author: COLE, Justice Ad Hoc.

text:
    STATE of Louisiana v. Richard Earl JONES.
    No. 80-KA-2132.
    Supreme Court of Louisiana.
    March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Nancy Gilliland, Lavalle Salomon, Asst. Dist. At-tys., for plaintiff-appellee.
    Edward R. Greenlee, Greenlee & Hurd, Monroe, for defendant-appellant.
   COLE, Justice Ad Hoc.

Defendant Richard Earl Jones was charged by bill of information with three counts of simple burglary of an inhabited dwelling, in violation of La.R.S. 14:62.2. At the close of defendant’s trial on May 16, 1980, the twelve-member jury returned guilty verdicts as to Counts I and II, for which defendant was sentenced to serve two concurrent nine year terms at hard labor. The present appeal urges six arguments as grounds for reversal of the accused’s convictions and sentences.

FACTS

Between February 19 and February 23, 1980, three Ouachita Parish residences were burglarized. Several days later, after receiving information implicating the defendant in all three offenses, officers of the Ouachita Parish Sheriff’s Department arrested defendant and transported him to the Sheriff’s Department. After questioning, defendant confessed to all three robberies and told authorities where most of the stolen items could be recovered. Followup investigation of defendant’s statements led to the recovery of stolen items from persons to whom Jones had sold them.

ASSIGNMENTS OF ERRORS NOS. 1 AND 2

By these assignments defense counsel contends the trial court erred in denying a motion for continuance on grounds he was unprepared for trial and for permitting the introduction of the state’s evidence.

Prior to trial, the defense and the prosecution engaged in plea bargain negotiations with regard to these burglary charges, as well as two older charges which were pending when the subsequent burglaries transpired. After Jones’ arraignment on March 13, 1980, motions were heard and trial was set for May 14,1980. During the course of continuing plea bargain negotiations, the two sides were unable to reach agreement until two days prior to the scheduled trial date, at which time the prosecutor warned defense counsel that, in the event Jones failed to plead guilty as planned, he would be the first case called for trial on the fourteenth.

On the day of trial, Jones changed his mind and insisted he be granted a jury trial. Hearing this, defense counsel immediately sought a continuance on grounds his continued participation in plea bargain negotiations and his assumption defendant would plead guilty had caused him to neglect trial preparations. This request was denied.

Article 712 of the Louisiana Code of Criminal Procedure provides:

“[a] motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good grounds therefor.”

As a general rule the denial of a continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice caused by denial of the continuance. State v. Durio, 371 So.2d 1158 (La. 1979); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Lukefahr, 363 So.2d 661 (La.1978). Where the continuance motion is based upon the want of time for preparation by counsel, this specific prejudice requirement has been disregarded only in cases where the preparation time was so minimal as to call into question the basic fairness of the proceeding. State v. Durio, supra; State v. Winston, 327 So.2d 380 (La.1976).

Defense counsel had been actively engaged in the representation of Jones for a period of two months prior to trial. Approximately one month prior to trial a preliminary examination was conducted, as a result of which defense counsel no doubt familiarized himself with Jones’ case. In fact, counsel had no idea his client would agree to plead guilty until just two days prior to trial. Even assuming defense counsel had made no previous attempts to prepare his client’s defense, it is difficult to see how counsel’s ability to ready himself for trial was significantly prejudiced by the defendant’s promised plea. Following the denial of defendant’s motion for continuance, the trial court recessed for approximately three hours in order to enable the defendant to change into “civilian” clothes. Thereafter jury selection was commenced, eventually concluding on the following day. The state began presentation of its case on the afternoon of May 15th, and following an evening recess, completed its presentation on May 16th. The defense was thus afforded the evening of May 14th to prepare for cross-examination of state witnesses and the evening of May 15th in which to complete preparation of its case-in-chief. Since the prosecution stemmed entirely from Jones’ confessions, these evenings should have afforded the defense ample time to prepare its assault on the voluntariness of Jones’ confessions. Thus, while a grant of continuance would certainly not have been unwarranted here, it cannot be said the trial judge abused his discretion.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 3

This assignment arose when Judge Farr sought to apologize to prospective jurors for their inconvenience and make some explanation for the delay wrought by defendant’s change of clothes. In so doing, Judge Farr stated:

“Ladies and gentlemen, there are certain aspects of our procedure that can’t be changed and try as we might there’s not much we can do about it when they take place and you are the victims of such circumstances this morning. I hope that it may help your feelings a little bit to understand why these developments have taken place. The state can only schedule matters for trial and any and all defendants have the right to plead guilty if they want to. They don’t have to do that if they don’t want to. They don’t have to do it until they’re called up for trial if they don’t want to. That happened in about six cases this morning. When they do plead guilty the law requires that the judge speak with them individually to be certain that they know what they’re doing, they’re not being taken advantage of or they’re not acting under a misconception of their rights or what the circumstances are and it takes a good deal of time to do that. When that occurred this morning we had a case that’s coming up for trial unexpectedly and we had some problems develop in it which we’ve tried to overcome in the last thirty or forty minutes but we’re not going to be able to do that and we’re not going to be able to reach the case until 1:30." (Emphasis supplied.)

Defendant argues Judge Farr’s comments insinuated defendant had previously attempted to plead guilty, and these insinuations prejudiced his right to a fair trial. La.Code Crim.P. arts. 771, 775.

This contention is not well-founded. Judge Farr’s comments, taken as a whole, make it quite clear the delay in reaching defendant’s case was due to last minute pleas in six cases, with the attendant need for him to interrogate each defendant before accepting his plea. There was no implication that Jones had planned to plead guilty. Nothing was said by Judge Farr as regards anyone suddenly changing his mind after he had previously decided to plead guilty. In speaking of “(W)hen that occurred this morning...it is obvious the reference is to the six defendants who did not decide to enter pleas until their cases were called for trial that morning. Such subject matter was pinpointed with the comment: “That happened in about six cases this morning.” (Emphasis added.) From the entirety of the judge’s remarks an attentive juror would have no reasonable basis to infer Jones had either attempted or planned to plead guilty when his case was called for trial.

Unlike State v. Gaspard, 301 So.2d 344 (La.1974), there were no direct statements in this instance with respect to plea bargaining or an attempt to plead guilty. There is nothing of substance from which a prejudicial inference may be drawn. There is no real likelihood a prospective juror could have construed the judge’s comments as a reference to defendant’s prior intention to plead, of which they were totally unaware.

Contrary to the thrust of defendant’s contention, Judge Farr is to be complimented for his sensitivity to the role jurors play in the criminal justice system and the need to explain delays which are a waste of their time. It is obvious he was professionally aware of the danger of prejudicial remarks and carefully refrained from saying anything that would deprive the defendant of a fair trial.

This assignment is without merit.

ASSIGNMENTS OF ERRORS NOS. 4 AND 5

By these assignments, defendant argues the trial court erred in permitting references to other crimes both by a state witness on direct examination and by the prosecutor during closing argument.

During its case-in-chief, the prosecution questioned Ouachita Parish Detective Larry Saurage as to the nature of the information which had prompted defendant’s arrest:

“Q. Give us just general information about what you learned from the informant and what you did. Don’t go into details about what was said.
A. Our department at that time held warrants on Richard Earl Jones and I was attempting to locate him on these warrants, not on — ”

At this point, defense counsel objected to the reference to other warrants; the trial court responded by admonishing the witness not to relate matters dealing with other cases. Defense counsel later requested a mistrial, but this request was denied.

A second defense objection arose when the prosecutor, during rebuttal argument, suggested the length of defendant’s interrogation by Ouachita officers may have been attributable to their “talking to him about other persons involvement or about other cases.” The defense objection to such rebuttal argument and a request for mistrial were lodged as soon as the jury left for deliberations.

Defendant is accurate in his contention that Louisiana courts do not permit the admission of “other crimes” evidence unless that evidence is substantially relevant for some purpose other than to suggest the accused probably committed the crime because he has a bad character. State v. Monroe, 364 So.2d 570 (La.1978). However, the comments at issue were clearly not such as to warrant the drastic remedy of mistrial. La.Code Crim.P. arts. 770, 771. As regards the reference by Detective Saurage to other “arrest warrants,” article 771 clearly states that the proper remedy for a witness unsolicited references to other crimes alleged to have been committed by an accused is admonition. Such was the express holding of this Court in State v. Thorson, 302 So.2d 578 (La.1974).

As concerns the alleged reference to “other cases,” the prosecutor made no suggestion the accused was in fact responsible for other burglaries. Rather, this comment was intended solely to refute defense arguments that the very length of the defendant’s interrogation was in itself suggestive of intimidation or coercion on the part of Ouachita Parish authorities. See La.Code Crim.P. art. 774. This remark was not nearly so objectionable as that made in State v. Lewis, 315 So.2d 626 (La.1975), wherein an officer prefaced his testimony as to an accused’s confession with the observation that defendant had first wanted to tell them “about some other things he had done.” This Court held that the latter remark entitled the defendant, not to a mistrial, but only to an admonition to disregard the objectionable remark. Cf., State v. Alexander, 351 So.2d 505 (La.1977) (reference by district attorney to refixing “remaining charges” for later date held not a comment on defendant’s other crimes).

At best, the remarks objected to herein warranted only an admonition by the trial court. Having failed to request one, defendant cannot now complain of any prejudice resulting from its omission. State v. Baldwin, 388 So.2d 664 (La.1980).

These assignments are without merit.

ASSIGNMENTS OF ERRORS NOS. 6 AND 7

These assignments concern alleged deficiencies in the state’s voluntariness predicate.

Evidence adduced outside the jury’s presence in an attempt to demonstrate the vol-untariness of the defendant’s confession showed the following. Defendant was arrested at about 2:00 o’clock on the afternoon of February 25,1980 and was immediately taken to the Ouachita Parish Courthouse Annex. Upon arrival, he was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signed a “rights of arrestee” form indicating he understood the officer’s explanation. At this time, Jones told sheriff’s deputies he did not wish to talk about the charges against him. He was then booked into the Ouachita Parish Jail.

At about 9:00 o’clock that evening, defendant was again approached by sheriff’s deputies, who advised him of his rights. Defendant again signed a rights waiver, but on this occasion, agreed to talk with Detective Saurage about the offense. According to Saurage, defendant proceeded to admit his role in the Patterson (Count I) burglary, an admission which Saurage later recorded. Another waiver of rights form was then signed as to Count II, and the same procedure was followed. A second recorded confession was concluded at about 10:17 p. m. Saurage testified no force or intimidation was ever used during the interview, and no threats or promises were ever made to induce Jones’ confession. However, Saurage did recall a conversation regarding the possible arrest of defendant’s wife, though he was unable to remember when and to whom such statements were made.

During the state’s voluntariness predicate, defendant took the stand for the limited purpose of testifying as to circumstances surrounding the taking of his confession. Jones conceded he understood the explanation of rights given by the arresting officers, but claimed he admitted responsibility for the burglaries only in the face of Deputy Tom Mason’s threat to arrest his wife and place his child in the custody of juvenile authorities. Defendant further testified he had requested permission to use the phone on several occasions, but in each instance his request was denied. He claimed he was not allowed to use the phone until the following day.

On rebuttal, the state called Mr. H. G. Sullivan, the director of the Ouachita Parish jail. Sullivan testified part of his job was to keep certain jail records, which included records of inmates’ initial phone calls. Under the procedure adopted by the Ouachita Parish jail, a defendant is first booked and placed in a visitor’s cell with a telephone. According to Sullivan, the booking deputy then fills out a jail card with the defendant’s name and allows him to initial the card when he makes a phone call.

Over defense objection Sullivan was then permitted to identify the defendant’s jail card and to testify the card showed Jones had placed a call tó his father at 2:50 p. m. on the date of his arrest. Sullivan further testified the entry showing this call had been made by Deputy Ralph Hammonds. At the conclusion of Sullivan’s testimony, this card was admitted into evidence as a business record, again over the defendant’s hearsay objection. On appeal, this objection forms the basis of defendant’s sixth assignment of error.

In State v. Vaughn, 378 So.2d 905, 910 (La.1979), this Court laid out the applicable standards for the admission of business records as an exception to the hearsay rule:

“Louisiana jurisprudence has held that business records are admissible as proof of their assertions if the persons concerned with recording the information, from personal knowledge or from information furnished by one having a business duty to record it, are unavailable for testimony, if the first collected record available to the court is introduced, if the records are identified by one familiar with the bookkeeping procedure, and if the evidence seems reliable. State v. Perniciaro, [374 So.2d 1244 (La.1979)] supra; State v. Monroe, [345 So.2d 1185 (La.1977)] supra; see Comment, Business Records in Louisiana as an Exception to the Hearsay Rule, 21 La.L.Rev. 449 (1961), reprinted in Pugh, Louisiana Evidence Law, 1974, 476-488.”

Deputy Hammonds had not been subpoenaed to testify in the case, there being no reason for the state to suspect defendant’s phone call would be of great significance to the prosecution. In brief, the state further avers it was unable to obtain Hammonds’ testimony since the deputy was not on duty at that time. In any event, the card was identified by the jail’s director, who was the custodian of these records and who testified only Ouachita Parish deputies had access to the card filing system. Because those records were regularly kept by deputies having a duty to record information as to phone calls placed by accused defendants, the admission of defendant’s jail card was correct. Even if we were to conclude the state failed properly to demonstrate Hammonds’ unavailability, this error did not prejudice the defense. This evidence was not used to impeach the defendant’s credibility in the eyes of the jury and could not, in itself, support a finding that the defendant’s confession had been coerced.

In assignment of error number seven, defendant challenges the trial court’s finding that his confession was given freely and voluntarily. Defendant bases this contention upon his claim that Deputy Tom Mason had threatened to arrest his wife if he refused to confess.

Before a confession may be introduced in evidence, the state has the burden of affirmatively proving it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, inducements, or promises. La.R.S. 15:451; La.Code Crim.P. art. 703(C). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the volun-tariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Gaines, 354 So.2d 548, 550 (La.1978); State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977).

Defendant’s allegations were thoroughly refuted by state testimony during rebuttal. Deputy Mason, the person to whom the threats were attributed, testified he had never in the presence of the defendant, threatened the arrest of Mrs. Jones. Explaining Deputy Saurage’s recall of such a conversation, Mason testified he and Sergeant Mike Worley had earlier travelled to Jones’ residence in an attempt to effect the defendant’s arrest. When Mrs. Jones told the officers defendant was not present, they warned her she could be prosecuted as an accessory to burglary if they later discovered she was concealing the accused’s whereabouts. Mason further stated the possibility of Mrs. Jones’ arrest had earlier been discussed with his supervisor (Commander Alfred Calhoun). Mason’s testimony was corroborated by both Calhoun and Saurage, both of whom denied ever having made such a threat in the presence of the accused. Considering the strength of this rebuttal testimony, the trial court’s finding of voluntariness was correct.

These assignments are without merit.

DECREE

For the foregoing reasons, the convictions and sentences of the defendant, Richard Earl Jones, are affirmed.

AFFIRMED.

DIXON, C. J., concurs.

       Judges Ellis, Cole, and Watkins of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson, and Lemmon.

      . In any event, the defense makes no specific claim as to how the denial of continuance prejudiced his case. Since this is not a case where the time for preparation was so minimal as to raise questions as to the fairness of the proceeding, defendant was not excused from the requirement that specific prejudice be demonstrated. Defense counsel had nearly as much time to prepare his case as he would have had if defendant had never agreed to plead guilty.

      . Defendant’s oral motion for continuance is improper under La.Code Crim.P. art. 707. This Court has stated on numerous occasions the denial of an oral motion for continuance presents nothing for review. State v. Jones, 340 So.2d 563 (La.1976): State v. Wagster, 361 So.2d 849 (La. 1975); State v. Weathers, 304 So.2d 662 (La. 1974). In fairness to the defense, however, the grounds for continuance were not known until the morning of trial. For this reason, the oral motion is reviewed.

      . Defendant raised this objection below via motion for mistrial under La.Code Crim.P. art. 771. However, since trial had not yet begun, use of this procedural vehicle was improper. This contention is appropriately raised via motion to set aside the venire. La.Code Crim.P. art. 419.

      . Deputy Tom Mason had conducted the earlier attempt to question the accused. Jones later testified that he “just didn’t really want to talk to Tom Mason.”

      . The truncated record lodged before this Court does not directly support this allegation.


source: Caselaw Access Project

author: WATKINS, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. George McCLOW.
    No. 80-K-2182.
    Supreme Court of Louisiana.
    March 2, 1981.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Michael Fanning, Louise Korns, John Craft, Asst. Dist. Attys., for plaintiff-respondent.
   WATKINS, Justice Ad Hoc.

George McClow was convicted with two co-defendants of distributing heroin, in violation of LSA-R.S. 40:966(A). All defendants appealed. The Attorney General’s office was erroneously informed that defendant McClow had died. The Assistant Attorney General so informed this Court, and this Court, acting upon that mistaken belief, vacated McClow’s conviction, ordering all proceedings against McClow abated ab initio, while it affirmed the convictions of the co-defendants. State v. Anderson, 364 So.2d 566 (La.1978).

When McClow was informed in 1980 that his conviction had been vacated, he applied for a writ of habeas corpus, which was denied by the trial court. McClow applied to this Court for supervisory writs, which were granted.

Abatement ab initio of criminal proceedings has the effect of wiping the slate clean through indictment and conviction, (see State v. Hamilton, 370 So.2d 874 (La. 1979), for example, in which a co-defendant was correctly reported to have died)), and, as McClow admits, has as its purpose serving the interest of the surviving family in preserving, unstained, the memory of the deceased defendant or his reputation. State v. Morris, 328 So.2d 65 (La.1976).

The defendant McClow contends that denying the habeas corpus would subject defendant to continued imprisonment after his conviction had been vacated, thus in effect subjecting McClow to double jeopardy.

In support of defendant’s contention of double jeopardy, defendant cites State v. Neames, 377 So.2d 1018 (La.1978). In Neames, defendant was convicted of making harassing telephone calls. He was sentenced to two years in parish prison. The trial court later set aside Neames’ conviction and sentence, and on its own motion, substituted a plea of not guilty by reason of insanity and ordered defendant committed to a mental hospital for examination. Neames questioned the commitment by ha-beas corpus and the trial court vacated the commitment and reinstated the conviction and sentence. This Court held that the reinstatement of the conviction subjected defendant to double jeopardy, in violation of Article 1, Section 15 of the Louisiana Constitution of 1974.

In Neames, unlike the present case, the vacating of the conviction was based upon a substantive issue, viz. the sanity of the defendant at the time the crime was allegedly committed. The present case presents no substantive issue pertaining to the crime alleged, distribution of heroin, nor does it present any form of procedural irregularity. The error was simply one of assuming that this Court no longer had power over the defendant because the defendant had died. We cannot set aside a conviction on the grounds of double jeopardy where there was no prior determination of lack of guilt on a point of fact or procedure. The error upon which the abatement was based touched neither substance nor procedure, and hence does not present a true issue of double jeopardy. We hold that the trial court acted correctly in denying the writ of habeas corpus.

Under LSA-C.Cr.P. art. 922 a judgment of this Court in a criminal matter becomes final when the delay for applying for a rehearing has expired (14 days of rendition of judgment). That procedural situation is presented here with regard to our earlier disposition of McClow’s conviction. This Court through no fault of its own was led to believe in rendering the earlier judgment that McClow was dead, when in fact he was, and is, alive. We, therefore, ordered abatement ab initio of the proceedings against McClow, and thus appeared to set aside both conviction and indictment. In so doing, we acted upon incorrect information. This Court has the inherent power, under the factual situation that confronts us, in the furtherance of its duty to administer justice, to rescind our earlier abatement order. To do otherwise would be to set aside a conviction, without a consideration of the true merits of an appeal, on an erroneous conclusion of fact that fails both to protect the general public and to give defendant an opportunity on the true merits, procedural or substantive, of the appeal to clear his name. The court would thereby demean its legitimate authority, and make an erroneous “fact” not having anything to do with ultimate conviction or acquittal the basis of a final and immutable decision of the state’s highest court. This we refuse to do. We, therefore, while denying the writ of habeas corpus, rescind our earlier judgment abating the proceeding ab initio, and reinstate the defendant’s appeal before this Court which was pending when we rendered our original decision in this matter.

WRIT DENIED, APPEAL REINSTATED.

WATSON, J., concurs in the result.

       Judges Ellis, Cole and Watkins of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson, and Lemmon.

      . This case is thus unlike, for example, State v. Reed, 315 So.2d 703 (La.1975), which involved issues of substance and procedure.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Joseph DEFLEY, Jr.
    No. 80-K-2253.
    Supreme Court of Louisiana.
    March 2, 1981.

      George M. Strickler, Jr., N. Ann Wool-handler, Michael G. Collins, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander Perez, Jr., Dist. Atty., Frank Klein, Gilbert Andry, Asst. Dist. Attys., for plaintiff-respondent.
   WATSON, Justice.

A writ was granted to review the trial court’s ruling that deceased public officials are entitled to the same protection from criminal defamation accorded private citizens.

Defendant, Joseph A. Defley, Jr., is charged with defamation contrary to LSA-R.S. 14:47. Affidavits specify that Defley violated Section 2 of the statute by maliciously referring to Ronald E. Duver, Sr., and L. M. Tinsley, both deceased, as drunkards at a public meeting.

Defley’s counsel filed a motion to quash the charges. It was alleged that, since both had held public office, Duver as Plaque-mines Parish School Supervisor and Tinsley as School Superintendent, the prosecution was unconstitutional. The trial court denied the motion.

The statement of William A. Roe recites that he was present at a public meeting in Belle Chasse, Louisiana, where the salary situation of public school teachers in the parish was discussed. During a question and answer period, Joseph Defley, Jr., began expounding about the faults of the public school system in Plaquemines Parish. He said that the “.. . Commission Council had attempted to close the public school system instead of intergrating (sic) it. Further, he stated that the Commission Council, in furtherance of that goal, had hired a ‘drunkard superintendant (sic)’ ... to keep the schools down and ‘a drunkard supervisor to funnel books into the private schools.’ ” Robert Kent then said that Def-ley was out of line in talking about Ed Duver and L. M. Tinsley like that and there was some further heated discussion.

LSA-R.S. 14:47 is unconstitutional insofar as it punishes public expression about public officials. State v. Snyder, 277 So.2d 660 (La.1973); Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

A school superintendent and a school supervisor would both be considered public officials under the standard of New York Times Company v. Sullivan, supra. Each position is such “.. . that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, ...” Rosenblatt v. Baer, 383 U.S. 75 at 86, 86 S.Ct. 669 at 676, 15 L.Ed.2d 597 at 606 (1966). See, for example, Basarich v. Rodeghero, 24 Ill.App.3d 889, 321 N.E.2d 739 (1974) and Kapiloff v. Dunn, 27 Md.App. 514, 343 A.2d 251 (1975), U.S. cert. denied 426 U.S. 907, 96 S.Ct. 2228, 48 L.Ed.2d 832.

The appellation of drunkard is not necessarily germane to official conduct, but personal character traits are relevant to fitness for office. Garrison v. State of Louisiana, supra; Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). Moreover, the word was used here in reference to the job performance of the two officials.

The deceased have no opportunity to counteract false statements and are unable to rebut defamatory allegations. Their reputations, like those of private individuals, are thus vulnerable to injury. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). However, one who in life accepts the responsibilities of a public position has relinquished some of his protection from defamation. A candidate for public office is in the same category as a public official for defamation pur poses. Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). The conduct in office of a discharged official is also subject to free debate and attack. Rosenblatt v. Baer, supra; Hackworth v. Larson, 83 S.D. 674, 165 N.W.2d 705 (1969). Similarly, one who is no longer in public office by reason of death rather than discharge remains open under the constitutional guarantees of the First Amendment to the United States Constitution to caustic and sharp comment concerning past conduct in office. Criticism of a deceased public official, although grievous to family and friends, is constitutionally protected. “The New York Times standard [for public officials] forbids the punishment of false state-merits, unless made with knowledge of their falsity or in reckless disregard of whether they are true or false.” State v. Snyder, supra, 277 So.2d 667. Even then, such statements may only be punished under a statute which lacks the constitutional infirmities of LSA-R.S. 14:47. State v. Snyder, supra.

The conduct of those who have held office remains in the public realm after the parties themselves have died. Therefore, prosecution under the statute is unconstitutional insofar as it relates to public expression about deceased public officials and their job performance. The judgment of the trial court denying defendant’s motion to quash is reversed. Defendant Def-ley’s motion to quash is granted and the matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

       Judges Frederick Stephan Ellis, Luther F. Cole, and J. Louis Watkins, Jr., of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson and Lemmon.

      . LSA-R.S. 14:47(2) provides:
      “Defamation is the malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends: ...
      “(2) To expose the memory of one deceased to hatred, contempt, or ridicule; .... ”

      . U.S.C.A.Const. Amend. 1 provides:
      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”


author:
WATSON, Justice.

      COLE, J. ad hoc,

text:
    STATE of Louisiana v. Elvis SPEARS and Willie J. Spears.
    No. 80-K-2273.
    Supreme Court of Louisiana.
    March 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Linda G. Bizzaro, Louise Korns, Leon Cannizzaro, Asst. Dist. Attys., for plaintiff-relator.

      C. Michael Winters, Craig Colwart, Michael Winters, Orleans Indigent Defender Program, for plaintiff-respondent.
   WATSON, Justice.

A writ was granted to consider the State’s contention that the trial court erred in sustaining defendants’ motion to suppress evidence.

Both defendants, Elvis Spears and Willie J. Spears, are charged with possession of marijuana. LSA-R.S. 40:967. Elvis Spears is also charged with possession of dextro-propoxyphene in violation of LSA-R.S. 40:968. Possession of dextropropoxyphene is instead a violation of LSA-R.S. 40:969.

At the hearing on the motion to suppress, Officer Michael Bossetta was the only witness. On August 1, 1980, he and Officer Tuminello, dressed in plain clothes, were on routine patrol in an unmarked car. While cruising slowly in the 8400 block of Hickory Street, they smelled the aroma of marijuana through their open car windows. Defendants were four to five feet away, sitting on the hood of a car with their backs towards the officers. The two were sharing a hand rolled cigarette.

The officers approached defendants, who apparently recognized them as police. Defendants threw down the butt they were smoking, a coin envelope and two unburned cigarettes. Defendants were arrested. Officer Tuminello retrieved the abandoned property with the help of a flashlight. The coin envelope contained marijuana, and the three cigarettes were made with marijuana. The record does not reveal how the two pills of dextropropoxyphene were discovered.

Law enforcement officers may stop any person in a public place whom they reasonably suspect is committing an offense. LSA-C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Chopin, 372 So.2d 1222 (La., 1979). There must be sufficient indi-cia of criminal conduct to justify an infringement upon the individual’s right to be left alone, free of governmental interference with his liberty. U.S.C.A.Const. Amend. 4; LSA-Const. 1974, Art. 1, § 5; State v. Ryan, 358 So.2d 1274 (La., 1978); State v. Weathers, 320 So.2d 892 (La., 1975).

At issue here is the reasonableness of the officers’ belief that defendants were committing an offense. The aroma of marijuana from the shared cigarette justified their initial suspicion. When the defendants reacted to their approach in a guilty manner by abandoning the cigarettes, the officers had an additional reason to believe that an offense was being committed. The police may lawfully seize abandoned property when there has been no prior unlawful intrusion into a citizen’s right to be left alone. State v. Perique, 340 So.2d 1369 (La., 1976). Retrieval of the marijuana confirmed the officers’ belief that it was contraband. The abandoned property, consisting of the partially burned cigarette, the two other cigarettes and the coin envelope, is admissible.

The dextropropoxyphene pills were not identified as part of the abandoned property. No lawful seizure of the pills was shown, and the motion to suppress was granted correctly as to them. The fact that their possession was charged under the wrong statute is moot.

The ruling on the motion to suppress is affirmed in part and reversed in part and the case is remanded to the district court for further proceedings consistent with the views expressed herein.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

DIXON, C. J., concurs, finding probable cause plus a “throwdown”.

COLE, J. ad hoc,

concurs in the reversal of the court’s ruling insofar as it ordered suppressed the abandoned property; and dissents from affirmation of that part of the trial court’s ruling suppressing the dextropropoxyphene pills, believing a hearing on remand should be held to determine the legality of the seizure of the pills.

       Judges Frederick Stephen Ellis, Luther F. Cole and J. Louis Watkins of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon, and Associate Justices Marcus, Watson, and Lemmon.

      . In State v. Davis, 359 So.2d 986 (La., 1978), the officers did not detect any aroma prior to approaching a suspect with a cigarette. The only indication that the cigarette was contraband was the fact that it was hand rolled. The suspect was arrested, but the cigarette was not recovered.


author: LEAR, Justice Ad Hoc.

text:
    STATE of Louisiana v. Dennis GUIDRY.
    No. 80-K-2306.
    Supreme Court of Louisiana.
    March 2, 1981.
    Lonny A. Myles, Myles & Tregle, Ltd., Hammond, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-respondent.
   LEAR, Justice Ad Hoc.

On June 28, 1978, the district attorney’s office filed a bill of information charging defendant, Dennis Guidry, with the offense of driving while intoxicated (DWI), a violation of La.R.S. 14:98. Defendant subsequently filed a motion to quash which was denied. Guidry then pleaded guilty to the charge and was fined $200.00 plus court costs, sentenced to a suspended term of six (6) months, and placed on one year supervised probation with conditions. Defendant applied for supervisory writs to test the ruling of the trial court permitting the state to proceed with the prosecution when more than two years have elapsed since the filing of a formal charge.

FACTS

The salient facts and dates are as follows:

Defendant, Guidry, was arrested and charged with DWI on March 29, 1978. He was released that day, after he and his father executed an appearance bond. Defendant and his father listed their addresses as 3207 Byron Street, Baton Rouge, Louisiana, and 1911 West Thomas Street, Hammond, Louisiana, respectively.

The state filed a formal charge on June 28, 1978. Arraignment was assigned for September 13, 1978, and service of process was attempted on defendant, but to no avail. The service return showed a new, out of parish address. The defendant failed to appear, and arraignment was rescheduled to October 18, 1978, with notice being sent to the new address. After a second failure to appear, a bench warrant was issued and notice ordered to be served on the surety to produce defendant within ten days or, in default, forfeit the bond. On August 6, 1980, nearly two years after the initial issuance of a judicial order to notify and command the surety to produce the defendant in court within ten days thereof, the court again issued an order that the surety and the accused be notified of arraignment returnable September 5, 1980. On September 5, the accused did appear with his father. The court, ex proprio motu, ordered the case reassigned to September 15, 1980.

Defendant filed on September 15,1980, a motion to quash, urging that the time limitation for commencement of trial had expired. The trial court denied the motion. Defendant pleaded guilty. Although he perfected writs to this court, the record also reveals that defendant paid the fine portion of his sentence.

La.C.Cr.P. Art. 578 provides in pertinent part:

“Except as otherwise provided in this Chapter, no trial shall be commenced:
* * * * * *
“(3) In misdemeanor cases after one year from the date of institution of the prosecution.
“The offense charged shall determine the applicable limitation.”

The record reveals a more than one year lapse between filing of the misdemeanor charge and trial. A heavy burden, therefore, is placed upon the state to show some interruption or suspension sanctioned by law to justify trial of the accused. The state relies on La.C.Cr.P. Art. 579. That provision effects an interruption if the defendant was, inter alia, absent from his usual place of abode within the state with the intention of avoiding detection, apprehension, or prosecution, or his presence was unable to be obtained by legal process. The argument lacks merit. During the eviden-tiary hearing had on the motion to quash, the state failed to carry its burden. Its reliance on art. 579 is misplaced, as there is not a scintilla of evidence in the record to support its contention that the accused was absent from his usual place of abode to avoid prosecution. In fact, the simple putting into effect of the judge’s order of October 18, 1978, to command the surety to appear and to produce the defendant, would have obviated this whole affair. This failure in the administrative process is tantamount to that discussed by this court in State v. Devito, 391 So.2d 813 (1980), which mandates reversal. The defendant established by his uncontroverted testimony and that of his parents that he was amenable to legal process at as early a time as notice could be given to his surety. The evidentia-ry hearing established that such an opportunity was available to the state, but it chose not to avail itself of the same. City of Baton Rouge v. Wheat, 377 So.2d 1234 (1979), State v. Alexander, 357 So.2d 1118 (1978).

We, therefore, hold that the state has failed to timely prosecute and that the trial court erred in denying defendant’s motion to quash.

Accordingly, the decision of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.

      Judges Covington, Chiasson and Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.

      . Defendant was required to receive counseling for alcohol and drug abuse.

      . Art. 579. Interruption of time limitation
      The period of limitation established by Article 578 shall be interrupted if:
      (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
      (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.
      The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Diane SUMLER.
    No. 63810.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Steven A. Hansen, Asst. Dist. Atty., for plaintiff-appellee.
    Thomas W. Davenport, Jr., Monroe, for defendant-appellant.
   DIXON, Chief Justice.

In December, 1977 defendant appeared in a hospital emergency room with her eighteen month old son. Forty per cent of his body had been burned — from his waist down to his toes; thirty per cent of his body was covered with third degree burns— burns completely through the skin, down, at least, to the subcutaneous fat layer. His skin was blistered, cracked open and peeling. The third degree burns required grafting procedures. The child had received the burns in a bathtub.

Defendant was tried before a district judge, and was convicted of cruelty to a juvenile. R.S. 14:93. Four assignments of error are raised in this appeal. None have merit.

Assignments of Error Nos. 2 and 3

While at the hospital, defendant made certain inculpatory remarks to the physician who examined her child and to a police officer who was investigating the case. She was not advised of her rights prior to making these statements, and claims that the statements should have been held inadmissible.

The physician had asked defendant to explain how the child had been burned. This inquiry was obviously part of the doctor’s effort to diagnose the child’s condition accurately. The burns were critical, and the manner in which they were caused was apparently of medical significance. Defendant told the doctor that she had put the child in a bathtub to give him a bath, and that she had left the room for a few minutes to check on another child. When she returned, she said, the child was burned.

Defendant gave substantially the same story to the police officer. In addition, though, she told him that she had been “mad” at her child when she bathed him, that she turned on more hot water than cold, and that she pushed the baby back into the tub when he tried to get out. She said that she had been out of the bathroom for about three minutes when she heard the child crying, and that she saw steam rising from the tub when she returned.

These inculpatory remarks are not confessions, but admissions. R.S. 15:449. Defendant did not admit guilt, but merely acknowledged facts that tended to establish her guilt; at the same time, she attempted to explain her behavior in a manner that made the burning seem accidental. Such admissions are exempt from the hearsay rule. R.S. 15:434, 449 et seq. Compare F.R.E. 801(d)(2). It is clear that defendant made the statements voluntarily.

Defendant, however, takes the position that her statements were unconstitutionally solicited, and that they should not have been admitted into evidence. Reliance is placed upon the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Art. 1, § 13 of the Louisiana Constitution.

Article 1, § 13 states in part:

“When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel.... ”

This article essentially incorporates the procedural safeguards established in Miranda v. Arizona, supra, although the term “detained” might have a slightly different meaning than the term “custody” used in the Miranda case. Hargrave, “The Declaration of Rights of the Louisiana Constitution of 1974,” 35 La.L.Rev. 1, 40-42 (1974). A suspect is entitled to be informed of the right to silence, the privilege against self incrimination and the right to the assistance of counsel when he is “arrested or detained,” that is, when he is subjected to custodial interrogation. The United States Supreme Court explained it this way:

“... By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.... ” Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706.

Under both the Miranda decision and Art. 1, § 13, a suspect is considered to be detained or held in custody when he “necessarily and reasonably must have understood that he was under compulsion to remain and submit to questioning.” State v. Menne, 380 So.2d 14, 17 (La.1980).

The basic purpose of the warnings is to counteract “the coercive potential of police interrogation.” State v. Segers, 355 So.2d 238, 244 (La.1978). For that reason, the warnings are not necessary when a coercive environment is not present: “police officers are not required to administer Miranda warnings to everyone whom they question.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977). In determining whether a cus todial or inherently coercive situation exists, this court has generally examined factors “indicating the degree the police suspect the person interrogated of committing the offense ...” State v. Segers, supra, 355 So.2d at 243-44. These factors include the existence of probable cause to arrest, the focus of the police investigation, and the reasonable beliefs of the person being questioned. See State v. Redic, 392 So.2d 451 (La.1980); State v. Jones, 386 So.2d 1363 (La.1980); State v. Menne, supra.

Defendant argues that the emergency room physician was acting as an agent of the state because he was under a legal duty to report any possible case of child abuse. R.S. 14:403. It is unnecessary to respond to this argument because the record clearly indicates that defendant was not being detained or deprived of her freedom in any significant way when she responded to the doctor’s questions. ..The only compulsion under which she could have labored would have been a desire to aid the physician in treating her child’s severe and disfiguring injuries.

The case is slightly different with regard to the police officer’s questioning. The officer had received a radio dispatch reporting a possible case of child abuse. He was required to make a report of his findings, and determined that his best source of information was the child’s mother. The officer asked defendant to step outside the emergency room, where he could talk to her privately. She readily responded, and made the statements in question.

The officer’s investigation was obviously in a preliminary stage. He had no reason to suspect that defendant had committed a crime, and had not focused his investigation upon any person. Cf. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Indeed, the officer did not arrest defendant even after the statements were made. Cf. State v. Redic, supra. It is evident that the officer was simply gathering general information about the circumstances of the case so that he could complete his report; his efforts were purely investigatory, and should not have placed the defendant under apprehension that she was under any compulsion to remain with the officer and answer his questions. Cf. State v. Menne, supra. Under these circumstances, it was not necessary for the officer to advise defendant of her rights. The trial judge correctly admitted the statements into evidence.

Assignment of Error No. 4

At the close of the prosecution’s case in chief, defense counsel made a motion for acquittal. Such a motion can be granted only if the evidence presented by the state “is insufficient to sustain a conviction.” C.Cr.P. 778. In reviewing, claims of insufficiency of evidence, this court has applied the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that the offense was proven beyond a reasonable doubt.

When the trial judge denied defendant’s motion, the following circumstantial evidence was before him: defendant’s - child was severely burned from the waist to his toes, but no burns were apparent on his hands or his upper torso; the water in the tub was hot enough to cause third degree bums, the most severe type of burn, which causes damage not only to the skin but to the layers of flesh beneath the skin. These circumstances alone foreclose any reasonable doubt that the injuring might have been accidental: the pattern of the burns indicates that the child did not splash about or use his arms to try to push himself out of the tub. It is not reasonable to believe that an eighteen month old child would sit passively in a tub of scalding water without kicking, thrashing, or trying to push himself up out of the water in an attempt to get out. The absence of any burns on his hands, arms or above his waist is consistent only with the child’s being held in the hot water by another person.

According to the policeman who took the initial report, defendant admitted that she was angry at her boy when she was bathing him, and that she pushed the baby back into the tub when he tried to climb out. She also stated that she had adjusted the faucet so that the tub was filled with more hot water than cold; that she left the bathroom and that she heard her son crying, but that she left him alone for several minutes.

The offense of cruelty to a juvenile is defined as “the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.” R.S. 14:93. The term “intentional,” as used in the statute, refers to general criminal intent, “present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” R.S. 14:10(2). Defendant admitted that she deliberately pushed her child back into a tub of hot water when he tried to climb out. If she did not know that the water was hot enough to scald her child, it would have taken no effort to find out. Criminal negligence exists when “there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” R.S. 14:12.

Under either theory of criminal responsibility, intentional or accidental mistreatment, the state presented sufficient evidence of guilt beyond a reasonable doubt in its case in chief. Defendant drew the bath and adjusted the temperature; the water was scalding hot; the baby was obviously restrained from leaving the tub, a fact corroborated by his mother’s admission; and the child was left in the tub for some minutes. The state’s evidence tended to show, beyond a reasonable doubt, that defendant either deliberately filled the tub with hot water and then held her son in the tub to punish him, or that she carelessly allowed the water to become scalding and then held him in the tub, a gross deviation below the standard of care expected of her. The absence of burns on any portion of the child’s body except that area that was exposed to the water while he was in a sitting position is a singular circumstance which excludes any reasonable doubt as to defendant’s innocence. R.S. 15:438. The child was restrained in the tub, when the water was scalding, by defendant. Accordingly, there was sufficient evidence of guilt to deny the motion for acquittal.

Defendant’s conviction and sentence are affirmed.

      . Assignment of Error No. 1 complained of an improper foundation for the introduction of Polaroid photographs because the officer who snapped the shutter did not identify them— only the officer who took the prints from the camera, held them while they developed, and peeled the backing from the finished pictures. The assignment is wholly without merit.

      . Under the authority of State v. Smith, 332 So.2d 773 (La. 1976) (Dixon, Calogero and Dennis, JJ. dissenting), this court is allowed to review all of the evidence presented at trial in determining whether a motion for acquittal should have been granted. Whatever the merits of this rule, it need not be invoked in the present case, since the evidence presented by the state in its case in chief affords a sufficient basis for denying the motion. Our review is limited to the evidence to which the motion for acquittal was directed. Defendant does not contend that the evidence as a whole is insufficient to support the conviction. See C.Cr.P. 920.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Charles CLAIBON.
    No. 80-KA-2081.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, William Weatherford, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet, Asst. Public Defender, for defendant-appellant.
   CALOGERO, Justice.

On July 6, 1979, defendant Charles Clai-bon was a member of a parish .work crew assigned to clean drainage ditches in Baton Rouge. On that date defendant killed Tyrone Converse, first stabbing him with a butcher knife and later cutting him across the neck with a swing blade, a tool used in cutting weeds. The grand jury indicted defendant for first degree murder, which indictment the district attorney later amended to charge second degree murder in violation of R.S. 14:30.1. Defendant entered a plea of “not guilty and not guilty by reason of insanity.” The jury trial resulted in a ten to two verdict of guilty as charged. The trial judge denied defendant’s motion for a new trial and imposed a sentence of life imprisonment at hard labor without benefit of probation or parole. On appeal to this Court, defendant argues that he proved by a preponderance of the evidence that he was legally insane at the time of the crime.

Both defendant and the victim were members of the ditch cleaning crew. Other members of the crew testified at trial regarding the events which occurred that morning. The entire group had ridden to the work area on a truck owned by the city-parish government. During the ride, several people observed that defendant had two butcher knives hidden in his work boots. One person testified that defendant said he had the knives because “he didn’t want nobody fooling with him.” Defendant had been involved in a fight with another crew member the day before the homicide.

No one saw the original stabbing, but several people heard the victim scream and saw him bleeding profusely from wounds in his chest. Defendant, who had been behind the work truck with the victim, returned to the drainage ditch. A short time later, defendant left the ditch and joined the group standing around the victim waiting for medical assistance and for the police to arrive. Defendant mumbled something and picked up a swing blade which was leaning against a nearby tree. Defendant approached the victim and cut him across the neck with the swing blade, nearly decapitating him, and then returned the blade to its resting place against the tree. Defendant looked at another crew member, told him that he was “next” and began to chase him down the street. After running a short distance, defendant removed his work boots and continued the chase for a few blocks. Crew members testified that in their opinion defendant removed his boots because it was too difficult to run in the boots, which were loose and quite heavy. Defendant returned to the group near the victim and asked whether anyone had money he could have. About this time, the group heard sirens approaching, and defendant, in his stocking feet, left in the direction opposite that from which the sirens were coming. Defendant asked a long-time friend to “get his slippers out of the truck and take them home.” Defendant, however, did not go home when he left the scene of the crime.

The police located defendant shortly after the crime, arrested him and transported him to the police station. The arresting officers variously described defendant as one of the most cold-blooded individuals, or the most cold-blooded individual they had ever arrested. All witnesses testified that defendant appeared rather emotionless during the events of the day, but also noted that he looked much the same that day as he did during the trial.

In Louisiana a defendant is presumed sane and the state is not required to prove sanity. R.S. 15:432. A defendant who wishes to negate the presumption must put forth an affirmative defense of insanity and prove his insanity by a preponderance of the evidence. C.Cr.P. art. 652; State v. Roy, 395 So.2d 664 (La.1981). Legal insanity in Louisiana means that a defendant has a mental disease or defect which prevents him from distinguishing right from wrong with reference to the conduct which forms the basis for the criminal charge against him. R.S. 14:14. The determination of sanity is a factual matter reserved to the jury or other fact finder. Therefore, this Court traditionally did not review the rejection of an insanity defense where there was “some evidence” supporting the finding that defendant was not insane, because the Court is limited by the Constitution to review of questions of law. La.Const. of 1974, Art. 5, § 5(C).

Recently, however, the United States Supreme Court decided Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979), and rejected the “no evidence” standard of review when a state prisoner asserts a habeas corpus claim that the state convicted him with insufficient evidence after he entered a plea of not guilty by reason of insanity. According to the United States Supreme Court the proper standard for reviewing the conviction is that of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Following the dictates of Moore, this Court decided State v. Roy, supra, in which we adopted the Jackson standard of review when a defendant pleads the affirmative defense of insanity and claims that the record evidence does not support a finding of guilty beyond a reasonable doubt. Using the Jackson standard we must determine whether under the facts and circumstances of the case, any rational fact finder, viewing the evidence in the light most favorable to the prosecution, could conclude that defendant had not proved by a preponderance of the evidence that he was insane at the time of the offense.

Defendant moved for the appointment of a sanity commission to determine his competency to stand trial and his mental capacity at the time of the offense. The two members of the commission reported that defendant was able to assist his attorney and competent to stand trial, although defendant did suffer from schizophrenia of the paranoid type. The commission members and another psychiatrist testified at trial as witnesses for the defense.

Dr. George Bishop first examined defendant at the parish prison two weeks after the crime. At this time, Dr. Bishop related, defendant was hearing voices. Dr. Bishop administered a major antipsychotic drug, Haldol, during the interview, and ordered that the medication be repeated on a regular basis. Three days later Dr. Bishop again saw defendant. Defendant was responding to the medication but Dr. Bishop increased the dosage because defendant was still hearing voices. During this interview, defendant told Dr. Bishop that the voices of the prior week (two weeks after the homicide) had told him to “kill that man.” Dr. Bishop saw defendant several more times, but made no attempt at any time to determine whether he knew right from wrong at the time of the crime—the legal test for insanity in Louisiana.

Dr. Francisco A. Silva examined defendant on October 18,1979, in his capacity as a member of the sanity commission. This examination lasted less than one hour. At trial, Dr. Silva testified that he concluded that defendant was legally insane at the time of the crime. Dr. Silva further testified that he has reached such a conclusion for less than one percent of the defendants he has examined. Dr. Silva admitted that he did not reach his decision regarding defendant’s insanity on the basis of the interview alone although defendant told the doctor that at the time of the crime voices were telling him to kill. Dr. Silva’s assessment of defendant’s mental condition was predicated upon his study of the records of defendant’s prior commitments to East Louisiana State Hospital as well as his personal examination of defendant. These records indicated that defendant’s three civil admissions to that hospital were for paranoid schizophrenia with delusions. Dr. Silva especially noted that three days before defendant’s June 21, 1979, release from Jackson, he had been involved in a violent confrontation with another patient. According to Dr. Silva, this indicated that defendant should not have been released from the hospital because he was still unable to function in society. Dr. Silva suggested that defendant might have secured his release by “conning” the examiner because hospitalized patients learn, as a result of repeated questioning, to give the expected answers and to act like all is well in order to be released from confinement.

On cross-examination by the prosecutor, the doctor admitted that his letter to the judge written after his examination of defendant’s records from Jackson did not state an unequivocal view that defendant was legally insane at the time of the crime; rather, the letter stated, he admitted, that there was a “good possibility that the crime for which he [defendant] is charged was a result of this illness.” That the crime is a result or product of defendant’s mental condition is the Durham test for insanity used in some jurisdictions. As discussed above the Durham test is not the Louisiana test. The test for legal insanity in Louisiana is whether defendant could distinguish right from wrong with reference to his conduct at the time of the crime.

The third defense witness was Dr. Hypol-ite Landry, coroner for East Baton Rouge Parish. Dr. Landry’s examinations of defendant pre-dated the crime, for Dr. Landry had been involved in defendant’s three civil commitments to East Louisiana State Hospital. Additionally, Dr. Landry served as a member of the sanity commission to determine defendant’s competency to stand trial. Of the three doctors, Dr. Landry was the first to see defendant after the crime, having visited him in jail at the request of the family on July 10, 1979, and at the request of the warden on July 18, 1979. The doctor’s notes from the second visit state that defendant had related that he would “do away with people who got in his way.” Defendant told Dr. Landry about his fight with a co-worker the day before the crime and that he had taken the knives to work because another fellow-worker had threatened him. Regarding the homicide, defendant said that the victim swung at him with a knife which defendant took away from him, that he stabbed the victim, and that several minutes later voices told him to kill the victim so he “chopped [the victim’s] neck off.” Defendant, according to Dr. Landry, had not heard the voices instructing him to kill the victim, until after the initial (and fatal) stabbing.

As we explained earlier in this opinion, in Louisiana a defendant is presumed sane, R.S. 15:432, and has the burden of proving his insanity by a preponderance of the evidence, C.Cr.P. art. 652; State v. Roy, supra; State v. Weber, 364 So.2d 952 (La.1978). The case before us is factually distinguishable from Roy. We reversed Roy’s conviction because our review showed that he had proved his insanity by a preponderance of the evidence and that no rational fact finder could have found him sane on the record evidence. Roy had been found incompetent to stand trial by the commission appointed to examine him. Roy’s mental condition was so poor that it had been necessary to hospitalize him for a period of time rather than keep him in prison the entire time that he was awaiting trial. All medical experts In the Roy trial testified without qualification that he was incapable of distinguishing right from wrong at the time he killed the victim in that case.

The case before us contains similarities to Moore v. Duckworth, supra. In Moore, as in the instant case, only the defense put on expert witnesses. In Moore two psychiatrists testified that the defendant was insane. Moore v. State, 260 Ind. 154, 293 N.E.2d 28 (1973). Nevertheless, the United States Supreme Court affirmed Moore’s conviction because the lay testimony introduced by the state was “fully sufficient to support a jury finding beyond a reasonable doubt that the petitioner was sane at the time of the killing.” 443 U.S. at 714, 99 S.Ct. at 3090. However, as we stated earlier in this opinion, Moore did hold that due process requires that the Jackson standard be used to review a finding that defendant was sane at the time he committed the crime with which he is charged.

In the case at bar there is an abundance of evidence, albeit lay, that defendant was sane at the time he stabbed the victim. One of the state witnesses was a friend who had known defendant since junior high school. This witness told of the fight between defendant and a fellow-worker the day before the stabbing and of defendant’s telling him that he had the knives because he didn’t want anyone “fooling” with him. Other witnesses testified that defendant was acting in his normal manner the morning before the crime. When questioned, all witnesses stated that defendant looked the same at the defense table during the trial as he had before and after the homicide. One arresting officer described defendant as “cold-blooded.” Additionally, there was testimony by another officer that defendant did not act like other people he had arrested who were later determined to be insane. The sanity commission found that defendant was competent to stand trial.

In this case, as opposed to Roy and Moore, only one psychiatrist testified without qualification that defendant was legally insane at the time of the crime. Furthermore, that expert witness, on cross-examination, was shown to have given an earlier opinion regarding defendant’s insanity which does not qualify under the Louisiana test.

Considering the totality of the record evidence in the light most favorable to the prosecution, we determine that a rational trier of fact could have found that defendant did not prove his insanity by a preponderance of the evidence.

Decree

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Judges Grover L. Covington, Remy Chiasson, and Elmo E. Lear, of the Court of Appeal, First Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis, and Fred A. Blanche, Jr.
      This defendant, as well as the defendant in State v. Bell, No. 80-K-2151, 392 So.2d 492, heard the same day, challenged the composition of the Court alleging that this Court is without jurisdiction to appoint judges from the Courts of Appeal to sit as ad hoc judges for the review of criminal cases. In a separate opinion, authored by the Chief Justice and rendered on February 5, 1981, the permanent members of the Court ruled unanimously that this Court’s authority to “assign judges to assist other courts than their own within the judicial branch in furtherance of the administration of justice is explicit and unfettered,” citing Article 5, § 5(A), of the Louisiana Constitution of 1974.

      . In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), the United States Supreme Court upheld the constitutionality of a similar presumption against a due process attack.

      . Neither report addressed the question whether defendant could distinguish right from wrong at the time of the crime.

      . Durham v. United States, 214 F.2d 862 (D.C. Cir.1954).

      . Dr. Landry, in his capacity as coroner, testified during the state’s case that the victim died from the initial stabbing and was already dead at the time defendant inflicted the neck wound.

      .While this was the language used in the majority opinion, we noted in our per curiam denial of the state’s application for a rehearing that a more exact expression of the standard of review would, as we construe the requirements of Moore, supra, involve a focus upon defendant’s having the burden to prove insanity by a preponderance of the evidence, namely that “a rational fact finder, viewing the evidence in the light most favorable to the prosecution, could not have concluded that defendant had failed to prove by a preponderance of the evidence that he was insane at the time of the offense.”

      . On the other hand one officer did express to defense counsel his belief that defendant was insane for the reason that defendant showed very little emotion when arrested,


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

text:
    Mrs. Ruby WHITE et vir. v. Dr. E. Edward McCOOL et al.
    No. 80-C-2280.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied April 6, 1981.

      Arthur Cobb, Ltd., Baton Rouge, for plaintiffs-applicants.
    W. Luther Wilson, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-respondents.
   CALOGERO, Justice.

Mrs. Ruby White sued Dr. Edward McCool in a medical malpractice action to recover damages arising from the doctor’s alleged negligence in failing to properly suture Mrs. White’s liver following a laceration which occurred in the course of the removal of her gall bladder. The trial judge and the Court of Appeal denied recovery and we granted writs. White v. McCool, 393 So.2d 744 (1980).

On February 8, 1977, Dr. Edward McCool performed surgery to remove plaintiff’s gall bladder. The gall bladder rests on the liver. During the course of the removal of the gall bladder, plaintiff’s liver was lacerated, apparently by a retractor used in the surgery. (There is no allegation that defendant was at fault in lacerating the liver, an apparently not infrequent occurrence in gall bladder surgery. Occurrence of the laceration does not form part of plaintiff’s claim.) Defendant closed the laceration of the liver by suturing it. He observed the area for a period of time to assure that the liver was no longer bleeding, closed the primary incision and sent his patient to the recovery room.

While plaintiff was in recovery she was found to be bleeding internally. She was brought back into surgery and the primary incision was reopened whereupon it was determined that the liver was bleeding at the site of the earlier sutures. Defendant again sutured the laceration and reclosed the primary site. Progress thereafter was entirely normal.

The trial court’s dismissal of plaintiff’s lawsuit followed a finding that there was nothing in the record to indicate “that he [defendant] failed to exercise the degree of care and possess the degree of knowledge or skill ordinarily exercised and possessed by a physician within his medical specialty.” The Court of Appeal’s affirmance of the judgment of the trial court included the additional finding that if the doctrine of res ipsa loquitur did apply, then defendant had effectively rebutted any presumption raised by the doctrine by showing that he exercised due care and skill.

We granted writs to determine whether the doctrine of res ipsa loquitur was applicable in this case, concerned that if it was so applicable the Court of Appeal may have erred in concluding that defendant had satisfactorily explained the occurrence and shown that he was free of fault.

The pertinent statutory provision, enacted in 1975, places upon the plaintiff in a medical malpractice action the burden of proving “the degree of care ordinarily practiced by physicians and dentists within the involved medical specialty,” R.S. 9:2794(AX1); “that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill,” R.S. 9:2794(A)(2); and “that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care plaintiff suffered injuries that would not otherwise have been incurred,” R.S. 9:2794(A)(3). The statute also provides that “[t]he jury shall be further instructed that injury alone does not raise a presumption of the physician’s or dentist’s negligence,” R.S. 9:2794(C). That provision is immediately succeeded by one which states that “[t]he provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.” R.S. 9:2794(0).

Plaintiff argues that the doctrine of res ipsa loquitur is applicable and thus under R.S. 9:2794(C) the other provisions of the statute, relative to plaintiff’s burden do not apply. Rather, the burden is on the defendant to establish his lack of negligence.

The landmark case in our jurisprudence concerning the doctrine of res ipsa loquitur is Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957). Therein, we stated:

“A determination of a proper instance for application of the principle of res ipsa loquitur has been the subject of volumes of discussion by learned jurists and legal scholars, who have been at pains to point out that the maxim means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that the rule rests for its justification upon the common experience that accidents from such causes do not commonly occur in the absence of negligence; and that it is the lack of direct evidence indicating negligence on the part of the defendant as the responsible human cause of a particular accident which actually furnishes the occasion and necessity for invoking the rule in its strict and distinctive sense. It is generally conceded that res ipsa loquitur in no way modifies the rule that negligence will not be presumed. The application of the rule does not, therefore, dispense with the necessity that the plaintiff prove negligence, but is simply a step in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence, thereby obtaining an advantage and placing on the defendant the burden of going forward with proof to offset that advantage. When all the evidence is in, the question is still whether the preponderance is with the plaintiff. All that is meant by res ipsa loquitur is ‘that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant’s duty.’ [citation omitted.]
* * * * * *
“In the case of Morales v. Employers' Liability Assur. Corp., 202 La. 755, 12 So.2d 804, this Court aptly stated: ‘It is the duty of the plaintiff to prove negligence affirmatively; and, while the inference allowed by the rule of res ipsa loqui-tur constitutes such proof, it is only where the circumstances leave no room for a different presumption that the rule applies. When it is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails and it can not be invoked.’ 202 La. at page 769, 12 So.2d at page 808.”

After reviewing the records and exhibits in this case we conclude that the facts and evidence introduced do not establish a situation in which defendant’s negligence is the most plausible explanation for why plaintiff was bleeding internally after the original operation. Had the facts been more self evident (i.e., a surgical instrument being left in the abdomen) or had there been produced expert or other evidence suggesting, for instance, that a sutured liver doesn’t bleed absent improper suturing or improper suturing technique (the latter being something that this Court cannot divine) our conclusion would be different.

Res ipsa loquitur is thus not applicable in this case. The normal plaintiff's burden under R.S. 9:2794 (to establish the standard of care ordinarily exercised by physicians within the involved medical specialty under similar circumstances, and that the defendant failed to meet that standard of care) is applicable. And plaintiff has not borne that burden.

No evidence was produced to show that defendant was negligent or that his negligence caused the bleeding. On the contrary, the members of the medical review panel testified that defendant was a competent and skillful surgeon who in their opinion had not acted negligently in the case.

Under these circumstances we do not find plaintiff has borne her burden under R.S. 9:2794. Nor are we able to conclude that the trial court and the Court of Appeal were both clearly wrong in their determination that defendant did not act negligently. Absent such findings we are compelled to affirm the decisions of the lower court. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Decree

For the foregoing reasons the judgments of the district court and the Court of Appeal are affirmed.

AFFIRMED.

DIXON, C. J., dissents with reasons.

WATSON, J., dissents.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Plaintiff’s circumstantial evidence is insufficient because judges do not know that recurrence of bleeding after a liver has been sutured indicates negligence in performing the suturing.

Defendant doctor admitted that plaintiff might not have “rebled” if he had realized how deep the laceration was and had employed a different suturing procedure. However, he explained that he did not spread the liver apart to determine whether the laceration was deeper than it appeared to be and did not use heavier sutures, because probing the wound or using heavier sutures would likely have caused substantial trauma to the liver.

The explanation seems to be plausible. More significantly, however, none of the three doctors on the medical review panel stated that the procedure used was substandard or that one could infer substandard conduct from the recurrence of the bleeding after the initial suturing.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The majority fails to explain why it was not negligence to sew up the liver in such a way that it continued to bleed so badly that plaintiff required a second operation to repair the inadequate suturing.

      . R.S. 9:2794 as enacted in 1975 by Act No. 807 of the Legislature (an amendment, by Act No. 545 of 1979 took place after plaintiff’s surgery and consisted of only minor changes in the statute) provides in pertinent part:
      “A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
      (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing in the same community or locality to that in which the defendant practices; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.
      (2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and
      (3)that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
      B. Any party to the action will have the right to subpoena any physician or dentist either for a deposition and/or testimony for trial to establish the degree of knowledge or skill possessed or degree of care ordinarily exercised as described above without obtaining the consent of the physician or dentist who is going to be subpoenaed. The fee of the physician or dentist called for deposition and/or testimony under this Section will be set by the court.
      C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician or dentist. The jury shall be further instructed that injury alone does not raise a presumption of the physician’s or dentist’s negligence. The provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.”

      . Under the authority of R.S. 40:1299.47, all malpractice claims against health care providers must be initially reviewed by a medical review panel consisting of three physicians licensed to practice medicine in Louisiana and one attorney. The attorney is selected through a designated procedure by the clerk of court of the Louisiana Supreme Court. One physician is chosen by plaintiff, one by defendant and the two physicians select the third one. Each selected physician is required to serve on the panel.