text:
    STATE of Louisiana v. Jarrell Delano FRITH.
    No. 81-KA-1453.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., J. Phil Haney, Daniel G. Guidry, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Paul J. Demahy, St. Martinville, for defendant-appellant.
   BURRELL J. CARTER, Associate Justice Ad Hoc.

Defendant, Jarrell Delano Frith, was indicted by the St. Martin Parish Grand Jury on September 17, 1980, for three counts of attempted aggravated rape of his seven year old niece, Jerilyn Verret, in violation of La.R.S. 14:27,14:42 (3). The counts were severed. Defendant was tried on one count and found guilty as charged on December 11, 1980, by a unamimous vote of a twelve person jury. He was sentenced to thirty (30) years imprisonment. It is from this conviction that defendant appeals.

FACTS

Defendant had been living with his seven year old niece and her family prior to October of 1979. From October, 1979 through May, 1980, defendant committed indecent sexual acts upon his niece and attempted to have sexual intercourse with her. The young girl, frightened because he had instructed her not to tell her mother, (he also told her that her mother had told him to do these things to her), did not divulge the events until the defendant moved out of the house in May, 1980.

Subsequently, defendant was arrested for the present offenses. After his arrest, defendant confessed to attempting to commit sexual intercourse with the victim.

Although five assignments of error were reserved, only four were urged on this appeal. It is well settled that assignments of error not argued nor briefed, are by law considered abandoned. State v. Sterling, 377 So.2d 58 (La.1979). Therefore, assignment of error number one will not be addressed by the Court.

ASSIGNMENT OF ERROR NUMBER TWO

Defense counsel argues, in assignment of error number two, that the trial court improperly restricted his voir dire of prospective jurors by sustaining certain objections made by the State.

Following are the questions, objections and rulings complained of:

(1) R. pp 194

“BY. MR. DeMAHY: Good afternoon. We have some more questions to ask you, and then we’ll proceed with more jurors. At a later time the judge will instruct you that Garrall Frith is not required to testify, and that he is not required to prove that he is innocent. Okay? With this in mind, I would like to know generally, how do you feel about a defendant who does not testify? Mrs. Williams?

BY MR. HANEY: Your Honor, I’m going to object. I don’t think it’s a proper question.

BY THE COURT: Sustained. How the jurors feel is not material, Mr. DeMahy. It’s proper to ask the jurors whether they will abide by that rule of law if so instructed. That is the only proper question on that subject.

BY MR. DeMAHY: If the judge instructs you as I indicated that Mr. Frith is not required to testify and that he is not required to prove his innocence, and that him not taking the stand cannot be considered against him. Okay? If the judge so instructs you, will you be able to accept that and apply that rule? Mrs. Williams.”

(2) R. pp 205 & 206

“BY MR. DeMAHY: Now do any of you feel that a person accused of attempting to rape a minor, for example, should satisfy you as to his innocence. Mrs. Williams?

JUROR WILLIAMS: Would you repeat the question, please?

BY MR. HANEY: Your Honor, again I’m going to have to object. That is not the question this jury has to answer.

BY THE COURT: I sustain the objection.

BY MR. DeMAHY: To which ruling we would object.

BY THE COURT: Let your objection be noted.

BY MR. DeMAHY: That’ll be all.”

(3) R. pp. 201

“BY MR. DeMAHY: I would like, considering everything we’ve discussed before, I would like for you to help me with something. Garrall, stand up. Now, I’d like to ask each of you, if you would, to look at Garrall as he stands there and tell me at this time what are your personal feelings as to his guilt or innocence. Mrs. Williams?

JUROR WILLIAMS: Not guilty.

BY DeMAHY: Okay, Mrs. Kennison?

BY MR. HANEY: Your Honor, I hate to keep objecting. I don’t think the law is, is the man presumed innocent.

BY THE COURT: Yes, Mr. DeMahy, it has nothing to do with their personal feeling. It has to do with whether or not they will apply the presumption that the law demands. You haven’t told them what that presumption ...”

(4)R. pp. 185 through 191

“BY MR. DeMAHY: Thank you. I would like to find out from each of you at this point, is that do you think that a confession necessarily reflects what actually happened? Mrs. Williams?

JUROR WILLIAMS: Repeat that.

BY MR. DeMAHY: Okay. Do you think that a confession necessarily reflects what actually happened.

BY MR. HANEY: Your Honor, I think that some of the jurors may be confused about what a confession is, and I think it needs to be explained.

BY THE COURT: Indeed the state’s objection to the question as phrased is sustained.

BY MR. DeMAHY: I’ll explain it a little bit to you. A confession generally is a statement made by someone charged with a crime indicating what happened, okay? And what I’m asking is whether you think that necessarily this actually reflects what happened.

BY MR. HANEY: Your Honor, I’m going to object again. I don’t think that’s a proper definition. I think the court should make ...

BY THE COURT: Sustained.

BY MR. HANEY: I think the court should define what ...

BY MR. DeMAHY: I would have no objection to the court ...

BY THE COURT: Mr. DeMahy, you left out one element. Essentially a confession is an admission of guilt, an admission against the interest of the party who makes the statement. Do all of you prospective jurors understand that? It is a statement by a party accused in which he admits his guilt. Alright, Mr. DeMahy.

BY MR. DeMAHY: Okay. Alright, with that in mind, do you think that a confession necessarily reflects what actually happened?

BY MR. HANEY: Your Honor, I hate to keep objecting, but I think that’s a question that the jury can’t determine until it hears the evidence. It’s speculative.

BY THE COURT: That is absolutely correct, Mr. DeMahy. There are all sorts of circumstances which may surround the confession. It is not a proper question. You’re asking the prospective jurors to commit themselves to a decision on an indefinite, assumed set of circumstances, and they cannot do that.

BY MR. DeMAHY: Okay. The nature of the question — maybe I’m phrasing it improperly. But whether in all circumstances they would feel this way regardless of the surrounding.

BY THE COURT: I’m going to sustain the state’s objection to that question in that form, also.

(Discussion off the record at the bench, outside the hearing of the jurors.)

BY MR. DeMAHY: To give you an idea of what we were doing so you’re not wondering, we were just attempting to avoid, you know, delays by me asking questions and getting objections. So I asked the judge to rule on certain questions. And he has made his ruling. Okay? We did not want to keep you in the dark as to what was going on. Okay, my next question is this. If it is shown to you that some very important parts of the alleged confession cannot be true, will you consider this very keenly when determining what weight, if any, to give the alleged confession. Do ya’ll understand the question? In other words, if its shown that some very important parts of this confession cannot be true, okay. If that is shown to you, will you consider this when determining what weight, if any, you would give to that alleged confession. Mrs. Williams, do you understand the question?

BY MR. HANEY: Your Honor, maybe I should . ..

BY THE COURT: Let me see if I could clarify the situation.

BY MR. HANEY: It’s still confusing me, and it’s still asking them to assume something that we don’t know if there is.

BY THE COURT: Mr. DeMahy is asking you to assume that if the state introduces in this case a confession and then to assume that it is proved that certain statements in that confession, certain facts in that confession cannot be correct. Assume those two things. Then assuming those two things, he’s asking you will you consider that in determining what weight to give that confession. Does that make it any clearer for you? One of the obligations of a juror is to determine the credibility of evidence, the weight to be given it, the importance to be given to all the evidence that you hear, the testimony of the witnesses, documents that are introduced, everything. You have to decide what to believe and what not to believe. You’re not obligated to believe everything you hear. Understand? Alright. With that in mind, the question is, assume there is a confession introduced and assume that it is proved that some fact or facts in that confession cannot be true, will you consider that in determining the credibility, the weight of the confession. Understand it a little better now?

BY MR. HANEY: Your Honor, before they answer it, if we can approach the bench.

(Discussion at the bench)

BY THE COURT: The state’s objection to that question is overruled. Now that just let enough time go by so that all of you forgot what we said. You want to try again, Mr. DeMahy?

BY MR. DeMAHY: Alright. We ask you to assume two things. One, the state introduces a confession. Two, that there is evidence showing that important facts in that confession cannot be true. Okay. With those two things being assumed, would you consider this in deciding what credibility, you know, what believability to give that confession. Mrs. Williams, would you consider that?”

Article 1, Section 17 of the Louisiana Constitution 1974 affords the accused the right to full voir dire examination. While the jurisprudence of this state is that the scope of voir dire falls within the sound discretion of the trial court, the trial court must give wide latitude to counsel in voir dire examination. The disallowance of an otherwise proper question is not automatically reversible and in evaluating the ruling of the trial court, the entire record of the voir dire examination must be considered. State v. Robinson, 404 So.2d 907, 911-912 (La.1981).

A review of the examination shows that at no time was an objection raised by the defendant regarding the court’s ruling except in regard to question number two. Even though there was an objection to the ruling of the court on question number two, no reason was given for the objection. Although, Code Crim.P. art. 841 requires a contemporaneous objection, this court held in State v. Hayes, 364 So.2d 923 (La.1978) that the Constitutional mandate of Article 1, Section 17 requires an inquiry into any limitation on voir dire examination absent an objection by the defendant and grounds therefor.

In State v. Hayes, supra, this court held that the trial court improperly restricted the voir dire examination of prospective jurors. In the Hayes case, counsel attempted to explore the juror’s attitude towards a defendant who remains silent at trial. The question posed by counsel for defendant and objected to by the State was as follows:

“MR. USPRICH: As the Judge has explained to you already, the defendant is not required under our law to take the witness stand. However, I know that there is a tendency among people, and I know quite a few members of my family and friends feel that they want to hear both sides of the story. But, the defendant is not required to take the witness stand in his own behalf and we will tell you and the Judge will tell you in the charge to you, that you can’t hold this against him. However, do any of you feel that you want to hear his side of the story?
MR. GROSZ: Objection.
THE COURT: The Court is going to sustain the objection. The question is: Would you take the law as this Court gives it and not hold it against the defendant because the law does not require him to take witness stand? Would you give me that commitment?
MR. USPRICH: Do each of you feel that you can give the State and the defendant a fair trial? Thank you very much.”

In response to the court’s ruling, the defense adopted a broad line of inquiry and did not return to the issue. The voir dire record otherwise includes two general statements made earlier by the trial judge acknowledging the defendant’s right to remain silent at trial. The defendant did testify in his own defense. This court staL ed that we have recognized that the purpose of voir dire is to discover bases for challenge for cause and to secure information for the intelligent exercise of peremptory challenges. State v. Drew, 360 So.2d 500 (La.1978); State v. Jackson, 358 So.2d 1263 (La.1978).

In Hayes, this Court further stated:

“The defendant must be given wide latitude in the exercise of this substantial right, State v. Holmes 347 So.2d 221 (La.1977); State v. Hills, 241 La. 345, 129 So.2d 12 (1961) (on rehearing), and pertinent inquiries should be allowed if they can possibly show grounds for a challenge for cause or if they will enable counsel to make intelligent use of peremptory challenges. State v. Williams 346 So.2d 181 (La.1977).
Before the objection, defense counsel had begun to probe the jurors’ attitudes toward a defendant who remained silent at trial. The defense brief argues that the defendant’s right to silence is a difficult one for the jurors to understand because it goes against a natural desire to hear all sides of a story, and that some jurors might have difficulty according the presumption of innocence to the silent defendant. Such attitudes are better discovered through informal questioning keyed to common experience than formal recitations of legal requirements. A jur- or’s response to less imposing questions may well reveal attitudes and biases not disclosed by superficially correct answers.
In State v. Monroe, 329 So.2d 193 (La.1976), we specifically rejected the State’s contention that unjustified restrictions on voir dire concerning the presumption of innocence were cured by a general instruction that the jurors must follow the law as given to them by the court. In the instant case, the trial judge’s rephrasing of the question may have given rise to a cause challenge, but the bases for peremptory challenges often arise from less evident consideration. As this court noted in State v. Hills, supra:
‘.. . the scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision, this may be uncovered. It is by examination into the attitudes and inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner. ... 241 La. at 396, 129 So.2d at 31.’ ”

As a result of the above, the trial judge is required under the Louisiana Constitution of 1974 and the Hayes case, supra, to temper the exercise of any limitation on the scope of voir dire examination by giving wide latitude to the defendant in his examination of prospective jurors. This is so that the defendant may intelligently exercise challenges for cause and peremptory challenges. State v. Boen, 362 So.2d 519 (La.1978).

Since question number one posed by counsel for the defendant in the instant case is almost identical to the question posed in the Hayes case, supra, we therefore conclude that the trial judge committed reversible error in restricting the voir dire. Hayes further makes it clear that a trial judge cannot cure a prejudicial curtailment of voir dire examination by extracting from the jurors a commitment that they will follow the law as given.

Having determined that it was reversible error for the trial judge to restrict voir dire as concerns question (1), it is unnecessary to consider the other restriction under Assignment of Error No. 2. However, the rationale of Hayes, supra, would equally apply to these restrictions, and, although not reversible error, these restrictions should be avoided in a new trial. The trial court’s sustaining objections to questions (2), (3), (4), and (5) resulted in the questions either being rephrased, or the areas adequately probed by other questions propounded during the voir dire.

For the above and foregoing reasons, State v. Hayes, supra, requires that defendant’s conviction be reversed and his remaining assignments of error need not be considered. This case is remanded to the district court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

BLANCHE and WATSON, dissent.

LEMMON, J., dissents and will assign reasons.

       Judges Melvin A. Shortess, Burrell J. Carter, and Felix H. Savoie, Jr. of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc, joined by Justices Dennis, Blanche, Watson and Lemmon.

      . Article 1, Section 17 of the Louisiana Constitution of 1974 provides in pertinent part as follows: “The accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.”

      . State v. Hayes, 364 So.2d 923 (La.1978)


source: Caselaw Access Project

author: LEMMON, Justice.

license: Public Domain

text:
    Rose D. CHAUSER v. Glenn L. BABIN.
    No. 81-C-1521.
    Supreme Court of Louisiana.
    April 5, 1982.

      Rose D. Chauser, in pro. per.
    Glenn P. Marcel, of Lindsay & Marcel, Baton Rouge, Ralph R. Miller, Norco, for defendant-respondent.
   LEMMON, Justice.

This is a suit on a promissory note executed on October 8, 1965 by defendants Glenn Babin and his former wife. The issue is whether the debt had prescribed before suit was filed on July 25, 1979.

When Mr. Babin was not served with the original petition, the court appointed an attorney to represent him. The attorney filed on his behalf an exception of prescription. Although the record indicates that the trial judge signed the order setting Mr. Babin’s exception for trial and that the clerk of court certified notice had been mailed to all counsel, neither plaintiff nor her attorney appeared at the hearing, at which Mr. Babin testified. The trial court ruled that the note was prescribed and dismissed plaintiff’s suit as to Mr. Babin. Plaintiff moved for a. new trial, contending she did not receive notice of the trial of the exception, but the trial court denied the motion without a hearing.

Plaintiff appealed, contending that she was not notified of the hearing on the exception and was denied an opportunity to present evidence. The .court of appeal affirmed, concluding that notice of the hearing was mailed to plaintiff, but that she failed to avail herself of the opportunity to present evidence. 398 So.2d 20 (La.App.). The court also concluded that there was no proof to support plaintiff’s allegations that prescription had been interrupted by payment.

Plaintiff, now acting in proper person, filed an application for certiorari in this court. We granted plaintiff’s application because the scheduled payments, listed in answers to interrogatories (which were included in plaintiff’s application), indicated prescription had been interrupted. 401 So.2d 995 (La.). After a review of the record, we now find that the judgment sustaining the exception of prescription was incorrect.

At the hearing on the exception of prescription, the only evidence presented was the testimony of Mr. Babin, who stated that he had made payments on the note “for a little while” and estimated that it had been five or six years since his last payment. When asked directly by his own counsel whether five years had elapsed between his last payment and the date that suit was filed, Mr. Babin responded, “I’m saying five years — it could have been four and one half...."

In an action on a note, when on its face the note is prescribed and the plaintiff alleges that prescription has been interrupted by payment, the plaintiff has the burden of proving the interruption of prescription. Lake Providence Equip. Co. v. Tallulah Prod. Credit Ass’n, 257 La. 104, 241 So.2d 506 (1970). In the instant case plaintiff had the burden to prove her allegations that payments had been made on the note as recently as December, 1977. Because she did not appear at the trial of the exception, plaintiff presented no evidence to support her allegations. Nevertheless, the testimony of Mr. Babin himself negates a finding that no payments were made during the five-year period prior to suit. Mr. Babin conceded that he may have made payments within that period, and plaintiff’s sworn answer to interrogatories, filed in the record, indicate that payments were made as late as December, 1977. In light of this evidence, the trial court improperly sustained the exception of prescription.

Accordingly, the judgments of the lower court are reversed, and the exception of prescription filed by Glenn Babin is overruled. The case is remanded to the trial court for further proceedings.

      . Mrs. Babin included a plea of prescription in her answer. However, neither she nor her counsel appeared at the trial of the exception, and the judgment was silent as to any disposition of her plea. Insofar as the present record shows, the suit against Mrs. Babin is still pending in the trial court.

      . The original petition alleged that no payments had been made on the note. However, plaintiff subsequently amended her petition to allege that payments were made on the note periodically between November 30, 1965 and December 15, 1977.

      . Some members of the court were also concerned that the trial court may have abused its discretion by denying without a hearing the motion for new trial based on lack of notice of trial. However, as suggested by the concurring opinion by the court of appeal, plaintiff could still have sought relief by an action to annul the judgment.

      . The answers to interrogatories indicate that Arrow Loan Company was the original holder of the note and that plaintiff purchased the note from Arrow in July, 1979.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Allen Keith GASKIN.
    No. 81-KA-1629.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-appel-lee.
    D. G. Tyler, and Tommy J. Johnson, Shreveport, for defendant-appellant.
   MARCUS, Justice.

Allen Gaskin, James Earl Thomley, Jr. and Stephen Scott were charged by the grand jury in the same indictment with the first degree murder of Virginia Smith in violation of La.R.S. 14:30. The trial judge granted Scott’s motion for severance and the prosecution proceeded against Thomley and Gaskin. After trial by jury, defendants were found guilty as charged. After a sentencing hearing before the same jury that determined the issue of guilt, the jury recommended a sentence of life imprisonment without benefit of probation, parole or suspension of sentence for each defendant. The trial judge sentenced defendants in accordance with the recommendations of the jury. This appeal is only by Gaskin who relies on eight assignments of error for reversal of his conviction and sentence.

FACTS

On October 31, 1980, at approximately midnight, the victim, Virginia Smith, and a friend, Alternette Jeter, were walking near the Municipal Auditorium in Shreveport. Gaskin, Thomley and Scott were riding around in Scott’s car. Thomley jumped out of the car, grabbed the victim, Virginia Smith, and forced her into the car. Alter-nette Jeter, the victim’s friend, escaped by running away. At knifepoint, Smith was forced to engage in oral sex with Thomley and Gaskin. Scott drove to a wooded area in Bossier Parish and Smith was taken out of the car. Thomley then beat her and cut her throat with his knife. Gaskin then stabbed her numerous times in the back. About a month later, the decomposed body of Virginia Smith was found near the levee. Gaskin, Thomley and Scott were subsequently arrested and charged as aforesaid.

ASSIGNMENTS OF ERROR NOS. 1 AND 6

Defendant contends the trial judge erred in denying his motion to suppress his confession on the ground that it was not freely and voluntarily made after being advised of his Miranda rights (Assignment of Error No. 1). He further contends the trial judge erred in allowing his confession in evidence without a proper foundation, in permitting testimony of the police officer as to its content rather than the tape recording itself, and in not requiring the entire statement to be introduced in evidence (Assignment of Error No. 6).

At the suppression hearing, Deputy Ron Thiebaud and Detective David Crawford testified that defendant was arrested on January 7, 1981, and brought to the Youth Bureau Division of the Shreveport Police Department. After being advised of his Miranda rights, defendant executed a waiver of rights form. Defendant indicated his involvement in the murder of Virginia Smith and agreed to give a recorded statement. Prior to taking the recorded statement, defendant was again advised of his rights and executed another waiver of rights form. Both officers testified that defendant appeared to fully understand his rights and was not promised anything or threatened in any way. They denied that defendant requested an attorney at any stage in the proceedings. On the other hand, defendant claimed that he did not understand the waiver of rights forms he signed and that when he requested an attorney, he was told by the officers that it would be easier on him in court if he confessed and that he did not need an attorney. At the time of his arrest, defendant was seventeen years old and had completed the tenth grade in high school. At the conclusion of the hearing, the trial judge, finding that defendant’s statement was “freely and voluntarily” made after having been advised of his Miranda rights, denied the motion to suppress.

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are not supported by the evidence. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Hathorn, 395 So.2d 783 (La.1981); State v. Castillo, 389 So.2d 1307 (La.1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1004 (1981). When a ruling on a motion to suppress a confession or statement is adverse to the defendant, the state shall be required, prior to presenting the confession or statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement. La.Code Crim.P. art. 703(G).

After a review of the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the confession was freely and voluntarily made after defendant had been advised of his Miranda rights. Defendant’s contentions that he requested an attorney and did not fully understand his rights were in direct conflict with the testimony of Detective Crawford and Deputy Thiebaud. Accordingly, we are unable to say that the trial judge erred in denying defendant’s motion to suppress the confession.

Defendant’s contention that an inadequate foundation was laid prior to the introduction of the confession in evidence is not borne out by the record. Rather, the record reflects that the circumstances surrounding the making of the confession were fully presented to the jury.

Defendant next contends that the trial judge erred in allowing Deputy Thie-baud to testify as to what he said, aided by a transcribed copy of his confession, rather than requiring the state to play the tape recording in the presence of the jury. He argues that the “best evidence rule” dictates that the tape recording itself be introduced.

Prior to introduction of the confession in evidence, counsel for Thomley objected to the tape being played to the jury because it would be impossible to do so without including references to his client. The trial judge sustained the objection. Defendant Gaskin noted his objection to the ruling.

Under the circumstances, we do not consider that the trial judge erred in permitting Deputy Thiebaud to testify what defendant said rather than playing the tape recording to the jury. Moreover, we have held that La.R.S. 15:436, requiring production of the best evidence within a party’s control, is to be applied sensibly and with reason. State v. Fallon, 290 So.2d 273 (La.1974). Such was clearly the case here. Additionally, we have held that absent a showing of prejudice, a conviction will not be reversed on the ground that the best evidence was not produced. State v. Bennett, 341 So.2d 847 (La.1976). No prejudice was shown here.

Finally, defendant contends that the trial judge erred in not requiring introduction of the entire statement in evidence. He argues that he was denied his right to present a defense because the jury was not adequately informed of the extent of his culpability, vis-a-vis, his codefendant, Thomley. La.R.S. 15:450 provides:

Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.

In the instant case, defendant’s confession contained several references to the actions of his codefendant, Thomley. Because Thomley’s constitutional right to confrontation would have been violated had those references been repeated in the jury’s presence, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), Deputy Thiebaud was instructed to refrain from mentioning Thomley’s name. Despite this, the jury was fully informed as to the comparative roles of defendant and Thomley in the murder through the detailed testimony of Scott (co-participant in the crime) who turned state’s evidence and testified at trial. Hence, we do not consider that defendant’s right to present a defense was in any way affected by excluding Thomley’s name while Deputy Thiebaud related defendant’s confession to the jury.

Assignments of Error Nos. 1 and 6 are without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

Defendant contends the trial judge erred in denying his motions for continuance grounded on the claims that the state failed to timely answer his motion for discovery and to amend its answer.

The first motion for a continuance was filed on March 17, 1981, in which it was alleged that defendant had not received a copy of the autopsy report and the trial was set, at that time, for March 23, 1981. Trial was thereafter reset for March 25, 1981. At a hearing on the motion on March 17, the district attorney stated that his office had not received the report from the coroner despite his repeated requests for same; therefore, he could not furnish defendant with a copy of it. The district attorney suggested that defendant contact the coroner’s office directly.

On March 23, 1981, defendant filed a second motion for a continuance alleging that additional time was needed as the state had amended its answer to his motion for discovery that morning revealing that code-fendant Thomley had made an inculpatory statement to one Roger Irby and that Al-ternette Jeter had misidentified Thomley during a photographic showup.

The granting or refusal of a motion for continuance rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear abuse of discretion. Whether a refusal to grant a continuance was justified depends primarily on the circumstances of the particular case. We have generally declined to reverse convictions absent a showing of specific prejudice caused by the denial of a continuance. La.Code Crim.P. art. 712; State v. Ordonez, 395 So.2d 778 (La.1981).

In the instant case, defendant has made no showing that he could have presented a better defense had he been given additional time to prepare his case. He had already received a crime lab report and the coroner’s statement of the cause of death. Moreover, the autopsy report when received on March 18 (some seven days before trial) was furnished to defendant without delay. The inculpatory statement by Thomley was a reference to the fact that he let out a yell as he cut the victim’s throat and did not implicate Gaskin. Likewise, the misidentification of Thomley was not directly relevant to Gaskin’s defense. The trial judge denied the motion for continuance because the trial date had already been upset due to another trial and he considered that delay to be sufficient time for Gaskin’s counsel to evaluate the new evidence. Hence, defendant received, in effect, a two-day continuance. Absent a showing of specific prejudice, we are unable to say that the trial judge abused his discretion in denying defendant’s motions for continuance.

Assignments of Error Nos. 2 and 4 are without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 7

Defendant contends the trial judge erred in denying his motion for severance of trial from that of codefendant Thomley on the grounds that their defenses were antagonistic and that Thomley’s notoriety would prejudice the jurors against him by association. The motion was made prior to trial and was reurged after the state had rested its case. It was denied on both occasions.

At the hearing prior to trial, the only evidence adduced in support of the motion was a transcript of Gaskin’s confession and the opinions of counsel for both Thomley and Gaskin that the defenses were antagonistic. No evidence was presented showing the “notoriety” of Thomley or how a joint trial would prejudice Gaskin.

La.Code Crim.P. art. 704 provides that jointly charged defendants shall be tried jointly unless the state elects to try them separately or the court, after a contradictory hearing, is satisfied that justice requires a severance. Whether “justice requires a severance” must be determined by the facts of each case. The mere allegation that the defenses will be antagonistic is not sufficient to require a severance. The trial judge’s decision to disallow a severance under art. 704 is a discretionary one which will not be upset by this court absent abuse. State v. Manuel, 408 So.2d 1235 (La.1982).

In the instant case, the trial judge denied the motion because he did not consider the conclusions of counsel to constitute anything more than “mere allegations” of antagonism. In making his ruling, the judge stated that

if [the legislature] felt like it was just simply a matter that counsel for the defense would satisfy themselves that there were antagonistic defenses and they could just give sworn testimony to that effect, well, then we could do it by affidavit. You could just file your petition and put a sworn statement on that to the effect that there was antagonistic defenses and then you’d be entitled as a right to your severance. I think something more is required than that.

Additionally, Gaskin’s statement could be excised of references to Thomley, thus conforming it to law. We are unable to say that the trial judge abused his discretion in denying the motion for severance.

In any event, the defenses were not antagonistic. Neither Gaskin’s statement to Deputy Thiebaud and Detective Crawford nor Thomley’s statement to Roger Irby shifts the blame toward the other defendant; rather, each statement indicates that both participated as principals. Defendant concedes in his brief that the thrust of his argument is that “he was not as culpable as .. . Thomley.” Justice does not require severance where only the extent of participation of each defendant is at issue. State v. Simmons, 381 So.2d 803 (La.1980), cert. denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 498.

Assignments of Error Nos. 3 and 7 are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in admitting in evidence two photographs of the deceased victim. He argues that the photographs had little or no probative value and had a prejudicial effect on the jury.

The state sought to introduce in evidence nine photographs of the victim. The trial judge excluded seven of the photographs. The first photograph admitted in evidence depicts the skeletal remains of the deceased victim at the scene of the alleged murder. The second photograph shows a piece of skin taken from the deceased’s back with multiple stab wounds visible.

It is well established that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. Photographs of the body of a deceased victim have generally been held relevant to prove the corpus delicti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity and number of wounds; and to establish the identity of the victim. State v. Lewis, 353 So.2d 703 (La.1977), and cases cited therein.

After examining the photographs in question, we do not consider that they are gruesome. Moreover, both were relevant to prove the identity of the murder victim and to corroborate the testimony concerning the manner in which the victim was killed. The victim’s body was not discovered for 38 days and because of extensive decomposition, due in part to a fire on the levee and animal depredation, the photographs were necessary to support the coroner’s testimony as to identity and cause of death. Since the probative value of the photographs outweighs any possible prejudicial effect, the trial judge did not err in admitting them in evidence.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in denying his motion for new trial based on the errors contained in Assignments of Error Nos. 1 through 7. Because there was no merit to those contentions, defendant was not entitled to a new trial. Accordingly, the trial judge did not err in denying defendant’s motion for a new trial.

DECREE

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


author: BURRELL J. CARTER, Justice Ad Hoc.

text:
    STATE of Louisiana v. Clyde Kent ARNAUD.
    No. 81-KA-1772.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
    Donald W. Hebert, Pavy, Hebert & Carri-ere, Opelousas, for defendant-appellant.
   BURRELL J. CARTER, Justice Ad Hoc.

Clyde Kent Arnaud was charged with the crime of sexual battery, a violation of La. R.S. 14:43.1, by Bill of Information, on September 18, 1980. He entered a plea of not guilty at arraignment on October 9, 1980. At a jury trial, defendant was found guilty as charged. After a pre-sentence investigation, he was sentenced to serve six (6) years at hard labor. On appeal, defendant filed eight assignments of error. Three of them (1, 6 and 8) were apparently abandoned in brief, so we will consider only the remaining five.

FACTS

At about 11:30 p. m. on July 31, 1980, Debbie Briscoe appeared with her four year old son at the Sheriff’s sub-station in Eunice and reported that she had been raped at knifepoint in her home by the defendant, Clyde Kent Arnaud. Mrs. Briscoe was taken to the emergency room at Moosa Hospital in Eunice and examined by a doctor. Investigators arrested the defendant shortly thereafter.

Mrs. Briscoe testified at trial that she and the defendant had lived together for a short time several months before the rape. At the time of the rape, defendant was living with his sister several blocks away. Mrs. Briscoe said that Arnaud had telephoned her around 10:30 p. m. that night and wanted to come over and talk to her. She stated that she told him to leave her alone and stay away from her. Arnaud arrived at her house, on a bicycle, about ten minutes later. When Mrs. Briscoe refused to let him inside and threatened to call the police, Arnaud ran to the side of her house and the telephone went dead. Mrs. Briscoe testified that he also unscrewed the bulb in the porch light. When she still refused to let him in, he held a knife to the tires of her car and threatened to slash them if she did not come outside. Briscoe testified that at that point, she stepped out on the porch and the defendant immediately grabbed her, stuck a knife in her side, and forced her back inside the house. He then forced her into her bedroom where he raped her, all the while threatening to kill her with the pocket knife if she cried or got too loud. When her son came into the bedroom and told the defendant to get out before he killed him, the defendant dressed and left on his bicycle.

ASSIGNMENT OF ERROR NO. 2

On November 7, 1980, defendant filed a motion for discovery and inspection pursuant to La.Code Crim.P. arts. 718 and 719, the pertinent parts of which follow:

3. Inform the defendant of the existence of and permit or authorize him or her to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce, books, papers, documents, photographs, tangible objects, buildings, places or copies or portions thereof, which are within the possession, custody or control of the State, and which: (a) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or (b) are intended for use by the State as evidence at the trial, or (c) were obtained from or belonged to the defendant.
4. Inform the defendant of the existence of and permit or authorize him (or her) to inspect and copy, photograph, or otherwise reproduce any and all results or reports, or copies thereof, of physical or mental examination, or scientific tests or experiments, made in connection with or material to this case, that are in the possession, custody, control or knowledge of the district attorney whether intended for use at trial or not. Any of the above which is exculpatory shall be particularly set out.

At approximately 4:30 p. m. on the day before the testimony began, defendant’s attorney was furnished a report of a physical examination made by Dr. DeRouen within a couple of hours of the crime. The next day, defendant moved to suppress the medical report and the testimony associated with it because, in spite of the fact that defendant had filed a motion for discovery, he had not been made aware of the existence of the report until the evening before. The State responded that it did not intend to introduce the report as evidence at trial, but instead intended to call Dr. DeRouen to testify. The trial court allowed the testimony, saying that if after the trial, defendant could get some medical reports that would contradict what the State had, he would give the defendant a new trial. Defendant urges as error that the trial court allowed the State to circumvent the intent of the articles on discovery by substituting the doctor’s testimony for the report itself.

The doctor testified that he performed a pelvic examination on the victim at about 12:40 a. m. on August 1,1980. He found no evidence of forcible entry in the vaginal region. He took a smear from the vaginal tract and found sperm. Dr. DeRouen said that the sperm were nonmotile (not moving). It was his opinion that the presence of nonmotile sperm suggested that intercourse had occurred several hours earlier or that the male was sterile. He testified that even sterile men can have some motile sperm. It was his observation that sperm begin to become nonmotile immediately after ejaculation. After four hours the process is rather precipitous, but there may be some sperm still motile after twenty-four hours. Mrs. Briscoe had told the doctor on the night of the examination, that other than the rape, she had not had intercourse for three weeks prior to her examination.

The doctor’s examination was conducted at the request of the Sheriff’s department. The record reveals that the District Attorney made the report available to the defendant as soon as he received it. It is difficult to imagine that the existence of the report remained unknown to the District Attorney for so long. If its existence was known to the District Attorney, he had an obligation to inform the defendant if he intended to use the report at trial or if the report was exculpatory. However, the good or bad faith of the District Attorney is not relevant to the resolution of the present issue. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

La.Code Crim.P. art. 729.5 provides the sanctions available for violation of the discovery articles. It states in pertinent part:

A. If at any time during the course of the proceedings it is brought to the attention of the Court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

Assuming, for the benefit of the defendant, that there had been a violation of La.Code Crim.P. arts. 718 and 719, we must recognize that La.Code Crim.P. art. 729.5(A) permits the trial judge to choose from a wide range of alternative sanctions. State v. Lee, 364 So.2d 1024 (La.1978). There were other remedies available that counsel for defendant did not pursue. He could have requested a continuance or a recess, but he did not. The trial judge elected to proceed with the trial, and, as stated above, offered to grant a new trial if, after trial, defendant could offer evidence contradicting the doctor’s report. Apparently no such evidence was ever offered.

Continuing under the assumption that there had been a violation of the articles on discovery, for us to reverse a conviction based on a violation, the defendant must show that he was prejudiced by the court’s adverse ruling on the sanction requested. State v. Norwood, 396 So.2d 1307 (La.1981), State v. James, 396 So.2d 1281 (La.1981).

We believe that the defendant can show no prejudice here. The record, taken as a whole, shows that he had every opportunity to present any and all exculpatory evidence. He fully cross-examined the doctor and was given the opportunity to obtain evidence before testimony began and to present evidence to the jury during the trial and even to the judge after trial.

The U. S. Supreme Court case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) established the constitutional standard to be applied when the State withholds evidence favorable to an accused that is requested by the defendant. The Court said, “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Defendant argues that Brady controls the decision here. We must point out, though, that the evidence here was not withheld. It was given in a report to the defendant the day before testimony began and it was presented at trial. See State v. Manning, 380 So.2d 46.

Defendant’s counsel argues that he did not have enough time to prepare himself to be able to thoroughly examine the doctor at trial. In answer to this argument, we quote from a footnote in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342.

It has been argued that the standard should focus on the impact of the undisclosed evidence on the defendant’s ability to prepare for trial, rather than the materiality of the evidence to the issue of guilt or innocence.. . Such a standard would be unacceptable for determining the materiality of what has been generally recognized as “Brady material” for two reasons. First, that standard would necessarily encompass incriminating evidence as well as exculpatory evidence, since knowledge of the prosecutor’s entire case would always be useful in planning the defense. Second, such an approach would primarily involve an analysis of the adequacy of the notice given to the defendant by the State, and it has always been the Court’s view that the notice component of due process refers to the charge rather than the evidentiary support for the charge. 96 S.Ct. 2392, 2401 n.20.

In the case of State v. Roussel, 381 So.2d 796 (La.1980), information favorable to the defendant was made known to him for the first time during trial. There the defendant did not object to the evidence presented. Nevertheless, this court discussed whether defendant’s constitutional right to a fair trial was violated. We said, “... (I)n the case at bar, defendant’s late discovery of the alleged exculpatory information did not deprive defendant of an opportunity to effectively present the alleged Brady material to the trier of fact.” We feel that here, too, late discovery did not deprive defendant of the opportunity to effectively present the favorable evidence to the trier of fact.

This case does not open the door for prosecutors to violate the articles on discovery. This court in Roussel, supra, recognized that it would have been preferable if the prosecution had disclosed the information prior to trial and said, “Non-disclosure and tardy disclosure of information which may constitute Brady material invites delay, protracted litigation, and involve the risk that an otherwise valid conviction must be reversed and a new trial ordered.”

We emphasize that here there was compliance, though tardy. The defendant had several options available to him besides the extreme one of a motion to suppress. He could have asked for a continuance or a recess, but he chose not to do so. The court then decided to proceed with trial and made it clear to counsel that if he could produce other evidence after trial, the court would grant a new trial. This, too, was an appropriate option. Counsel cannot let opportunities pass by and later object when there has been no prejudice to the defendant and no constitutional violation of the defendant’s right to a fair trial.

In cases of more serious violations, the court may order a mistrial, and of course it can, when appropriate, suppress the evidence. Additionally, when the violation is willful, the court may consider failure to comply as constructive contempt of court. La.Code Crim.P. art. 729.5(B).

We conclude that this assignment of error has no merit under state law or under the U. S. Constitution.

ASSIGNMENT OF ERROR NO. 3

Defendant’s third assignment of error is .that “the trial judge erred in failing to sustain defendant’s motion to suppress as it related to the suppression of the testimony of Scott Briscoe, four (4) year old minor child of alleged victim in this matter in view of the fact that the said Scott Briscoe did not exhibit a sufficient understanding of the proceedings to be considered a competent witness pursuant to R.S. 15:469.”

The trial judge has wide discretion in determining the competency of witnesses under twelve years old. State v. Sharp, 338 So.2d 654 (La.1976). When a trial judge has ruled that a child is competent to testify, his ruling will not be disturbed unless testimony brought up shows that the judge manifestly erred. State v. Parker, 181 La. 635, 160 So. 123 (1935), State v. Warlick, 179 La. 997, 155 So. 460 (1934).

It is clear from a reading of the transcript that the child here had little or no conception of time. Defendant argues that this fact coupled with the fact that the defendant and the victim had lived together for a period of time prior to the alleged incident, could easily have led to confusion on whether the events the child testified about occurred on that particular night or at some earlier time. The time element is crucial. The child’s testimony placed the defendant in the victim’s home on the night of the alleged incident. Were it not for other testimony by him relating to events that occurred after he was awakened, we would have serious reservations about his testimony.

Without prodding, the child clearly remembered going to the police station in his mother’s car. His memory of this event provided the time frame for the rest of his testimony. The time frame thus being established, it was up to the jury to determine the weight to be given to the rest of his testimony.

Since other testimony by the child and by others did not show that the judge manifestly erred, this decision of the trial judge will not be disturbed on appeal.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In these assignments of error, defendant argues that the trial Court erred in denying his motion for a new trial. He argues in number four that the verdict was contrary to the law and evidence presented because based upon the medical evidence presented by the State it was more probable than not that the alleged victim had not had sexual intercourse for at least four (4) hours prior to the examination by the physician who testified at trial and thus at least three hours prior to the time the alleged victim testified the incident occurred. In number five, he argues that the testimony of his alibi witnesses showed that he was not at the victim’s residence at the time of the alleged sexual battery.

In State v. Landry, 381 So.2d 462 (La.1980), this Court recognized that the scope of review in criminal cases has been altered by the U. S. Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Court said at page 466:

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 [61 L.Ed.2d 560] (1979) appears to dictate a change in our former jurisprudence concerning the scope of review in a criminal matter. Jackson, supra, held that the due process clause of the United States Constitution prohibits conviction of crime except on proof sufficient to convince the trier of fact of the existence of every essential element of the offense beyond a reasonable doubt. Under Jackson, supra, it seems the test may no longer be whether there is some evidence of guilt. Reversal of a conviction is mandated where the proof of guilt is such that no rational trier of fact could find guilt beyond a reasonable doubt.

The doctor’s testimony in this case, by itself, may not have convinced a trier of fact of guilt beyond a reasonable doubt. Taken along with the other testimony, however, we are not able to say that no rational trier of fact could have found guilt beyond a reasonable doubt. Nothing in his testimony refuted the victim’s testimony and nothing in his testimony clearly absolved the defendant. It was up to the jury to weigh his testimony along with all the rest in determining a verdict. We note again that the trial judge said he would grant a new trial if the defendant presented evidence which would “contradict” the doctor’s testimony. We do not have a record of the hearing on the motion for a new trial, but apparently no new evidence was presented.

The testimony of defendant’s alibi witnesses, though helpful to defendant, was at times confusing and certainly not conclusive. The jury apparently did not believe some of it or felt that some of it was too confusing to accord to it any significant weight. It is the jury’s job to determine the credibility of the testimony, and we will not second-guess them in this case.

Viewing all the evidence given at trial, it appears to have been sufficient for a finder of fact to conclude beyond a reasonable doubt, that the defendant did commit a sexual battery on the victim. See State v. Morgan, 389 So.2d 364 (La.1980).

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 7

The seventh assignment of error reads: “The trial court erred in denying the inclusion of the special jury charge requested by the defendant and erred in refusing to grant defendant’s motion for new trial based upon the trial court’s failure to include the special jury charge requested by defendant...”

The special charge requested reads as follows:

“There is a legal presumption that evidence under the control of a party and not produced by him was not produced because it would not have aided him.” (R.S. 15:432).

La.Code Crim.P. art. 807 provides:

“The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

Defendant argues that failure to include the charge resulted in prejudice to the defendant because, had the charge been given, the jury may have given greater weight to the fact that the State failed to present certain items as evidence. Those items were, (1) the light bulb which defendant allegedly unscrewed on Debbie Briscoe’s porch, (2) the bicycle allegedly used by defendant, and (3) the telephone lines allegedly cut by the defendant. Further, had these items been submitted by the State, (since the Sheriff’s office examined the Briscoe premises immediately after the alleged incident occurred), the presence or absence of fingerprints matching Mr. Ar-naud’s on each of these items could have had a bearing on the verdict.

The officers who investigated the incident could easily have taken these items as evidence. They just as easily could have lifted fingerprints from the items. The fact is that they did not. The jury had the benefit of the testimony of a Sheriff’s investigator, Roosevelt Smith, at trial, describing the cut telephone wires. We see little significance in the light bulb or bicycle as evidence.

The important words in R.S. 15:432, relevant to this crime, are “under the control of a party”. Here, though the State could have had the evidence under its control, it did not.

We feel that since the State did not have these items under its control that the presumption doesn’t apply. A special charge must be given by the judge if it is “wholly correct and pertinent.” La.Code Crim.P. art. 807. The presumption here was not wholly correct or pertinent because the items were not under the control of the State.

Whether these items were produced or not goes to the weight of the evidence.

This assignment of error is without merit.

For the above and foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

DENNIS, J., concurs.

WATSON, J., concurs but notes that testimony of any child under 8 or 9 years must be judged very carefully.

       Judges Melvin A. Shortess, Burrell J. Carter and Felix N. Savoie, Jr. of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Dennis, Blanche, Watson and Lemmon.

      . If this was a problem, why did not counsel for defendant request a recess or a continuance?

      . R. pp. 81
      Q. Well, why did you wake up?
      A. My mama was screaming and crying, crying.
      Q. Your mama was screaming and crying?
      A. Yes.
      Q. And when you woke up what did you do?
      A. I don’t know what that — I didn’t — I didn’t even remember that one.
      Q. When you got up did you, did you see “Kenny Boy” in the house?
      A. Yes.
      Q. And where was he?
      A. I don’t remember that one either. Q. Well, did you tell him anything?
      R. pp. 82
      A. No.
      MR. HEBERT: Your Honor, I’m going to object. I think that possibly he’s leading him. He says he doesn’t.. .
      THE COURT: Well, the last question wasn’t. Try to give him an option.
      BY MR. BRINKMAN:
      Q. Did you tell him anything?
      A. Yes.
      Q. What did you tell him?
      A. I don’t remember that one either.
      Q. You don’t remember that either. Now, did — when you saw “Kenny Boy” did he have any clothes on?
      A. Yes.
      Q. Did he have some pants on?
      A. Yes.
      Q. Now, after “Kenny Boy” left where did you and your mama go to?
      A. To the police station.
      Q. The police station. And how did you go to the police station?
      A. In mama’s car.
      Q. In Mama’s car?
      A. Yes.
      Q. Now, when you got up and you saw “Kenny Boy” was your Mama there?
      A. Yes.

      . The term “contradict” is used by the trial judge although the record is clear that he also intended this to mean evidence of fertility of defendant. Such evidence would not necessarily contradict the testimony of the doctor, but could possibly have made his testimony exculpatory.


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

text:
    Joseph Clifford FAULK, Sr. v. CAGLE SUPPLY, INC., Roland A. Authement, Jr., and State Farm Mutual Automobile Insurance Company.
    No. 81-C-2030.
    Supreme Court of Louisiana.
    April 5, 1982.

      Nicholas F. LaRoeca, Jr., Lippman, Maf-houz, Martin, LaRocca & Stansbury, Morgan City, for applicant.
    P. Robert Viguerie, Jr., Logan & Delau-nay, Lafayette, L. Albert Forrest, Roy, Forrest & Lopresto, Ltd., New Iberia, for respondents.
   DIXON, Chief Justice.

This suit for personal injuries arose when plaintiff was injured in an accident in which his United States Postal Service truck was struck by an eighteen wheeler truck owned by defendant, Cagle Supply, Inc. The jury awarded plaintiff $14,000 in damages. Plaintiff appealed, asserting that the award was too low, and the court of appeal affirmed. We granted plaintiff’s application for review. 406 So.2d 607 (La. 1981).

Plaintiff is a mail carrier for the United States Postal Service in Morgan City, Louisiana. On January 18, 1978 he had parked his truck in the driveway of Harold & Andy’s Exxon Service Station in Morgan City. Joseph Faulk was preparing to deliver mail to the station when defendant Roland A. Authement, Jr. backed his truck into plaintiff’s vehicle. Authement was driving an eighteen wheeler truck owned by Cagle Supply, Inc.; he was within the course and scope of his employment at the time of the accident.

Joseph Faulk continued with his duties for several hours after the accident. He began experiencing pain in his hip and shooting pains in his legs later in the day. Dr. Askew, plaintiff’s family physician, was consulted at the emergency room of a local hospital. The physician prescribed bed rest and pain medication for Mr. Faulk. When the pain did not subside, Dr. Askew referred plaintiff to Dr. Russo, an orthopedic surgeon.

Dr. Russo diagnosed plaintiff's problem as a lumbar strain and prescribed heat, pain medication and muscle relaxants. Plaintiff was placed on light duty at his job until mid-March. The pain continued, and Dr. Russo advised Faulk to stop working and remain in bed. Plaintiff was allowed to return to work at the end of March. Dr. Russo testified that Mr. Faulk was a cooperative patient with a positive attitude toward recovery, and that he was not feigning injury. Dr. Russo treated plaintiff through mid-December of 1978. At each examination he found muscle spasm and restricted motion in the lower back. Dr. Russo referred Faulk to Dr. Vogel, a neurosurgeon, who recommended physical therapy. Dr. Russo concurred with that recommendation, had plaintiff continue with therapy and use heat at home. Faulk related to Dr. Russo, during an October appointment, that he was having a hard time working because it required long hours of standing. Dr. Russo suggested to plaintiff that some type of disability retirement might be in order. On December 12, 1978 Dr. Russo placed plaintiff on a “no work” status in preparation for a myelogram that Dr. Vogel was to perform.

Dr. Russo did not see plaintiff again until June of 1979. Mr. Faulk had improved somewhat following surgery performed by Dr. Vogel. Dr. Russo discharged plaintiff to Dr. Vogel’s care. Dr. Russo stated he considered plaintiff to have 15% physical impairment. At trial, Dr. Russo testified that plaintiff had reached the “maximum medical benefit” by June of 1979. He explained that phrase in layman’s terms as meaning plaintiff “... was about as good as you’re going to get.” He based this opinion on the length of time that had passed since the accident and the inability of plaintiff to better his condition despite strict adherence to his physicians’ instructions.

Dr. Vogel treated plaintiff from June of 1978 through the time of trial. He diagnosed plaintiff’s injuries as chronic lumbar strain. Physical therapy was prescribed, but discontinued after a short time, and plaintiff was advised to use heat packs. Mr. Faulk was hospitalized in January of 1979, and he underwent a myelogram and a diskogram. Based on the results of these tests, Dr. Vogel performed a rhizotomy on plaintiff. The rhizotomy was performed to deaden pain nerves in an attempt to relieve Faulk’s distress. Plaintiff remained hospitalized for three days, and was given permission to return to work in mid-April. He was to begin with only the lightest of work and then progress until he could tolerate lifting a weight of fifty pounds; the fifty pound restriction was to remain in effect until a year after surgery. During this period Mr. Faulk continued conservative care consisting of exercise, daily walks, moist heat and medication. Testimony of Faulk and his wife clearly established that plaintiff was diligent in following the doctor’s orders.

Dr. Vogel examined plaintiff in September, 1979 and determined that his condition had deteriorated since April. Plaintiff was experiencing pain, and the physician found muscle spasm, limitation of motion and scoliosis caused by the muscle spasm. When Dr. Vogel saw plaintiff in January, 1980— one year after the rhizotomy and two years after the accident — his pain had increased. Dr. Vogel performed another myelogram, diskogram and rhizotomy after hospitalizing plaintiff. In March of 1980 Dr. Vogel recommended that plaintiff permanently avoid activities that required lifting or pushing more than fifty pounds and activities that necessitated bending. Dr. Vogel testified that plaintiff suffered from a 5% physical impairment.

Plaintiff became mentally distressed when his condition began to deteriorate after the first rhizotomy. Dr. Vogel referred him to Dr. Cloyd, a psychiatrist. Dr. Cloyd testified that plaintiff was a perfectionist who had trouble adjusting to the limitations forced upon him. Dr. Cloyd did not believe plaintiff was a malingerer. He found plaintiff to be suffering from depression because he was unable to be as active as before the accident. Plaintiff was having difficulty with his family owing to his lack of patience and irritability since the accident. Dr. Cloyd described Mr. Faulk’s condition as psychoneurotic depressive reaction, and prescribed anti-depressant as well as anti-anxiety medication. Plaintiff improved with the medication, but Dr. Cloyd testified that he was still depressed, and taking medication for tension, anxiety and to help him sleep, at the time of trial.

A neurosurgeon, Dr. Applebaum, was engaged by the defense, and examined plaintiff for R half hour some two years after the accident. Dr. Applebaum found no muscle spasm, no scoliosis and no impaired range of motion. Dr. Applebaum testified that he did not perform rhizotomies because he did not believe them to be effective. Dr. Applebaum’s opinion was that plaintiff showed no evidence of disability and that there was no physical basis for the pain he was experiencing. He stated that there was no reason Mr. Faulk could not return to work.

Additional testimony was given by plaintiff’s supervisor at the Postal Service. He stated plaintiff had an excellent work history and attendance record prior to the accident. Faulk had not been an employee who complained about physical problems. Mrs. Faulk offered testimony as to the change in her family’s lifestyle since the accident. They were a family who enjoyed doing things together such as fishing, camping and various church functions. Mr. and Mrs. Faulk took pleasure in dancing and frequently chaperoned dances sponsored by their church. Mr. Faulk enjoyed working with electronics; he had built his own television as well as remote control miniature airplanes that he would fly with his son. Unfortunately, Mr. Faulk was unable to participate in most of these activities, and simply did not feel like working on things around the house because of his pain. He also became irritable with his family, as corroborated by Dr. Cloyd’s testimony.

The record clearly establishes that plaintiff was injured in the January 18, 1978 accident, and that he continued to suffer for more than two years following the accident. The only testimony adverse to plaintiff’s claim for damages was that of Dr. Applebaum. Dr. Applebaum’s disbelief in the effectiveness of rhizotomies is in contrast to the testimony of Dr. Vogel and Dr. Russo that plaintiff had shown some improvement.

Plaintiff sought special damages for medical expenses and lost wages. The jury returned a verdict that awarded plaintiff $14,000 in damages. The jury did not specify what portion of the $14,000 was for special or general damages or both, nor did it answer interrogatories. The court of appeal concluded that the jury had chosen to give greater weight to Dr. Applebaum’s testimony than to evidence given by plaintiff’s many witnesses, but was unable to articulate sufficient reasons to allow it to conclude that the jury’s result was clearly wrong.

This court has consistently held that an appellate court should not disturb an award for damages made by a trial court unless the record clearly reveals there was an abuse of the “much discretion” afforded the trier of fact under C.C. 1934(3). See Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971). Here the jury, if indeed it did predicate its verdict on the testimony of Dr. Applebaum, ignoring the testimony of Drs. Russo, Vogel and Cloyd, abused its discretion. Dr. Applebaum’s opinion is important in assessing plaintiff’s condition at the time of trial, but is of little weight in determining his condition prior to that time. All of the physicians who testified agreed a difference exists between objective and subjective indications that a patient may have. Drs. Vogel, Cloyd and Russo found those objective indications during the two years in which they treated plaintiff. The disappearance of objective indications some two years after the accident, when Dr. Ap-plebaum examined plaintiff, does not establish that Mr. Faulk did not have problems during that period. Nor does it prove that plaintiff did not suffer from subjective indications.

Plaintiff proved he is entitled to special damages for medical expenses and lost wages, and it was an abuse of discretion for the jury to not compensate Mr. Faulk for these expenses. In Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967), the trial judge entered a judgment for plaintiff, but felt her injuries were greatly exaggerated; he also did not believe the testimony of plaintiffs doctor because the physician had given similar whiplash testimony in other cases. The trial judge awarded plaintiff the nominal sum of $250 as compensatory damages, and $150 for medical expenses. This court found the trial judge abused his discretion by not giving credence to the physician’s uncontroverted testimony, and held that an award of $1800 would properly compensate plaintiff for her pain and suffering. The jury abused its discretion by ignoring plaintiff’s uncontroverted proof of these expenses when reaching its verdict, and had no discretion to award more or less than what was proved by the evidence.

In Jordan v. The Travelers Insurance Co., 257 La. 995, 1006-1007, 245 So.2d 151, 155 (1971) we held that:

“One injured through the fault of another is entitled to full indemnification for the damages caused thereby. La.Civil Code Art. 2315. Another general principle deduced therefrom and applicable here may be stated as follows:
Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case. Civil Code Art. 1934(3); Brantley v. Tremont & Gulf Ry. Co., 226 La. 176, 75 So.2d 236 (1954), and decisions therein cited.... ”

Plaintiff’s claim for damages for pain, suffering and disability are more difficult to ascertain. The trial court is indeed granted discretion within the range of reasonableness. Coco v. Winston Industries, Inc., supra at 335, set the proper standard for appellate review of damage awards:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., [La., 304 So.2d 351] supra; Bitoun v. Landry, [La., 302 So.2d 278] supra; Fox v. State Farm Mutual Automobile Insurance Co., [La., 288 So.2d 42] supra, Walker v. Champion, [La., 288 So.2d 44] supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.. .. ”

Application of these principles is made more difficult in this case because there were no reasons for judgment. The jury made a single award of $14,000 for the entire claim, and we can only speculate as to its intention. If the jury’s award reflected an effort to reimburse $14,000 in special damages and nothing more, or to compensate for merely a portion of the special damages, but less than $14,000 worth, our assessment of the evidence in this case is that such a determination was an abuse of discretion. As shown by the testimony of plaintiff and his physicians, Mr. Faulk received real injuries and incurred medical expenses prompted by his condition. He is entitled to special damages for all proven medical expenses amounting to $11,421.14.

The same analysis applies to lost wages. If the award intended to give anything less than $20,338.40 for loss of wages, because of disbelief that plaintiff needed to be absent from work, it was also an abuse of discretion.

Plaintiff is also entitled to general damages for his pain, suffering and physical impairment. The jury was apparently not convinced that plaintiff suffered to the degree he contended, and therefore awarded him much less than he sought, even if the entire award had been for general damages. The jury, having the benefit of observing plaintiff, was in a better position to assess the credibility of his testimony regarding the pain he endured. Nevertheless, an award of $14,000 in general damages to someone who was twice hospitalized as a result of his injuries, required two operative procedures for relief of his pain, and could not return to work on a regular, full-time basis for more than two years after the accident is an abuse of discretion. We believe that an award of $35,000 in damages is the lowest amount that could be appropriately awarded.

For these reasons, the award of damages is set aside. The judgment of the court of appeal is hereby amended to increase the award of damages to plaintiff to $31,759.54 for special damages and $35,000.00 in general damages for a total damage award of $66,759.54, plus interest from the date of judicial demand until paid, at defendants’ cost.

LEMMON, J., concurs.

WATSON, J., concurs but would fix minimum general damage at $75,000.00.

BLANCHE and MARCUS, JJ., dissent and assign reasons.

BLANCHE, Justice

(dissenting).

The judgment of the majority “shocks my conscience”. The evidence would fully support a jury judgment that (1) the accident was of such a minor nature that the plaintiff’s injuries could have hardly been more than minimal; (2) that the plaintiff’s complaints were greatly exaggerated; (3) that plaintiff only suffered a minor back strain; (4) that it was an unusual medical practice to give plaintiff two rhizotomies, and that such an operative procedure was minor and of little benefit to this plaintiff.

Both lower courts decided this factual case the same way. The judgment was not manifestly erroneous and, above all, the jury, who sees and hears “live” witnesses, should be accorded much discretion in factual determinations. There was no abuse of that discretion, and I respectfully dissent.

MARCUS, Justice

(dissenting).

I am unable to say that the jury abused its “much discretion” in its award of damages in this case. Accordingly, I respectfully dissent.

      . One judge of the three judge panel concurred, stating that he had “grave doubts” as to the correctness of the result, but that he was un- . able to articulate sufficient reasons to justify changing the judgment below. Another judge dissented, saying the award “shocks my conscience.” Faulk v. Cagle Supply, Inc., 399 So.2d 1186, 1188 (La.App.1981).

      . Plaintiff sued Authement, Cagle Supply, Inc., his employer, and Cagle’s liability insurer, State Farm Mutual Automobile Insurance Company.

      . Dr. Vogel described a rhizotomy as “an operative procedure where pain nerves are cut with an electrode." The procedure requires general anesthetic, and is an operation like any other operation, according to Dr. Vogel, though it does not require an incision.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. James BANKS.
    No. 81-KA-2037.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Clifford Strider, III, Charles P. Ciaccio, Louise Korns, John H. Craft, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
    Jasper Pharr, John M. Lawrence, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Defendant, James Banks, was charged by bill of information with “receiving” stolen property, an automobile. R.S. 14:69. Defendant was tried before a judge alone and was found guilty as charged. Subsequently, the State filed a bill charging defendant as a multiple offender under R.S. 15:529.1. Defendant was sentenced as a double offender to serve five years imprisonment. It is from this conviction and sentence that defendant appeals.

On January 3, 1981 Jerry Warner, a New Orleans policeman, observed a 1977 Chevrolet Impala run a red light at Orleans and North Miro in New Orleans. He pursued the vehicle and had the driver (defendant) pull over to the side of the street. When defendant got out of the car, Officer Warner asked him for his driver’s license. Defendant produced a temporary driver’s license with no picture in the name of Joseph P. Templet. When asked his name, defendant could only tell the officer “Tem-plet.” He could not give a first name or a birth date. Defendant stated that the car belonged to him. A subsequent check revealed that the driver’s license belonged to a white male, although defendant was a black male. Officer Warner then ran a check on the vehicle’s license plate and discovered that the license plate did not belong on the vehicle defendant was driving, and that the vehicle had been stolen.

At trial, defendant took the stand, readily acknowledged that he had been driving the car, but stated that he had borrowed it from a friend, one John Cooks, and had no knowledge that it had been stolen. Cooks, he said, had gone to California and had left the car with him.

Templet testified that his car had been stolen on Canal Street on December 24, 1980 by a man who robbed him of his wallet and watch. Defendant, twice convicted of burglary (and once for criminal mischief after another burglary charge) stated that his friend had asked him to take care of the car two or three days after Christmas, 1980. His mother said he had the car on December 24, and his friend, Ms. Paul, said she saw him with the car about December 26. Defendant had used the car several times to transport family and friends.

Defendant attacks the exclusion of certain hearsay testimony, the sufficiency of the proof and the validity of the plea of guilty used to enhance the penalty.

Defendant’s mother and friend were not permitted to testify about what defendant told them about his possession of the car. The exclusion of this testimony was erroneous, but harmless. Defendant’s state of mind is an essential element of the offense. R.S. 14:69 provides in part:

“Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.”

Nevertheless, defendant’s testimony was so thoroughly impeached that what he told his family and friends about how he obtained the car should not have affected the court’s judgment.

The arresting officer testified that defendant said his friend told him to use Templet’s temporary driver’s license (with no photograph attached) if he should be stopped in the car. Along with the driver’s license was Templet’s insurance identification card, his fishing license, his Gulf Auto Club card and his social security card. These documents, if delivered to the defendant with the automobile, should have caused any reasonable person to believe that the car and the documents had been stolen. Defendant denied having made such a statement.

Viewing the evidence in the light most favorable to the State, any rational trier of fact could have readily found the defendant guilty beyond a reasonable doubt.

At the multiple offender hearing the State tried to use two prior offenses; the court excluded one. The objection to the other was that defendant had not been informed that he had the right to choose between a trial by judge or trial by jury. This is not a constitutional requirement for a valid plea of guilty. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Edwards, 384 So.2d 789 (La.1980). The plea of guilty is not invalid.

There is no merit in the assignments of error.

The conviction and sentence are affirmed.

       Judges Burrell J. Carter, Felix H. Savoie, Jr. and Melvin A. Shortess of the First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus and Dennis.


author: MARCUS, Justice . EDWARD A. DUFRESNE, Jr., Justice Pro Tern.,

text:
    STATE of Louisiana v. Ozie ABERCRUMBIA.
    No. 81-KA-2082.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Ralph S. Wright of Lowther & Boone, Many, for defendant-appellant.
   MARCUS, Justice .

Ozie Abercrumbia was indicted by the grand jury for the crime of aggravated battery in violation of La.R.S. 14:34. At the arraignment, defendant entered a plea of not guilty. Thereafter, defendant withdrew his former plea of not guilty and entered a plea of guilty to second degree battery (La.R.S. 14:34.1). The trial judge accepted the guilty plea after determining that it was made voluntarily with understanding of the nature of the charge. A presentence investigation was ordered. Subsequently, after receiving the presen-tence report, the trial judge sentenced defendant to serve three years at hard labor. Defendant objected on the ground that the sentence was not imposed in compliance with La.Code Crim.P. art. 894.1.

On appeal, defendant contends in his sole assignment of error that the trial judge erred in failing to follow the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 and in imposing an excessive sentence.

The presentence report reflects that on the evening of August 22, 1980, Johnny L. Abercrumbia, Lonnie Ray Givens, James Williams and defendant were playing dice in Cleo’s Cafe in Pleasant Hill, Louisiana. Williams claimed he had won and picked up the money, whereupon an argument ensued. Outside the cafe, a fight started resulting in injuries to Williams. Williams was hit with boards and suffered injuries to his head, neck and arm including a deep cut above his right eye.

The presentence report further reveals that defendant is 34 years of age. He was born in Pelican, Louisiana, and has remained a resident of Sabine Parish all of his life. He completed the eighth grade at a school in Pleasant Hill, where he presently resides with his mother. In 1972, he began working for Larry Jones Pulpwood Company and has continued to work there to the present time. Defendant stated that pulpwood work is all that he has done since he quit school. Defendant has no juvenile record for arrests and/or convictions. His adult record indicates only that he had been arrested once before for aggravated battery but a no true bill was returned by the grand jury.

Considering the seriousness of the offense and the undue risk that defendant would commit another crime if the sentence was suspended and he was placed on probation, the trial judge concluded that a sentence of imprisonment should be imposed. While recognizing that an argument immediately preceded the fight, he considered that defendant was one of the aggressors in the fight. He further found that defendant’s record and previous history did not justify the conclusion that he would successfully serve a period of probation.

La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Forshee, 395 So.2d 742 (La.1981). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Forshee, supra.

Although the trial judge substantially complied with art. 894.1 in imposing sentence, we consider that he reached unfounded conclusions from the facts considered in imposing sentence. Given the fact that this was defendant’s first criminal offense and considering his steady work record, we find no factual basis for concluding that there was an “undue risk” that defendant would commit another crime if his sentence was suspended and he was placed on probation or that he would be a poor probation risk. Moreover, the injuries sustained by the victim resulted from a fight between the participants of a dice game at a bar. As defendant asserts in brief, this was “a simple fight that got out of hand, people got mad, and things were done that should not have been done.” The imprisonment portion of the penalty for second degree battery is confinement for not more than five years with or without hard labor. We consider that the trial judge abused his discretion in imposing a sentence of three years at hard labor under the facts of this case. We find the sentence to be excessive. Accordingly, we must vacate defendant’s sentence and remand the case to the trial court for resentencing.

DECREE

For the reasons assigned, the conviction is affirmed but the sentence imposed is vacated and set aside, and the case is remanded to the district court for resentencing in accordance with the views expressed herein.

WATSON, J., concurs in the result.

EDWARD A. DUFRESNE, Jr., J. Pro Tern., dissents and assigns reasons.

EDWARD A. DUFRESNE, Jr., Justice Pro Tern.,

dissenting.

I respectfully dissent. I am of the opinion that the evidence supports the trial judge’s sentence and I do not consider it excessive. I would affirm the conviction and sentence of the defendant.

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court and Edward A. Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.