author: FRED C. SEXTON, Jr., Justice Ad Hoc .

text:
    STATE of Louisiana v. Edrick K. JENKINS.
    Nos. 81-KA-3183, 81-KA-3184.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Speedy 0. Long, Dist. Atty., Dan Cornett, Norris Dale Jackson, Asst. Dist. Attys., for plaintiff-appel-lee.
    Patrick L. Durusau, Public Defender, for defendant-appellant.
   FRED C. SEXTON, Jr., Justice Ad Hoc .

Defendant Edrick K. Jenkins was charged by bill of information filed January 9, 1981, with two counts of distribution of marijuana, in violation of LSA-R.S. 40:967 A. He entered pleas of guilty on both charges during jury selection, reserving his right to appeal the court’s ruling on a motion to quash. Jenkins was sentenced on September 18, 1981, to concurrent terms of 18 months at hard labor on each count and was fined $1,000.00. He now appeals his convictions and sentences to this court, asserting four assignments of error, all of which are argued. The appeals are consolidated to facilitate discussion.

FACTS

The facts as reflected by the record and as adduced by the state at the motion to quash hearing revealed that on both November 1 and 2, 1979, Jenkins sold marijuana (one “lid” and then two “lids” respectively) to an undercover agent in LaSalle Parish. An arrest warrant for Jenkins was issued in October, 1980. A warrant was not sought sooner because Jenkins’ arrest might have jeopardized the undercover operation.

The substances bought from Jenkins were sent to the analysis lab approximately two weeks after the sales and were positively identified as marijuana. No other purchases from Jenkins were attempted.

The undercover operation in LaSalle Parish lasted approximately nine months to one year after the purchase from Jenkins. Though the agent saw defendant periodically in the area during the months after the sale, Jenkins was not arrested until December 17, 1980, when he was stopped for having a loud muffler and a routine check revealed the arrest warrant for the instant charges.

ASSIGNMENT OF ERROR NO. 1

Defendant in his first assignment of error contends that the trial court erred in failing to grant his motion to quash the bills of information due to the 13 month delay between the date of the offenses and the date of arrest. The defendant specifically contends that the delay impaired his right to effective assistance of counsel and effective confrontation of witnesses as well as limiting the ability to call witnesses on his behalf and to preserve evidence in furtherance of his alibi defense.

Defendant concedes that this court’s holding in State v. Malvo, 357 So.2d 1084 (La.1978), is controlling. Malvo stated that:

“The proper approach in determining whether an accused has been denied due process of law through a pre-indictment or pre-arrest delay is to measure the government's justifications for the delay against .the degree of prejudice suffered by the accused.” Malvo, supra, at p. 1087.

See, also State v. Coleman, 380 So.2d 613 (La.1980); State v. Crain, 379 So.2d 1094 (La.1980); State v. Cole, 384 So.2d 374 (La.1980); State v. Duncan, 396 So.2d 297 (La.1981); 41 La.L.Rev. 592 (1981).

Jenkins asserts, however, that Malvo and its progeny are in error in that they place an undue burden upon the defendant because the passage of time affects his recall of the events surrounding the offense and thus affects his ability to show prejudice. Thus defendant claims the delay itself has affected his ability to show prejudice under the Malvo standard. Jenkins presented no testimony at the hearing on the motion to quash. However, he asserts in brief that his guilty plea shows that he would have been unable to establish his whereabouts on the days in question due to the delay.

The state claimed at the motion to quash hearing that an immediate arrest of the defendant would have blown the undercover operation. Although Jenkins was not recontacted after the sales, the undercover operation in LaSalle Parish continued for nine months to one year after the offense. The trial court held in denying Jenkins’ motions that his opportunity to establish an alibi was not prejudiced, to any extent, by the delay in the case.

The state’s justification for the delay in bringing the case outweighs any prejudice Jenkins may have suffered. The desire of the state to protect an ongoing undercover operation is a legitimate excuse for pre-ar-rest delay. State v. Malvo, supra. Moreover, Jenkins has not asserted any prejudice to his rights which approached that asserted by Malvo (death of material defense witness during delay). A balance of the interests results in a determination that Jenkins was not so prejudiced by the delay that he was deprived of due process.

This assignment of error lacks merit. ASSIGNMENT OF ERROR NO. 2

By this assignment defendant asserts that he received ineffective assistance of counsel at the motion to quash hearing in that his counsel failed to call him as a witness at the hearing so that he could show prejudice caused by the delay. It will be recalled that the defendant herein withdrew his pleas of not guilty and entered pleas of guilty on July 13, 1981. He thus waived any non jurisdictional defects such as this alleged ineffective assistance of counsel. State v. McKinney, 406 So.2d 160 (La.1981).

In addition, assertions of ineffective assistance of counsel as a general rule are more properly raised by writ of habeas corpus than by assignments of error. State v. Brown, 384 So.2d 983 (La.1980).

Parenthetically we note that the record reveals that trial counsel ably discussed and argued his client’s position at the hearing on the motion to quash, offering several documents to buttress his allegations. He also cross-examined the state’s witness at length with obvious knowledge of the issue and the law. The record further reveals that counsel filed an extensive discovery motion and a sufficient motion to quash.

The record here does not reveal egregious omissions or errors. We note that it would be speculative at best to attempt to ascertain the defense strategy in the case at hand. Assuming arguendo that this assignment is properly before us the defendant was not denied effective assistance of counsel sufficient to compel a reversal. State v. Myles, 389 So.2d 12 (La.1980).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error defendant contends that the trial court erred in denying his motion for a new trial based on the discovery of new evidence which, defendant argues, is significant enough to justify a new trial. LSA-C.Cr.P. Art. SSl^).

Normally the defendant’s plea of guilty waives all non jurisdictional defects, as we previously noted with regard to assignment number two. State v. McKinney, supra. Thus since this defendant has plead guilty, a motion for a new trial is inappropriate. However his allegations should not be disregarded and will be treated as if presented on a motion to withdraw a plea of guilty. LSA-C.Cr.P. Art. 559.

This article allows the court to permit a withdrawal of a guilty plea at any time prior to sentence. The motion here was filed in advance of sentence. The trial court has great discretion with respect to withdrawal of a guilty plea, but which discretion may not be exercised arbitrarily and can be corrected on appeal. State v. Compton, 367 So.2d 844 (La.1979).

In the instant case Jenkins, after his trial, produced four witnesses; his mother, a lifelong friend who worked with him on the day of the offense, his sister, and his brother-in-law. Jenkins himself also testified. The purpose of their testimony was to show that Jenkins could not have physically been able to commit the crime in that he had not yet arrived in town on his way home from working offshore. The basis of their testimony is that they remembered, after defendant had pleaded guilty in July 1980, that the first sale occurred on November 1, 1979, defendant’s brother’s birthday. They were then able to recall the specific events of the day.

All the new witnesses testified that they were aware of the charges and knew how to contact the defendant. Jenkins also testified that he knew the whereabouts of the witnesses and how to contact them.

As the trial judge noted, the date of the alleged offense was known to the defendant and his counsel for a number of months. The witnesses were close friends or relatives and were available to the defendant to develop the line of defense evidenced through the motion well in advance of the motion for a new trial. It is difficult to accept that the coincidence of the alleged date of the offense and the brother’s birthday were only realized after the defendant plead guilty.

Though the trial judge in responding to the motion for new trial judged it on the basis of the standards for that motion and denied it because the evidence was readily available to the defendant well before the time set for the trial, that same standard is appropriate in reviewing the motion as one to withdraw a plea of guilty. Thus the trial judge did not abuse his discretion.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

In his final assignment of error, defendant contends that the trial court erred in imposing an excessive sentence, considering his circumstances and the offenses for which he was charged. Upon pleading guilty to the two counts of distribution of marijuana, defendant was sentenced to serve two concurrent terms of 18 months at hard labor and was fined $1,000.00.

The defendant basically asserts two separate contentions with respect to exces-siveness. He first of all contends that the trial court improperly considered evidence of a post-arrest sale of counterfeit drugs to undercover agents. Secondly, he contends that the sentence is excessive with or with-, out the consideration of the “counterfeit sale.”

The record available to the trial judge as well as the pre-sentence report indicated that defendant was 19 years old at the time of the alleged offenses, and was 21 at the time of sentencing. He had served six months in the United States Marine Corps but was medically discharged. He was a high school graduate receiving less than average grades, participating in sports and the band. He was working offshore at the time of his arrest, having been so employed for about two and one-half years, and was well thought of by friends, neighbors and relatives.

The defendant sold three “lids” (one and two “lids” respectively) to an undercover agent on successive days. The pre-sentence report indicated that after the defendant’s arrest while out on bond, but before pleading guilty to these offenses, he sold one gram of “cocaine” to a different set of undercover officers. The substance sold was asserted by him to be cocaine but was in actuality litocaine, which is not a controlled substance. This activity was not specifically prohibited by our Uniform Control Dangerous Substances Law at the time.

At the defendant’s request, due to the allegations of the subsequent counterfeit sale, a sentence hearing was held. At that time the two undercover officers testified that they had indeed purchased one gram of a substance identified to them as cocaine by the defendant for $80.00 during April 1981. The defendant presented no evidence at the hearing. Thereafter the trial judge, after considerable articulation of the issues, sentenced the defendant as indicated above.

The trial judge was clearly justified in considering the evidence of the counterfeit sale in assessing the defendant’s sentence. This sale occurred approximately a year and one-half after the sales which formed the basis of this prosecution. The defendant had been arrested and out on bond for several months. Thus this activity obviously indicated a penchant for drug related conduct. It is particularly appropriate for consideration here because the defendant had told the probation officer he was not involved in the regular sale of marijuana but that he had obtained it only for friends on a few occasions. He also told the probation officer conducting the presentence report that he had ceased that type activity. Thus the evidence of the counterfeit sale indicated the defendant misrepresented himself to the probation officer as being remorseful about his conduct. It also indicated that he had not been impressed with his contact with the legal system on the pending charges at that point, and confirmed the fact that he was a “street level dealer” of dangerous drugs thus making the sentence imposed well within the trial judge’s discretion.

Assuming arguendo that the trial judge should not have considered the evidence of the subsequent counterfeit sale the sentence is nevertheless not excessive. The defendant made two separate sales on consecutive days. The second sale consisted of two “lids” to persons who were virtual strangers to the defendant and contradicts his assertion in the pre-sentence report that he only obtained marijuana for a few friends, and would tend to also indicate that he was not just an “accommodation dealer.” Thus the relatively short concurrent sentences of 18 months, even considering the defendant’s stable work record and lack of previous convictions — and not considering the subsequent counterfeit sale, placed the sentence well within the trial judge’s discretion. Compare State v. Underwood, 365 So.2d 1339 (La.1978); State v. Jacobs, 383 So.2d 342 (La.1980); and State v. Beatty, 391 So.2d 828 (La.1980).

This assignment of error lacks merit.

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

AFFIRMED.

       Judges Fred C. Sexton, Jr., and William Norris, III, of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson, and Harry T. Lemmon.

      . LSA-C.Cr.P. Art. 851(3)
      (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

      . LSA-C.Cr.P. Art. 559. Withdrawal or setting aside of plea of guilty
      The court may permit a plea of guilty to be withdrawn at any time before sentence.
      The court shall not accept a plea of guilty of a felony within forty-eight hours of the defendant’s arrest. When such a plea has been accepted within the forty-eight hour period, the court, upon a motion filed by the defendant within thirty days after the plea was entered, shall set aside the plea and any sentence imposed thereon.
      When a plea of guilty has been withdrawn or set aside, the plea and the facts surrounding its entry shall not be admissible in evidence against the defendant at a trial of a case.

      . The selling of counterfeit drugs is theft, in the opinion of the author. Such action was specifically proscribed by Act 914 of 1981, becoming LSA-R.S. 40:971.1.

      . The author has serious reservations with respect to sentence review for excessiveness and is inclined to Justice Ad Hoc Marvin’s dissent in State v. Tilley, 400 So.2d 1363 (La.1981) at p. 1368. But if review is appropriate then I believe the sentence imposed is a minimum one under these circumstances.


source: Caselaw Access Project

author: FRED C. SEXTON, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. Joseph SMITH and Terry Brown.
    No. 81-KA-3192.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Michael Simpson, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
   FRED C. SEXTON, Justice Ad Hoc.

The defendants, Joseph Smith and Terry Brown, were charged by bill of information with attempted armed robbery, in violation of LSA-R.S. 14:64 and 14:27. After trial by jury, both defendants, were found guilty as charged. Defendant, Smith, was sentenced to 14 years at hard labor. Subsequent to the filing of a bill of information under LSA-R.S. 15:529.1 (Habitual Offender Law) the defendant, Brown, was sentenced to 25 years at hard labor. Defendants submit five assignments of error consolidated into three arguments.

FACTS

As related by the victims, the incident which led to the conviction of the defendants began at about 11:30 p. m. on September 8,1980. The victim, David Findley, was driving his motorcycle down Whitney Street in Algiers, with his fiancee’, Rendía Dickerson, riding as a passenger. They were hailed by the two defendants and they pulled over in response to the defendants’ motioning for them to do so. The defendants asked whether Findley “had any drugs.” When he told them no, the defendant, Joseph Smith, grabbed the handbrake of the motorcycle, and the defendant, Terry Brown, pulled a revolver on Findley and demanded that he be given “everything you got.” Brown then pulled the trigger of the pistol, which clicked but did not fire. The defendant Brown then pulled the trigger a second time, producing the same result, a click but no shot. The victim pretended to see a police officer and yelled, “Hey, cop” which caused their assailants to let the motorcycle go and hide the gun. The intended victims then fled the area and sought the assistance of a New Orleans police officer, August Santasuosso, who was known by Ms. Dickerson to live in that area. The victims and Officer Santasuosso denied any personal knowledge of each other prior to this incident.

Officer Santasuosso had his wife call for further police assistance and then took Mr. Findley with him in the officer’s personal car to look for the two assailants. After a brief search, Findley identified two men leaving a lounge as the two robbers and Officer Santasuosso made an arrest. During the arrest, the defendant Smith made an attempt to remove a firearm from his rear pocket. Seizure and examination of the pistol after the arrest revealed that it was a .22 caliber revolver, which contained only two live rounds and the casing of one spent round. The gun was loaded as follows: live round, empty cylinder, live round, empty cylinder, empty cylinder, spent round. This loading pattern would account for the failure of Brown’s weapon to fire at the victim, Findley.

The defense presented was that Findley and his girlfriend (who had married by the time of the trial in July of 1981) had stopped the defendants on the street and attempted to get them to buy drugs. The defendants allegedly declined the offer to buy and Findley persisted in his efforts to sell drugs. The defendant Smith testified that he grew tired of the sale effort and pulled a gun on the two to make them leave.

ASSIGNMENTS OF ERROR NOS. 1 AND 5

These assignments of error deal with the trial court’s refusal to permit defense counsel to make an inquiry of the witnesses Ms. Dickerson (Mrs. Findley) and Findley as to their prior use of drugs, as well as the refusal to permit a question as to Mrs. Findley’s possession of drugs on the night in question.

After having asked Ms. Dickerson (Mrs. Findley) whether she had been arrested and having an objection thereto sustained, counsel for one of the defendants asked her if she had ever used marijuana. After an objection was sustained, counsel then asked if the witness had used quaaludes, resulting in another sustained objection. Counsel shortly thereafter then told the court:

“I’m going to ask her if she had quaa-ludes or preludes or any type of drug on her that night.”

An objection to this question was also sustained. It is pertinent to note that this witness testified that she heard no conversation with respect to drugs between her boyfriend and the defendants. She stated she was preoccupied trying to find something in her purse and did not specifically hear any of that conversation.

Later her boyfriend, the driver of the motorcycle, David Findley, had testified on direct that when the defendants had approached him originally they asked if he had any drugs. He stated he told them that he did not do drugs. On cross-examination he was asked if he had ever smoked marijuana. The resulting state objection was sustained. This witness had earlier been asked on cross-examination what was in his pockets at the time in question and he was allowed to respond in spite of the state’s objection.

It is apparent that the questions directed to the witnesses as to their prior use of drugs were irrelevant in the context asked. However, the proposed question with respect to whether or not Ms. Dickerson (Mrs. Findley) had drugs on her on the night in question was probably relevant, as it related to the defendants’ defense that they had been approached by these victims for the purpose of being sold drugs. The difficulty is that in originating this line of inquiry with each of these victims, defense counsel first asked each if he had ever been arrested, an obviously impermissible inquiry. Then counsel launched into the question of drug use as previously indicated. Note that no question with respect to Mr. Findley’s possession of drugs on the night in question was asked, though recall that he was asked what he had in his pockets. Also recall that he was the victim whom the defendants claim inquired of them about drugs.

While it appears the questions to Mrs. Findley concerning drugs in her possession at the time of the incident should have been allowed, the defense was able to inquire of the main victim as to what was in his pockets on the night in question. The defense compounded the situation by asking the question during an obviously impermissible line of inquiry. Furthermore the error was minor in the context made, and in the context of the entire trial. Our review of the record convinces us that defendants received a fair trial and that this error did not result in any prejudice to them, and is therefore insufficient to require a reversal. LSA-C.Cr.P. Art. 921.

These assignments of error lack merit. ASSIGNMENT OF ERROR NO. 2

The defendant Smith urges that the refusal of the court to permit a police officer witness to examine Smith’s forearm and to testify to the absence of “track marks” is in error.

The defense sought to introduce the testimony of Officer Michael Cates, concerning the presence or absence of “track marks” (which would evidence repeated injections ostensibly of illegal drugs) on the forearms of the defendant. Cates was qualified to the court as to his knowledge of those type marks, but the trial court on its own motion ruled that the inquiry was irrelevant.

The defendant concedes that he later took the stand and subjected his arms to the jury’s view. But the defense contends that the additional testimony that there were no indications that the defendant was a user of narcotics would have been very important to the defense case.

As the victim Findley had alleged that the defendants initially asked him if he had any drugs when they attempted to rob him, evidence of track marks, or the lack thereof may have been slightly relevant to show that the defendant did or did not use drugs. However, common sense tells us that this evidence would have been far from conclusive in this regard. Furthermore, even if the defendant was able to prove conclusively he did' not use drugs such would not necessarily discredit the victim’s testimony, as the defendants’ alleged statement seeking drugs could have been a ruse.

Assuming arguendo that Officer Cates’ testimony regarding the supposed lack of track marks on the defendant Smith’s arms would have been relevant, it is difficult to see how the defendant was substantially prejudiced by the refusal to allow the defendant to show his arms to this officer. As we have noted, the defendant was allowed to display his arms to the jurors and presumably they were devoid of anything resembling track marks, which the jury was able to observe.

The trial judge is vested with great discretion with respect to the relevancy of evidence and it should not be disturbed absent a showing of clear abuse. State v. Hathorn, 395 So.2d 783 (La.1981). Furthermore, rulings should not be reversed because of error which does not affect the substantial rights of the accused. LSA-C. Cr.P. Art. 921. In short, it does not appear that a substantial right of the accused was affected.

This assignment of error lacks merit. ASSIGNMENTS OF ERROR NOS. 3 AND 4

Assignments of error three and four deal with the state’s cross-examination of the defendant Smith with regard to his probationary status at the time of the trial, and with a comment on this probationary status made during the state’s rebuttal argument.

During direct examination, the defendant Smith denied having been previously convicted of a crime. The District Attorney, on cross-examination, asked him if he still contended that he had never been convicted. The defendant, after examining state’s exhibit S-4 (some type of record of defendant’s prior conviction) admitted that he had been convicted. Then the state asked, “Isn’t it a fact that you are on probation right now?” causing the defense to object and ask that the jury be removed. The court overruled the objection holding that the state could continue the line of inquiry because by denying any convictions, the defendant had “opened the door” to impeachment. The jury was returned and the following ensued:

Q. Mr. Smith — so you now admit that you’ve been convicted of a crime?
Now that it came back to my memory-A.
It came back to your memory? You had forgotten it when you first told the jury that you had not been convicted? Q-
A. Yes, sir.
Q. You’d forgotten. Did this conviction not occur on June 9, 1980?
A. June 9, 1980. No.
Q. Not the crime, now — the day you were convicted.
A. I’m not aware of the date.
Q. Let me let you look at the paper again. Would you take a look at that. Is that what the paper says?
A. Yes, sir.
Q. June 9. That’s about three months before this incident isn’t it ... three months before this incident. And yet you forgotten when you testified before?
A. No, I had forgotten at this moment.
Q. Well, you had a trial in that case, didn’t you?
A. Yes, I did.
* Sfc # * ‡ &
Q. And isn’t it a fact that today, as you sit here, you are on probation for possession of stolen property?
By: Mr. Dosky — Note an objection.
A. Yes, sir.

Then in the state’s rebuttal argument (while the prosecutor was explaining to the jury that the judge would charge them that credibility of witnesses was within their province and that they should examine the defendant’s credibility) the prosecutor commented that the defendant was trying to lie his way out of his present circumstance. The District Attorney went on further to remind the jury that the defendant had been on trial only three months before this incident and stated, “can you conceive of someone who’s on probation this very moment” when there was an objection which was overruled. The District Attorney continued by saying, “who is on probation at this very moment, as a result of a trial in which he was convicted of possessing sixteen stolen hotel keys, forgetting about that?”

State v. Jackson, 307 So.2d 604 (La.1975), addressed the issue of whether the defendant may be examined about the details of a crime which is being used to impeach his credibility. In Jackson, this court reaffirmed that evidence of any conviction (including misdemeanors) is admissible to impeach the credibility of the witness and went further to establish a general rule allowing inquiry into the details of previous convictions.

However, Jackson is not without its limits. In State v. Johnson, 368 So.2d 719 (La.1979), this court held that inquiry into a probationary status should not normally be permitted, as it was without purpose. The rationale allowing inquiry into the details of previous crimes is to test credibility, and inquiry into probationary status therefore has no relation to credibility. However, in Johnson the inquiry was limited and not sufficiently prejudicial as to require a reversal. Likewise in this case the inquiry was limited. Unlike Johnson though, the inquiry here was extremely relevant to the defendant’s contention that he had “forgotten” his conviction which occurred only three months previously.

Obviously the purpose of the District Attorney’s questions regarding probation was to show that because of the recent and continuing nature of defendant’s probationary status, his claim that he had “forgotten” his recent conviction was an obvious attempt to mislead the jury. Defendant opened the door for this area of inquiry by denying the previous conviction and then compounding this falsehood by contending he had forgotten the conviction.

Furthermore, the prosecution’s argument to the jury, in the context made, was an appropriate comment on the evidence. The defendant had denied a previous conviction, and then, when faced with it, contended he had forgotten that recent conviction. When the defendant takes the stand his credibility is to be judged just as that of any other witness. The argument was appropriate to remind the jury of a matter to be taken into consideration in evaluating the defendant’s testimony.

These assignments of error lack merit.

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

AFFIRMED.

DIXON, C. J., concurs.

       Judges Fred C. Sexton, Jr., and William Norris, III, of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.


author: BYRNES, Justice Pro Tern.

text:
    STATE of Louisiana v. Richard ALLNET.
    No. 82-KA-0013.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Margaret A. Coon and Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Wendell E. Tanner, Slidell, S. Austin McElroy, Covington, Office of Indigent-Defender, for defendant-appellant.
   BYRNES, Justice Pro Tern.

Richard Allnet, was charged August 21, 1980 in St. Tammany, Louisiana with the first degree murder of Randy Sebble, a violation of La.R.S. 14:30, committed on July 31, 1980. The defendant was tried before a jury on November 9-11, 1981 and found guilty as charged. On November 20, 1981, pursuant to the jury recommendation, the trial court sentenced the defendant to life imprisonment. Defendant, on appeal, urges three assignments of error. These assignments are all interrelated and deal with the trial court’s refusal to grant the defendant a continuance after he was apprised of certain inculpatory statements to be used against him shortly before the start of his trial.

Defendant’s brother, Vincent Allnet, discovered on July 31, 1980 that some of his jewelry was missing. He believed that Owen Meilleur and Randy Sebble, two young boys, had stolen the jewelry. Meilleur is the defendant’s nephew. Randy Sebble was an acquaintance of Meilleur’s. Both of the boys were severely beaten by Vincent Allnet in Allnet’s home on the afternoon of July 31, 1980. When Meilleur recovered from his beating he noticed that Randy Sebble was gone. Upon Vincent Allnet’s insistence, Meilleur went to the Show Boat Lounge, in the “Fat City” area of Jefferson Parish to see Allnet’s daughter and her husband perform. He was driven there by Robert Allnet, the defendant’s son. When Meilleur and Robert Allnet arrived at the lounge, Meilleur spotted Vincent Allnet’s vehicle in the parking lot. Meilleur became suspicious since his uncle had told him he was not going to the lounge that night. When Meilleur got out of the car, Floyd Webb got out of Vincent Allnet’s car and told Meilleur to get in. When Meilleur refused, Webb grabbed him and threw him in the back seat of the car whereupon they drove off. In the back seat with Meilleur were Randy Sebble and Richard Allnet. In the front seat were Vincent Allnet, Kim Kohler and Floyd Webb. Randy Sebble was bleeding and looked as if he had been beaten up. During this ride defendant, Richard Allnet, kept punching Meilleur and hollering at him saying that he was going to kill Meilleur if he did not return the jewelry. They drove to an isolated area of marsh near Fort Pike in Slidell, whereupon defendant forced Meilleur to get out of the car. The other boy, Sebble, was also taken from the car and Floyd Webb started beating on both of them, and shot bullets at their feet to make them jump up and down and dance for him. Meilleur was then kicked in the groin and fell to the ground.

Meilleur’s story as to who actually shot him is not very clear. He first stated:

It appears that Meilleur meant to say it was Vincent who said “I will show you how serious I am,” because he later said he believed it was Vincent who shot him. However, his testimony on this point is very confusing.

Owen Meilleur’s testimony with regard to who shot and killed Randy Sebble is very clear. After he was shot, Meilleur looked up to see Sebble running to the car saying “You did it. You really did it.” Floyd Webb said “we can’t keep no witnesses,” and he shot and killed Sebble.

The four men then got into their car and drove off towards Slidell. They returned to the scene of the crime approximately 5 to 10 minutes later to make sure that both of the young boys were dead. Meilleur at this point in time feigned death in order to avoid the coup de grace. He remained still even when he was kicked by one of the men. During this time his face was in a red ant pile and he was severely bitten. Once the men left the scene for the second time, young Meilleur dragged himself by his hands to the highway where he flagged down a passing motorist and was taken to the hospital.

Defendant’s version of what transpired is that he went to a bar across the street after work on July 31, 1980. He claims he remained there until 9:00 or 9:30 p. m., then went home. When he arrived home, Vincent Allnet was standing outside and asked him to take a ride with him. Floyd Webb and Kim Kohler were in the car. Defendant claims he saw no weapons at that time. He maintains they drove to a coffee shop on St. Claude and Elysian Fields and picked up Randy Sebble.

According to defendant, Sebble was not forced into the car, but got in voluntarily. Then they drove to the Showboat Lounge in Fat City, where Floyd Webb forced Owen Meilleur into the car. They proceeded to a place near Slidell. Defendant claims that when they got out of the car, Vincent All-net took a shotgun and pistol out of the car. Defendant said he thought Vincent and Floyd Webb were going to “beat them up a little” over the jewelry and leave. He claims he had no intent to kill or hurt anyone. Vincent gave the defendant the shotgun and told Meilleur to lie on the ground. Vincent and Floyd Webb then went over to the defendant and told him to shoot Meilleur. When Richard refused, Floyd told him “You either kill him or else.” Defendant asserts he “shot toward the ground, not to shoot or to kill [Meilleur]”. He claims he only shot because he was afraid they would kill him too.

ASSIGNMENTS OF ERROR I. & II.

Defense counsel filed a prayer for oyer requesting any and all confessions, statements, and admissions by the defendant. In its answer to the prayer for oyer, the state referred the defense to a taped statement by the defendant to a police officer and to grand jury testimony of certain witnesses. On the day trial was to commence, the state filed a second “Notice of Intention to Use Inculpatory Statement,” and an amendment to its “Answer to Prayer for Oyer”. In its amended answer, the state informed the defense of a statement made by defendant to Vincent Allnet, reminding Vincent to “bring the shells”.

Defense counsel contends that the statement was highly prejudicial in that it directly implicated the defendant in the planning and preparation of the crime. According to counsel, this statement, if believed, would destroy the defense theory that the defendant knew nothing of the plan and only participated because of duress. It is defendant’s position that this statement is one of the state’s strongest pieces of evidence.

Defendant argues that the trial court either should not have allowed the state to file the Art. 768 “Notice of Intent to Use Inculpatory Statement” and the “Amended Answer to Motion for Discovery and Inspection,” which would have prevented the state from using the statement at trial, or it should have granted him a continuance, which he requested as soon as he received notice of the statement.

Louisiana Code of Criminal Procedure Article 768 states:

If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

We find no merit in defendant’s contention. The prosecutor testified that although she had prosecuted other participants of the crime prior to this trial, she did not become aware of this particular statement until late Friday afternoon before the trial. She properly notified the defendant of this information and her intent to use it the following Monday morning. This notification certainly met the requirements of Article 768 and therefore assignments of error I and II lack merit.

ASSIGNMENT OF ERROR III.

After the judge allowed the state to amend its answers orally, the defense moved for a continuance in order to further investigate the existence of the statement. The court denied this motion and advised counsel that he would issue any instanter subpoenas requested by defendant. It appears from the record that defense counsel did not avail himself of these instanter subpoenas. He did however call two witnesses to refute the defendant’s alleged statement. The defendant’s employer testified that he was at work from 8 to 5 the day of the murder which is also the day of the alleged statement. The defendant’s son, Robert Allnet, testified that his father was not present in Vincent Allnet’s home at all the day the statement was made. The jury chose not to believe these two witnesses. As noted above defense counsel did not attempt to subpoena any other witnesses to rebut the alleged statement although other members of the Allnet family were known to have been at the Vincent Allnet home that day.

This court has generally declined to reverse convictions on the grounds of denial of a continuance absent a showing of specific prejudice. See State v. Durio, 371 So.2d 1158 (La.1979); State v. Hopkins, 351 So.2d 474 (La.1977). Under the circumstances presented by this case we do not find such specific prejudice. Defense counsel was given the opportunity to subpoena any witnesses he desired to rebut the defendant’s statement. This more than compensated for any potential prejudice caused by denial of the continuance. Moreover, Owen Meill-eur’s testimony that during the ride to Sli-dell defendant punched and threatened to kill him clearly provided sufficient evidence for a jury to find that the defendant had specific intent to kill Randy Sebble as well. This assignment of error therefore lacks merit.

DECREE

For the foregoing reasons this conviction and sentence are affirmed.

AFFIRMED.

       Judges Charles R. Ward, William H. Byrnes, III and David R. M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.


text:
    STATE of Louisiana v. Clement Davis LANCLOS.
    No. 82-KA-0086.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, Jr., Dist. Atty., Robert Brinkman, Asst. Dist. Atty., Counsel for plaintiff-ap-pellee.
    W. Simmons Sandoz, of Sandoz, Sandoz & Schiff, Opelousas, for defendant-appellant.
   WILLIAM H. BYRNES, III, Justice Pro Tern.

On December 29, 1980 defendant, Clement Davis Landos, was charged with aggravated rape. On January 13, 1981 the St. Landry Parish grand jury indicted him for the crime of forcible rape, under La.R.S. 14:42.1. At the arraignment, held on February 25, 1981, defendant pled not guilty. Pursuant to a plea bargain with the state the defendant subsequently withdrew his not guilty plea and, on May 19, 1981, entered a plea of guilty to the crime of sexual battery, La.R.S. 14:43.1. The trial judge accepted the guilty plea after determining that it was made voluntarily and with a full understanding of the nature of the charge and the consequences of the plea. A pre-sentence investigation was ordered by the court at that time. After receiving this report the trial judge sentenced the defendant to serve 10 years at hard labor, the maximum sentence possible under R.S. 14:43.1.

On appeal defendant argues that the trial judge failed to take into account the fact that he was a first offender with no prior criminal record. He further asserts that the trial judge did not stay within the bounds of La.C.Cr.P. Art. 894.1 when he used the plea bargain agreement as a factor in imposing sentence. As a result defendant contends that his sentence is excessive.

The record in this case consists of the defendant’s written confession, the transcripts of the guilty plea and sentence hearings, and the pre-sentence investigation. The facts established therein are as follows.

On December 23, 1980 the victim was walking down highway 190 near Opelousas, Louisiana. Defendant approached her on a moped, and asked if he could be of assistance. The victim stated that she needed to get to a telephone, whereupon defendant offered to give her a ride. Defendant then drove her to a secluded spot, ordered her off the vehicle, and made sexual advances, which she resisted. The defendant became violent when faced with this resistance, he tore off her blouse, and forced her to the ground. When the victim resisted further defendant struck her several times in the face, dislocating her jaw. He continued to choke and kick her until she agreed to submit to him. The victim has no clear memory of actually being raped.

The defendant confessed both orally and in writing to the crime although he has since denied the act when questioned by probation officers during the pre-sentence investigation. Following these events the defendant drove the victim back to the highway. Subsequently he turned himself into the police.

The pre-sentence report reveals that the defendant is 20 years old. This is his first felony offense. He has one prior arrest and no juvenile record. However, the prior arrest, which occurred less than six months before the present offense, was on the charge of aggravated rape. Defendant is single and has no dependents. He lives with his parents, two brothers and one sister. He is in good health and was working part time at a local service station at the time of the offense. He had held that job for approximately eight months. Prior to that he had worked as a laborer in several locations for a few months at a time.

At the sentencing hearing the trial judge stated that he felt a lesser sentence would deprecate the seriousness of the crime. He noted that the defendant had received the benefit of a plea bargain whereby his maximum exposure had been reduced from forty years to ten years. The judge felt that the crime was serious enough to warrant confinement. In particular he felt the violence involved indicated a need for confined correctional treatment. The victim in this case begged the defendant not to rape her. In response he beat her, dislocated her jaw, and raped her anyway.

Defendant contends that the trial judge failed to consider the fact that he was a first offender with no prior criminal record. At the sentencing hearing, the trial judge stated that he had considered the guidelines of Article 894.1 and found no mitigating circumstances present. In doing so he fell into error. The court did not give adequate consideration to the defendant’s youth and first offender status, both of which were relevant to the determination of the defendant’s sentence. State v. Jackson, 360 So.2d 842 (La.1978).

However, the trial judge’s failure to comply with Article 894.1 does not automatically render a sentence invalid. This court has held that although Article 894.1 provides useful guidelines for the determination of the nature and length of a sentence, compliance with its provisions is not an end in itself. State v. Wimberly, 414 So.2d 666 (La.1982). Article 894.1 is intended to provide an impartial set of guidelines within which the trial judge’s sentencing discretion may be exercised. State v. Price, 403 So.2d 660 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980). Compliance with Article 894.1 further provides a record which is detailed enough to allow for a reasoned review of allegedly excessive sentences. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed this court has held that remand is unnecessary, even where there has not been full compliance with Article 894.1. State v. Boatwright, 406 So.2d 163 (La.1981); State v. McDonald, 404 So.2d 889 (La.1981); State v. Martin, 400 So.2d 1063 (La.1981); State v. Douglas, supra.

In the instant case the record provides factual grounds which are more than adequate to support the sentence imposed. The offense of sexual battery does not fully describe the defendant’s conduct. By his own confession he is guilty of rape. The trial judge clearly considered this fact in deciding to impose the maximum sentence on the defendant. His failure to articulate consideration of mitigating factors does not change these facts. The trial judge is given wide discretion in the imposition of sentences within statutory limits. Absent a manifest abuse of that discretion the sentence imposed by a trial judge should not be set aside as excessive. State v. Williams, 412 So.2d 1327 (La.1982); State v. Washington, 414 So.2d So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982).

This court has held that maximum sentences are appropriate only in cases involving the most serious violation of the relevant statute and the worst type of offender. State v. Jones, 398 So.2d 1049 (La.1981). In a case such as this, where the offense to which the defendant has pled guilty inadequately describes his conduct, we find no abuse of the trial court’s great discretion in imposing the maximum sentence possible for the crime to which the guilty plea is entered. This is particularly true where a significant reduction in potential exposure to imprisonment has been obtained through plea bargaining, and the offense involves violence to the victim.

Defendant further argues that the trial court did not stay within the bounds of Article 894.1 in using the plea bargain agreement as a factor in imposing sentence. This contention is without merit. Article 894.1 is not an exclusive listing of factors to be considered in imposing a sentence. Any and all relevant factors can and should be taken into account by the trial court. The aim of Article 894.1 is to make the punishment fit the criminal as well as the crime. To meet that ideal, a trial judge must consider every circumstance surrounding the offense, including plea bargaining. To do otherwise would be to ignore clearly relevant information which has an important bearing on the true nature of the defendant’s conduct and the type of punishment most appropriate for that conduct. This court has upheld sentences which were based in part on the effects of a plea bargain. See State v. Stegall, 377 So.2d 103 (La.1979) State v. Washington, supra. We find no error in the trial judge’s use of the plea bargain as a factor in determining the sentence to be imposed on this defendant.

After considering the entire record we decline to substitute our judgment for that of the trial judge regarding the length of this sentence.

The sentence and conviction are affirmed.

AFFIRMED.

       Judges Charles R. Ward, William H. Byrnes, III and David R. M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.


author: PER CURIAM. LEMMON, Justice,

text:
    STATE of Louisiana v. Felton JONES.
    No. 81-KA-2347.
    Supreme Court of Louisiana.
    Sept. 9, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Michael Campbell, Linda Bizzarro, Asst. Dist. At-tys., for plaintiff-appellee.
    Calvin Johnson, Collins, Johnson & Volk, New Orleans, for defendant-appellant.
   PER CURIAM.

Affirmed.

LEMMON, J., dissents in part with reasons.

LEMMON, Justice,

dissenting.

Because the trial judge’s sentencing reasons indicated an inappropriate consideration for imposing the maximum sentence, I would set aside the sentence and remand for resentencing without any weight being accorded to the improper consideration.

      . Although the jury only found defendant guilty of attempt, the trial judge justified his imposition of the maximum sentence for the attempted offense by stating that he believed the witness that the jury apparently disbelieved in returning a verdict for the lesser included offense. Because there are other mitigating circumstances (for example, the gun was unloaded), the trial judge may not have imposed the maximum sentence except for this inappropriate consideration.


author: STOKER, Judge. PER CURIAM.

text:
    James BURROW, et al, Plaintiffs-Appellants, v. COMMERCIAL UNION ASSURANCE COMPANIES, et al, Defendants-Appellees.
    No. 82-89.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Sept. 28, 1982.

      Raleigh Newman, Lake Charles, for plaintiffs-appellants.
    Brame, Bergstedt & Brame, David A. Fraser, Raggio, Cappel, Chozen & Berniard, Stephan A. Berniard, Jr., Gregory W. Belf-our and Eugene A. Bouquet, Stockwell, Sie-vert, Viccellio, Clements & Shaddock, Robert S. Dampf and John S. Bradford, Lake Charles, for defendants-appellees.
    Woodley, Barnett, Cox, Williams & Fen-et, Robert W. Fenet, Lake Charles, for defendant-appellant.
    Before FORET, STOKER and DOUCET, JJ.
   STOKER, Judge.

This case arises out of a two car accident between plain tiff-appellant, Jeannie Burrow Fontenot (Fontenot), and defendant-appellee, Elizabeth Miller (Miller), which occurred on May 16, 1979, at the intersection of Avenue H and Fourth Street (now Egret Street) within the city limits of Lake Charles, Calcasieu Parish, Louisiana. Fon-tenot, who was a minor at the time of the accident, and her father, James Burrow, seek to recover their damages resulting from the accident from Miller and her husband, Hershey Miller, Jr., and their insurer, American Employers Insurance Company (incorrectly named in the petition as Commercial Union Assurance Companies), as well as from the Calcasieu Parish Police Jury and its insurer, United States Fidelity and Guaranty Company, and the City of Lake Charles. The Millers reconvened against the plaintiffs and filed a petition of intervention against the Calcasieu Parish Police Jury and its insurer and the City of Lake Charles. Various other reconventional and third party demands were filed by the parties.

On the morning before trial, the plaintiffs Fontenot and James Burrow settled with the City of Lake Charles, reserving all rights as to other parties.. The attorney for the Millers and American Employers Insur-anee Company, upon being informed of the settlement, orally entered an alternative claim for contribution and/or indemnity against the City of Lake Charles in the event of judgment in favor of the plaintiffs against the Millers. This pleading, made orally in open court at the beginning of the trial, was accepted by the attorneys for the City of Lake Charles, who entered an oral answer of general denial to this oral pleading, accepted service of process of the pleading, and waived any delays or irregularities concerning the setting of this case for trial before answers were filed. (Tr. 374-375). After trial on the merits, the trial court rendered judgment in favor of Hershey Miller and American Employers Insurance Company against James Burrow, Fontenot, and the City of Lake Charles, in solido, for the amounts paid for the damages to Hershey Miller’s automobile. All demands against the Calcasieu Parish Police Jury were dismissed. Plaintiffs appeal this judgment.

FACTS

Fontenot was driving east on Avenue H, and Miller was driving north on Fourth Street when their vehicles collided. Both streets are two-way, two lane streets. There was a stop sign controlling traffic traveling south on Fourth Street, but there was no sign on Fourth Street going north, the direction in which Miller was traveling. The trooper who investigated the accident testified that there was a hole and fresh dirt where he surmised the stop sign controlling the northbound traffic on Fourth Street once was. Avenue H had no stop signs and there was no evidence that there were ever any stop signs controlling Avenue H at that intersection. The two roads appeared to be equal and there was no ordinance establishing one road as having the right-of-way over the other. A large bush was located on the south-west corner of the intersection.

Miller testified that she was unfamiliar with the intersection before the accident and therefore was traveling at 10 to 15 miles per hour. She claims that she came to a complete stop before the collision. The trooper investigating the accident, however, estimated the speed of both vehicles to be near 30 miles per hour and found that Miller’s car struck Fontenot’s car broadside. Miller stated that she did not see stop signs on either corner of Fourth Street although the trooper stated that the back of the sign controlling the southbound lane of Fourth Street was clearly visible from the opposite corner.

Fontenot was in a coma for several days as a result of the accident and, therefore, could not recall anything about the accident itself. However, she stated that she knew that Avenue H had the right-of-way because cars on intersecting roads had stopped for her when she had travelled on Avenue H previously. Fontenot’s passenger at the time of the accident, Karen Smith, testified that the intersection was obscured by the bush as well as by other shrubs and tall grass, and that by the time she saw the Miller car approaching the intersection, she had no time to warn Fontenot. Karen Smith stated that Miller’s car struck Fon-tenot’s car on the right passenger side and did not stop before the impact.

WAS FONTENOT NEGLIGENT?

Plaintiffs allege that the trial court erred in finding Fontenot to be guilty of negligence in the causation of this accident. Plaintiffs allege that Fontenot was traveling on the favored street under the standard set forth in Willis v. Everett, 359 So.2d 1080 (La.App. 3rd Cir. 1978), writ denied, 362 So.2d 800 (La.1978), and that therefore, Fontenot was not negligent under the standard set forth in Morgan v. Allstate Insurance Company, 393 So.2d 324 (La.App. 1st Cir. 1980).

The trial court found that Avenue H was not the favored street over Fourth Street because the streets were identical in appearance and there was no ordinance designating one of the streets as the favored street. However, the lack of such an ordinance does not affect the status of Avenue H in this case. In Willis v. Everett, supra, we stated:

“We hold that where stop signs or other traffic control devices are erected at the direction of an appropriate governmental authority and are thereafter maintained by such authority for a substantial period of time, a post-accident determination that there was no corresponding ordinance in effect will not strip the affected highway of its favored status. Motorists should not be allowed to collaterally attack the legal authority by which such traffic control devices are erected. See Dufore v. Daugereaux, 122 So.2d 666 (La.App. 1st Cir. 1960).”

There is ample evidence that there was once a stop sign in place controlling the northbound traffic on Fourth Street, as shown by the existence of a sign on the opposite corner of the street and of the hole where the missing sign should be. These signs were erected either by the authorities at Chennault Air Force Base which once occupied the property, or by the appropriate governmental authorities of Calcasieu Parish or of the City of Lake Charles. The authority under which the signs were erected, however, is not as important as the fact that the signs were subject to the maintenance of the Lake Charles authorities at least from November 3,1976, as shown by a plat of the area containing the intersection introduced into evidence which shows that the area was within the city boundaries as of that date.

As to the effect of the fact that the stop sign facing northbound traffic on Fourth Street was missing, the applicable law was set forth also in Willis v. Everett, supra, which quoted the following passage from Jenkins v. City of Alexandria, 324 So.2d 924 (La.App. 3rd Cir. 1975), writ refused, 328 So.2d 105, (La.1976):

“The law is settled that where a street has been properly designated as a right of way street, and appropriate signs showing it to be such have been erected, the preferred status of that street will not be lost merely because a stop sign is misplaced, improperly removed, destroyed or obliterated.”

Therefore, we find that Avenue H did have preferred status over Fourth Street and that drivers on H Street had the right-of-way over drivers on Fourth Street.

A motorist on a favored street has the right to assume that any driver approaching the intersection on a less favored street will yield the right-of-way. This right-of-way driver can indulge in this assumption until he sees, or should have seen, that the other car has not yielded. Clements v. Allstate Insurance Company, 383 So.2d 1375 (La.App. 4th Cir. 1980), writ denied, 385 So.2d 793 (La.1980); Willis v. Everett, supra; Dillman v. Allstate Insurance Company, 265 So.2d 322 (La.App. 4th Cir. 1972); American Road Insurance Company v. Glynn, 184 So.2d 556 (La.App. 3rd Cir. 1966); and Welch v. Welch, 169 So.2d 713 (La.App. 4th Cir. 1964). Fontenot, driving on the favored street, could not have seen Miller’s car entering the intersection in time to avoid the accident since both parties contend that the bush at the intersection obscured the view of the intersecting streets.

The trial court found that Fonten-ot could not rely on the fact that cars on Fourth Street had previously stopped for her because there was no evidence that she had seen stop signs on Fourth Street in the past. Yet in Willis v. Everett, supra, we stated that the plaintiff in that case could presume that traffic approaching from intersecting inferior streets would yield the right-of-way to him despite the fact that, by his own admission, he was not relying on the protection of any traffic control devices facing traffic on the inferior streets. The trial court also found that Fontenot was in violation of LSA-R.S. 32:121 in failing to yield the right-of-way to the vehicle on her right. This statute is designed to regulate traffic flow at otherwise uncontrolled intersections, however, and does not apply to intersections regulated by stop signs. See LSA-R.S. 32:123. Furthermore, as we have seen, the absence of a stop sign due to its being misplaced, improperly removed, destroyed or obliterated does not alter the preferred status of an intersecting street.

Therefore, for all the foregoing reasons, Fontenot justifiably relied on her presumed right-of-way and was not guilty of negligence in the causation of the accident.

WAS MILLER NEGLIGENT?

Plaintiffs contend that the trial court erred in its finding that the accident was not caused by Miller’s fault. As pointed out by the trial court, Miller could regard the intersection between Fourth Street and Avenue H as being uncontrolled since she was unfamiliar with the intersection, there was no stop sign on her corner, and the streets appeared to be equal in stature. See Pepitone v. State Farm Mutual Automobile Insurance Company, 369 So.2d 267 (La.App. 4th Cir. 1979), writ denied, 371 So.2d 1343 (La.1979). However, a motorist before entering what appears to be an uncontrolled intersection must first determine that it is safe to do so. Pepitone, supra; Peterman v. City of Hammond, 378 So.2d 181 (La.App. 1st Cir. 1979); and Dillman v. Allstate Insurance Company, supra. The fact that Miller had the “directional right-of-way” under LSA-R.S. 32:121 did not relieve her of this obligation. See Pepitone, supra, footnote two; and Dillman, supra.

The trial court applied the standard set forth in the Dillman case and found that, unlike the driver found to be negligent in Dillman, Miller exercised reasonable care in entering the intersection. The court reasoned that while the driver in Dillman was negligent for failing to see a car approaching on the intersecting street even though the view was clear for one hundred feet or more, Miller was not negligent because she saw the Fontenot car approaching as soon as it entered her line of vision beyond the obstruction presented by the bush on the corner of the intersection.

We cannot agree with the trial court’s finding that Miller was not negligent. Miller testified that she approached the intersection slowly and cautiously and that she applied her brakes as soon as she saw the Fontenot car. However, Miller’s duty of reasonable care required that upon coming to an apparently uncontrolled intersection with a partially obstructed view between the two streets, she should have ascertained that it was safe to cross by coming to a complete stop, if necessary, before proceeding. We are of the opinion that Miller’s failure to maintain a proper lookout constitutes negligence on her part which was the proximate cause of the accident. See Ory v. Travelers Insurance Company, 235 So.2d 212 (La.App. 4th Cir. 1970); and Fontenot v. Hudak, 153 So.2d 120 (La.App. 3rd Cir. 1963). Therefore, we reverse the trial court’s finding that Miller was free from negligence and instead find her liable for the damages sustained by Fontenot.

DAMAGES

Having reversed the trial court’s judgment, we now must ascertain from the record the amount to be awarded to Fontenot. We must also consider the Millers’ alternative claim that, should she be found to be negligent in the causation of Fontenot’s damages, that the amount she must pay to Fontenot should be reduced due to inability to pay.

Jeannie Fontenot sustained a moderately severe contusion of the brain stem which rendered her comatose for ten days following the accident. Since the accident she has complained of headaches, nausea, vomiting, dizziness and occasional loss of vision, although these problems had lessened in frequency and severity by the time of trial. The neurosurgeon who attended Fontenot after the accident described these symptoms as typical of the “post-concussive syndrome” which a person suffering this type of brain injury can expect to experience for eighteen months to two years following the injury. However, the neurosurgeon had difficulty relating Fontenot’s complaints at the time of trial almost four years after the accident to the injuries sustained in the accident, although he did not doubt the sincerity of her complaints. In addition to the contusion and the related symptoms, Fontenot suffered a laceration of the scalp, bruises of the forehead, and superficial abrasions over the left shoulder.

Fontenot testified that she had to quit her minimum wage job earning $94.00 per week because of the severe headaches and other problems she experienced following her release from the hospital. She was unable to work more than a few days at any other job for the same reasons for a period of 2 or 3 months. Fontenot was hospitalized from May 16 to June 3, 1977, and again from August 3 to August 10, 1977, because of her injuries. Her medical damages were stipulated to be $5,931.84. (Tr. 379) It was stipulated (Tr. 378) that James Burrow’s vehicle sustained damages amounting to $1,900. Mr. Burrow is entitled to recover these amounts. They are covered by his pleadings. State Farm Mutual Automobile Insurance Company claimed a portion of these amounts through subrogation rights; however, State Farm has not proved its subrogation rights.

We conclude that the sum of $27,500 will adequately compensate Mrs. Fontenot for her general damages.

The Millers invoke the “inability to pay” rule and urge that, in ease judgment is rendered against them, recovery against them should be confined to their ability to pay. The “inability to pay” rule in Louisiana allows consideration of evidence of the defendant’s inability to pay in determining the amount of the judgment to be awarded. When ability to pay is considered, plaintiff may only be compensated to the degree that it does not impose an undue hardship on the defendant. However, application of the rule should not be carried to extremes. See Davis v. Moore, 353 So.2d 740 (La.App. 4th Cir. 1977), writs refused, 354 So.2d 1379, 354 So.2d 1384, and the cases cited therein. The applicable limits of the automobile insurance policy involved in the litigation (in this case, $10,-000) should also be considered in making the award. Domingue v. Continental Insurance Company, 348 So.2d 209 (La.App. 3rd Cir. 1977).

Miller and her husband, Hershey Miller, Jr., both testified that they had sustained heavy losses of property in a flood and had fallen behind in payments on some of the debts incurred to replace that property. The couple had considered filing for re-organization under Chapter 13 of the bankruptcy laws because of their difficulty in paying these debts. However, Mr. Miller stated that he did not resort to bankruptcy because he was not very far behind in his payments to his creditors. The Miller’s combined income is in excess of $30,000 per year, but both stated that they could not pay a judgment of $5,000 or $10,000.

The personal opinions of the Millers that they are unable to pay a substantial judgment are understandable but are not binding on this court. On the basis of the facts before us we hold that the inability to pay rule is not appropriate in this case. Therefore, we will not reduce the compensation to be awarded below its true value.

The award made to James Burrow and Jeannie Burrow Fontenot is not affected by their settlement with the City of Lake Charles since a claim for reduction of the award due to settlement of the claim with a joint tort-feasor was not properly made. The pleading for “contribution and indemnity” made orally in the court of the trial of this matter is not effective because it was not made in writing as required by LSA-C.C.P. art. 852.

CONCLUSION

For the reasons given above the judgment of the trial court is reversed, except as hereinafter noted.

IT IS NOW ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of James Burrow and against Hershey Miller, Jr., Elizabeth Miller and American Employers Insurance Company, in solido in the full sum of $7,831.84 together with legal interest thereon from judicial demand until paid and for all costs of these proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Jeannie Burrow Fontenot and against Hershey Miller, Jr., Elizabeth Miller and American Employers Insurance Company, in solido in the full sum of $27,500 together with legal interest thereon from judicial demand until paid and for all costs of these proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the recon-ventional demands of Hershey Miller, Jr., Elizabeth Miller and American Employers Insurance Company against James Burrow and Jeannie Burrow Fontenot be and they are hereby rejected, the costs of the recon-ventional demand to be assessed to reconve-nors.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the intervention filed herein by American Employers Insurance Company against James Burrow and Jeannie Burrow Fontenot be and it is hereby dismissed at the cost of the inter-venor.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the liability of American Employers Insurance Company is to be limited to the limits of its policy of $10,000 to be prorated between all successful parties in this litigation, including the case consolidated herewith, all according to law.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the judgment of the trial court is affirmed insofar as it dismissed all demands against the Cal-casieu Parish Police Jury and all claims by the Calcasieu Parish Police Jury and United States Fidelity and Guaranty Company.

One half of the costs of this appeal are assessed to Hershey Miller, Jr., Elizabeth Miller and their insurer, American Employers Insurance Company, and one-half of the costs are assessed to the City of Lake Charles.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Hershey Miller, Jr., Elizabeth Miller and American Employers Insurance Company filed an application for rehearing alleging that we erred in certain particulars in our original opinion and judgment.

We deny the application for rehearing.

Although we deny the application, by means of this per curiam, we correct certain errors which applicants called to our attention. The motion and order for appeal in the suit of James Burrow and Jeannie Burrow Fontenot, No. 82-89 on the docket of this court (Tr. 359) set forth the name of Jeannie Burrow Fontenot only as the party appealing. No separate appeal was made on behalf of James Burrow for the special damages asserted by him. Therefore, we delete from our original judgment on appeal and set aside as null the award to James Burrow of the sum of $7,831.84 with interests and costs. The claim of James Burrow as disposed of by the trial court judgment remains the same inasmuch as that judgment became final after the running of the delays for appeal from the judgment of the trial court.

We also will set aside the judgment rendered by us on appeal in favor of State Farm Mutual Automobile Insurance Company in its separate suit for subrogation. This suit was consolidated with the James Burrow suit. A separate appeal record for this suit was forwarded to us by the Clerk of Court for the Fourteenth Judicial District Court and was separately docketed by us and was given the docket number 82-90, 419 So.2d 488. However, State Farm Mutual Automobile Insurance Company did not appeal from the trial court’s judgment rejecting its subrogation demands. Therefore, the judgment rendered by us on appeal in number 82-90 will be voided and set aside.

The applicants for rehearing complain that we erred in reversing the trial court on the merits but in the alternative urge we should have granted a reduction of the $27,-500 award to Jeannie Burrow Fontenot. Applicants refer to our discussion of the ineffectiveness of the entry of an oral claim for reduction based on the settlement with the City of Lake Charles because such action would not meet the requirements of LSA-C.C.P. art. 852. Counsel for applicants has called our attention to the fact that applicants filed a written third party demand seeking “indemnity and/or contribution” against the Calcasieu Parish Police Jury and United States Fidelity and Guaranty Company and the City of Lake Charles. The third party demand was filed on June 25, 1981. A motion and order signed the same day by the trial judge allowed the filing of the third party demand. June 25, 1981, was the day the consolidated trial began.

Evidently, the discussion between the trial court and counsel recorded in the transcript (Tr. 373-375) referred, not to an attempted oral filing of the third party demand for “indemnity and/or contribution,” but rather to the filing of the written petition therefor and the signed order allowing it to be filed. Therefore both were apparently filed in open court. The petition and motion and order appear at pages 157 through 159 of the transcript.

As we read the record all parties agreed that the trial might proceed without formal answers being filed in response to the third party demand. All parties entered an oral denial but reserved the right to file written answers.

In other pleadings filed by applicants they have fully pleaded negligence on the part of the City of Lake Charles in failing to maintain the stop sign which was missing at the time of the accident. Inasmuch as the stop sign was missing, we deem the failure of the City to maintain it, and its consequent absence, to have been a cause in fact of the accident. Hardy v. State, Through Department of Highways, 404 So.2d 981 (La.App. 3rd Cir. 1981), writs denied, 407 So.2d 741 (La.1981), and Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980). The result of this finding is that Elizabeth Miller and the City of Lake Charles were joint tort-feasors, and they are therefore solidarity obligors.

Applicants did not pray for a reduction of any award made in favor of Jeannie Burrow Fontenot. They asked only for “indemnity and/or contribution” against the City of Lake Charles and others. Nevertheless, we think the proper relief is to reduce the award to one-half, that is, to $13,750 as required by LSA-C.C. art. 2203. Wisconsin Capital Corp. v. Trans World Land, 378 So.2d 495 (La.App. 4th Cir. 1980). See also Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964).

While we do not find the settlement in question in the record, counsel for Jeannie Burrow Fontenot announced at the beginning of the trial that “we have settled [sic] and dismiss the City of Lake Charles and its insurer reserving all rights as to all other parties.” (Tr. 371) Her counsel also stated that his client agreed to protect the City’s interests relative to interventions and third party claims. (Tr. 371 and 372)

For the foregoing reasons we amend our original judgment in this case to delete and set aside our judgment rendered in favor of James Burrow and against applicants in the amount of $7,831.84 with interest and costs.

The judgment in favor of Jeannie Burrow Fontenot and against Hershey Miller, Jr., Elizabeth Miller and American Employers Insurance Company is amended to reduce the award from $27,500 to the sum of $13,750 together with legal interest therein from judicial demand until paid and for all costs of these proceedings. In view of the fact that we will set aside and vacate the judgment in favor of State Farm Mutual Automobile Insurance in Number 82-90, there will be no necessity for proration of the $10,000 policy limits of American Employers Insurance Company but the liability of that insurer will be confined to its limits of liability.

With the corrections mentioned above, the application for rehearing by Hershey Miller, Jr., Elizabeth Miller and American Employers Insurance Company is denied.

APPLICATION FOR REHEARING DENIED.

      . This case was consolidated for trial with the case of State Farm Mutual Automobile Insurance Company v. Commercial Union Assurance Company, 419 So.2d 488 (La.App. 3rd Cir. 1982), our docket number 82-90, in which we render a separate opinion on this date.

      . LSA-R.S.'32:121 provides:
      “A. When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to the vehicle on the right.
      “B. The right of way rule declared in Subsection A is modified at through highways and otherwise as hereinafter stated in this part.”

      . LSA-R.S. 32:123 states in pertinent part:
      “A. Preferential right of way at an intersection may be indicated by stop signs or yield signs.
      “B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.”
      LSA-R.S. 32:123 modifies LSA-R.S. 32:121 pursuant to paragraph B of the latter statute.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. COMMERCIAL UNION ASSURANCE COMPANIES, et al., Defendants-Appellants.
    No. 82-90.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Sept. 28, 1982.

      Raleigh Newman, Lake Charles, for plaintiffs-appellants.
    Brame, Bergstedt & Brame, David A. Fraser, Raggio, Cappel, Chozen & Berniard, Stephan A. Berniard, Jr., Gregory W. Belf-our and Eugene A. Bouquet, Stockwell, Sie-vert, Viccellio, Clements & Shaddock, Robert S. Dampf and John S. Bradford, Lake Charles, for defendants-appellees.
    Woodley, Barnett, Cox, Williams & Fen-et, Robert W. Fenet, Lake Charles, for defendant-appellant.
    Before FORET, STOKER and DOUCET, JJ.
   STOKER, Judge.

This case was consolidated for trial with James Burrow, Et Al v. Commercial Union Assurance Companies, Et Al 419 So.2d 479 (La.App. 3rd Cir. 1982), our docket number 82-89, in which we render a separate opinion on this date.

In this subrogation suit State Farm Mutual Automobile Insurance Company seeks recovery of the sum of $1,800 paid to James Burrow for damages to his car and $3,259.21 which it paid to James Burrow and Douglas W. Smith for the medical damages to the occupants therein. State Farm’s suit was asserted against the City of Lake Charles and American Employers Insurance Company, erroneously styled as Commercial Union Insurance Companies in State Farm’s petition. For the reasons stated in Burrow v. Commercial Union Assurance Companies, supra, State Farm has a right to recover the sum of $1,259.21 paid by State Farm as the amount of medical expenses resulting from injury to Karen Smith. The record contains an express stipulation both as to the recovery amount and State Farm’s right to recover under subro-gation. Tr. 411 and 412.

We note in State Farm’s subrogation petition that State Farm alleges that it paid James Burrow $1,800 under its policy covering collision damages to Burrow’s automobile and that it paid $3,259.21 under the medical pay provisions to cover the medical expenses of the occupants of Burrow’s automobile. State Farm attached copies of sub-rogation receipts to that petition containing subrogation agreements. James Burrow signed one for medical payments of $2,000 and Douglas W. Smith signed one for $1,259.21. These total $3,259.21. James Burrow also signed a subrogation receipt and agreement for $1,800 for collision damage. We are unable to find in the record any indication that the originals or copies of the subrogation receipts and agreements were introduced in evidence and we cannot consider them. Also we do not find that State Farm introduced in evidence its policy of automobile insurance issued in favor of James Burrow.

All parties agreed to a stipulation that the property damage to James Burrow’s automobile amounted to $1,900. Tr. 378. There was no stipulation as to any subrogation rights in favor of State Farm for any portion of $1,900 as there was with reference to State Farm’s right to recover the medical expenses incurred on behalf of Karen Smith.

For the reasons stated above, the judgment of the trial court rejecting the demands of State Farm Mutual Automobile Insurance Company in this matter is reversed and set aside.

It is now therefore ordered, adjudged and decreed that there be judgment herein in favor of State Farm Mutual Automobile Insurance Company against American Employers Insurance Company in the full sum of $1,259.29 together with legal interest from the date of judgment demand until paid and for all costs of these proceedings.

The costs of the proceedings in this case and in this appeal are assessed one-half to American Employers Insurance Company and one-half to the City of Lake Charles.

REVERSED AND RENDERED.

ON APPLICATION FOR REHEARING

PER CURIAM.

For the reasons given in the per curiam in James Burrow, et al. v. Commercial Union Assurance Companies, et al., 419 So.2d 479, (La.App. 3rd Cir. 1982), our docket number 82-89, the application for rehearing in this case filed by Hershey Miller, Jr., Elizabeth Miller and American Employers Insurance Company is denied.

Our judgment rendered herein on July 2, 1982, is vacated and set aside.

APPLICATION FOR REHEARING DENIED; JUDGMENT VACATED AND SET ASIDE.