(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
      “(4) The peace officer has received positive and reliable information that another peace officer holds a warrant for the arrest.
      “A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this article may enter another jurisdiction in this state and make the arrest.”


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. James C. LOCKWOOD.
    No. 80-KA-2530.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jack Rowley, Dist. Atty., Glenn E. Diaz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    William L. Crull, III, and F. Irvin Dy-mond, of Dymond, Crull & Castaing, New Orleans, for defendant-appellant.
   MARVIN, Justice Ad Hoc.

This 26-year-old defendant pleaded guilty to two counts of aggravated crime against nature (LRS 14:89.1(5)) and was sentenced to two years at hard labor to run concurrently on each count. Defendant appeals, contending that he should have been allowed to withdraw his guilty plea or at least to have had an evidentiary hearing on the motion to withdraw the plea. He also assigns as errors, the trial court’s failure to grant a continuance of the sentencing in order to conduct the above mentioned hearing and the trial court’s denial of his motions to traverse the pre-sentence investigation and to obtain a supplemental pre-sen-tence investigation. We affirm the conviction, reverse the ruling on the motion to traverse and remand for that purpose.

The alleged crimes and the filing of the bill of information on June 6,1979, occurred before the penalty section of § 89.1 was increased by amendment in 1979. The bill charged Lockwood with engaging in two acts of unnatural carnal copulation by placing his mouth on the penis of two 11-year-olds. After initially pleading not guilty, Lockwood, on February 12, 1980, entered pleas of guilty to both counts. The trial judge than properly and thoroughly, in our opinion, “Boykinized” the defendant. Lockwood was represented by counsel, he understood the nature of the charges against him, he understood that he might be sentenced to 15 years hard labor, he acknowledged his awareness of his constitutional right to a trial, he was again warned of the possibility that he might be sentenced to 15 years with or without hard labor, and that his plea would deny him the right of confrontation and other constitutional rights. He answered that no promises had been made to him relative to his guilty plea, he claimed to be satisfied with the service of his counsel, and when asked if the only reason he wished to enter a plea of guilty was because he was in fact guilty, Lockwood replied, “Yes”. The trial court then accepted the guilty plea and ordered a pre-sentence investigation.

On May 14, 1980, and June 9, 1980, the sentencing of Lockwood was continued because of defense counsel’s prior commitments. On August 25, 1980, defendant filed a motion to withdraw his guilty plea and the next day he filed a motion to traverse the pre-sentence investigation report and asked that a supplemental PSI be ordered. On the date set for sentencing (August 27, 1980) defendant filed a motion for continuance on grounds that these motions were yet pending. The trial court denied the continuance and the pending motions and sentenced defendant to serve two 2-year concurrent sentences in the custody of the Louisiana Department of Corrections.

ASSIGNMENT OF ERRORS NOS. 1, 2, and 5:

By these assignments, Lockwood argues that the trial court erred in denying his motion to withdraw his guilty plea, in denying an evidentiary hearing on the motion, and in denying a continuance of the sentencing in order that the evidentiary hearing could be held on the plea-withdrawal motion. Defendant contends his guilty plea was entered only on the belief that he would receive a suspended sentence and probation. This was based on defense counsel’s belief and advice that he alleges arose from discussions with the D.A. and the trial judge. Defendant has never seriously contended, however that an actual plea bargain or promise was made. Defendant merely contends that his counsel was led to believe that defendant would receive a suspended sentence and therefore, his guilty plea was mistakenly entered. There is no evidence in the record of any promise by the D.A. in return for the guilty plea.

Defense counsel drew inferences from several events that led to the alleged mistaken belief that probation was assured. On the day the guilty plea was entered, a letter by the parents of one of the victims was filed in the record, stating that they would have no objection to defendant being placed on probation if defendant submitted to psychiatric treatment and did not work with young people in the future. Defendant alleges that this letter was filed in response to a request by the trial judge at a conference held before the plea was entered. Defendant also claims that the D.A. knew of defense counsel’s mistaken belief that a suspended sentence would be imposed and that defense counsel was told that the D.A. would not make any sentencing recommendation. The State denies these claims and asserts that the prosecutor’s remarks to defense counsel were to the contrary. The trial judge, upon denying the defense motions, stated for the record his recall of the discussions with defense counsel, which we quote only in part:

“As far as the motion to withdraw the plea of guilty let me say for the record that we have been discussing this matter even before February 12, 1980 when Mr. Lockwood entered a plea of guilty in this particular matter. At that time I was asked by Mr. Cruell what my thoughts were on this matter even before a presen-tence investigation was ordered and I advised him that I was looking at giving Mr. Lockwood 3 years on this particular matter. This was not parish time. I advised him as far as I was concerned it would be sentence to the Department of Corrections for that period of time to serve at hard labor. After discussing that with Mr. Cruell we discussed it further and I said all right that I would consider giving him two years. That was also at hard labor. In May or June when we had our discussions a request was made about the possibility of Mr. Lockwood serving time in Parish Prison here in St. Bernard Parish. At that time I advised counsel that my thoughts were still that Mr. Lockwood would be given time at hard labor but I know that a discussion was had with Sheriff McDou-gall by both Mr. Diaz and Mr. Cruell relative to a possibility of Mr. Lockwood serving time back there because both attorneys advised me of that particular situation at that time. Therefore, I do not feel that the motion to withdraw a plea of guilty is proper. The matter was discussed thoroughly. I can see absolutely no way shape or form that there was any misunderstanding relative to any of these matters.”

Even assuming some misunderstanding, does not avail defendant. A misunderstanding does not have the same implications that a breached plea bargain has. Certainly defendant has a right to withdraw his guilty plea when such a promise or plea bargain has been made and then broken. See State v. Neitte, 363 So.2d 425 (La. 1978); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). See also State v. Chalaire, 375 So.2d 107 (La. 1979); State v. Lewis, 366 So.2d 1355 (La. 1978).

These circumstances are more analogous to those in State v. Deakle, 372 So.2d 1221 (La. 1979). There the defendant attempted to withdraw his guilty plea upon learning that the trial judge intended to give him the maximum 35-year sentence. Defendant was fully apprised of this possibility when he entered the plea, but was told by his counsel that he would probably be facing a 10-25 year sentence based on that counsel’s experience with such matters. On the basis of that (mis)understanding, the defendant sought to withdraw his guilty plea. This court upheld the trial judge’s denial of the motion, stating:

“Article 559 of the Code of Criminal Procedure provides that ‘[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.’ We have interpreted that article as granting broad discretion to the trial judge. State v. Robinson, 311 So.2d 893 (La. 1975); State v. Johnson, 260 La. 902, 247 So.2d 654 (1972)....
“No reason for the trial judge’s permitting withdrawal other than the foregoing is suggested in the record. Under the circumstances the trial judge did not abuse the broad discretion afforded him by Article 559. Defendant may not withdraw a guilty plea simply because the sentence to be imposed is heavier than anticipated. State v. Robinson, supra. It is not unreasonable for the trial judge to refuse to allow defendant the luxury of gambling on what sentence he will be given, then withdrawing his plea if and when he can discover, without imposition, that the sentence is not to his liking. See State v. Johnson, supra.” 372 So.2d at p. 1222.

This reasoning applies here. We find no abuse of discretion by the trial court in denying the motion to withdraw. This holding renders the related assignments of error unmeritorious. There was no need to continue the sentencing for an evidentiary hearing on the plea-withdrawal because there was no need for such a hearing. The trial court was eminently correct in its denial of the motion to withdraw the guilty plea, particularly when defendant does not assert in his brief that there would possibly be revealed at such a hearing evidence which would alter the correctness of the trial judge’s decision. The contention that both defendant and counsel were mistaken does not constitute reversible error or render the guilty plea not “free and voluntary”.

ASSIGNMENT OF ERRORS NOS. 3 and 4

By these assignments defendant contends the trial court erred in denying the defense motions to traverse the PSI and to obtain a supplemental PSI. The defendant alleges that false and prejudicial statements and inaccuracies are contained in the PSI, It is well established that a defendant must be.given an opportunity to refute or explain such misinformation when the trial court relies upon PSI information which is materially false or invalid. State v. Bosworth, 360 So.2d 173 (La. 1978); State v. Trahan, 367 So.2d 752 (La. 1978); State v. Richardson, 377 So.2d 1029 (La. 1979). Defendant is entitled to this opportunity even where the trial court contends that its decision was unaffected by the PSI report. See Trahan, supra.

In brief, defendant cites numerous allegedly false or prejudical aspects of the PSI report. These allegations legally entitle defendant to a hearing and we find that the trial court erred in this respect, even though the trial judge stated that he had already decided on the sentence before reading the PSI. Trahan, supra.

The conviction is affirmed. The ruling on the motion to traverse is reversed. The sentence is vacated and the case is remanded to allow for the traverse of the PSI and for resentencing in the light of the traverse hearing. State v. Segers, 357 So.2d 1 (La. 1978).

AFFIRMED in part, REVERSED in part, and remanded.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring in part.

The motion to withdraw the guilty plea does not allege any facts that would entitle defendant to an evidentiary hearing.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones, of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lemmon.

      . (1) References to other crimes committed by defendant without any factual bases for such allegations;
      (2) Admission to the probation officer by the defendant that he had performed the acts in the bill of information when all defendant said was that he had pleaded guilty to the two counts;'
      (3) Justification by the defendant that such actions were taken out of love, kindness and affection for the victims was taken out of context and misquoted;
      (4) The opinions of neighbors were ambiguously presented;
      (5) Acceptance as proven, allegations by a former employer that other crimes had been committed;
      (6) Failure to state what individuals in “the St. Bernard Parish Sheriffs Office are opposed to probation.”
      (7) Statement that the St. Bernard Parish D.A.’s office is opposed to probation when the prosecutor told counsel that he would take no position on sentencing;
      (8) Although it does not appear the reporter interviewed either of the victims or their families, the report states that the probation officer felt that irreparable harm was done to the two victims.


author: JONES, Justice Ad Hoc.

text:
    STATE of Louisiana v. Florain GUIDEN, Jr.
    No. 80-KA-2589.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., James C. McMichael, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Marlin Risinger, Jr., Shreveport, for defendant-appellant.
   JONES, Justice Ad Hoc.

Following trial by jury, Florain Guiden, Jr., was found guilty as charged on two counts — attempted armed robbery (R.S. 14:27, 64) and attempted first degree murder (R.S. 14:27, 30). Subsequently, defendant was sentenced, as a second offender, to be imprisoned at hard labor for 40 years on each count, without benefit of parole, probation or suspension of sentence, with the sentences to run concurrently.

Defendant appeals his conviction and sentence on each count, relying upon five assignments of error.

Facts

On March 15, 1979 at about 1:00 o’clock P.M., two men got into Gary Neeley’s taxicab at the Shreveport bus station and designated a general area to which they wished to be transported. Upon reaching their destination one of the passengers demanded Neeley’s money, threatening him with a gun. When Neeley refused the demand, the other passenger grabbed the gun from his companion and shot Neeley twice, once in the abdomen and once in the upper arm. Both the assailant and his accomplice fled the scene of the crime.

Neeley gave a description of the two men to police officers on the day of the offense. The following day, while in the hospital, Neeley was shown a photographic lineup and identified the picture of Guiden as the man who shot him. From another photographic lineup, Fair Wayne Bryant was identified as Guiden’s accomplice. Arrest warrants were issued for the two men.

Guiden was arrested in Lake Charles, outside his motel room, on March 27, 1979. Bryant was arrested later and charged jointly with Guiden with attempted armed robbery and attempted first degree murder. Upon motion of Guiden severance was ordered and the state proceeded to trial against Guiden alone.

Assignment of Error No. 1

In this assignment the defendant contends that the trial court erred in denying his motion to suppress the victim’s in-court identification because it was tainted by an impermissibly suggestive pre-trial identification procedure.

In December 1979 the victim, Neeley, was subpoenaed by the state to appear at Bryant’s trial on the amended bill of information. Defendant, a black male, was present in the prisoners’ dock of the courtroom, seated by one other individual, a white male. Defendant was allegedly present to discuss a possible plea bargain. Although the Bryant trial was continued, during preliminary court proceedings Nee-ley had an opportunity to observe the defendant. The victim subsequently informed the assistant district attorney assigned to handle the prosecution of this case that he recognized defendant as the person who shot him.

Even if suggestive identification procedures are proven by the defense, it is the likelihood of misidentification, and not the mere existence of suggestiveness, which violates due process. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Williams, 375 So.2d 364 (La.1979). In State v. Guillot, 353 So.2d 1005 (La.1977), this court announced that it would employ the following five factors set forth in Manson to balance the corrupting effect of a suggestive identification: the witness’ opportunity to view the crime; the degree of attention paid by the witness; the accuracy of any prior description; the level of certainty displayed at the confrontation; and the amount of time between the crime and the confrontation.

In this case the record shows that the defendant sat on the front seat of the taxicab next to the victim, who had the opportunity to observe Guiden’s face for some 15 or 20 minutes prior to the shooting. The crime occurred during daylight hours and defendant wore no device to obscure his facial features.

Although Neeley told the police that his assailant had “sort of a harelip”, on the day following the offense he was able to positively identify defendant during the course of a photographic lineup. Guiden did not, in fact, have a medical harelip. Neeley explained that he appeared to have a scar on his lip, but this did not interfere with his speech.

Based upon these factors, we conclude that the victim’s in-court identification of the defendant had a basis independent of any alleged taint that might have resulted from the courtroom encounter in December 1979.

This assignment is without merit.

Assignment of Error No. 2

Defendant argues in this assignment that the trial court erred in refusing to suppress his confession because it was coerced and because the state did not give a proper 768 notice of its intent to offer the confession in evidence.

A review of the testimony adduced at the hearing on the motion to suppress reveals that defendant was informed of his Miranda rights prior to giving the inculpa-tory statement. Defendant testified that he understood those rights and knew that he did not have to give a statement. His allegations of threats were specifically rebutted by the State. We agree with the trial judge that the State discharged its burden of proving beyond a reasonable doubt that defendant’s confession was given freely and voluntarily after defendant was accorded his Miranda rights.

Defendant further argues that his confession was inadmissible because the notice of the state’s intent to introduce the confession, pursuant to La.C.Cr.P. Art. 768, was defective since it was given to defense counsel rather than to defendant personally-

According to the record, in response to a motion for discovery, the state filed a response to which was attached a copy of the signed statement given by defendant to the Shreveport police. A copy was forwarded to defense counsel. Hearing on the motion to suppress was held on November 7, 1979, at which the confession was thoroughly discussed. Trial on the merits began on March 31, 1980.

Defendant does not claim that he was either surprised or prejudiced by the state’s failure to personally serve him with the 768 notice rather than his counsel. Under the circumstances we find that there was an adequate compliance by the state with Article 768. See State v. Sneed, 316 So.2d 372 (La.1975).

Also in connection with this assignment, the defendant argues for the first time, on appeal, that his confession was inadmissible because he was not timely afforded counsel as required by La.C.Cr.P. Art. 230.1.

Since this issue was not raised in the trial court, the record is barren of any evidence pertaining to the events which transpired between the date of defendant’s arrest in Lake Charles, his subsequent transfer to Shreveport and the appointment of counsel in Shreveport.

It was pointed out in State v. Baylis, 388 So.2d 713 (La.1980):

“It is well settled that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence, and the party objecting made known to the court the action which he desired the court to take, or his objection to the action of the court, and the grounds therefor. C.Cr.P. 841. A new basis for an objection may not be raised for the first time on appeal.”

Following this rationale, we find that defendant has waived this particular objection by failing to raise it in the trial court.

For these reasons, we conclude that this assignment lacks merit.

Assignment of Error No. 3

The basis for this assignment is defendant’s complaint that the trial court erred in denying a motion to suppress the revolver seized by the Lake Charles police from the motel room occupied by defendant just pri- or to his arrest on March 27, 1979.

After arrest warrants were issued for Guiden and Bryant this information was transmitted to the Lake Charles Police Department. Sgt. Declouette of this department received information that the two men were at the Santos Motel in Lake Charles. Declouette and other police officers went to the motel, surrounded the room where the two suspects were believed to be, announced their presence, and ordered the occupants to come outside.

Defendant and another individual (not Bryant) came out of the room and were immediately placed under arrest. Since Bryant had not appeared, the officers entered the motel room to see if he was hiding there. During the course of this check De-clouette went into the bathroom and while in the process of looking into the enclosed bathtub noticed a revolver in the open commode. Rather than seizing the gun immediately, the officer had the room secured and left to obtain a search warrant. A search was later conducted pursuant to the search warrant and the revolver retrieved from the commode. In his confession the defendant identified this revolver as the weapon used in shooting Neeley.

At the conclusion of Declouette’s testimony, defense counsel orally moved to suppress the revolver, arguing that it was seized as the result of an illegal search. The trial judge considered and then overruled the motion.

Warrantless searches are per se unreasonable unless justified by one of the exceptions to the warrant requirement. Art. 1, § 5, La. Const, of 1974; 4th Amendment, U.S. Const.; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Fearn, 345 So.2d 468 (La.1977). Here, the state argues that the revolver could have been legally seized without a search warrant under the plain view exception to the warrant requirement, and that securing the search warrant was unnecessary.

Conditions that must be met for application of the plain view doctrine are: (1) there must be a prior justification for an intrusion into a protected area, (2) in the course of which evidence is discovered inadvertently, and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. Brown, 370 So.2d 525 (La.1979); State v. Rudolph, 369 So.2d 1320 (La.1979); State v. Fearn, supra.

Was there prior justification for an intrusion by the Lake Charles police officer into defendant’s motel room, a protected area? We find that there was. Under certain circumstances immediately following an arrest law enforcement officers without a search warrant may be permitted to conduct a security check for third persons who might destroy evidence or pose a threat to the officers. State v. Holley, 362 So.2d 1089 (La.1978); United States v. Christophe, 470 F.2d 865 (2d Cir. 1972).

It was explained in United States v. Agapito, 620 F.2d 324, 336 (2d Cir. 1980) that:

“The reasonableness of a security check is simple and straightforward. From the standpoint of the individual, the intrusion on his privacy is slight; the search is cursory in nature and is intended to uncover only ‘persons, not things.’ United States v. Bowdach, 561 F.2d 1160, 1168 (5 Cir. 1977). Once the security check has been completed and the premises secured, no further search—be it extended or limited—is permitted until a warrant is obtained. From the standpoint of the public, its interest in a security check is weighty. The delay attendant upon obtaining a warrant could enable accomplices lurking in another room to destroy evidence. More important, the safety of the arresting officers or members of the public may be jeopardized. Weighing the public interest against the modest intrusion on the privacy of the individual, Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977); Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), a security check conducted under the circumstances stated above satisfies the reasonableness requirement of the Fourth Amendment.”

Here the police officers had arrest warrants for individuals wanted in connection with a shooting and an attempted armed robbery—suspects who could be expected to be armed and dangerous. Since only one of those suspects came out of the motel room, there was reason to believe that the other wanted party had remained in the room. Under the circumstances an immediate security check of the motel room was not only justifiable but a prudent measure. Therefore, we conclude that there was prior justification for intrusion into the motel room. Next, the revolver was clearly inadvertently discovered. Finally, it was readily apparent to the officer that the weapon could be evidence connected with the crimes with which the suspects were charged in the arrest warrants.

Having met the requirements of the plain view doctrine, the officer could have seized the revolver immediately. The fact that he took the precaution of securing a search warrant and returning for the weapon does not affect the validity of the search and seizure.

This assignment is without merit.

Assignment of Error No. 4

The defendant argues in this assignment that the trial court erred in allowing the state in closing argument to replay a portion of the defendant’s confession.

Where an inculpatory statement was previously admitted into evidence there is no error in permitting a replay of the statement during closing argument. State v. Bonanno, 373 So.2d 1284 (La.1979); State v. Fowlkes, 352 So.2d 208 (La.1977).

This assignment lacks merit.

Assignment of Error No. 5

The defendant contends that the trial court erred in imposing excessive sentences.

Defendant was sentenced, as a second felony offender, to concurrent sentences of forty years for the crimes of attempted armed robbery and attempted first degree murder. As a second felony offender, defendant was subject to a possible sentence of 99 years for the attempted armed robbery and a possible sentence of 100 years for the attempted first degree murder conviction. La.R.S. 14:27, 64; 14:27, 30; 15:529.1.

Article 1, Sec. 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. The exces-siveness of a sentence is a question of law reviewable by this court under its appellate jurisdiction. State v. LaFleur, 391 So.2d 445 (La.1980); State v. Sepulvado, 367 So.2d 762 (La.1979). Sepulvado further states that adequate review mandates that the trial judge state specific reasons for an apparently severe sentence in relation to the particular offender and the actual offense. While the trial judge need not articulate every aggravating and mitigating circumstance presented in La.C.Cr.P. Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979). As a general rule a sentence is excessive “if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Bonanno, 384 So.2d 355, 357 (La.1980).

A review of the record in this case reveals that the trial judge was extremely thorough in particularizing the sentences, considering each and every aggravating and mitigating factor listed in Article 894.1 with respect to its application to the defendant. The judge noted that defendant was 23 years of age; had a lengthy juvenile record and an extensive adult record which included the crimes of theft and aggravated battery; while serving time in Caddo Correctional Institute had escaped and was only apprehended in connection with these offenses; and showed no remorse for the harm done his victim. It was in this context that the trial judge concluded that there was an undue risk that during a suspended or probated sentence the defendant would commit another crime; that the defendant was in need of correctional treatment; and that a lesser sentence would deprecate the seriousness of the offenses. Further, the trial judge discussed each possible mitigating factor in great detail and found none applicable to the defendant other than his youth. In summary, the record shows that the trial judge’s articulation of reasons for the sentences was more than adequate.

Defendant argues that the officer who made the pre-sentence investigation and report mistakenly concluded that the shooting took place after a robbery was completed and was apparently designed to prevent identification of the robbers. This error was, in fact, called to the attention of the trial judge prior to sentencing and the state agreed that the report was erroneous at this point. Therefore, the mistake caused no prejudice to defendant.

The sentences imposed were well within the statutorily defined range and do not appear grossly disproportionate to the severity of the offenses nor imposed merely for the purposeless and needless imposition of pain and suffering. Consequently, this assignment is without merit.

DECREE

Finding no reversible error in defendant’s assignments of error, we affirm his convictions and sentences.

       Judges O. E. Price of the Court of Appeal, Second Circuit, G. William Swift, Jr., of the Court of Appeal, Third Circuit, and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., James L. Dennis, and Jack C. Watson.

      . Defendant also complains that the trial judge sentenced him to forty years “in connection with the crime of armed robbery” and he was tried and convicted of attempted armed robbery. A reading of the sentencing transcript reveals that the judge was clearly aware of the crime involved and sentenced defendant accordingly.


author:
      SWIFT, Justice Ad Hoc.
     MARCUS, Justice

text:
    STATE of Louisiana v. Lloyd DAVENPORT.
    No. 80-KA-2359.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Billy J. Guin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Stephen A. Glassell, Shreveport, for defendant-appellant.
   SWIFT, Justice Ad Hoc.

Lloyd Davenport was charged with two counts of attempted first degree murder in violation of La.R.S. 14:27 and 30. After trial the jury returned a verdict of guilty of attempted manslaughter on both. The defendant was sentenced to serve seven and one-half years at hard labor for each offense, the sentences to run concurrently. He now appeals the convictions and sentences to this court, urging four of seven assignments of error.

Defendant Davenport encountered the two victims (a mother and her daughter) at a softball game on Sunday, May 20, 1979. He had been drinking and seems to have made an attempt to pick up the younger woman. Davenport then became involved in a heated dispute with both her and the mother. At some point the defendant went to his truck and got a .32 caliber pistol and returned to the scene of the argument. Ms. Pennywell, the mother, apparently grabbed a baseball bat. There was conflicting testimony on the subject between state and defense witnesses, but defendant stated she swung at him with the bat. He then shot her at point blank range in the side of her head and shot the daughter in the breast. Both victims survived, but the mother received permanent injuries. The defendant’s contention that he acted in self defense because Ms. Pennywell was beating him with a baseball bat was rejected by the jury after hearing seven eyewitnesses, both victims and the defendant testify.

ASSIGNMENTS OF ERROR NOS. 2 AND S

In these assignments the defendant urges the trial court erred in denying his counsel the right to read and examine the pretrial recorded statements of four state witnesses and to use them in cross examination of each witness; and alternatively in failing to conduct an in camera inspection of these statements.

The testimony of the four witnesses to the incident varied somewhat. However, all four of these persons stated that Ms. Pennywell did not hit the defendant with the bat or at least they did not see her hit him.

The defendant’s position is that the issue of whether or not he was struck with the bat by Ms. Pennywell is of vital importance in regard to his plea of self defense. Therefore, the pretrial statements of these witnesses should be produced for him to see if there are any inconsistencies therein with their testimony on this issue or at least the trial judge should examine the statements in camera and determine if they contain any material inconsistencies or information of an exculpatory nature.

The state’s position is that the trial judge properly refused defendant’s request for production because it was not shown that any inconsistency existed between the statements and the witnesses’ testimony. It relies on the following expression of this court in State v. Whitfield, 253 La. 679, 219 So.2d 493, 496 (La.1969):

“The jurisprudence is now well settled that the State is not required to permit inspection of a police report or a prior statement for use in cross-examination of a State witness for impeachment purposes unless the accused first shows that the report indicates that one or more of the material statements therein are contrary to the sworn testimony of the witness.”

The same rule was applied in State v. Nails, 255 La. 1070, 234 So.2d 184 (La.1970), State v. Lovett, 359 So.2d 163 (La.1978), and in State v. Breaux, 366 So.2d 1375 (La.1978).

This court has also held that simply on a general request a trial judge is not required to conduct an in camera inspection of the district attorney’s entire file to determine whether or not it contained any evidence favorable to the defendant. State v. Ranker, 263 La. 914, 269 So.2d 812 (1972). Also, in State v. Robinson, 342 So.2d 183 (La. 1977), it was held that a defendant was not entitled to an in camera inspection by the trial judge where the state has denied possession of the specific information requested and the defendant makes no showing to the contrary.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), of course, the United States Supreme Court has held that upon request the state must produce evidence that is favorable to the accused where it is material to guilt or punishment. The Brady rule has been expanded to include evidence which impeaches the testimony of a witness where the reliability or credibility of that witness may be determinative of guilt or innocence. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Roussel, 381 So.2d 796 (La.1980); State v. Curtis, 384 So.2d 396 (La.1980); State v. Landry, 388 So.2d 699 (La.1980).

In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) the United States Supreme Court stated:

“In Brady the request was specific. It gave the prosecutor notice of exactly what the defense desired. Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” [Emphasis added.]

Following Agurs, this court in State v. May, 339 So.2d 764 (La.1976), remanded the case to the district court for an in camera inspection of a letter allegedly written by a co-indictee which the accused specifically requested, claiming that it contained a statement that he had not participated in the crime. The trial judge was instructed to determine whether the letter existed; if so whether there was a substantial basis for defendant’s claim that it was material to his guilt; and also whether in the context of the entire record it would create a reasonable doubt as to defendant’s guilt.

In State v. Toledano, 391 So.2d 817 (La.1980), the case was remanded to the trial court for inspection by the judge of the record of a state witness’ juvenile adjudications and to decide whether the impeachment value thereof outweighed the witness’ statutory interest in the confidentiality of such record.

The use of an in camera inspection by the trial judge (after which he had denied production for cross-examination of a requested written statement of a state witness on the basis that it would not have created a reasonable doubt as to guilt of the defendant that did not otherwise exist), was approved by this court in State v. Sylvester, 388 So.2d 1155 (La.1980). Said the court:

“Use of an in camera examination by the trial court to determine whether a witness’ prior statement is inconsistent with his trial testimony so as to entitle the defense to access to the statement was also suggested in the concurring opinion in State v. Babin, 319 So.2d 367 (1975). This procedure provides a method for determining materiality based on an independent judicial decision, rather than on an assertion by a state official charged with the duty of prosecuting. At the same time this procedure deters any prosecutor who would deliberately withhold arguably material evidence in the hope that a reviewing court would hold the evidence immaterial or the suppression harmless. Finally, this procedure, by which the trial court exercises discretion in determining materiality, provides a method of efficient review of that decision by direct appeal and avoids the less efficient post-conviction applications and hearings related to alleged constitutional errors not contained in the record.”

In the present case specific requests for production of the statements have been made by the defendant. One was presented to the judge on his order, but it was later returned by him to the state. It is not clear from the record whether or not he read it. His final ruling was that he would continue to deny the requests for an in camera inspection “... unless there is some indication of gross injustice being brought about, and if that is the situation, I think that you, as a defense attorney, ought to bring it out ...” The state contends there are no material inconsistencies or exculpatory information in the statements in its file. Defendant has made no showing of any such inconsistencies or Brady information in the statements, but, of course, he has no knowledge of the contents thereof.

If in such a situation the district attorney is wrong (and we say this without casting any aspersions whatsoever on the prosecutors of this state, because it is usually most difficult to determine whether or not inconsistencies or omitted information in witnesses’ statements are material to the defendant’s guilt), certainly the interests of justice would best be served by obtaining a judicial decision in this regard during the trial rather than later through post-conviction remedies. While such procedure will interrupt the trial and will be time consuming, we believe the added burden to our busy trial judges will be outweighed by the efficiency in the administration of justice.

We therefore conclude that in this case the trial judge should have made an in camera inspection for material inconsistencies and Brady information in the requested written or recorded statements of the state witnesses prior to their cross-examination.

The existence of inconsistencies or information favorable to the accused in such statements alone, however, does not constitute a denial of the defendant’s constitutional Brady rights. It will also have to be determined whether in this instance such evidence, if it exists, is material to the guilt or punishment of the defendant so that the deprivation thereof denied him a fair trial.

Accordingly, we will remand the case to the trial court for it to determine: (1) whether or not the written or recorded statements obtained by the state from its four witnesses prior to the trial contained inconsistencies with their trial testimony or other evidence favorable to the accused; and, if so, (2) whether such evidence is material to defendant's guilt or punishment, employing the standard applicable on the basis of the totality of the facts and circumstances of this case as stated in Sylvester, supra. In the event of an affirmative determination of both by the trial court, a new trial will be required. However, upon a contrary finding the conviction will be affirmed. The proceedings and determination of the trial court, of course, will be subject to review on appeal.

ASSIGNMENTS OF ERROR NOS. 6 AND 7

In Assignment No. 6 the defendant asserts that the sentence imposed was excessive. In No. 7 he contends the trial court erred in concluding he did not have legal authority to impose a probated sentence with a special condition for monthly payments to the victims as restitution for their damages.

In sentencing the defendant the judge stated that he had considered probation with such a condition and felt it “would be a more appropriate sentence, but after discussing this possibility with your attorney and with the District Attorney, there are some very practical reasons why this kind of sentence cannot be given.” He went on to say that the defendant must be punished “first to act as a general deterrence for others who might be inclined to commit this type of criminal offense, and second, so that both of these victims and their families will know that the law must be enforced.” For these reasons, he sentenced the defendant to lxh years at hard labor on each count, to run concurrently.

Thus, it is clear that the court considered but declined to suspend the sentence and place the defendant on probation, not because of any doubt as to his legal authority to do so, but for “practical reasons” which he did not relate.

This court, of course, has constitutional authority to review excessiveness of sentences under Article I, Section 20, of the Louisiana Constitution of 1974 and may remand for resentencing where there has been inadequate compliance with La.C.Cr.P. Art. 894.1. State v. Sepulvado, 367 So.2d 762 (La.1979). However, there is little justification to remand for resentencing when the record plainly supports the sentence imposed. State v. Jones, 381 So.2d 416 (La.1980).

In the present case the trial judge’s reasons seem to fall short of the articulation of the considerations and factual basis for the sentence required by La.C.Cr.P. Art. 894.1. Nevertheless, we are convinced that under the circumstances of this case the trial judge did not abuse the wide discretion accorded him in sentencing. The maximum sentence which could have been imposed was 21 years (10'/2 years on each count to be served consecutively). One of the victims was harmed for life and the other was seriously wounded. A total of 7V2 years of hard labor for these two unprovoked shootings is certainly reasonable and appropriate.

This assignment of error lacks merit.

For the reasons assigned, defendant’s convictions and sentence are affirmed, but the case is remanded for further proceedings in accordance with the views expressed herein, reserving unto the trial court the authority to grant a new trial on the basis of his findings and also reserving the defendant’s right to appeal from any adverse ruling by the trial court.

AFFIRMED CONDITIONALLY AND REMANDED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

While La.Code Crim.P. art. 718 provides that on motion of defendant the court shall order the district attorney to permit or authorize the defendant to inspect all documents which are favorable to defendant and which are material and relevant to the issue of guilt or punishment, art. 723 does not authorize discovery of statements made by witnesses or prospective witnesses, other than defendant, to the district attorney or to agents of the state. In Agars, the Supreme Court stated that a Brady request must be specific and material to require the prosecutor either to furnish the information or submit the problem to the trial judge for an in camera examination. I do not consider that a general pretrial request for statements of witnesses for possible impeachment purposes at trial if their testimony is inconsistent with their prior statements is specific and material enough to require the prosecutor either to turn the statements over to defendant or to require the trial judge to conduct an in camera examination after the testimony of each witness at trial. As noted in Agurs, there is “no duty to provide defense counsel with unlimited discovery of everything known to the prosecutor.” Accordingly, while I concur in the affirmance of defendant’s convictions and sentences, I dissent from the remand.

       Judges O. E. Price and Fred W. Jones, Jr. of the Court of Appeal, Second Circuit, and Judge G. William Swift, Jr. of the Court of Appeal, Third Circuit, participated in the decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Walter F. Marcus, Jr., James L. Dennis and Jack C. Watson.

      . Defense counsel had filed a general pretrial discovery motion for exculpatory information possessed by the state. The latter answered and stated that it had none, with the possible exception of a witness Metcalf who told officers that he saw someone near the scene being hit with a bat. Mr. Metcalf was later called to the stand and testified for the defense.

      . La.C.Cr.P. Art. 895A(7) authorizes a condition for reasonable restitution on such a probated sentence.


author: JONES, Justice Ad Hoc .

text:
    STATE of Louisiana v. William Claude WIGGINS.
    No. 80-KA-2495.
    Supreme Court of Louisiana.
    May 18, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Walter Lee Perkins, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    James D. Sparks, Jr., Monroe, for defendant-appellant.
   JONES, Justice Ad Hoc .

Defendant, represented by counsel, pleaded not guilty to the felony charge of operating a motor vehicle, third offense, in violation of La. R.S. 14:98(D). After denial of a motion to quash, defendant withdrew his former plea of not guilty and entered a conditional guilty plea, reserving his right to appeal to this Court the ruling of the trial court on the motion to quash. The defendant was sentenced to be imprisoned without hard labor for three years. Execution of the jail sentence was suspended and the defendant placed on supervised probation for five years, subject to the special conditions that he pay a fine of $500 and serve one year in the Ouachita Parish jail.

On appeal the defendant argues that the trial judge erred in denying the motion to quash his prosecution as a third offender because a prior uncounseled DWI conviction was invalid.

In charging the defendant as a third offender the State relied upon prior convictions dated September 8, 1976 and March 15, 1977. It is the invalidity of the second conviction that the defendant asserts.

The defendant made three separate court appearances in connection with the 1977 DWI charge. On March 10 he was informed of the charge and asked if he could afford an attorney. His response was that he desired to enter a guilty plea. On March 14 the defendant informed the court that he did not have an attorney and simply wanted to plead guilty. Finally, on March 15, after the trial court recommended that defendant secure counsel, he again stated that he desired to plead guilty. I

In this state the accused in a criminal prosecution is entitled to representation by counsel of his choice. State v. Harper, 381 So.2d 468 (La.1980). If the offense charged is punishable by imprisonment, an indigent accused has a right to court appointed counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); La.C.Cr.P. Art. 513.

In City of Monroe v. Fincher, 305 So.2d 108 (La.1974) this Court applied the Arger-singer rationale to hold that an uncounseled guilty plea to a prior DWI offense, absent a knowing and intelligent waiver of counsel, could not be used to enhance punishment upon conviction of a subsequent DWI offense, even though the accused was not imprisoned as a consequence of the prior uncounseled conviction. Accord, Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980).

In Barker v. Wingo, 407 U.S. 514, 525-626, 92 S.Ct. 2182, 2189-2190, 33 L.Ed.2d 101 (1972), the Supreme Court stated:

“[waiver is] ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 1023, 82 L.Ed.2d 1461] (1938). Courts should ‘indulge every reasonable presumption against waiver,’ Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 [57 S.Ct. 809, 811, 81 L.Ed. 1177] (1937), and they should ‘not presume acquiescence in the loss of fundamental rights,’ Ohio Bell Tel. Co. v. Public Utilities Comm’n, 301 U.S. 292, 307 [57 S.Ct. 724, 731, 81 L.Ed. 1093] (1937). In Carmley v. Cochran, 369 U.S. 506 [82 S.Ct. 884, 8 L.Ed.2d 70] (1962), we held:
‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not waiver.’ Id., at 516 [92 S.Ct. at 2185].
“The Court has ruled similarly with respect to waiver of other rights designed to protect the accused. See, e. g., Miranda v. Arizona, 384 U.S. 436, 475-476 [86 S.Ct. 1602, 1628, 16 L.Ed.2d 694] (1966); Boykin v. Alabama, 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274] (1969).”

Since the defendant in this case was not represented by counsel in connection with his guilty plea to the 1977 DWI charge, the question to be resolved on this appeal is whether the record shows that he was informed by the trial judge of his right to counsel and, if counsel was waived, whether that waiver was made knowingly and intelligently. State v. Vezina, 391 So.2d 450 (La.1980); State ex rel Bishop v. Blackburn, 384 So.2d 406 (La.1980).

Defendant indicated,' at his first court appearance on the 1977 DWI charge, that he could afford an attorney. However, he did not in fact secure counsel and was not advised at his two subsequent court appearances that, in the event of indigency, he was entitled to court appointed counsel. Furthermore, the record does not show that the defendant made a knowing and intelligent waiver of his right to counsel. This cannot be presumed simply from the expressed desire to plead guilty.

It is recognized that, in dealing with issues of this nature, there is a temptation to place undue emphasis upon the legal efficacy of certain “magic” words in an effort to discern whether there has been a waiver of a constitutional right. On the other hand, language is obviously the most commonplace medium employed to express meaning, particularly in the courts. If the words used, as reflected by the record, were not precise enough to inform the accused of the availability of a valued right and to assure that he clearly relinquished that right, there has been a failure of communication issuing in a defective waiver. Because this occurred in the case at bar, we conclude that the defendant did not make a knowing and intelligent waiver of his right to counsel on the 1977 DWI charge.

For these reasons, the motion to quash the bill of information insofar as it charges the defendant as a third offender is sustained, and the conviction and sentence are reversed and set aside. The case is remanded to the trial court for further proceedings consistent with this opinion.

       Judges O. E. Price of the Court of Appeal, Second Circuit, G. William Swift, Jr., of the Court of Appeal, Third Circuit, and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., James L. Dennis, and Jack C. Watson.

      . This procedure of entering a conditional guilty plea was sanctioned in State v. Crosby, 338 So.2d 584 (La.1976).

      . The record reflects the following colloquy on March 10:
      “Mr. Harrison: William C. Wiggins, he was booked on—
      The Court: Do you have an attorney, Mr. Wiggins?
      Mr. Wiggins: No, Sir.
      Mr. Harrison: Booked on the 5th for DWI third offense and the bond is set at $2,500.00 and this is his first appearance.
      The Court: Can you afford an attorney?
      Mr. Wiggins: Yes, Sir but I would just like to plead guilty.
      The Court: Well, DWI third offense is a penitentiary offense, Mr. Wiggins.”

      . The record reflects the following colloquy on March 14:
      “Mr. Harrison: William Wiggins. William Wiggins is booked on a charge of DWI third offense. This is his first appearance in Court on this.
      The Court: Mr. Wiggins, do you have an attorney?
      Mr. Wiggins: No Sir. I just wanted to plead guilty.
      The Court: Well, now third offense DWI is a penitentiary offense—
      The Court: Well, a third conviction for DWI, the defendant shall be imprisoned at hard labor. That means the penitentiary for not less than 1 year and no more than 5 years

      . The record reflects the following colloquy on March 15:
      “Mr. Harrison: William C. Wiggins, Your Honor, we find that Mr. Wiggins — this is about Mr. Wiggins third trip in court and we’ve finally got the information and he’s charged with DWI 2nd offense.
      The Court: It started off as a third didn’t it? Mr. Harrison: .
      The Court: They’re charging you with a 2nd offense instead of a 3rd offense, you’re still in need of an attorney if you want one.
      Mr. Wiggins: I still would like to plead guilty.
      The Court: You realize this is a mandatory jail sentence.
      Mr. Wiggins: Yes Sir.”

      . Art. 513
      In the case of an offense punishable by imprisonment, when the defendant appears for arraignment without counsel, the court shall inform him before he pleads to the indictment of his right to have counsel appointed to defend him if he is indigent. When a defendant states under oath that he desires counsel but is indigent, and the court finds the statement of indi-gency to be true, the court shall provide for counsel in accordance with the provisions of R.S. 15:145 to the defendant before he pleads to the indictment.


text:
    Ronald LEGER v. STATE POLICE RETIREMENT BOARD.
    No. 80-C-2874.
    Supreme Court of Louisiana.
    Jan. 16, 1981.
   In re Ronald Leger, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 247.

Granted. Court of Appeal order is set aside. Case is remanded to the Court of Appeal for review of the appeal on its merits. Buras v. Board of Trustees of Police Pension Fund, 367 So.2d 849 (La.1979) is distinguishable and not controlling.

DENNIS, J., would grant the writ and place case on this Court’s docket for argument.


text:
    PLANTERS SECURITIES CO., INC. v. Daniel RICHARD et al. STELLY CONSTRUCTION, INC. v. Daniel RICHARD.
    No. 81-C-0440.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Daniel Richard, applying for writ of certiorari or review, to the Court of Appeals, Third Circuit. Parish of St. Landry. 401 So.2d 1211.

Granted. The judgment of the court of appeal is reversed, and the appeal is reinstated. Walker v. Jones, 253 La. 908, 221 So.2d 44 (1969); Messer v. Department of Corrections, 349 So.2d 1273 (La.1977); Mills v. Adams, 353 So.2d 1339 (La.1978); Wilson v. Schwegmann Bros., 373 So.2d 1309 (La.1979).

WATSON, J., would deny the writ.


text:
    Mary J. BECKWITH, Individually and on Behalf of her minor Daughter, Carolyn Lee Beckwith v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 81-C-0541.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Mary J. Beckwith, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. 393 So.2d 155.

Denied.

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


text:
    Dudley B. PILLOW, Jr., et al. v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT.
    No. 81-C-1070.
    Supreme Court of Louisiana.
    April 24, 1981.
   In re Board of Commissioners for the Fifth Louisiana Levee District, applying for writs of certiorari. Parish of Madison. No. 78-518.

Writ denied.


author: MARCUS, BLANCHE and LEMMON, JJ.,

text:
    Dudley B. PILLOW, Jr., et al. v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT.
    No. 81-C-1069.
    Supreme Court of Louisiana.
    April 24, 1981.
   In re Board of Commissioners for the Fifth Louisiana Levee District, applying for writ of certiorari and for stay order. Parish of Madison. No. 78-518.

Writ denied.

MARCUS, BLANCHE and LEMMON, JJ.,

would grant a continuance. The trial judge after permitting counsel to withdraw from the case abused her much discretion in denying the client a continuance in order to obtain new counsel and to afford new counsel an opportunity to prepare for a complex case.


text:
    In re Roland R. SELENBERG.
    No. 81-O-0303.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Roland R. Selenberg, applying for reinstatement to the Louisiana State Bar.

On the showing made the writ is denied, reserving to the applicant the right to apply anew and support his application with evidence that he is competent to practice and deserving of reinstatement.

MARCUS and WATSON, JJ„ would grant reinstatement.

LEMMON, J., would require an investigation of applicant’s present moral fitness by a private investigator to be chosen by the Bar Association, at applicant’s expense.


author: MARCUS, J.,

text:
    STATE of Louisiana v. John Wayne TONNUBBEE.
    No. 81-K-1090.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re John Wayne Tonnubbee, applying for supervisory writ of review, and stay order. Parish of St. Charles. Nos. 80-143, 80-151.

Granted in part and denied in part. The ruling of the trial judge on the admissibility of the “Big Chief” statement is reversed; on the record before us the statement is inadmissible. The ruling of the trial judge as to the conversation between Defendant and Odon is affirmed.

MARCUS, J.,

concurs in part and dissents in part. I consider that both statements are admissible as part of the res gestae. La. R.S. 15:447; State v. Drew, 360 So.2d 500 (La.1978).


author: WATSON, J.,

text:
    STATE of Louisiana v. Joseph FONTENOT.
    No. 81-K-0739.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Joseph Fontenot, applying for writ of review or certiorari. Parish of Jefferson Davis. Nos. CR-388-81 and 389-81.

Denied.

WATSON, J.,

would grant, noting that the sentence to jail for 5 days is unlawful under LSA-R.S. 14:98.


author: DIXON, C. J.,

text:
    STATE of Louisiana v. Kenneth F. De La GARDELLE.
    No. 81-K-0949.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Kenneth F. De La Gardelle, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 80-375.

Denied on the showing made.

DIXON, C. J.,

concurs. If relator is prejudiced in any way from the denial of the “motion to proceed in forma pauperis” he may apply again.


author: DENNIS, J.,

text:
    STATE of Louisiana v. George ASHY.
    No. 81-K-0849.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re George Ashy, applying for writs of review. Parish of Lafayette. No. 78-156.

Denied.

DENNIS, J.,

would transfer this application to the Court of Appeal because it is in the nature of a civil contempt proceeding. State v. Austin 374 So.2d 1252 (La.1979).


author: LEMMON, J.,

text:
    STATE of Louisiana v. Jessie BROWN.
    No. 81-K-0940.
    Supreme Court of Louisiana.
    April 28, 1981.
   In re Jessie Brown, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Ouachita. No. M44893.

Denied.

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

LEMMON, J.,

concurs in the denial. Relator may raise this issue by appeal in event of conviction.


text:
    STATE of Louisiana v. Diane BURNETT.
    No. 81-K-1107.
    Supreme Court of Louisiana.
    April 30, 1981.
   In re Diane Burnett, applying for supervisory and remedial writs. Parish of Jefferson. No. 81-559.

Granted. It is ordered that a preliminary hearing be held within 7 days.


text:
    STATE of Louisiana v. Danny Ray ODOM.
    No. 81-K-1120.
    Supreme Court of Louisiana.
    April 30, 1981.
   In re Danny Ray Odom, applying for writs of review. Parish of Ouachita. No. 40034.

Denied.


text:
    STATE of Louisiana v. Jimmy TIRCUIT.
    No. 81-K-1137.
    Supreme Court of Louisiana.
    April 30, 1981.
   In re Jimmy Tircuit, applying for writs of certiorari, review, prohibition, mandamus and stay order. Parish of Orleans. No. 280-712.

Writ denied. Defendant has an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. John E. BORRAS, Jr.
    No. 81-K-1116.
    Supreme Court of Louisiana.
    April 30, 1981.
   In re John E. Borras, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. Nos. 81-839 and 81-840.

Granted. Having been advised that the one million dollar bond is only on the possession of a weapon by a felon and the public intimidation charges and not on the charges of first degree murder and possession with intent to distribute cocaine, we consider that the one million dollar bond is excessive and should be reduced to $150,000.

BLANCHE and LEMMON, JJ., would deny.


text:
    Earlean M. INGRAHAM v. INSURANCE COMPANY OF NORTH AMERICA et al.
    No. 81-C-0929.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Earlean M. Ingraham, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. No. 8026.

Denied. The result is correct.

DIXON, C. J.,

would grant and remand for review under proper appellate standards. The standard of review from Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979) is not correct. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).


text:
    STATE of Louisiana v. Eugene BROXTON.
    No. 81-K-0823.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Eugene Broxton, applying for writ of habeas corpus. Parish of Vernon. No. 24814.

Denied.

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


text:
    Dardanella DUPLESSIS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 81-C-0925.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Dardanella Duplessis, applying for writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 396 So.2d 449.

Denied.

LEMMON, J.,

concurs. Regardless of which party has the burden of proof, the preponderance of the evidence established that neither the condition nor the operation of the bus caused plaintiff’s fall.


author: COVINGTON, Judge.

text:
    TANO CORPORATION v. PHACTS LEASING COMPANY, INC., et al.
    No. 14206.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 5, 1981.
    James S. Holliday, Jr. and Rick J. Norman, Baton Rouge, for plaintiff.
    Lawrence K. Benson, Jr., New Orleans, Lee C. Kantrow, Baton Rouge, for defendants.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This matter came on pursuant to an alternative writ issued herein commanding the trial judge to sustain the declinatory exception filed by defendant, Ramon V. Jarrell; or, in the alternative to show cause by briefs why the writs should not be made peremptory. After considering the record and the briefs, we hereby make the writs peremptory.

As shown by the record, suit was brought by Tano Corporation, the plaintiff, against defendants, Phacts Leasing Company, Inc. and E.B.S. Data Processing, Inc. for recission of contract and damages based on an alleged breach of contract. Thereafter, on September 26, 1979, Tano amended its suit to add Ramon V. Jarrell as a party defendant, alleging that Jarrell “assured Tano that he and one C.W. Murchison would be personally responsible for Phacts’ obligations under the agreement with Tano,” and that “Tano would not have entered into said agreement with Phacts except for the assurances of Ramon V. Jarrell that he and said C.W. Murchison would be personally responsible for the obligations of Phacts.” Later Tano filed a second supplemental petition reiterating its contention that it would not have contracted with Phacts except for “the assurance” of Jarrell. Jarrell was served in Denver, Colorado, pursuant to the Louisiana long-arm statute, LSA-R.S. 13:3201 et seq.

Jarrell filed a declinatory exception asserting that the court lacked jurisdiction over him, a Colorado domiciliary. The exception was argued before the trial court on September 5, 1980, and the lower court, based primarily on an affidavit (no testimony was presented at the hearing), overruled the exception.

We believe that the trial judge erred in overruling the declinatory exception. The affidavit was inadmissible as evidence at the contradictory hearing. There was no allegation or evidence to support jurisdiction over this Colorado domiciliary by a Louisiana court under the Louisiana Long-arm statute. There is no admissible evidence in the record to show that Jarrell individually transacted any business in this state, or that any “minimum contacts” of Jarrell with the State of Louisiana existed. The items which Tano relies upon to prove the fact that exceptor did transact business in the state are as follows: (1) Affidavit of Mr. Reiss, Jr.; (2) Supplemental and Amended Answers to Interrogatories, and (3) Deposition of a former Vice President of E.B.S. There is no indication that this affidavit was introduced into evidence at the hearing on the exceptions. We find that this affidavit was improperly before the court since it was never introduced into evidence. The same ruling is true for both the answer to the interrogatories and the deposition. There is no proof that these items were introduced into evidence. La.C. C.P. articles 1450 and 1459. Realty Mart, Inc. v. Louisiana Bd. of Tax Appeals, 336 So.2d 52 (La.App. 1st Cir. 1976); Welch v. Robert Campbell, Inc., 316 So.2d 822 (La. App. 1st Cir. 1975).

The record that is before the court consists of many items including pleadings, minute entries, orders, judgments and the like. The allegations contained in these pleadings are merely “allegations” and eventually must be proved by competent evidence introduced at a hearing or at trial. Occasionally the law will give certain presumptions to these allegations at a trial or at a hearing without the need to produce any evidence. Drawing from analogy to the cases that deal with the peremptory exception of no cause of action and the case of Morrison v. H. B. Mitchell Const. Co., 369 So.2d 1102 (La.App. 1st Cir. 1979), the trial court must accept the allegations of plaintiff’s petition as true. We note that the Morrison decision was based on the lack of jurisdiction over the subject matter, but we believe the rationale behind that case is applicable in our limited situation where no other evidence was introduced at the hearing.

We now turn our attention to the petition and supplemental petition filed by plaintiff. Nowhere in either document is there any allegation that Jarrell, in an individual capacity, transacted any business in the State of Louisiana. Because of the lack of such an allegation, the trial court was in error in overruling the exception. We therefore make this writ peremptory.

We also remand the case to the trial court to fix a time limit for plaintiff to amend its petition. According to La.C.C.P. art. 932 and the case of Louisiana Power & Light Company v. Ursin, 334 So.2d 559 (La.App. 4th Cir. 1976):

“... (T)he declaratory exception of lack of jurisdiction over the person, merely retards the progress of the action rather than tends to defeat it. See LSA-C.C.P. Articles 923, 925, 926, 928 and 930. Likewise, when the grounds of the objections pleaded in either the declinatory or dilatory exception may be removed by amendment of the petition or other action of the plaintiff, ‘ * * * the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.’ LSA-C.C.P. Articles 932, 933.”

Since plaintiff may be able to remove the objection by amending its petition to state sufficient acts within the state, we will remand the case to the trial court to enable the plaintiff to amend its petition.

Accordingly, it is hereby ordered, adjudged and decreed that the alternative writs of mandamus, prohibition and certio-rari issued herein on the 4th day of December, 1980, directed to the Honorable William H. Brown, Judge, Division “I”, Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana, shall be and the same are made peremptory and the declinatory exception of Ramon V. Jarrell is sustained. The case is remanded to the trial court to set a time in which plaintiff, Tano Corporation, is entitled to amend its petition.

WRIT MADE PEREMPTORY, DECLI-NATORY EXCEPTION SUSTAINED, CASE REMANDED.

      . Affidavits are authorized by Law to be used as evidence in Motion for Summary Judgment, La.C.C.P. art. 966 and 967; Motion for a Temporary Restraining Order, La.C.C.P. art. 3603.

      . See La.C.C.P. art. 926 and Landry v. Landry, 339 So.2d 360 (La.App. 1st Cir. 1976) writ refused 341 So.2d 900 (La.1977).


author: PRICE, Judge.

text:
    Robert JONES, Plaintiff-Appellant, v. Adriel ALEXANDER d/b/a White’s Auto Store, Defendant-Appellee.
    No. 14517.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    Writ Denied June 5, 1981.
    Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Joseph A. Reeves, Jr., New Orleans, for defendant-appellee.

      Before PRICE, MARVIN and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, Robert Jones, filed this suit against his employer, Adriel Alexander, to recover worker’s compensation benefits for total and permanent disability resulting from injuries to his back. He also seeks medical expenses as well as penalties and attorney fees for alleged arbitrary refusal to pay benefits. Defendant denies plaintiff received any injury compensable under the Workmen’s Compensation Statute. From a judgment rejecting plaintiff’s demand, plaintiff has appealed. We find no error and affirm.

Plaintiff contends he injured his back on February 12, 1979, while helping a fellow employee unload a 300 pound wood burning heater from the back of a truck at defendant’s place of business. Defendant operated a White’s Auto Store in Jonesboro. Plaintiff was employed as a general laborer and performed such tasks as assembling and servicing bicycles and lawnmowers. Plaintiff’s duties frequently involved moving heavy objects.

Plaintiff testified generally as follows: That on the morning of the alleged accident he had gone to work at 8:00. Defendant asked him to go with him to pick up two wood burning heaters at about 9:00 or 9:30. He assisted defendant in loading the two heaters onto the truck and drove back to the store where defendant backed the truck up to the front entrance. He contends that they unloaded one of the heaters without incident. Defendant’s son, Larry Alexander, helped plaintiff in unloading the second heater. Plaintiff contends that he had to twist and step around a flower bed located near the front of the store, and in doing so he hurt his back. Plaintiff testified that the pain was slight at this time and he said nothing to anybody. However at about 10:30 or 11:00 his back began hurting and he informed Larry that he had hurt his back and he was going home. Plaintiff testified that he has been unable to work since February 12, 1979, and had declined an offer by defendant to return to work for this reason.

The only witnesses to the alleged accident other than plaintiff were the defendant and his son, Larry Alexander. Both testified that their observance of plaintiff during the unloading revealed no outward manifestation of injury. Defendant testified that he was not aware that plaintiff was complaining of a back injury until about 4:00 in the afternoon when he was told that plaintiff had gone home before lunch. Mrs. Montez Cook, a fellow employee, testified that she observed defendant after the accident and before he went home and noticed nothing unusual. Defendant testified that he went by plaintiff’s house after the store was closed at approximately 5:30 and recommended a chiropractor to plaintiff.

Subsequent to February 12, 1979, plaintiff indicated to several persons who testified at trial that he had injured his back on the job. Plaintiff contends that the evidence shows that he had been physically healthy as to any back injury prior to February 12, and since the accident he has been unable to return to work due to his painful back condition.

The only evidence presented as to the work-related injury itself was the testimony of plaintiff. The trial court rejected plaintiff’s demands after concluding that plaintiff’s testimony alone was insufficient to carry his burden of proving a job-related accident in view of the discrepancies in and contradictions to his testimony.

The issue on appeal is factual: Did the trial court err in holding that plaintiff failed to prove a work-related injury?

The principal assignment of error is that the trial judge was incorrect in holding that plaintiff had failed to prove by a preponderance of evidence that he was injured within the course and scope of his employment. Plaintiff contends that the presumption enunciated by the Supreme Court in Lindsey v. H. A. Lott, Inc., 387 So.2d 1091 (La.1980) is controlling:

... This court has held, however, that a claimant’s disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, the symptoms of the disabling condition appearing after the accident and manifesting themselves continuously afterwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition....

Plaintiff further contends that the trial court erred in failing to accept as credible the testimony of plaintiff in light of this court’s prior holding in Lattin v. HICA Corp., 384 So.2d 479 (La.App. 2d Cir. 1980), set aside and remanded, Lattin v. HICA Corp., 395 So.2d 690 (La.1981), wherein it was stated:

... An appellate court is not required by the manifest error principle or by the clearly wrong principle to affirm a trier of fact’s refusal to accept as credible, uncontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for the rejection and where the factual finding was reached by overlooking applicable legal principles.... (Emphasis added)

At the outset we note that the cases cited by plaintiff are inapplicable to the present situation. In Lindsey and in Latin it was not disputed that the plaintiff had incurred an accident while on the job, the issue being whether the conceded accident caused disabling pain and suffering. In the case before us, the defendant has steadfastly denied that plaintiff has suffered a work-related accident and therefore the direct issue is whether plaintiff has sustained an accident in the course and scope of his employment. The trial judge’s evaluation of the evidence revealed discrepancies and inconsistencies in plaintiff’s testimony. With this we agree, and therefore feel that Latin is not controlling.

This court has recently had occasion to reiterate the legal principles we find are applicable to the instant case:

Discussing the employee’s burden of proof in workmen’s compensation cases, the Louisiana Supreme Court in Prim v. City of Shreveport, 297 So.2d 421 (La.1974), stated:
“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.. .. ”
In determining whether the claimant has discharged his burden of proof, the Louisiana Supreme Court in West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979), held:
“.. . the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony.”
Hall v. Georgia-Pacific Corp., 390 So.2d 948 (La.App. 2d Cir. 1980).

In the trial court’s reasons for judgment he listed the following evidentiary elements as casting suspicion on plaintiff’s claim:

1. According to plaintiff’s medical expert, Dr. Donald W. Irby’s deposition, page 3, plaintiff stated that he had injured his back loading (not unloading) the stoves on the defendant’s truck and had:
A. An “abrupt onset of back and left leg pain” (emphasis added) and
B. So severe “it made him nauseated”;
This testimony contrasts with plaintiff’s under oath and that of those who were present at the time in question or saw plaintiff shortly thereafter.
2. Although the myelogram and EMG were negative, plaintiff complained of pain, etc., but when advised that an exploratory operation of the lower back would be necessary unless he improved in two weeks “... he had had rather marked improvement.. . ” when the two weeks were up.
3. He and his present wife had been living together unmarried for several years, she bearing his children, while she drew welfare payments. At the time of this suit, they were the subject of a welfare fraud investigation and had only recently married.
Plaintiff admitted on the stand that he had falsified rental receipts, making it appear to the welfare department that his “live-in” was paying him rent for the home in which she and his children purported to live by themselves; wher-eafter he deposited the money she paid him into their joint account. In fact, he was living there also.
4. His wife testified that in response to a question from her welfare worker about the plaintiff’s failure to work she described him as follows:
A. He is too lazy to work, or
B. “He has a bad case of the lead.” She did not advise the investigator that plaintiff was unable to work because of the alleged injury!
5. He testified that he had no prior back injuries, whereas the evidence established that a year earlier he had missed two to three days as a result of a back injury working for Robert Walker in February, 1978. This testimony was offered by Rev. Woodard
C.Mixon with whom he was working at the time. Mr. Mixon also testified that plaintiff had injured his back a month earlier in January, 1978.
6. He testified that he lied to his employer during the trapping season of 1978-1979 in order to justify a day off, telling the defendant that someone hit him in the head while he was tending his traps, knocking him unconscious.
7. He testified that he had not been deer hunting after the alleged injury, whereas there was extensive evidence establishing to this [trial] Court’s satisfaction that he had in fact been deer hunting several times.
8.He first testified that his employer had not given him the opportunity to return to work under most considerate circumstances, and thereafter admitted that he had in fact received such an offer.

As noted by the trial judge, plaintiff’s credibility was further impeached by evidence which established that plaintiff had dragged a 200 pound hog he had killed out of the woods. Although denying that he had been hunting and insisting that his son had killed the hog, plaintiff did not produce this son or any other witness to corroborate his story.

We find that the trial court’s factual findings are supported by substantial evidence, and that there has been no abuse of discretion in the credibility evaluation. In addition to evidence already mentioned which we find casts great suspicion on the credibility of plaintiff, the record reveals that plaintiff intimidated and threatened witnesses and relatives whose testimony was damaging to his claim.

The jurisprudential rule that the testimony of the workmen’s compensation claimant is enough by itself to prove by a preponderance the work-accident is subject to two caveats:

First, there must be no other evidence sufficient to discredit or cast serious doubt upon the claimant’s version of the event.
And second, his testimony must be corroborated by the circumstances following the alleged event.
Malone-Johnson, “Workers’ Compensation Law and Practice,” 2d Ed., La.Civil Law Treatise, Vol. 13, § 253, and cases cited therein.

In addition to the examples cited in Hall, supra, other recent illustrations of the application of this principle can be cited. In Lachney v. Baker Mfg. Co., Inc., 377 So.2d 504 (La.App. 3d Cir. 1979), writ refused 379 So.2d 10 (La.1980), the compensation claimant’s version of the alleged work-accident was not accepted because the judge felt that he could not be believed. In Meador v. International Paper Co., 348 So.2d 997 (La.App. 2d Cir. 1977), the plaintiff failed to prove the work-accident by a preponderance because his testimony was contradicted and uncorroborated. White v. Freeport Chemical Company, 319 So.2d 563 (La.App. 4th Cir. 1975), writ refused 323 So.2d 132 (La.1975), and Calais v. Petroleum Helicopters, Inc., 330 So.2d 408 (La.App. 3d Cir. 1976), provide further examples where the sole evidence as to the work-accident was the plaintiff’s testimony which was insufficient to carry his burden of proof because the claimant’s version was uncorroborated and contradicted.

In this case the credibility of plaintiff has been thoroughly impeached. Since the testimony presented which would tend to corroborate plaintiff’s account of the alleged accident is based on plaintiff having told, and not demonstrated to, these witnesses that he had hurt his back, their testimony is of little significance. Although plaintiff testified that his activities were reduced after the accident due to his physical condition, this testimony was contradicted by evidence to the contrary (such as his driving long distances, towing vehicles, driving his jeep across rough terrain, attempting to uproot large shrubbery with the jeep, and hunting deer and hogs.)

The trial court’s refusal to accept plaintiff’s testimony as credible is a reasonable evaluation in light of the substantial evidence in the record which casts serious suspicion on the veracity of plaintiff.

For the foregoing reasons, the judgment is affirmed at appellant’s cost.


author: REDMANN, Judge.

text:
    BANCSHARES LEASING CORPORATION v. Harry R. CABRAL, Jr. et al.
    No. 11814.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 29, 1981.

      Harry R. Cabral, Jr., John P. Campbell, III, Metairie, for third party plaintiffs-appellants.
    Robert H. Wood, Jr., Bernard, Cassisa, Babst & Saporito, Metairie, for third party defendant-appellee.
    Before REDMANN and KLIEBERT and JULIAN E. BAILES, J. Pro Tem.
   REDMANN, Judge.

Defendants, obliged by their “lease” with plaintiffs to pay the full price of an allegedly defective copying machine manufactured by third-party defendant Dennison Manufacturing Company, now appeal from judgment maintaining Dennison’s exception of no right of action to their demand in redhi-bition. The exception theorizes that as “lessees” defendants do not have the right of a purchaser to avoid a sale for redhibito-ry defects, especially because á lessee would not have the necessary power of an owner to return the defective thing to the seller. We reverse, theorizing that defendants are not mere lessees but either are the purchasers or have the authority from the purchaser (and seller) to act as such.

The record makes it clear that plaintiff “leasing corporation” (somehow connected with a bank), as part of a recently commonplace financing plan, bought the copier from dealer Copy-Rite, Inc. on May 4, 1976 not in order to do copying but in order to fulfill its commitment of April 29 to lease it to defendants for 60 months at a rental that would repay the leasing corporation the entire price plus 16% interest yearly. One provision of this “lease” is that the rental must be paid irrespective of the usability or even destruction of the “leased” thing, and that the “lessees” have no warranty from the “lessor.” There is also a letter in the record by which the leasing corporation acknowledges a collateral agreement that the “lessees” can purchase the copier for 1% of its cost after paying the lease price. It could hardly be plainer that the “leasing corporation” is essentially a lender of money who finds the customary security device of chattel mortgage unsatisfactory and therefore seeks the position of an owner-lessor. In any case, the purchase order form of “lessor” to the dealer expressly provided that “all warranties . . . shall be fully enforceable by us and/or by lessee in its own name.”

The “lessee" is therefore an appropriate party plaintiff, with the power to return the copier, to enforce La.C.C. 2476’s warranty against redhibitory vices.

Reversed at Dennison Manufacturing Company’s cost; remanded.