text:
    STATE of Louisiana v. Bennie James McDONALD.
    No. 81-KA-2546.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Allen Harvey, Asst. Dist. Atty., for plaintiff-appellee.
    James D. Sparks, Jr., Monroe, for defendant-appellant.

       Dennis, J., would grant a rehearing.

   DIXON, Chief Justice.

On March 31, 1981 Bennie J. McDonald was charged by bill of information with distribution of marijuana in violation of R.S. 40:967. He pleaded not guilty. After a jury trial, defendant was found guilty as charged. He was sentenced to four years imprisonment at hard labor and to pay a fine of $1000 or to serve an additional year in parish jail.

Assignment of Error No. 1

Defendant contends that error patent on the face- of the record exists because trial counsel did not raise constitutional questions by a motion to suppress or request a jury instruction on entrapment and that these omissions constitute ineffective assistance of counsel. There is no error patent. The record does not disclose why the constitutional questions were not raised, nor that they would have been meritorious. Defendant is, therefore, relegated to post-conviction proceedings to exploit these issues.

This contention lacks merit.

Assignments of Error Nos. 2, 3, 4 and 5

Defendant argues that improper hearsay testimony was introduced, that the state did not comply with a discovery motion, and that the court erred in not giving a jury instruction on entrapment. No contemporaneous objection was raised by defense counsel on any of these grounds; defendant is precluded from raising the issue for the first time in this court. C.Cr.P. 841; State v. Belgard, 410 So.2d 720 (La.1982); State v. Elizey, 407 So.2d 1204 (La.1981); State v. McDermitt, 406 So.2d 195 (La.1981); State v. Cook, 396 So.2d 1258 (La.1981); State v. Bonanno, 373 So.2d 1284 (La.1979).

These assignments lack merit.

Assignment of Error No. 6

Defendant asserts that the trial judge did not comply with the sentencing guidelines in C.Cr.P. 894.1 and that the sentence imposed is excessive.

C.Cr.P. 894.1 sets forth guidelines to follow in imposing sentence and mandates that the trial court state for the record the considerations taken into account and the factual basis for its conclusions in imposing sentence in order to ensure that each sentence is individualized to the offender and the offense. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Jones, 398 So.2d 1049 (La.1981). The trial judge need not articulate every aggravating and mitigating circumstance; however, the record must reflect that he adequately contemplated the guidelines in C.Cr.P. 894.1. State v. Grey, 408 So.2d 1239 (La.1982); State v. Franks, 373 So.2d 1307 (La.1979), cert. den., 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818 (1981).

At the sentencing hearing, the trial court noted the defendant’s “prior involvement with the law” (a misdemeanor conviction for simple battery and a charge of nonsupport). The court was influenced by the quantity of contraband seized, one pound, and surmised that it would have been eventually packaged in small amounts for resale. This factor, coupled with the price of $500 realized by the accused in the transaction, led the court to conclude that the offense was serious. An undue risk that other criminal acts might be committed by defendant if given a suspended sentence or probation was believed to exist due to defendant’s admission in the presentence investigation report that he had used marijuana for over five years despite its illegality. The court stated that these considerations offset the fact that this was the accused’s first felony conviction. In addition to these remarks, a form was filed into the record which restates the mitigating factors enumerated in C.Cr.P. 894.1. The form contains two columns in which to check whether or not each factor was present. None of these factors was checked by the trial court; the aggravating circumstances discussed above were reiterated at the bót-tom of the form. The trial court adequately complied with the sentencing guidelines in C.Cr.P. 894.1; therefore, this court’s review is limited to a determination of whether the trial court abused its sentencing discretion. State v. Bourgeois, supra; State v. Bosworth, 415 So.2d 912 (La.1981).

The maximum penalty for distribution of marijuana is imprisonment at hard labor for ten years and a fine of $15,000. R.S. 40:967. Even though within the statutory limit, a sentence may violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979); La.Const.Art. 1, § 20 (1974). The presentence investigation report indicates that defendant has been steadily employed over the past several years as a welder, millwright and currently as a musician in a band. He is twenty-eight years old, resides with his second wife and eighteen month old daughter, and pays child support for two minor sons of a previous marriage. Although the accused denied ever selling marijuana, he admitted using the drug since 1975.

A harsh sentence for a first offender involved in the possession or sale of a small quantity of contraband may be excessive under certain circumstances. See State v. Grey, supra; State v. Tilley, 400 So.2d 1363 (La.1981). However, the sentence imposed in the instant case is not excessive. Cf., State v. Trahan, 412 So.2d 1294 (La.1982); State v. Jacobs, 383 So.2d 342 (La.1980). The facts reveal that the accused distributed a large amount of contraband for a price of $500. As pointed out by the trial judge, this volume of marijuana must have been intended for resale; defendant did not sell just one “bag”, he was a middle man in the sequence of distribution.

In this regard, the present case is easily distinguishable from State v. Touchet, 372 So.2d 1184 (La.1979), where a sentence of four years at hard labor for distribution of marijuana was reversed. In that case, a nineteen year old male sold a “lid” for $1.00. The amount of contraband involved in this case is substantially greater than that seen in Touchet, where the accused was most probably the last link in the chain of distribution. Also, the offender in Tou-chet cooperated fully with the police by providing the identity of the individual for whom he had made the sale. Defendant McDonald refused to disclose the identity of “George”, the mystery person he contends actually transferred the marijuana to the undercover agent and who allegedly owned the substance. (In a belated motion for a new trial, defendant states that “George” is now willing to come forward and testify in defendant’s behalf). Moreover, this court did not hold that the sentence imposed in Touchet was excessive; the case was reversed due to the trial court’s failure to articulate any reasons whatsoever for the sentence imposed.

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

       Judges Israel M. Augustine and Philip C. Ciac-cio of the Court of Appeal, Fourth Circuit, and H. Charles Gaudin of the Court of Appeal, Fifth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


source: Caselaw Access Project

author: DIXON, Chief Justice. LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Tracy Glen CLARK.
    Nos. 81-K(A)-2670, 81-K-3112.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman L. Lawson, Steven R. Thomas, Abbott J. Reeves, Asst. Dist. At-tys., for plaintiff-relator.
    James E. Franklin, Jr., L.' Edwin Greer, of Peatross & Greer, Shreveport (amicus curiae), for defendant-respondent.
   DIXON, Chief Justice.

Defendant Tracy Glen Clark was indicted by a DeSoto Parish Grand Jury for aggravated rape (R.S. 14:42). Defense counsel filed a pretrial motion to quash the indictment on the ground that the state failed to preserve certain evidence — vaginal swabs and washings, seminal stains on a bedsheet and other physical evidence — which was used by the state to conduct its tests, rendering it impossible for defendant to run further tests that could rule him out as the perpetrator of the offense. The trial court granted the motion to quash and the state sought review of that ruling in this court.

Meanwhile, the state filed a bill of information charging defendant with aggravated burglary (R.S. 14:60), the facts of which are the same as those in the aggravated rape charge. Again, defense counsel filed a motion to quash This time he alleged that the second charge constituted double jeopardy because the first charge, which arose out of the same incident and thus must be proved by the same evidence, was previously dismissed. The trial court granted the motion to quash and the state applied to this court for writs to review that ruling.

Writs were granted in the aggravated rape case, 81-K(A)-2670, and the aggravated burglary case, 81-K-3112, and the cases were consolidated for our review.

On September 11, 1980 the victim herein reported to the DeSoto Parish sheriff’s department that she was raped by a black man who gained entry to her trailer in rural DeSoto Parish. The victim reported that the rape took place at approximately 2:00 o’clock that morning. Dr. Brouillette, the victim’s personal physician, examined her from 6:00 a. m. to 8:00 a. m. that morning and completed a “rape kit” at the request of the sheriff’s deputies. The rape kit consisted of a questionnaire concerning certain pubic hair combings, vaginal swabs and washings, certain blood and tissue samples and the physical condition of the victim. Dr. Brouillette returned the rape kit to the deputies, but retained the test tube containing vaginal washings and a slide which contained a sample that was used to determine if sperm was present.

The deputies removed from the victim’s bedroom a bedsheet containing a large seminal stain and a pillowcase. These items and the rape kit were delivered to the Northwest Louisiana Criminalistics Laboratory in Shreveport at 7:29 p. m. on September 11,1980. A few days later the deputies delivered to the crime lab items removed from defendant, namely, samples of defendant’s blood, saliva and pubic hair combings.

Subsequent to defendant’s arraignment on March 3, 1981, defense counsel filed discovery motions seeking the results of the tests run at the crime lab. Defense counsel received the results of the tests on April 30, 1981. The report showed that the tests were performed by Pat Wojtikiewicz of the crime lab, who analyzed the vaginal swabs and washings on September 12, 16, 17 and 18. He froze the liquid samples after completing the tests on September 18, 1980. Defendant’s blood was tested on December 2, 1980. Wojtikiewicz testified that the bedsheets and pillowcase, which were stored at room temperature since September of 1980, were tested on February 4, 5, 6 and 9 of 1981 — he stated that his tremendous workload forced him to delay the testing of those items and he did not freeze them because he felt the seminal stains were less susceptible to deterioration. The tests revealed seminal stains on the victim’s bed-sheet consistent with seminal fluid from a “secretor” of blood Group O substance, the same as defendant. (The victim is a se-cretor of blood Group A substance).

Upon receiving the crime lab’s report, defense counsel engaged two experts, Dr. George McCormick, a forensic pathologist and Bossier Parish coroner, and Dr. I. C. Stone, chief of the Physical Evidence Section of the Institute of Forensic Sciences in Dallas, Texas. Both doctors criticized Woj-tikiewicz’s decision not to freeze the bed-sheet because the seminal stain had lost some of its enzyme properties. According to Dr. McCormick and Dr. Stone, enzyme properties deteriorate more rapidly than other properties in semen samples. Additionally, the test tube containing the vaginal washings was broken and the slide which contained the sample could not be found. Therefore, it became impossible to conduct further tests on the evidence which could have possioly exonerated defendant.

On August 2, 1981 the trial court found that the state was negligent in failing to properly preserve the evidence for further testing. The court further found that this was material evidence because even though the victim made a positive identification of defendant, on at least one prior occasion the victim and defendant were in close proximity to each other and the victim did not identify defendant. The court reasoned that due to a mishandling of the evidence defendant had been deprived of important scientific evidence bearing on the identity of the perpetrator and that justice would not be served if the defendant were to go to trial with such a severe handicap in terms of proof. The court therefore sustained defendant’s motion to quash.

The state contends that it did not act negligently in failing to preserve seminal stains for future testing by defense experts, and that even the negligent destruction of evidence, which could exonerate defendant, does not provide grounds for the trial court to dismiss an indictment. Defense counsel contends that the trial court’s ruling should be upheld because the destruction of the evidence which could exonerate the defendant deprived him of his right to a fair trial.

Destruction of evidence is not among the grounds for a motion to quash an indictment under C.Cr.P. 532 and 533. Defense counsel has not cited any case in which this court has upheld an order by a trial court sustaining a motion to quash based on the ground that the state failed to preserve certain evidence which might have exonerated defendant had defense’s expert been able to make an independent examination of the evidence. Neither do the cases from other jurisdictions which defense counsel cited in brief authorize the pretrial dismissal of charges against a defendant when such evidence is unavailable for further testing by defense’s expert. Rather, those cases were concerned with post conviction remedies available to the defendant when it was discovered that the state intentionally or negligently suppressed exculpatory evidence. Nevertheless, in each of those cases the remedy provided by the reviewing court was to order the trial court to grant the defendant a new trial or, presumably, dismiss the charges against him if the state decided not to retry him. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Flanagan v. Henderson, 496 F.2d 1274 (5th Cir. 1974); Davis v. Pitchess, 388 F.Supp. 105 (C.D.Cal.1974), aff'd. 518 F.2d 141 (9th Cir. 1974), rev’d. 421 U.S. 482. 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975); Bowen v. Eyman, 324 F.Supp. 339 (D.C.Ariz.1970); State v. Gammill, 2 Kan. App.2d 627, 585 P.2d 1074 (1978).

This court recognizes that:

“ ‘... Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.’ ...” State v. Gray, 351 So.2d 448, 454 (La.1977).

See Brady v. Maryland, supra; Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975).

We held in State v. Migliore, 261 La. 722, 260 So.2d 682 (1972), that where there is a sufficient amount of the evidence, the defendant should be permitted to conduct an independent examination. But in no case was the charge against a defendant dismissed because he could not make an independent examination of the evidence or because the state suppressed exculpatory evidence.

In State v. Boyd, 359 So.2d 931 (La.1978), the defendant was unable to make an independent examination of a blood sample taken off of his pants because the entire sample was consumed by the tests conducted by the state. The state’s witness who conducted the test testified that the victim’s blood was type A positive, and the blood found on the defendant’s pants was determined to be type A human blood. She testified further that she was not able to determine the RH factor of the blood found on the defendant’s pants leg due to the insufficient amount tested.

Defendant moved for a mistrial on the ground that he was denied the opportunity to examine this evidence. The trial court, however, denied the motion and stated that the evidence was not necessarily exculpatory (and therefore was not required to be disclosed by Brady) just because it would not conclusively show that the blood on defendant’s pants was the same as that of the victim. Additionally, the trial court denied the defendant’s alternative request that all testimony by the state’s witness insofar as it concerned the results of the test run on the blood samples be excluded, and that the court give instructions to the jury to disregard such testimony. In upholding the judgment of the trial court, this court stated:

“... Nowhere in Ms. Reel’s testimony did she state that the blood found on defendant’s pants was the victim’s blood. Indeed, on cross-examination, Ms. Reel admitted that she would be unable to say whether the blood found on defendant’s pants was the same as found in the sample from the victim. Thus, the jury was not misled into believing that the witness’ testimony was conclusive, and admission of the testimony would therefore not have the damaging effect on defendant’s caSe that he contends. Rather, the jury was in a position to evaluate the testimony and determine what weight it was to be given.” State v. Boyd, supra, at 945.

The Boyd decision is controlling in the instant case. The unavailability of the evidence for further testing does not in itself so prejudice defendant’s right to a fair trial so as to warrant a dismissal of the prosecution. Defense counsel may still present evidence to the jury to show the inconclusive nature of the tests performed at the crime lab. The jury should be allowed to evaluate the testimony and determine what weight it is to be given. Therefore, the trial court erred in granting defendant’s motion to quash the indictment in the aggravated rape case.

At the hearing on the motion to quash the bill of information charging defendant with aggravated burglary, the parties stipulated that all testimony adduced during the hearings held on the motions filed in the aggravated rape case, which had been filed with this court, 81-K(A)-2670, be made part of the proceedings. In sustaining defendant’s motion to quash, the trial court stated that since the evidence did exist at one time, and through negligence (attributable to the state) it no longer exists, the jury would be denied the opportunity to be presented with all the evidence that was available from the beginning. Again, mere negligence in preserving evidence, which prevents testing by defendant for' possible exonerating characteristics, is not such a denial of fundamental fairness that the prosecution must be dismissed.

For these reasons, the judgments of the trial court quashing the indictment for aggravated rape (81-K(A)-2670) and quashing the bill of information charging defendant with aggravated burglary (81-K-3112) are hereby reversed, and the cases are remanded to the trial court for proceedings not inconsistent with this opinion.

LEMMON, Justice,

concurring in denial of rehearing.

While the motion to quash must be overruled, defendant may apply to the trial court for other more appropriate relief. At trial, defendant may introduce any evidence showing that the state negligently destroyed evidence possibly beneficial to defendant or failed to perform all of the usual tests for rape.

      . A “secretor” is any individual who secretes his particular blood group or substance in his other body fluids.

      . There are four tests for identifying substances that might include or exclude an accused as the perpetrator of a rape. The tests determine secretor status, blood type, phospho-glucomutase (PGM) enzyme and peptidase-A enzyme. While Mr. Wojtiewicz was successful in determining that the perpetrator of the crime was a secretor of blood Group O substance, as is defendant, his test for PGM enzyme proved negative and he did not test for peptidase-A enzyme.
      Dr. Stone testified that 80% of the population are secretors and 49% of all blacks have type O blood. Therefore, according to Dr. Stone’s calculations, the tests conducted at the crime lab show that defendant, along with 39% of all black males, could have left the seminal stain. Further, defense’s expert witnesses testified that had the seminal stains been properly preserved, they could be tested for enzyme properties, which could place the perpetrator of the crime within approximately 4% of the black male population.

      . C.Cr.P. 532 provides:
      “A motion to quash may be based on one or more of the following grounds:
      (1) The indictment fails to charge an offense which is punishable under a valid statute.
      (2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
      (3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
      (4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
      (5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
      (6) Trial for the offense charged would constitute double jeopardy.
      (7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
      (8) The court has no jurisdiction of the offense charged.
      (9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.”
      C.Cr.P. 533 provides special grounds to quash a grand jury indictment when there exists some illegality with reference to the grand jury itself.


author: PHILLIP C. CIACCIO, Justice Pro Tern.

text:
    STATE of Louisiana v. Santos HUIZAR, Jr.
    No. 81-KA-2749.
    Supreme Court of Louisiana.
    May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William Credo, Melvin Zeno, Asst. Dist. Attys., for plaintiff-appel-lee. .
    Michael F. Barry, New Orleans, for defendant-appellant.
   PHILLIP C. CIACCIO, Justice Pro Tern.

The defendant, Santos Huizar, Jr., was charged with attempted first degree murder. R.S. 14:27 and 14:30.1. He was convicted of attempted second degree murder after a judge trial, and sentenced to five years at hard labor. This appeal rests on fifteen of twenty-six assignments of error.

On April 2, 1980, the defendant shot and seriously wounded his brother-in-law, Larry Drewett, in front of Drewett’s residence at 1032 Roselawn in Metairie, Louisiana. The testimony is conflicting concerning the events preceding this incident.

The defendant testified that on the date in question he had gone to Houston, Texas to sell fifty (50) pounds of marijuana for his brother-in-law. Upon his return to Metair-ie he stopped by the residence of his estranged wife before proceeding to his brother-in-law’s house. Huizar and his brother-in-law visited, consumed Quaaludes and smoked marijuana. The two became embroiled in an argument over the use of Huizar’s wife, Linda, by Drewett to courier drugs and transact drug purchases. Drew-ett allegedly threatened to kill Huizar. Huizar left the house and went to his car which was parked in the driveway of his brother-in-law’s house. As he entered the car, Drewett emerged from the residence with a pistol in his hand. The defendant, allegedly fearing for his life, shot his brother-in-law, with a gun which he kept in his car.

The defendant’s brother-in-law, Larry Drewett, his wife, Linda, and sister-in-law, Antoinette, denied that they were involved in illegal drug traffic. Drewett testified that on the date in question, the defendant had come to his home to request his aid and intercession in connection with the defendant’s marital difficulties. Drewett stated that when he refused to act as the intermediary, the defendant became angry and left the house. The witness allegedly followed the defendant and was shot when the defendant drew a gun from inside his car.

Following the incident several neighbors saw the defendant leave the scene in his car. The police and an ambulance were summoned. The defendant was arrested and charged with attempted first degree murder.

Assignment of Error No. 1.

The defendant contends that the court erred in finding certain answers to the defendant’s motion for a bill of particulars were sufficient. More specifically, the defendant argues that since the statute under which the defendant is charged specified more than one type of intent and more than one type of activity to satisfy the element of “attempt”, he is entitled to know the specific elements involved. R.S. 14:30.1, 14:27. State v. Russell, 292 So.2d 681 (La.,1974).

A defendant is entitled to know the alleged method of the commission of an offense when there are several means of commission of an offense when there are several means of commission specified by the statute. State v. Russell, supra. A motion for a bill of particulars is not a method for the defendant to obtain the state’s evidence, C.Cr.P.Art. 484. State v. Gray, 351 So.2d 448 (La.,1977). It is a tool for the defendant to become informed about the nature and cause of the charge against him. C.Cr.P.Art. 484. State v. Huizar, 332 So.2d 449 (La.,1976). The bill of particulars may not be used to discover the details of the evidence, that is, to know “exactly how”, the state intends to prove its ease. State v. Walker, 344 So.2d 990 (La.,1977).

The gravamen of the crime of attempted murder, whether first or second degree, is the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Butler, 322 So.2d 189 (La.,1975).

In this case, the defendant’s bill of particular number 4 requested the “precise description of the manner in which the defendant allegedly attempted to commit (second) degree murder of Larry V. Drew-ett.” The State responded: “By shooting the victim with a gun.” This response satisfies the notice requirement of the State. The information requested beyond this goes to the heart of the prosecution’s case. The defendant is not entitled to this information. The trial court did not err in this regard. This assignment of error lacks merit.

Assignment of Error No. 2.

The defendant contends that the trial court erred in requiring him to bear the burden of proof in showing that a warrant-less search was illegal.

Searches and seizures which are conducted without a valid search warrant are considered unreasonable, unless they fall within one of the legally recognized exceptions to a warrantless search. Stoner v. California, 84 S.Ct. 889, 376 U.S. 483, 11 L.Ed.2d 856 (1964) reh. den. 84 S.Ct. 1330, 377 U.S. 940, 12 L.Ed.2d 303. A police officer who is lawfully upon the premises, has probable cause to seize contraband which is in “plain view”. Payton v. New York, 100 S.Ct. 1371, 445 U.S. 573, 63 L.Ed.2d 639, (1980); State v. Parker, 355 So.2d 900 (La.,1978).

In this case the police officers went to the defendant’s residence with a valid arrest warrant. While legally on the premises, they seized contraband which was in plain view. The search was legal.

A review of the record indicates that the trial court never placed the burden upon the defendant to prove that the search was illegal. Moreover, the items which were seized were never introduced into evidence at this trial. The defendant was in no way prejudiced in this regard.

This assignment lacks merit.

Assignment of Error No. 3.

The defendant contends that the trial court erred in ruling that the arrest warrant was properly issued.

To be valid, an arrest warrant need only specify the nature, date and place of the offense and the name of the offender. State v. Cook, 404 So.2d 1210 (La.,1981). The issuance of an arrest warrant, unlike a search warrant, is valid if the magistrate has within his knowledge sufficient facts to establish probable cause for the arrest. State v. Haynie, 395 So.2d 669 (La.,1981).

The arrest warrant, in this case, was issued by the Jefferson Parish Justice of the Peace. The basis of the warrant was the identification by the victim of his brother-in-law as the assailant. This warrant meets the technical requirements for issuance and was properly issued.

This assignment of error has no merit.

Assignment of Error No. 4.

The defendant argues that the court erred terminating the hearing on the motion to suppress. He reasons that since the court would not rule on the issue of the use of the evidence for cross-examination of the defendant, that he was entitled to have the hearing completed and a definitive ruling made.

The United States Supreme Court, in United States v. Havens, has ruled that illegally obtained evidence may be used to impeach the statements made by the defendant during direct examination. 100 S.Ct. 1912, 446 U.S. 620, 64 L.Ed.2d 559 (1980), reh. den. 101 S.Ct. 25, 448 U.S. 911, 65 L.Ed.2d 1172 (1980).

The ruling of the trial judge on the hearing on the motion to suppress would have been of no moment. Whether the evidence was suppressed or not was irrelevant, as it could properly be used to cross-examine the defendant, within the limits prescribed.

This assignment is without merit.

Assignment of Error No. 5.

The defendant contends that the trial court erred when it refused to grant a motion for continuance of the trial. The defendant alleges that he was prejudiced because he was forced to choose a judge trial. He contends that publicity of the attempted assassination of President Reagan, the day before, had resulted in prospective jurors being biased against handgun incidents.

Generally, motions for continuance are addressed to the sound discretion of the trial court. C.Cr.P.Art. 712.

Where there is a reasonable likelihood that prejudiced news media publicity, prior to a trial, will prevent a fair trial, the trial judge should continue the case until the threat abates or he should transfer it to another locality not so permeated with publicity. Sheppard v. Maxwell, 86 S.Ct. 1506, 384 U.S. 333, 16 L.Ed.2d 600 (1966). The defendant, however, must show that he will be specifically prejudiced if the continuance is not granted. State v. Haarala, 398 So.2d 1093 (La.,1981).

In this case, the defendant failed to show that the prospective jurors were in fact prejudiced, either individually or collectively. The defense did not convincingly demonstrate that careful voir dire examination of the prospective jurors could not result in a fair and impartial jury. Under these, circumstances the ruling of the trial court did not constitute an abuse of discretion.

Assignment of Error Number 5 lacks merit.

Assignment of Error Nos. 6 and 7.

The defendant objects to the hearsay testimony elicited at the trial from witnesses David Cass and Gasper Mangerchine. These witnesses were the first to appear at the victim’s side following the shooting incident. They testified that at that time the victim uttered the defendant’s name.

The res gestae is an exception to the hearsay rule. State v. Brown, 395 So.2d 1301 (La.,1981). Res gestae are events which speak for themselves, under the immediate pressure of the occurrence through the instructive, impulsive and spontaneous words and acts of the participant, R.S. 15:447. Narrative declarations by the defendant are not, as such, considered to be part of the res gestae. State v. Williams, 331 So.2d 467 (La.,1976). However, the victim’s spontaneous statement immediately after the crime, in the excitement of the occasion, is generally part of the res gestae. State v. Hunter, 343 So.2d 143 (La.,1977).

In this case, the victim’s utterance was spontaneous and was made in close proximity to the criminal act. It formed part of the res gestae and was properly admissible.

This assignment of error is without merit.

Assignment of Error Nos. 8, 9, 12.

The defendant, through these assignments, contends that the trial court erred in curtailing his cross-examination of the victim’s neighbor, Gasper Mangerchine, and the victim’s sister, Linda Drewett and the victim’s wife. The defendant questioned a neighbor and sister of the victim regarding the employment of the victim. He questioned the victim’s wife regarding her employment. This was in an apparent attempt to show that the victim’s employment with a siding company was a legitimate sham to cover up his lucrative illegal drug trade and that his wife’s job could not explain their financial position. The defense counsel also questioned the victim’s sister about her alleged drug addiction. In sustaining the state’s objection to these lines of questioning the court stated that the question had nothing to do with the case.

Evidence, in criminal cases, is relevant if it tends to show the commission of an offense and the intent, or if it tends to negate the commission of the offense and the intent. R.S. 15:441. It may also be used to explain a relevant fact or support an inference raised by such fact. R.S. 15:441. The trial court judge has wide discretion in determining the relevancy of evidence and his determination will not be overturned absent a clear abuse of discretion. State v. Bates, 397 So.2d 1331, (La.,1981).

There should be a logical or rational connection between the fact which is sought to be proved and the fact which is at issue in this case. State v. Giles, 253 La. 533, 218 So.2d 585 (1969).

In the case before this Court, the defendant failed to establish the relevancy of the inquiries which were made. There has been no showing that the trial judge abused his discretion in curtailing this irrelevant evidence.

This assignment lacks merit.

Assignments of Error Nos. 10 and 11.

The defendant alleges that the trial court erred when it allowed the victim’s wife to testify to the content of a telephone conversation between herself and the defendant at a time shortly preceding the shooting.

Hearsay evidence is not admissible in criminal trials. R.S. 15:434; 15:463, State v. Toomer, 395 So.2d 1320 (La.,1981). Evidence is not hearsay, however, when it is offered only to show that it occurred or that a conversation took place. State v. Hennigan, 404 So.2d 222 (La.,1981).

It is apparent from a reading of the record that the statements to which defendant refers were offered not to show the truth of the statements, but rather were offered to show that the conversation took place. The statements were properly admitted into evidence.

This assignment lacks merit.

Assignment of Error Nos. 13 and 14.

In these assignments, the defendant argues that the trial court erred in limiting its direct examination of Ivan Scherer. Mr. Scherer testified that he used to sell drugs for the victim but ceased this relationship when he discovered the victim’s relationship with the defendant. The state objected to the testimony and the trial court sustained it on the grounds that the testimony was irrelevant. No objection to the ruling was lodged at the time by the defendant.

Where the defense counsel acquiesces when the court sustains a state’s objection to examination of a witness, that objection is waived. C.Cr.P.Art. 841, State v. Motion, 395 So.2d 1337 (La.,1981).

In this case the failure of the defendant to file a contemporaneous objection to the trial court’s ruling constituted a waiver of that objection.

The exception lacks merit.

Assignments of Error Nos. 15 and 16.

The defendant objects to the ruling by the trial court permitting the State to question a witness, Ivan Scherer, regarding his previous arrest.

Evidence of prior convictions of crimes, but not of arrest, may be used to impeach a witness’ credibility. R.S. 15:495.

In this ease the State asked the witness whether he had been arrested, but withdrew that question and rephrased it. The State then asked the witness if he had ever been convicted of a crime. The witness responded affirmatively.

The error, if any, in the State’s inquiry is harmless. The question regarding arrest was never answered.

The defendant also objected to the ruling of the court permitting the State to inquire into revocation of the defendant’s probation.

The details of a conviction may be the subject of inquiry only to show the true nature of the offense. State v. Jackson, 307 So.2d 604 (La.,1975). The court must restrict an inquiry into the details of a past conviction. State v. Oliver, 387 So.2d 1154 (La.,1980). An inquiry into the defendant’s probation is impermissible. State v. Johnson, 368 So.2d 719, (La.,1979); State v. Hicks, 403 So.2d 678 (La.,1981). However, such an inquiry is not so prejudicial as to warrant reversal of a conviction. C.Cr.P. Art. 921. State v. Martin, 400 So.2d 1063 (La.,1981).

The mention of the revocation of the probation of the witness was error. However, it was not so harmful as to constitute reversible error.

For the reasons discussed this assignment is without merit.

Assignments of Error Nos. 17 through 21.

The defendant argues that the trial court erred in limiting its inquiry into the state witness’ motive for testifying against the defendant.

The re-direct examination of a witness must be confined to the subject matter brought up on cross-examination. R.S. 15:281.

The defendant asked the witness why he came to testify. The witness had testified that he had come to tell the truth. When the defendant asked the same question on re-direct examination an objection by the prosecutor was sustained.

Although the inquiry was properly the subject of inquiry in redirect, as the witness had been asked by the state, in cross-examination, whether his testimony was to be believed over that of a state witness, the objection was properly sustained, as the inquiry had already been answered. The error, if any, is harmless.

The defendant next alleges that error was committed when the court sustained a state objection to testimony by Karen Scherer concerning narcotic dealings with the victim and his wife. The record reveals however that such evidence was admitted, as the witness was allowed to describe at least one marijuana transaction with the victim and the victim’s sister.

The defendant contends that the trial court erred in sustaining an objection concerning the testimony given on his direct examination regarding a telephone conversation. The defendant testified that he suspected his wife was transacting drug purchases in Miami and this was confirmed by a phone call he received confirming plane reservations for himself and his wife.

A statement which is not offered for the truth or falsity of its contents, but which is offered to show the state of mind of the party is not hearsay. State v. Hatcher, 372 So.2d 1024 (La.,1979).

In this case the statement should have been allowed. The error is harmless however, because the record is replete with testimony which indicates the defendant’s state of mind.

The defendant contends that the trial court erred in curtailing his testimony on direct examination and in sustaining a state objection to repetitive testimony concerning whether or not he wanted to kill his victim. The record reveals that on each of these occasions the defendant failed to raise a contemporaneous objection to the ruling of the trial court.

The failure to raise a contemporaneous object to the ruling of the court constitutes a waiver of the objection. C.Cr.P.Art. 841, State v. Molinario, 400 So.2d 596 (La.,1981).

For the stated reasons, these assignments of error lack merit.

Assignments of Error Nos. 22, 23 and 24.

The defendant complains that the trial court erred in allowing certain rebuttal evidence to be admitted over his objection.

Rebuttal evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party. R.S. 15:282. State v. Constantine, 364 So.2d 1011 (La.,1978). Such evidence may be used to strengthen the state’s original case. State v. Howard, 120 La. 311, 45 So. 260 (La.,1908). The determination of whether evidence is rebuttal evidence and hence, admissible, is an issue which is addressed to the sound discretion of the trial court judge. State v. Green, 390 So.2d 1253 (La.,1980).

The defendant objected to the questioning of • the victim’s sister as to whether she had been beaten and once raped by the defendant. Since the defendant had opened the door to this testimony by expressing his love and care for his wife when testifying on direct examination, the State could properly delve into these areas on rebuttal in order to rebht the defendant’s testimony.

The defendant objected to testimony by the victim’s wife that she had called police in the past due to threatening phone calls by the defendant. He also objected to the introduction of a receipt with the item number of the complaint she filed with the Jefferson Parish Police Department as being hearsay and evidence admitted without a proper foundation.

The introduction of the documentary evidence supported the statement of the witness that she made a complaint of the incident. This buttressed the state witness’ testimony. Moreover, the proper foundation was laid as the witness was competent to testify that this was the receipt given to her at the time of this incident.

The trial judge did not abuse his discretion in admitting this evidence.

These assignments lack merit.

Assignment of Error No. 25.

The defendant contends that the trial court erred when it denied him a new trial. He contends that the evidence did not support every element of the crime and that there was newly discovered evidence.

The defendant attacks the conviction for attempted second degree murder and argues that since the crime occurred in the heat of passion that the proper responsive verdict should have been manslaughter.

The trier of fact is to determine the requisite intent in a criminal case. State v. Bulter, 322 So.2d 189 (La.,1975). In reviewing the correctness of such a decision, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince the reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt of every element of the offense. Jackson v. Virginia, 99 S.Ct. 2781, 443 U.S. 307, 61 L.Ed.2d 560, (1979).

In this case the evidence supported a finding that the requisite intent existed for a responsive verdict of attempted second degree murder. That is, the evidence was uncontroverted that the victim was injured by the defendant emptying a loaded handgun into him. Even though the defendant claims he acted in self defense, no weapon was found on or near the victim. Although there was testimony that the defendant may have been provoked, it was not such provocation as would deprive an average person of his self-control and cool reflection. R.S. 14:31.

The evidence when viewed in a light most favorable to the prosecution supports a verdict of attempted second degree murder.

The defendant argues that a new trial should have been granted because he could present two witnesses to rebut the testimony of the victim’s wife to the effect that she had received threatening phone calls from the defendant.

The test for a new trial because of newly discovered evidence is whether the new evidence is so material as to produce a different result. State v. Talbot, 408 So.2d 861 (La.,1982). The trial judge’s decision on a motion for a new trial will not be disturbed absent a clear abuse of discretion. State v. Molinario, supra.

In this case the rebutting of the testimony of the victim’s wife regarding threatening phone calls would have had no material effect upon the issue of guilt or innocence so as to produce a different result. The new trial was properly denied.

These assignments of error have no merit.

Assignment of Error No. 26.

The defendant alleges that his sentence is excessive and that the judge’s basis for its imposition was improper.

Upon conviction for attempted second degree murder, a defendant may receive up to fifty years imprisonment. R.S. 14:27, 14:30.1. The sentencing court is required to follow the sentencing guidelines and to state its reasons for sentencing in the proceeding. C.Cr.P.Art. 894.1. The judge must consider mitigating factors in order to individualize the sentence to the defendant. See: State v. Wright, 384 So.2d 399 (La.,1980).

The court mentioned mitigating factors which would tend to lessen the sentence. He considered the defendant’s age (48 yrs); his poor health (tuberculosis); the fact that fifteen years had elapsed since his last crime and the doubtful credibility of the state’s witnesses.

In sentencing the defendant to a five year term, the court weighed the mitigating factors against the severity of the crime of attempted second degree murder and decided that any lesser term would deprecate the seriousness of the crimt The trial judge did not commit error this regard. The sentence of this defendant is not excessive.

This assignment of error is without merit.

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

AFFIRMED.

LEMMON, J., concurs in the result.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit and Judges Israel M. Augustine, Jr. and Phillip C. Ciaccio of the Court of Appeal, Fourth Circuit participated in this decision as Associate Justices pro tempore joined by Associate Justices Calogero, Dennis, Watson, and Lemmon.

      . The defendant argues only fifteen of twenty-six assignments of error. Those assignments not argued are considered abandoned for purposes of this appeal.

      . In questions numbers 6-12 of the Bill of Particulars, the defendant attempted to discover whether the State intended to prove that the defendant lay in wait for his victim, searched for his victim or that the defendant specifically intended to kill or cause great bodily harm to his victim.

      . R.S. 14:30.1 defines second-degree murder as a homicide committed in the course of certain enumerated felonies or as an unaggravated, specific intent homicide. Acts 1979, No. 74. R.S. 14:27 provides, inter alia, that an attempt is any act “tending directly toward the accomplishing of (the criminal enterprise)” or the lying in wait for (or searching out of) the victim while armed with a dangerous weapon “with the intent to commit a crime....”

      . A revolver was seized off the floor near the bed. The officers also seized marijuana, marijuana paraphernalia and prescriptive medicine of the defendant’s girlfriend.

      . The judge indicated when imposing sentence that he had to incarcerate the defendant because he felt probation would provoke retaliation by the victim.


author:
PHILIP C. CIACCIO, Justice pro tern.
     DIXON, C. J.,

text:
    STATE of Louisiana v. Louis Wayne SHARP.
    No. 81-KA-2861.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Speedy 0. Long, Dist. Atty., Dan B. Cornett, Norris Dale Jackson, Asst. Dist. Attys., for plaintiff-ap-pellee.
    C. Daniel Street, Kostelka, Swearingen & Street, Monroe, for defendant-appellant.
   PHILIP C. CIACCIO, Justice pro tern.

Defendant, Louis Wayne Sharp, was charged with distribution of marijuana, R.S. 40:967. He was convicted as charged and sentenced to two years at hard labor and ordered to pay a $1,000 fine. The defendant appeals on the basis of six assignments of error and he argues five of the assignments of error in his brief.

Narcotics Officers Jimmy Chevallier and Michael Beard were involved in an undercover narcotics operation in the Lasalle Parish area. On the evening of March 14,1981 the narcotics officers were invited to a pig roast at the home of Orville Stringer. At the pig roast, Officer Chevallier met the defendant, Louis Wayne Sharp. During the course of a twenty minute conversation the defendant offered to sell and Officer Chevallier agreed to buy a bag of marijuana for forty dollars. After the agreement the defendant left Officer Chevallier for a few minutes and returned with a clear plastic bag of marijuana, which he gave to the officer in exchange for forty dollars. Officer Chevallier testified that, within five minutes of the completion of the transaction, the defendant began to discuss larger quantities of marijuana and cocaine. After the transaction, Officer Chevallier kept the marijuana on his person for approximately fifteen minutes and then locked it in the glove compartment of his truck until after leaving the party. The drug transaction was not witnessed by Officer Beard. Immediately after completion of the transaction, however, Officer Chevallier pointed out the defendant as the source of the marijuana.

The bag and its contents were later turned over to the Northwest Crime Lab, where it was analyzed and determined to be marijuana.

The defendant was arrested May 18, 1981 and charged with distribution of marijuana. At his trial, the defendant testified that he had neither smoked nor distributed marijuana at the party, but he had been offered some pills from Officer Chevallier and he refused them.

Assignments of Error Nos. 2 and 3.

The defendant contends that the trial court erred in allowing into evidence incul-patory hearsay statements to provide larger quantities of marijuana and cocaine. The defendant further alleges that error was committed as defendant had not been given pretrial notice of the intent by the State to introduce such inculpatory evidence.

If a statement constitutes hearsay, but forms part of the res gestae, it is admissible into evidence. State v. Gibson, 359 So.2d 147 (La.,1978), cert. den. 441 U.S. 926, 99 S.Ct. 2038, 60 L.Ed.2d 400, reh. den. 442 U.S. 935, 99 S.Ct. 2872, 61 L.Ed.2d 305. In Louisiana, the res gestae doctrine is broad and includes not only spontaneous utterances and declarations made before or after the commission of a crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during or after the commission of the crime, provided the requirements for the introduction of such evidence have been met. R.S. 15:447, State v. Kimble, 407 So.2d 693 (La.1981); State v. Molinario, 383 So.2d 345 (La.,1980), cert. den. 449 U.S. 882, 101 S.Ct. 232, 66 L.Ed.2d 106; appeal after remand 400 So.2d 345 (La.,1981). In order to qualify as part of the res gestae, the circumstances and declarations must be necessary incidents of the criminal act or immediate concomitants of it, or form in conjunction with it one continuous transaction. R.S. 15:448. Therefore, a very close con-nexity is required between the charged offense and the evidence of other crimes. State v. Haarala, 398 So.2d 1093 (La.,1981). State v. Lawson, 393 So.2d 1260 (La.,1981). This close connexity in time and location is essential to the exception because no notice is required by the state of its intention to introduce evidence which forms part of the res gestae. R.S. 15:477; C.Cr.P.768, State v. Haarala, supra. State v. Brown, 352 So.2d 690 (La.,1977).

In this case, the undercover officer testified that within five minutes after he purchased the package of marijuana from the defendant, they began to discuss larger quantities of marijuana and cocaine. The statement was admitted into evidence over the objections of defense counsel. The spontaneous utterance took place in close proximity of time and location to the commission of the crime. It was an immediate concomitant of the criminal act. The statement, therefore, was properly admitted into evidence. Moreover, this evidence is probative of the defendant’s criminal knowledge and intent to distribute controlled dangerous substances. Since the statement formed part of the res gestae, there was no intention to introduce this inculpatory statement.

Assignment of Error No. 4.

The defendant argues, in this assignment of error, that the trial court erred in denying his motion for a new trial. The defendant contends, through his motion and this assignment, that the evidence was insufficient to support the verdict, because the proof did not establish every element of the offense charged, beyond a reasonable doubt.

In order for a conviction to stand, the evidence, when viewed in a light most favorable to the prosecution, must be sufficient to convince a reasonable trier of fact of the guilt of the defendant, beyond a reasonable doubt, of every element of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Guillot, 389 So.2d 68 (La.,1980).

In this case the defendant was charged with knowingly and intentionally distributing a controlled dangerous substance, to-wit: marijuana. R.S. 40:964 Schedule II A(5) and 40:967(A).

Officers Chevallier and Beard, experienced undercover narcotics agents, testified at the defendant’s trial. Officer Chevallier, the principal agent involved in the transaction, testified unequivocally that the defendant sold him a bag of marijuana for forty dollars. Officer Beard, although not a witness to the transaction, was a competent witness to corroborate certain factual details surrounding the transaction and to place the defendant at the scene of the crime.

After viewing the evidence in a light which is most favorable to the prosecution, we are satisfied that the evidence is sufficient to convince a reasonable trier of fact of the defendant’s guilt beyond a reasonable doubt.

Assigment of Error Number 4 is without merit.

Assignment of Error No. 5.

The defendant alleges that the trial court erred when it denied the defendant’s motion for a new trial based upon certain prejudicial remarks made by the state during defense counsel’s closing arguments.

When an objection is sustained, unless a defendant, during the trial, had requested and been denied either admonition to disregard the remark or a mistrial request, he cannot complain, on appeal, of the alleged error. State v. Nicholas, 359 So.2d 965 (La.,1978).

In this case, the defendant, in closing argument, tried to explain, by analogy, the concept of reasonable doubt. The State objected to the comment claiming it would not be consistent with the court’s jury instructions. The defendant objected to the State’s interruption of its argument. The court overruled the State’s objection, allowed defense counsel to proceed with his argument and further advised counsel that the court would properly instruct the jury regarding the issue of reasonable doubt.

In this case, the defendant failed to request a mistrial or admonition by the judge at the time his objection was raised. Accordingly, the defendant waived his right to complain of this alleged error.

This assignment lacks merit.

Assignment of Error No. 6.

The defendant argues that the trial court erred in admitting the plastic bag of marijuana into evidence without a proper foundation being presented. More specifically, he contends that the evidence was improperly identified in that there were no markings on the plastic bag containing the marijuana, although the plastic bag had been placed inside a larger marked bag.

The requirements for the proper admissibility of demonstrative evidence were set forth by this Court in State v. Gordy, 380 So.2d 1347 at 1352 (La.,1980):

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the trier of fact. State v. Drew, 360 So.2d 500 (La.1978).” State v. Paster, 373 So.2d 170 (La.,1979), on appeal after remand, 389 So.2d 55, (La.,1980).

A continuous chain of custody is not essential, provided the evidence as a whole establishes that it is more probable than not that the object introduced was the same as the object which was originally seized by the officers. State v. Davis, 411 So.2d 434 (La.,1982). A lack of positive identification goes to the weight of evidence, not the admissibility. State v. Drew, supra.

It is apparent, from a review of the record, that the demonstrative evidence, marijuana, was properly identified by the two undercover officers and the chemist. The testimony of the officer who purchased the drug, the officer who transported it to the crime lab and the chemist who analyzed and identified the marijuana, establishes that it is more probable than not that the marijuana which was introduced into evidence was the same marijuana that was purchased by Officer Chevallier from the defendant.

This assignment of error lacks merit.

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

AFFIRMED.

DIXON, C. J.,

concurs, disagreeing with treatment of Assignments of Error numbers 2, 3 and 5.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio 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, Watson.


author: LEMMON, Justice. WATSON, Justice,

text:
    MATTHEWS-McCRACKEN RUTLAND CORP. v. The CITY OF PLAQUEMINE.
    No. 81-C-2953.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.
    Neil H. Mixon, Jr., and Rick J. Norman of McCollister, McCleary, Fazio, Mixon, Holli-day & Hicks, Baton Rouge, for defendant-relator.
    William C. Dupont of Dupont, Dupont & Dupont, Plaquemine, Allen R. Boudreaux, of Kizer & Kizer, Baton Rouge, for plaintiff-respondent.
   LEMMON, Justice.

The issue in this case is whether the third party defendant is entitled to require arbitration of the claim asserted in the third party demand.

Plaintiff filed this suit for damages based on breach of a contract to install electrical equipment, alleging that delays caused by defendant required plaintiff to keep personnel and equipment on the job five months beyond the completion date. Defendant, the City of Plaquemine, filed a third-party demand against Riley Stoker Corporation, alleging that if the City is held liable on the principal demand, the City is entitled to judgment over against Stoker (with whom the City contracted separately to erect a steam generating unit), because Stoker delayed completion of the total construction. Stoker filed a timely answer.

Eighty-eight days after filing its answer, Stoker notified the City by letter of its intent to arbitrate the claim asserted in the third-party demand. Stoker then moved the court to stay the proceedings and to require arbitration in accordance with the terms of the City-Stoker contract.

After a hearing, at which the only evidence introduced was the contract and the letter of notification, the City argued that the official contract did not contain an arbitration clause and that the City had waived its right to demand arbitration. The trial court found that the final contract contained a written arbitration clause. The court nevertheless refused to order arbitration, relying on the prior ruling (by the same judge) in a companion case, Forte and Tablada v. The City of Plaquemine. After the court of appeal denied Stoker’s application for supervisory writs, we granted cer-tiorari to review the ruling of the trial court, because the ruling appeared to be erroneous and because immediate review was necessary to prevent a possibly needless trial. 407 So.2d 744.

R.S. 9:4201 and 4202 mandate that an arbitration provision in a written contract shall be valid and enforceable. Once the court finds an agreement to arbitrate and a failure to comply therewith, the court shall order arbitration. Bartley, Inc. v. Jefferson Parish Sch. Bd., 302 So.2d 280 (La.1974).

The City did not assert in its pleadings that arbitration should be denied because of the delay and did not introduce any evidence of prejudice resulting from the delay. The City merely argued at the hearing that Stoker should have filed an exception of prematurity prior to answer and that the City would be prejudiced if all parties did not proceed to trial together at one time.

Neither the mere answering of a judicial demand nor the mere delay in filing the demand for arbitration necessarily constitutes a waiver of the right to demand arbitration, especially in the absence of prejudice to the opposing party. M. Domke, The Law and Practice of Commercial Arbitration § 19.01 (1968); see also An-not., 24 A.L.R.3d 1171 (1969), for a discussion of delay in asserting contractual right to arbitration as precluding enforcement of the right. Because of the strong policy favoring the right to demand arbitration, a party’s otherwise explainable conduct should be construed against waiver of the right.

Only in extreme cases have courts found waiver of the right to demand arbitration. In I.D.C., Inc. v. McCain-Winkler Partnership, 396 So.2d 590 (La.App. 3rd Cir. 1981), arbitration was refused when the party filed a reconventional demand and request to set for trial, but did not demand arbitration until the day of trial seven months later. In Sim v. Beauregard Elec. Cooperative, Inc., 322 So.2d 410 (La.App. 3rd Cir. 1975), the plaintiff’s motion to stay the proceedings in his own suit was denied when that party filed the suit in court and waited 33 months before filing its demand for arbitration on the first day of trial.

In the present case, Stoker’s trial counsel, after filing an answer to the third-party demand, was seriously injured in an automobile accident and was hospitalized for over four weeks. During the time this attorney was recuperating, another lawyer in the firm took over the file and asserted the demand for arbitration.

The overall circumstances do not establish a waiver of Stoker’s right to demand arbitration. The contract did not fix a specific time for demanding arbitration, and the question of incorporation of the terms of Stoker’s proposal in the final contract explains some delay in asserting the demand. The length of the 88-day delay does not appear to be unreasonable, particularly in view of trial counsel’s unexpected incapacity.

Moreover, the record does not suggest any prejudice to the City resulting from the delay. Although its counsel argued at the hearing in the trial court that all parties should proceed to trial at the same time, the City has not suggested the manner in which it will be prejudiced if the third-party demand is severed from the principal demand in accordance with C.C.P.Art. 1038.

Accordingly, the judgment of the trial court is reversed, and all proceedings against Riley Stoker Corporation are stayed pending arbitration in accordance with the contract.

DENNIS, J., concurs with reasons.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

The trial court refused arbitration here because arbitration had been denied in the case of Forte and Tablada, Inc. v. City of Plaquemine. The basis of the ruling is ele -rom the argument and comments made at the hearing.

The trial court determined that the arbitration issue should have the same disposition in the two closely related cases. Since Riley Stoker had elected trial in the other case, the court concluded that its right to arbitration in this case had been waived. The trial court specifically pointed out that Riley Stoker should not be able to arbitrate one lawsuit and try another when both involved the same contract.

By the time its motion to stay the proceedings had been filed, Riley Stoker had, according to the pretrial order, already completed its discovery. Utilization of discovery procedures is an affirmative acceptance of a judicial forum and should bar a party from thereafter insisting on arbitration. “The courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow a party to create his own unique structure combining litigation and arbitration.” DeSapio v. Kohlmeyer, 35 N.Y.2d 402, 362 N.Y.S.2d 843, 321 N.E.2d 770 at 773 (1974).

These cases concern responsibility for a five month delay in completion of a contract for installation of electrical equipment. The same issue is intertwined in the principal and third party demands in this case and in the case of Forte and Tablada, Inc. v. City of Plaquemine. As to Riley Stoker, the same question is presented in both cases, whether Riley Stoker was responsible for the delay in completion of the City’s project. As a result of the majority’s holding, Riley Stoker will be able to try this issue in one case and arbitrate it in the other. The trial court was correct in avoiding this anomalous result.

I respectfully dissent.

      . The contract contains the following arbitration clause:
      “Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.”

      . At the hearing the City contended that while Stoker’s proposal contained an arbitration clause, the final contract prepared by the City did not. Stoker, on the other hand, contended that the proposal was made part of and incorporated into the final contract.

      .In the companion case, involving a contract between the City and Forte and Tablada, the City attempted to assert a demand for arbitration by filing an exception of prematurity to the principal demand. The trial court overruled the exception, and the court of appeal denied the City’s application for supervisory writs.
      Without revealing how the companion case controlled the decision in the instant case, the trial court cited the ruling and denied Riley Stoker’s request for a stay pending arbitration.

      . Arguably, if Stoker’s objection to proceeding to trial, rather than to arbitration, is properly raised (as the City argues) only by an exception of prematurity, then that dilatory exception had to be pleaded prior to answer. C.C.P.Art. 928. However, the objection may also be raised by an exception of no cause of action (a peremptory exception which can be pleaded at any time), because the party has no cause of action at law when the contract expressly required settlement of contractual controversies and claims by arbitration.

      . Although represented by different counsel, ■ Stoker was also a party in the companion suit in which the trial court denied the City’s request to arbitrate. At the hearing Stoker’s counsel stated that since he did not know if the same contract was involved in the companion suit or the current status of that suit, he was unable to determine if Stoker had the right to arbitrate in the companion suit or had waived that right.
      The suits were not consolidated, and the record in the companion suit was not introduced into evidence in the present case.

      . “THE COURT: Excuse me, in the other law suit, isn’t the City of Plaquemine also a party? * * * * * *
      “MR. DUPONT: Your Honor, the City of Plaquemine is a party.
      “THE COURT: And doesn’t it arise out of the same set of facts?
      “MR. DUPONT: Yes, Your Honor.
      “MR. NORMAN: Same facts or similar facts?
      “MR. DUPONT: Well, same allegations.
      “THE COURT: Closely related?
      “MR. DUPONT: Yes, sir.
      “THE COURT: In fact, the cases ought to be consolidated. (Tr. 12-13)
      ******
      “THE COURT: But, Counsel, in that other law suit you have the City of Plaquemine and you have your client [Riley Stoker], right?
      “MR. NORMAN: I believe so.
      “THE COURT: And they have that same contract that you introduced in this case in that case, right? Now, if the contract provides that you are to arbitrate the differences and you are going to a law suit in one case, doesn’t that constitute action which waives arbitration as to all causes of action under that contract?
      ******
      “THE COURT: I think we need to know. You are certainly not going to have a case where under the same contract you are going to be arbitrating one law suit and trying the other one. (Tr. 23-24)
      * * * * * *
      “THE COURT: In the opinion of the Court, the arbitration clause is a part of the contract which was introduced from the case of Forte and Tablada vs. the City of Plaquemine, 359 So.2d 995, which was marked as Exhibit “A” in that suit and which the parties will furnish a copy of. (Court reviews record.)
      Gentlemen, it appears that in the companion suit an exception of prematurity was filed on behalf of the City on the grounds that there was an arbitration clause between Forte and Tablada and the City of Plaquemine. The Court overruled the exception and it was taken up on writs and the First Circuit denied the writs on the statement that there was no error of law. The rule to show cause will be recalled and set aside and there will be judgment in favor of defendant-in-rule refusing to grant a stay order in this matter.” (Tr. 41)


author: PHILIP C. CIACCIO, Justice Pro Tern.

text:
    STATE of Louisiana v. Richard L. LODRIGE.
    No. 81-KA-2962.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Robert W. Gillespie, Jr., Dale G. Cox, Asst. Dist. Attys., for plaintiff-appellee.
    Larry Johnson, John L. Landrem, Jr., Shreveport, for defendant-appellant.
   PHILIP C. CIACCIO, Justice Pro Tern.

The defendant, Richard L. Lodrige, after waiving a trial by jury, was convicted of attempted aggravated burglary and sentenced to six years imprisonment at hard labor. R.S. 14:60, 14:27). The defendant appeals his conviction and contends that the trial court failed to follow the sentencing guidelines and that the sentence was excessive. C.Cr.P.Art. 894.1.

On October 30, 1980 at 2:30 A.M., the victim, Mrs. Barbara Johnson, heard a noise at the back door of her residence. She left her four year old son asleep in the bedroom, went to the door, and asked who was there. The defendant’s reply indicated to the victim that it was the victim’s husband who was outside. Mrs. Johnson opened the door and was confronted by the defendant. The defendant first asked for directions and then asked if the victim’s husband was at home. Mrs. Johnson told the defendant that her husband was on his way home. The defendant grabbed Mrs. Johnson and tried to force his way into the house. Mrs. Johnson struggled with the defendant and broke free of him several times. A violent struggle took place in her carport and in the nearby yard. The defendant beat her with his fists and kicked her with his cowboy boots. Mrs. Johnson suffered bruises and cuts about her arms, legs and face. She also suffered damage to her front teeth.

The struggle lasted fifteen to twenty minutes and ended when the defendant, realizing he would not succeed in forcing the victim back inside the house, jumped into the car he had parked in the victim’s driveway and sped away. The victim fled to a neighbor’s home and reported the incident to the police. The defendant was apprehended and picked up approximately four hours after the incident and was positively identified by the victim as her assailant. Upon investigation of the scene, an open knife was discovered in the victim’s carport.

In attacking his sentence, the defendant contends that the trial court did not follow the sentencing guidelines in that it failed to give adequate consideration to an important mitigating factor, namely, the alleged state of intoxication of the defendant at the time of the commission of the offense.

The crime of aggravated burglary carries with it a sentence of imprisonment at hard labor of not less than one nor more than thirty years. R.S.14:60. When a person has the specific intent to commit a crime and does or commits an act for the purpose of and tending directly toward the accomplishment of his object, he is guilty of an attempt to commit the offense. R.S. 14:27(A). In such an event, he shall be imprisoned for one-half the time prescribed for the commission of the substantive offense. R.S. 14:27(D)(1), (3).

Prior to sentencing, the trial court must consider and articulate the factors bearing upon its decision to imprison the defendant. C.Cr.RArt. 894.1(C). The guidelines for sentencing are set forth in the Louisiana Code of Criminal Procedure:

A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime:
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
(B) The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The defendant’s criminal conduct neither caused nor threatened serious harm:
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm:
(3) The defendant acted under strong provocation:
(4) There was substantial grounds, tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense:
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission:
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained:
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime:
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur:
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime:
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
(C) The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

Moreover, additional mitigating factors are set forth in Louisiana Code of Criminal Procedure Article 905.5:

The following shall be considered mitigating circumstances:
(a) The offender has no significant prior history of criminal activity:
(b) The offense was committed while the offender was under the influence of extreme mental or emotional disturbance:
(c) The offense was committed while the offender was under the influence or under the domination of another person:
(d) The offense was committed under circumstances which the offender reasonably believed to provide a moral justification or extenuation for his conduct:
(e) At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform to the requirements of law was impaired as a result of mental disease or defect or intoxication:
(f) The youth of the offender at the time of the offense:
(g) The offender was a principal whose participation was relatively minor:
(h) Any other relevant mitigating circumstances.

It is apparent from a review of the record that the trial judge followed the sentencing guidelines and considered a multiplicity of factors which had a bearing on the case. The trial judge took into account the defendant’s admission that he committed the crime and that he desired to straighten out his life. The good family background and steady work history of the defendant, as well as the effect imprisonment would have upon his family, were factors considered by the trial judge. Although the court considered that the defendant had no history of prior criminal activity and his family intended to defray some of the medical expenses incurred by the victim, it also noted that the defendant acted without provocation; that he must have contemplated that his actions would cause serious harm together with the impact that such an ordeal would have upon the victim.

In sentencing the defendant, the court stated that it had intended to impose a sentence of twelve to fifteen years, but, after considering all the circumstances, it decided to impose a six year sentence. The court concluded that the defendant was in need of correctional treatment. The trial court judge was of the opinion that there was an undue risk that the defendant would commit another crime and that any lesser sentence would deprecate the seriousness of this offense. The record supports the fact that the trial judge considered the sentencing guidelines and mitigating factors which affected this defendant’s case.

More particularly, the trial court considered the allegation of the defendant that he was intoxicated at the time of the commission of the offense. The trial court concluded that the evidence did not support this allegation.

The ruling of the trial judge on a question of fact is entitled to great weight. State v. Overton, 337 So.2d 1058 (La.1976). Although the Supreme Court of Louisiana has the right to review the discretionary acts of the trial court, a ruling of the trial court will not be disturbed absent a clear abuse of discretion. State v. Nicholas, 312 So.2d 856 (La.,1975).

We have reviewed the record in this matter and we concur with the trial court that the defendant failed to prove the allegation of intoxication. The record reveals and the trial court observed that, on the night of the offense, the defendant was stopped by Officer M. A. Rogers shortly after he left the Johnson residence. The officer testified that he did not arrest the defendant for driving while intoxicated because he felt the defendant was not under the influence of alcohol. The trial court did not abuse its discretion in this regard.

The defendant next argues that the sentence imposed upon him is excessive.

The trial judge’s reasons for imposition of sentence are an aid to the Supreme Court in its review of a sentence which is alleged to be excessive. State v. Stegall, 377 So.2d 103 (La.,1979). The sentencing guidelines provide criteria by which the Supreme Court can measure whether a sentence, which is within statutory limits, is nevertheless excessive by reason of its length or its nature. C.Cr.P. Art. 894.1. State v. Ortego, 382 So.2d 921 (La.,1980), cert. den. 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58. As a general rule, a sentence is excessive if it is grossly out of proportion to the severity of the crime or if it is nothing more than a purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.,1980). That is, to determine if the penalty is grossly disproportionate to the crime, we must consider the punishment and the crime in light of the harm to society caused by its commission and thus ascertain whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Beaver, 382 So.2d 943 (La.,1980).

In this case, the record reyeals that the defendant, a man of approximately 6 feet, weighing in excess of two hundred pounds, came to the home of the victim, a woman living alone with her four year old son, at 2:30 in the morning. He attempted to pry open her door with a knife, but was unsuccessful. He gained entry by using an alias. Once the door was opened, the defendant tried to physically force his entry into the residence. In an attempt to protect herself and her minor son, who was asleep in the residence, Mrs. Johnson ran from the house when she was able to break free of the defendant’s grasp. The defendant overtook the victim and a violent struggle ensued in which the defendant continually beat the victim about the face and head with his clenched fist and kicked her with pointed cowboy boots. On several occasions, he physically lifted her, in attempts to force her back inside the house. Mrs. Johnson suffered cuts and bruises on her face, legs and arms. Her teeth were loosened in the altercation. Besides the physical damage she sustained, she suffered the trauma of the incident, which included the fear for herself and her minor child.

In view of the effects of the commission of this crime, the defendant’s sentence of six years at hard labor is not grossly disproportionate to the crime. The trial judge did not impose an excessive sentence under the circumstances of this case. The assignment of error lacks merit.

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

AFFIRMED.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio 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, Watson.


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

text:
    Robert F. DOYLE v. STATE FARM (MUTUAL) INSURANCE COMPANY, Toleda L. Weldon and American Motors Corporation.
    No. 81-C-3141.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

      David J. Williams, McClain, Morgan & Savoy, Lake Charles, for plaintiff-applicant.
    Robert W. Clements and Robert S. Dampf of Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, for defendants-respondents.
   MARCUS, Justice.

Robert F. Doyle instituted this action against Toleda L. Weldon, State Farm Mutual Insurance Company, her automobile liability insurer, and American Motors Corporation, to recover damages for personal injuries sustained when plaintiff’s automobile, which was manufactured by AMC, was struck from the rear by Weldon. He alleged that his injuries were caused by Weldon’s negligence in the operation of her vehicle and AMC’s negligence in failing to manufacture a safe automobile.

AMC filed a declinatory exception based on the pendency of another action previously filed by plaintiff in the federal district court between the same parties, in the same capacities, on the same cause of action, and having the same object. The trial court sustained the exception staying this action “until the pending federal litigation has been discontinued or a final judgment has been rendered.”

Subsequently, plaintiff amended his petition in this action to add State Farm, in its capacity as his uninsured motorist carrier, as a party defendant. He alleged that he had an automobile liability policy with State Farm at the time of the accident which provided for uninsured motorist coverage in the amount of $100,000 in the event he was injured by the negligence of an underinsured motorist. He further alleged that Weldon’s liability coverage with State Farm ($10,000) was insufficient to cover the damages sustained by him as a result of Weldon’s negligence.

On the day of trial in the federal court, Weldon and State Farm, in its capacity as her liability insurer, were released from the federal suit in return for payment to plaintiff of the $10,000 policy limits and a stipulation by all parties that AMC would be entitled to a credit for such payment in the event plaintiff recovered from AMC. In the settlement agreement with Weldon and State Farm, in its capacity as her liability insurer, plaintiff expressly reserved his right to proceed against State Farm, in its capacity as his uninsured motorist carrier. After trial on the merits in federal court, judgment was rendered in favor of plaintiff and against AMC in the amount of $90,000 subject to the aforementioned credit. Judgment was satisfied and no appeal was taken.

Thereafter, this action was removed from the “dead docket” and replaced on the current docket of the court. On joint motion of the parties, the trial court ordered that the claims of plaintiff against AMC, Weldon and State Farm, in its capacity as liability insurer of Weldon, be dismissed with prejudice; however, plaintiff’s claim against State Farm, as his uninsured motorist carrier, was expressly reserved to plaintiff. It was stipulated that the sole issue remaining to be resolved was plaintiff’s claim against State Farm as the uninsured motorist carrier of plaintiff.

State Farm then filed a motion for summary judgment on the ground that the extent of plaintiff’s demands had been determined and fully satisfied as a result of the trial in the federal court. After a hearing, State Farm’s motion for summary judgment was granted and plaintiff’s suit was dismissed at his cost. Plaintiff appealed. The court of appeal affirmed, holding that there was no issue as to a material fact “since plaintiff’s demands were determined in the prior proceeding and the judgment was fully satisfied.” Therefore, “as a matter of law ... under these circumstances, the tortfeasor was not an underinsured motorist.” On plaintiff’s application, we granted certiorari to review the correctness of that judgment.

The issue presented for our determination is whether plaintiff is precluded from re-litigating the extent of his damages.

At the outset, we note that the common law doctrine of judicial estoppel does not apply in Louisiana. Dornak v. Lafayette General Hospital, 399 So.2d 168 (La.1981); Ugulano v. Allstate Insurance Company, 367 So.2d 6 (La.1978). Hence, this doctrine does not preclude plaintiff from re-litigating the extent of his damages. Louisiana legislative authority for res judicata establishes a presumption of correctness and precludes re-litigation of the object of a judgment when there is (1) identity of the parties, (2) identity of “cause,” and (3) identity of the “thing demanded.” La.Civ.Code art. 2286; Dornak v. Lafayette General Hospital, supra; R. G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980); Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); Mitchell v. Bertolla, 340 So.2d 287 (La.1976). In the first suit, tried in the federal court, State Farm, in its capacity as plaintiff’s uninsured motorist carrier, was not a party, nor could it have been made a party; in this action, it is the only remaining party defendant. Moreover, it is obvious that the “causes,” delictual in one suit and contractual in the other, are not identical. Hence, as there is neither an identity of “parties” nor an identity of “cause,” res judicata does not preclude plaintiff from re-litigating the extent of his damages in this suit.

State Farm also contends that La. Code Civ.P. arts. 5 and 425 preclude this action. We do not agree. Article 425 prohibits the division of a cause of action by providing that an “obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof.” Article 5 provides that when a “plaintiff reduces his claim on a single cause of action to bring it within the jurisdiction of the court and judgment is rendered thereon, he remits the portion of his claim for which he did not pray for judgment, and is precluded thereafter from demanding it judicially.” As noted in the Comment to art. 5, this “rule is based on the same principle of law as that which forbids the splitting of the cause of action. The rule governing the latter is set forth in art. 425.”

In the instant case, we do not have a splitting of the cause of action. Plaintiff’s action against Weldon, State Farm, as her liability insurer, and AMC was based on breach of duties or obligations required of persons in their relationships with one another. La.Civ.Code art. 2315 et seq. Plaintiff’s cause of action against State Farm, in its capacity as his uninsured motorist carrier, is based on an obligation created by a contract of insurance entered into between the parties. Hence, arts. 5 and 425 are not applicable here.

Accordingly, we conclude that plaintiff is not precluded from re-litigating the extent of his damages in this suit. The court of appeal erred in holding otherwise. We must reverse.

DECREE

For the reasons assigned, the judgment of the court of appeal affirming the trial court’s granting of a summary judgment and the dismissal of plaintiff’s suit is reversed and set aside and the case is remanded to the district court for further proceedings.

DIXON, C. J., concurs with reasons.

LEMMON, J., dissents and assigns reasons.

DENNIS, J., dissents and will assign reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur, agreeing with the opinion except for that part classifying one “cause” as contractual and the other “cause” as delictual. The juridical facts affecting the liability of AMC are the manufacture and sale to Doyle by AMC of a car so unsafe that Doyle was seriously hurt in a collision. This “cause” was litigated in the federal court only. The juridical facts affecting the liability of State Farm is its liability, under the statutes of this state, directly to its insured (Doyle) for an under-insured motorist’s negligent collision with Doyle’s car. This “cause” is the only one at issue in the state court, and was reserved by Doyle when he settled with State Farm in its capacity as liability insurer of the negligent driver.

LEMMON, Justice,

dissenting.

This case illustrates the unfairness of the absolutely inflexible rule adopted in Mitchell v. Bertolla and Welch v. Crown Zellerbach Corp., above, which limits issue preclusion devices to the narrowly defined res judicata in C.C. Art. 2286.

In the present case, plaintiff chose to litigate the issue of damages in federal court. Plaintiff was accorded his day in court and had the full opportunity to present to the federal jury every bit of evidence on the amount of damages that he sustained in the accident. Now, simply because the jury decided that the total amount of damages against a defendant (who was apparently self insured or covered by adequate insurance) was less than the amount of insured motorist coverage available to plaintiff (an amount apparently unknown to the jury), plaintiff seeks to reliti-gate the issue.

There is absolutely no equitable justification for allowing plaintiff to relitigate this issue. To the contrary, the concept of equity (the theory on which most issue preclusion devices is based) and the notions of judicial economy and fundamental fairness dictate that plaintiff be • prohibited from relitigating the issue of damages in a second trial forum after having had a full opportunity to do so in the first trial forum.

My fundamental difficulty is my belief that there should be no absolutes or inflexible rules in the civil law. The very nature of the judicial process requires that courts have flexibility to deal with the situations that arise in each individual case. While the codal articles provide the rules under which res judicata must be applied, the court should have the equitable power to determine in a particular case that an already adjudicated issue should not be reliti-gated and that the parties should be bound by the prior determination. See Brown v. Globe Tool Co., 337 So.2d 894 (La.App. 4th Cir. 1976). In dealing with these questions, courts should apply the civilian concepts of equity in those cases in which the particular situation demands a flexible approach to the decision. See C.C. Art. 21.

Because the lower court reached the correct result in the present case, I would affirm the judgment of the court of appeal.

      . In the federal suit, based on diversity jurisdic- ' tion, plaintiff sued AMC alleging that a product defect in the seat of his AMC automobile was a cause of his injuries. AMC filed a third party demand against Weldon and State Farm, her liability insurer, alleging that Weldon’s negligence was a cause in fact of plaintiffs injuries; therefore, AMC was entitled to contribution and/or indemnification from third party defendants.

      . Plaintiff, in his brief to this court, notes that he was unable to make his uninsured motorist carrier a party defendant in the federal action in that an insurer is deemed to be a citizen of the state of its insured; therefore, no diversity of citizenship existed between them. 28 U.S. C.A. 1332(c).

      .La.R.S. 22:1406(D) sets forth the provisions that govern the issuance of uninsured motorist coverage in this state. Subsection (2)(b) provides:
      For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.

      .La.Code Civ.P. art. 966 provides that a motion for summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

      . 406 So.2d 261 (La.App.3d Cir. 1981).

      . 410 So.2d 760 (La.1982).

      . We note that this conclusion is consistent with the insurance contract between plaintiff and State Farm, Part IV. — Protection Against Uninsured Motorist Coverage Used, Paragraph 2, which provides:
      No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.

      . The situation would be different, of course, if plaintiff had not been able to collect the entire amount of the $90,000 federal court judgment and was seeking to enforce that judgment against the uninsured motorist carrier, who had not been a party to the federal trial. In such a situation, the insurer, who had never had an opportunity to cross-examine plaintiff’s witnesses on damages or to present its own evidence on that issue, clearly would be entitled to its “day in court”.

      . The positive law is silent, in the respect that C.C. Art. 2286 does not expressly provide for exclusive applicability of the article to all reliti-gation questions. Indeed, several jurisprudential exceptions were retained in the Mitchell and Welch decisions.