author: CALOGERO, Justice.

text:
    STATE of Louisiana v. James FULLER.
    No. 81-KA-2625.
    Supreme Court of Louisiana.
    May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, John Sinque-field, Asst. Dist. Attys., for plaintiff-appel-lee.
    Charles H. Braud, Jr., of Office of George R. Covert, Baton Rouge, for defendant-appellant.
   CALOGERO, Justice.

In this appeal from a judge conviction on a charge of second-degree battery (La.R.S. 14:34.1), we consider defendant’s contentions that the trial judge erred when he denied a motion for a new trial based upon the assertion that the prosecution withheld exculpatory material, and when he found defendant guilty without sufficient evidence that he had specific intent to inflict serious bodily harm.

The state charged defendant Fuller by bill of information with having committed second-degree battery upon Brent R. Brown. Following trial, the judge found defendant guilty as charged. He sentenced defendant to serve one year in the East Baton Rouge Parish Prison, suspended the sentence and placed defendant on supervised probation for a period of two years. The judge imposed a special condition of probation that the defendant make restitution to the victim in the amount of $297.81 to be paid within the first year of probation. Defendant assigns two errors on this appeal.

The altercation which led to the charge followed a game of pool in Secret’s Lounge. The victim, Brent Brown, had been playing pool throughout the evening with several people. When these others left, defendant asked Brown if he wanted to play a game for ten dollars. Brown agreed to the bet, played the game, lost and paid defendant the ten dollars. Defendant then asked Brown if he wanted to play doubles and Brown again agreed. Brown and his partner, Jamie James, lost that game to defendant and his partner, a Mr. Brannon. Defendant informed the losers that they owed twenty dollars. As James had no money, Brown gave defendant a twenty dollar bill. A few minutes later, Brown approached defendant and said that he had thought that the bet was for only ten dollars, as it had been previously. Defendant replied that the bet was for ten dollars a cue, not just ten dollars for the game. When Brown insisted that he had been playing for ten dollars a game all night, defendant insisted that there should be no arguing inside the lounge. Brannon said that there was to be no fighting. Brown replied that he did not want to fight and handed the pool cue he was holding to James. When Brown turned toward defendant again, defendant hit him in the face with his fist, knocking Brown backwards and across the pool table. Brown suffered a cut lip, a bloody nose and blurred vision. Brown sought medical attention for the vision problem. As a result of the blow, Brown’s vision is permanently impaired.

Defendant testified in his own behalf, stating that he did not hit Brown with a balled-up fist, but rather slapped him with an open hand. According to defendant, Brown threw the pool cue to the floor rather than handing it to James as Brown and James had testified. Defendant also said that Brown was the aggressor, having balled up his hand and taken two or three steps toward defendant after throwing down the pool cue.

Defendant’s first assignment of error alleges that the prosecutor withheld exculpatory evidence despite a defense request and despite a continuing duty to disclose this information when it became available.

In the pre-trial stages of the prosecution, defendant filed a discovery motion requesting material “favorable to the defendant on the issues of guilt or punishment.” La.C.Cr.P. art. 718; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In response to this request, the prosecutor allowed defense counsel to examine his entire file in the case. In the file was a statement by James Brannon that he was an eyewitness to the offense, that defendant was the aggressor and that the victim had done nothing to instigate the conflict. However, about three months after defendant’s April 1, 1981 conviction, defense counsel filed a motion for a new trial based upon newly found evidence. Accompanying this motion was an affidavit by Brannon dated July 8, 1981, to the effect that the victim had instigated the incident.

At the hearing on the new trial motion, defense counsel called the attention of the trial judge to the fact that the state had listed Brannon as a witness and had subpoenaed him and had had him present at trial. According to defense counsel, the only reason that the state did not call Brannon to testify was because his testimony would not have been favorable to the state. From this defense counsel draws the conclusion that the state was aware that the potential witness had changed his rendition of the events or that the statement in the prosecutor’s file did not accurately reflect what Brannon had told police at the time of the altercation. The prosecutor argued that he had not called Brannon to testify because two state witnesses had already testified that defendant was the aggressor and Brannon’s expected testimony was unnecessary for it would only have been cumulative on this point.

In this Court defendant correctly argues that the prosecution is under a continuing duty to disclose exculpatory evidence as it becomes available. La.C.Cr.P. art. 729.3. Also, if the non-disclosed evidence is such that it creates a reasonable doubt regarding defendant’s guilt which did not otherwise exist, defendant should be granted a new trial. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Willie, 410 So.2d 1019 (La.1982); State v. Manning, 380 So.2d 46 (La.1980).

On a motion for a new trial based upon newly discovered evidence, the defendant has the burden to show that the evidence could not have been discovered before or during trial through the exercise of reasonable diligence. La.C.Cr.P. art. 851(3); State v. Simms, 410 So.2d 1040 (La.1982). The ruling on a motion for a new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only when there is a clear showing of abuse of that discretion. State v. Spell, 399 So.2d 551 (La.1981); State v. Manning, 380 So.2d 54 (La.1980).

Defense counsel admitted at the hearing on the motion for a new trial that he had read the prosecutor’s file and knew that Brannon was an eyewitness to the offense. For whatever reason, defense counsel did not interview the potential witness. Had counsel done so pre-trial, he could have learned whether Brannon would then have been prepared to testify in a manner exculpatory to his client. He could even have requested a recess mid-trial to talk with Brannon in the courtroom after the state closed its case without calling Brannon, then present and sitting in the rear of the courtroom. The affidavit accompanying the motion was executed three months post trial and interestingly, while laying instigation at the foot of the victim, does not say that Brannon would have so testified at trial.

The trial judge did not err in denying defendant’s motion for a new trial.

Defendant’s second assignment of error challenges the sufficiency of the evidence to support his conviction.

Initially, defendant contends that second degree battery is a crime requiring specific intent. This is a question which has not yet been addressed by this Court for second degree battery is a relatively recent addition to the criminal statutes.

Battery is defined as the “intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” La.R.S. 14:33. Until 1978, battery was divided into two classes: aggravated and simple. Aggravated battery was (and still is) “a battery committed with a dangerous weapon,” La.R.S. 14:34, while simple battery was only “a battery without the consent of the victim committed without a dangerous weapon.” La.R.S. 14:35. Aggravated battery carried a sentence of not more than ten years (with or without hard labor) and simple battery allowed a sentence of not more than six months and/or a fine of not more than $300.00. In 1978, on recommendation of the Louisiana State Law Institute and the House Committee on Administration of Criminal Justice, the Legislature revised the statutory scheme concerning battery.

The principal change was the establishment of an intermediate grade of battery as a distinct crime. In reporting the change in its Legislative Symposium, the Louisiana Law Review (Vol. 39, p. 229) noted that the new crime required “serious bodily injury” rather than merely “bodily injury” and that the statute apparently placed “the burden upon the prosecution to introduce evidence of the extent of the victim’s injuries.” Equally significant, if not more so, in our view is that the statute requires that the serious bodily injury be intentionally inflicted. The significance of the legislature’s use of “intentionally inflicts serious bodily injury” becomes more apparent when we note that battery is already defined as “the intentional use of force.”

Criminal intent may be specific or general. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). Proof of specific intent is required where the statutory definition of a crime includes the intent to produce or accomplish some prescribed consequence. State v. Johnson, 368 So.2d 719 (La.1979); State v. Elzie, 343 So.2d 712 (La.1977).

If we replace the word battery with its statutory definition, second degree battery becomes “the intentional use of force or violence upon the person of another . .. committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.” All criminal statutes are to “be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La.R.S. 14:3. With this rule of statutory construction in mind, we believe that the Legislature intended that second degree battery be a crime requiring specific criminal intent. In this determination we are guided by the fact that aggravated battery which has long been held to be a general intent crime does not carry the second reference to intent in its definition. State v. Brumfield, 329 So.2d 181 (La.1976); In Re Glassberg, 230 La. 396, 88 So.2d 707 (1956).

In the case at bar, the trial judge ruled correctly when he stated that second degree battery is a specific intent crime. Having determined that second degree battery is a crime requiring specific intent on the part of the offender, we now turn our attention to defendant’s contention that the state failed to prove this element of the crime.

The proper standard of review of the sufficiency of evidence was enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, a reviewing court is to view “the evidence in the light most favorable to the prosecution” to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573 (emphasis in the original); State v. West, 408 So.2d 1302 (La.1982).

Defendant argues that the second degree battery statute envisions an offender who mercilessly beats a fallen victim. We do not agree with this restrictive reading of the statute. The statute clearly states that the intended harm is “serious bodily injury” and defines this to involve “unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.” La.R.S. 14:34.-1.

Although intent is a question of fact, it need not be proven as a fact; instead, it may be inferred from the circumstances of the transaction. La.R.S. 15:445.

Defendant is a thirty-year old man whose occupation is a bouncer at the business where the battery occurred. Defendant was not working the night of the offense, but was spending his free time at the lounge that evening. The victim was a much younger man than defendant, approximately nineteen, and considerably smaller. Defendant hit the victim with a blow sufficient to knock him over the pool table. The blow caused the victim’s sight to be permanently impaired. Under these circumstances, a rational trier of fact could certainly have found that defendant possessed the intent to do “serious bodily harm.” When a much stronger man hits a younger, smaller man, the fact finder could rationally conclude that the offender intended to cause, at a minimum, unconsciousness and/or extreme physical pain.

Decree

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

AFFIRMED.

LEMMON, J., concurs.

       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 de-cisión as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack Crozier Watson and Harry T. Lemmon.

      . As earlier indicated James Brannon was defendant’s partner in the pool game which preceded the battery.

      . Defendant bases this on La.R.S. 15:432: “evidence under the control of a party and not produced by him was not produced because it would not have aided him.”

      .Defendant’s conclusion that the prosecutor knew that Brannon would so testify is unsupported by the record.

      . The new statute reads:
      PART II. OFFENSES AGAINST THE PERSON
      SUBPART B. ASSAULT AND BATTERY (WITH RELATED OFFENSES)
      § 33. Battery defined
      Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.
      § 34. Aggravated battery
      Aggravated battery is a battery committed with a dangerous weapon.
      Whoever commits an aggravated battery shall be imprisoned, with or without hard labor, for not more than ten years.
      § 34.1 Second degree battery
      Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
      For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or pro-traded loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
      Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.
      § 35. Simple battery
      Simple battery is a battery committed without the consent of the victim.
      Whoever commits a simple battery shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.
      Acts 1978, No. 394

      . The only other changes were an increase in the maximum fine for simple battery (from $33.00 to $500.00), and, as relates to the definition of simple battery, deletion of the possibly troublesome reference to commission "without a dangerous weapon.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Willie JACKSON.
    No. 82-K-0043.
    Supreme Court of Louisiana.
    May 17, 1982.

      Barry J. Landry of Law Office of Daniel E. Becnel, Jr., Reserve, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Morel, Dist. Atty., Abbott J. Reeves, John M. Crum, Jr., Asst. Dist. Attys., for plaintiff-respondent.
   CALOGERO, Justice.

In this matter, the state attacks the pretrial ruling of the trial judge suppressing defendant’s confession. Because the testimony on the trial of the motion to suppress does not support the ruling that the statement was the product of promise or inducement, the ruling suppressing the confession is reversed.

Defendant was charged by bill of information with aggravated burglaries in Reserve and LaPlace, St. John the Baptist Parish, in violation of La.R.S. 14:60. Defendant entered a plea of not guilty and filed a motion to suppress a statement made shortly after his arrest. Following a hearing on the motion, the trial judge ordered the statement suppressed. We granted the state’s application for review of that ruling. State v. Jackson, 411 So.2d 459 (La.1982).

Approximately twelve hours after his arrest for possession of narcotics and possession of stolen property, defendant made a statement. In his motion to suppress, defendant alleged that the statement was made “under the influence of fear, duress, intimidation, menaces, threats, inducements and promises, and/or without [his] having been advised of his right to remain silent, right to counsel, etc.” At the hearing on the motion to suppress, defendant called no witnesses; rather, defense counsel actively cross-examined the three policemen called by the state.

The state called as witnesses the three policemen who were present part or all of the time defendant was making the statement. These witnesses all testified that defendant was given the Miranda rights. The rights also appear at the top of the form on which defendant’s signed statement was typed. There is no serious contention that defendant was not advised of his constitutional rights prior to making the statement. The only question is whether defendant inculpated himself as a result of impermissible inducements or promises, with the state having the burden to show that he did not.

Gene Fuselier of the St. John the Baptist Parish Sheriffs Office was the state’s first witness. He testified that he had assisted in the taking of defendant’s statement and that no coercion or threats were used. On cross-examination, defense counsel asked Deputy Fuselier whether he or others taking the statement ever told defendant that if he cooperated, such would be brought to the attention of the district attorney and the court, and that such cooperation might or might not help him. Deputy Fuselier answered that he did not recall having done so and did not know whether someone else may have. On further questioning by defense counsel, Deputy Fuselier admitted that he had in the past told other defendants that their cooperation would be brought to the attention of the district attorney, there being no guarantee that making the statement would help them. Defense counsel further pursued the issue: “Isn’t it a possibility in this case you told this defendant that?” Fuselier responded that he did not recall telling defendant that. Defense counsel then asked: “Do you recall not telling him?” Fuselier replied: “No, I don’t recall not telling him. I don’t think I did.”

William Rodrigue and Percy Terry, also of the St. John the Baptist Parish Sheriff’s Office testified that they were present while defendant was making the statement and that they did not recall hearing Fuselier tell defendant that his cooperation would be brought to the attention of the district attorney. Rodrigue further testified that he did not tell defendant this either. Terry did not talk with defendant during the taking of the statement.

The trial judge ruled that the statement should be suppressed because defendant

was told that if he made a statement that that statement would be given to the District Attorney. While they did not guarantee or they could not guarantee that that would do any good; that it could. That is plain ordinary hope of reward, hope of leniency. There is no doubt about it.

When the prosecutor protested that he had not heard the witnesses say that that happened in this case, the trial judge stated that he thought that he had heard Fuselier state very clearly that it had been done in this case, and in several previous cases.

It is well settled that confessions obtained by “any direct or implied promises, however slight, [or] by the exertion of any improper influence, are involuntary and inadmissible as a matter of constitutional law.” Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568, 573 (1897). Therefore, when the state seeks to introduce into evidence an inculpatory statement, it has the burden to prove beyond a reasonable doubt that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451; La.C.Cr.P. art. 703; State v. Edwards, 406 So.2d 1331 (La.1981); State v. Kersey, 406 So.2d 555 (La.1981); State v. Petterway, 403 So.2d 1157 (La. 1981).

The admissibility of a confession is in the first instance a question for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the statement will not be overturned unless they are not supported by the evidence. State v. Edwards, supra; State v. Kersey, supra; State v. Manning, 380 So.2d 46 (La.1980). In the case under review, Deputy Fuselier did not testify that he told defendant that the statement would be given to the district attorney as the trial judge thought he had. Fuselier testified that he did not recall telling defendant this.

In any event, even had Fuselier told defendant that were he to make a statement it would be brought to the attention of the district attorney, that alone would not render the statement inadmissible. Recent cases decided by this Court have held that merely telling a defendant that his cooperation would be brought to the attention of the district attorney does not constitute a disqualifying inducement. State v. Petterway, supra; State v. Dison, 396 So.2d 1254 (La.1981); State v. Vernon, 385 So.2d 200 (La.1979). For these reasons we find that the trial judge erred when he suppressed defendant’s statement.

Decree

The ruling of the trial judge suppressing defendant’s confession is reversed and the case remanded to the district court.

REVERSED AND REMANDED.

DIXON, C. J., concurs.

      . In some respects, this case is similar to Pet-terway in which defendant confessed a short time after his arrest and during his first encounter with the interrogating officer. We observed that the police did not have repeated interviews with defendant before obtaining his statement. As noted above, this defendant confessed only a few hours after his arrest. According to the testimony at the hearing on the motion to suppress, the confession occurred the first time defendant was questioned.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Calvin WASHINGTON.
    No. 81-KA-2480.
    Supreme Court of Louisiana.
    May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., George H. Meadors, Asst. Dist. Atty., for plaintiff-appellee.
    John M. Ruddick, Haynesville, for defendant-appellant.
   MARCUS, Justice.

Calvin Washington was charged by bill of information with theft of a Homelite pump having a value of five hundred dollars or more in violation of La.R.S. 14:67. At the arraignment, defendant entered a plea of not guilty. Thereafter, defendant withdrew his former plea of not guilty and entered a plea of guilty. The trial judge accepted the guilty plea after determining that it was made voluntarily and with an understanding of the nature of the charge. A presentence investigation was ordered. Subsequently, after receiving the presen-tence report, the trial judge sentenced defendant to serve six years at hard labor and to pay a fine of one thousand dollars. On appeal, defendant relies on four assignments of error for reversal of his sentence.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

Defendant contends the trial judge erred in failing to state adequately his reasons for imposition of the sentence as required by La.Code Crim.P. art. 894.1 and in taking into consideration hearsay statements implicating him in other crimes. He also argues that the sentence imposed is excessive.

The presentence report reflects that on February 14, 1981, Paul Fleming, John Fleming, Rickey Randell and defendant drove to a pond located at White & Wilkin’s woodyard in Claiborne Parish, Louisiana. A large water pump belonging to Herbert Cockrell was located on the east side of the pond. Defendant and his companions removed the pump from its location and transported it across the state line into Arkansas. There, they sold the pump to Winston Waller and split the proceeds. Subsequently, Paul Fleming confessed to the crime and implicated defendant. Thereafter, defendant also confessed to his participation in the theft.

The presentence report further reveals that defendant is eighteen years of age. He was born in Shreveport, Louisiana, and has resided in Haynesville all of his adult life. He completed the tenth grade at Haynesville High School. He currently resides with his disabled father, mother, brother and sister. At the time of his arrest, he was employed by Larry Reeder Construction Company earning about seven dollars per hour. His adult criminal record indicates one prior conviction for theft. In connection with that theft conviction, defendant was sentenced to serve ninety days in parish jail and to pay a fine of twenty dollars and costs. The imprisonment portion of the sentence was suspended and defendant was placed on unsupervised probation for a period of one year with the conditions that he not commit any other offenses and that he pay the fine and costs. Defendant was still on probation at the time of the instant offense.

In imposing sentence, the trial judge recognized that defendant pled guilty to the instant charge of theft as a result of a plea bargain in which a charge of burglary was dropped and noted that defendant denied any involvement in this burglary. The trial judge also considered defendant’s prior theft conviction and the fact that defendant had been implicated in two other burglaries by Paul Fleming, his co-conspirator. The trial judge further stated: “I’m just hoping that when you get out of jail, you will have learned that the time you spent in jail could have been more profitably spent working some gainful occupation.”

La.Code Crim.P. art. 894.1 states that where a defendant has been convicted of a felony or a misdemeanor, the court should impose a sentence of imprisonment if one or more of the listed conditions are met. This article also enumerates various grounds which, while not controlling the decision of the court, shall be accorded weight in its determination of suspension of sentence or probation. It is further provided that the “court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” State v. Gomez, 365 So.2d 1313 (La.1978). Without the trial court’s articulation of the factual basis of each ground which influenced its disposition, the sentence may appear to be arbitrary or excessive, unless there is evidence elsewhere of record which clearly illumines the sentencing choice. State v. Martin, 400 So.2d 1063 (La.1981) (on rehearing).

At the time the trial judge imposed the sentence of imprisonment on defendant, he stated that he hoped defendant would learn that his time in jail “could have been more profitably spent” in some gainful occupation. It is evident that the trial judge felt that defendant was in need of correctional treatment. In reaching this conclusion, the trial judge took into consideration defendant’s prior criminal record and the fact that he was on probation for a prior theft conviction at the time of the instant offense. We conclude the trial judge adequately complied with La.Code Crim.P. art. 894.1 and that the record supports the imposition of a sentence of imprisonment in this case.

Next, defendant contends the trial judge erred in considering the confession of defendant’s co-conspirator as evidence of prior criminal activity. The sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Douglas, 389 So.2d 1263 (La.1980). Prior criminal activity is one of the factors under art. 894.1 to be considered by the trial judge in sentencing a defendant. Pri- or criminal activity is not limited to convictions. State v. Brown, 410 So.2d 1043 (La.1982). We conclude that the trial judge did not err in considering the confession of defendant’s co-conspirator implicating defendant in other criminal activity.

Finally, defendant contends that the sentence imposed is excessive. La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Abererumbia, 412 So.2d 1027 (La.1982).

The maximum sentence for theft of property having a value of five hundred dollars or more is ten years at hard labor and a three thousand dollar fine. La.R.S. 14:67. As a result of a plea bargain, the charge of burglary was dropped. The maximum sentence for burglary is twelve years at hard labor and a two thousand dollar fine. La.R.S. 14:62. In view of the plea bargain, defendant’s prior criminal activity, and the fact that defendant was on probation at the time of the instant offense, we do not consider that a sentence of six years at hard labor and a fine of one thousand to be “grossly out of proportion to the severity of the crime.” State v. Williams, 397 So.2d 1287 (La.1981). Hence, the sentence imposed is not excessive. The trial judge did not abuse his discretion in imposing the sentence that he did in this case.

Assignments of Error Nos. 1, 2 and 3 are without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in denying him an opportunity to rebut information in the presentence report and concerning the implication of him in other criminal activity.

According to the trial judge’s per curiam, all information concerning the implication of defendant in two other burglaries by Paul Fleming, his co-conspirator, together with the presentence report, was given to defense counsel prior to sentencing. Thereupon, defense counsel advised the judge he would review “these matters” and the presentence report with defendant. At the outset of the sentencing hearing, the trial judge announced that: “[T]he pre-sen-tence investigation has been completed and presented, evaluated by both Mr. Washington [defendant] and his attorney.” He further noted that defense counsel had pointed out to him that defendant denied “knowing anything about the burglary” charge which was dropped as a result of the plea bargain. The judge then sentenced defendant. The record does not reflect, nor does defendant contend, that any request was made to rebut any information in the presentence report or resulting from the implication of defendant in the two other burglaries by Paul Fleming. Hence, we consider defendant waived the opportunity to rebut that information. Moreover, defendant does not even allege in this court that any of the information is incorrect or that he could rebut that information.

Assignment of Error No. 4 is without merit.

DECREE

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

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


text:
    STATE of Louisiana v. Jesse M. TREVATHAN.
    No. 82-K-0157.
    Supreme Court of Louisiana.
    May 17, 1982.

      Keith M. Whipple, & Jules D. Boquet, of Whipple & Boquet, Houma, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Jesse Manuel Trevathan was indicted by the grand jury for the second degree murder of Rick Brian Whitener on July 22, 1981, in violation of La.R.S. 14:30.1. Defendant filed a motion to suppress, inter alia, certain statements made by him at the site where the body of the victim was found. After a hearing, the motion was denied. We granted defendant’s application under our supervisory jurisdiction to review the correctness of that ruling.

Defendant contends that the inculpatory statements were obtained from him by the police in violation of his sixth amendment right to assistance of counsel; therefore, they should be suppressed.

Evidence adduced at the suppression hearing reveals that defendant, age seventeen, was arrested, pursuant to an arrest warrant, at about 2:00 a. m. on July 29, 1981, at his home where he resided with his parents. Defendant was taken to the sheriff’s office at the courthouse where he was booked and taken to Capt. George Perkins’ office for interrogation by Capt. Perkins and Lt. Mike Elstner. After being advised of his Miranda rights, he was questioned concerning the alleged crime; however, when defendant informed them that he did not know what they were talking about, the officers left to talk with another young man who had been arrested in the matter. Defendant remained in Capt. Perkins’ office.

At about 2:45 a. m., Gerald F. Lofaso, an attorney, arrived at the sheriff’s office. He indicated that he had been retained to represent defendant. At about the same time, defendant’s father arrived. Mr. Lofaso and defendant’s father met privately with defendant in Capt. Perkins’ office. On about three occasions during this meeting, Mr. Lofaso came out of the office to relate information to the officers regarding the location of the victim’s body. This information led to search efforts which commenced a few hours later. Prior to leaving the courthouse (at about 4:45 a. m.), Mr. Lofaso told Officers Perkins and Elstner that defendant was not to be interrogated further without the presence of an attorney or taken to the scene where the body was located.

Defendant was then taken to the jail area of the courthouse where he remained until about 8:00 a. m., at which time he was removed from his cell and brought to meet with Sheriff Ronnie J. Duplantis who had just arrived at the office. Sheriff Duplan-tis testified that he sought defendant’s cooperation in locating the victim’s body. He further stated that he was not informed by anyone, including defendant, that defendant was represented by an attorney, much less that the attorney had left instructions that his client was not to be further interrogated or taken to the scene where the body was located. After agreeing to cooperate, Sheriff Duplantis advised defendant of his Miranda rights and took him to the state police headquarters where he (Duplantis) engaged a helicopter which took them, under defendant’s direction, to the site of the search which was already under way.

Lt. Elstner testified that when the helicopter landed at the search site, he and others had just recovered three .22 caliber empty casings and were awaiting a flat boat in order to check the bayou. He further stated that, while at the search site, he told Sheriff Duplantis that defendant was represented by Mr. Lofaso who had left instructions not to interrogate him.

Detective Jerry Denton, who had earlier assisted in defendant’s arrest, testified that he was standing near the boat when defendant, with whom he had developed a rapport in a previous case, disembarked from the helicopter. Defendant requested to talk with him. After advising defendant of his Miranda rights, defendant and Detective Denton began to talk regarding defendant’s involvement in the case. Detective Denton jotted down notes as they spoke. Detective Denton admitted that his report indicated that he had told defendant that the giving of a statement might help him. He further admitted that he was present when Mr. Lofaso told Officers Perkins and Elstner that defendant was not to be interrogated. Defendant remained at the search site for about one-half hour before being transported back to jail.

The sixth amendment, applicable to the states through the fourteenth amendment, guarantees an accused the right to the assistance of counsel. When counsel has been retained to represent a prisoner, the government authorities cannot deny the lawyer reasonable access to his client, nor may they ignore his request that he be allowed to confer with his client prior to, if not during, interrogation. State v. Matthews, 408 So.2d 1274 (La.1982); State v. Jackson, 303 So.2d 734 (La.1974), citing Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). A defendant’s right to the effective assistance of counsel cannot be prejudiced by the state’s failure to honor its agreement not to question the accused about the crime unless his attorney is present. State v. Weedon, 342 So.2d 642 (La.1977). Incriminatory statements taken in violation of ■ the right to assistance of counsel, absent a valid waiver, are inadmissible. State v. West, 408 So.2d 1114 (La.1982); State v. Weedon, supra; State v. Jackson, supra. The question of waiver requires application of constitutional principles to the facts as found. It is incumbent upon the state to prove an intentional relinquishment or abandonment of a known right or privilege. The courts indulge in every reasonable presumption against waiver. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

In the instant case, it is uncontro-verted that defendant was represented by retained counsel who had instructed the police not to interrogate defendant without the presence of an attorney or take him to the scene where the victim’s body was located. Despite these instructions, three hours later, Sheriff Duplantis, after gaining defendant’s cooperation, took him to the site where the body was located, at which time defendant made incriminatory statements to Detective Denton. Counsel’s instructions had been completely ignored. We do not consider Sheriff Duplantis’ claimed ignorance of the admonitions by Mr. Lofaso to Officers Perkins and Elstner to be of any moment. Regardless of whether the sheriff was in good faith, a defendant is entitled to deal with the police as a single entity. State v. West, supra; State v. Weedon, supra. Under the circumstances, we consider that defendant’s constitutional right to assistance of counsel was violated which resulted in the incriminatory statements made by him to Detective Den-ton.

Moreover, we do not consider that the state met its burden of showing that defendant intentionally relinquished or abandoned his right to counsel. Defendant, when initially interrogated by Officers Perkins and Elstner, denied any knowledge of the crime. There is no evidence in the record that defendant, barely seventeen years old, appreciated the incriminatory nature of his cooperation with the police or the implications that would flow therefrom. A reiteration of his Miranda rights prior to making statements to Detective Denton was not sufficient to constitute a waiver of counsel under the circumstances. Defendant had been arrested at his home and taken to jail at 2 o’clock that morning. Thereafter followed a series of events including interrogation by the police, a meeting with his attorney and father, a few hours in a jail cell, and a confrontation with the sheriff which culminated in a trip by helicopter with the sheriff to the scene of the search for the victim’s body. While under the stress of these circumstances, defendant encountered Detective Denton, with whom he had previously developed a rapport and on being told by Denton that a statement might help his case, defendant confided in him. Under the facts of this case, we are unable to say that defendant made a valid waiver of his right to assistance of counsel. Hence, the inculpatory statements made by him to Detective Den-ton should have been suppressed. The trial judge erred in ruling otherwise. We must reverse.

DECREE

For the reasons assigned, the ruling of the trial judge denying defendant’s motion to suppress the inculpatory statements made by him to Detective Denton is reversed and set aside. The case is remanded to the district court for further proceedings.

      . 410 So.2d 250 (La. 1982)

      . Defendant’s birthday was on July 23, 1964; therefore, he was sixteen on the day of the alleged crime (July 22, 1981) and had been seventeen for six days at the time of his arrest (July 29, 1981).

      . While defendant’s argument in his brief to this court was limited to the suppression of the inculpatory statements, in his writ application, he also alleged that the trial judge erred in failing to suppress “physical evidence, namely the victim’s body and disclosure of the circumstances under which the body was recovered” on the basis that their discovery was a product of the violation of his constitutional rights. We do not agree as this evidence was discovered through an independent source. Mr. Lofaso, by his own admission, gave the officers the information they needed in order to locate the body. By the time Sheriff Duplantis arrived at the search site with defendant, search efforts were well under way — three empty casings had already been recovered and the arrival of the boat to search the bayou was imminent. Hence, the trial judge did not err in denying defendant’s motion to suppress this evidence.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Thomas MORRIS.
    No. 81-KA-1371.
    Supreme Court of Louisiana.
    May 17, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, David Plav-nicky, John H. Craft, Asst. Dist. Attys., for plaintiff-appellee.
    William Noland, & Lawrence J. Boasso, New Orleans, for defendant-appellant.
   DENNIS, Justice.

Defendant, Thomas Morris, was convicted by a judge of receiving stolen things, La. R.S. 14:69, and sentenced to a three year jail term. We reverse his conviction and sentence because the evidence does not warrant a finding beyond a reasonable doubt that he knew or had good reason to believe the thing, a 1975 Ford pickup truck, was stolen when he received it.

On January 3, 1980, Stanley Romero was driving across Magazine Street in New Orleans when he spotted a pickup truck which he believed to be one that had been stolen from him approximately two weeks earlier. He recognized it by a combination lock on the spare tire, which he had personally placed there, distinctive decals, and scratches. He opened the hood and recognized the engine, which he was familiar with from making earlier repairs, and some tape he had put on plug wires while repairing it. He called the police and told them he believed the truck to be the one stolen from him earlier and why he believed it to be the same truck. The police opened a door and found that the vehicle identification number tag was missing. James Lemon, a witness who worked nearby, noticed the officers inspecting the truck and told the police that he had seen one of his co-workers, Thomas Morris, with the truck on two occasions, once on the previous evening and again that morning when Morris came to work. At Lemon’s request Morris came out and gave the officers a key that fit the truck’s ignition, but not the doors of the truck, which had been left unlocked. Mr. Romero went to his residence and returned with a certificate of title for a truck of the same year, make and model as the truck under investigation, and keys that opened the doors and the locked toolbox panel. He also opened the combination lock to the spare tire without difficulty. He did not recognize the license plate number and believed it to be an incorrect number. The police ran a computer check on the license number and the computer responded that no such number was contained in its system. The defendant, Thomas Morris, was arrested and charged with receiving stolen things. One of the police officers testified that Morris did not produce a registration certificate or a bill of sale during the encounter.

The state introduced no evidence directly related to the circumstances under which Morris obtained possession of the truck. Morris did not take the stand in his own behalf.

After a bench trial, the judge found the defendant guilty of receiving a stolen thing valued in excess of $1,000, basing his estimation of the truck’s worth on the sale price recited in the title certificate which had been introduced at trial. The reasons the judge gave for finding that the state had proven beyond a reasonable doubt that Morris knew or had good reason to believe the truck had been stolen were as follows:

“The defendant had a key in his possession that only fit the ignition and did not fit the door wherein Mr. Romero had one key that would fit both the ignition and the door. If the ignition had been changed then the key that would fit the ignition would not also fit the door lock. The defendant only had one key in his possession and that was to the ignition. The court further finds that the defendant had used the truck on more than one occasion, as testified to by Mr. Lemon and the possession of a truck wherein there is no key to the door for locking purposes — wherein a VIN number on the truck has been removed — -wherein the spare tire to the truck has been locked with a combination lock — wherein the tool box of that truck was locked without the key thereto — indicates to this court that under those circumstances the possessor or procurer or receiver of that property should have known that the truck was the subject of- a theft. * * * ”

The defendant appealed and filed a number of assignments of error. We find merit in his complaint that the evidence is constitutionally insufficient to support a finding that the state proved beyond a reasonable doubt each essential element of the crime charged.

In State v. Walker, 350 So.2d 176 (La.1977), this court held that “ * * * R.S. 14:69 does not create any presumptions and the State must prove that the accused actually knew or had good reason to believe that the property had been stolen before a conviction under La.R.S. 14:69 can be obtained.” We have also held that mere possession of stolen property does not create a presumption that the person in possession of the property received it with knowledge that it was stolen by someone else. State v. Nguyen, 367 So.2d 342 (La.1979); State v. Walker, supra, at 178.

It is the defense position that R.S. 15:438 and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), require a reversal'of the conviction. Under the Jackson standard, the appropriate question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Guillot, 389 So.2d 68 (La.1980).

Regarding circumstantial evidence, R.S. 15:438 sets forth the rule that, in order to convict, the evidence must exclude every reasonable hypothesis of innocence. Under Jackson, the evidence is viewed in the light most favorable to the prosecution and from the viewpoint of a rational trier of fact. Therefore, when we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. State v. Austin, 399 So.2d 158, 160 (La.1981).

Viewing the evidence in the light most favorable to the prosecution, we think that a rational trier of fact would have failed to conclude beyond a reasonable doubt that the defendant knew or had good reason to believe the vehicle had been stolen when he acquired it. The state introduced no evidence as to the circumstances surrounding Morris’s acquisition of the vehicle. The evidence merely shows that Morris openly brought the truck to work on two successive days and left it parked on the street. The evidence does not exclude the reasonable hypothesis that Morris purchased or borrowed the truck a day or two before his arrest without knowledge or good reason to believe it had been stolen. Under such circumstances, his failure to obtain immediately from the vendor or lender any key other than the ignition key did not necessarily put him on notice that he was dealing with a thief. The state’s attorney conceded in closing argument that “one doesn’t normally examine the VIN plates on the cars in any regularity.” Nor do we think a borrower or vendee would normally run a computer check on an auto’s license number before taking possession. Morris’s failure to discover that the license plate was false within the short time the vehicle was in his possession was not unusual or suspicious. Although the evidence indicates that Morris did not produce a certificate of title or bill of sale at the time of his arrest, the state’s proof did not exclude several reasonable possibilities: that he borrowed the truck without thinking he needed to have a title certificate; that he purchased the truck without papers in the reasonable belief they would be furnished later; or that he in fact had a certificate of title at his residence or elsewhere other than on his person or in the vehicle. Considering all of the circumstantial evidence in the brief record of this case, we do not think a reasonable trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.

Accordingly, the defendant’s conviction and sentence are reversed.

REVERSED.

WATSON, J., dissents.


author: DENNIS, Justice. MARCUS, Justice LEMMON, Justice,

text:
    Melvina BRYANT v. NEW ORLEANS PUBLIC SERVICE, INC. and ABC Insurance Company.
    No. 81-C-3166.
    Supreme Court of Louisiana.
    May 17, 1982.

      C. B. Ogden, II, New Orleans, for defendant-applicant.
    Frank S. Bruno, of Bruno & Bruno, New Orleans, for plaintiff-respondent.
   DENNIS, Justice.

Plaintiff, Melvina Bryant, sustained a work-related injury on May 26, 1975. At this time the worker’s compensation statute limited an employee to $12,500 in medical benefits unless she could show she would sustain undue and unusual hardship if additional benefits were not furnished by the employer. By doing so an employee could collect up to $12,500 for additional necessary medical care. La.R.S. 23:1203 (1950), as amended by 1968 Acts, No. 103, § 1. Mrs. Bryant received her first $12,500 for medical services necessitated by her work related injury and brought suit to recover for $12,000 additional medical expenses she had incurred. The employer admitted that her injury necessitated all of the medical care alleged but resisted further payment on the ground that she failed to prove that she would be subjected to undue and unusual hardship without the employer’s assistance.

After hearing testimony the trial court found that the plaintiff had proved that Mrs. Bryant was subject to a hardship because of medical expenses, ordered the employer to provide $12,000 additional medical care, but held that her employer was entitled to'an offset for any medical expenses covered by her husband’s group health insurance. The court of appeal reversed holding that the collateral source rule prohibits such an offset against an employer’s duty to furnish medical care under the worker’s compensation statute. Bryant v. New Orleans Public Service, Inc. and ABC Insurance Co., 406 So.2d 767 (La.App. 4th Cir. 1981).

We affirm the court of appeal judgment on the ground that the worker’s compensation statute, La.R.S. 23:1163, prohibits an employer from requiring an employee to contribute, directly or indirectly, in any way toward the cost of worker’s compensation. This is the basis of Judge Barry’s concurring opinion in this case in the court of appeal. 406 So.2d at 769. See also, Patterson v. City of Baton Rouge, 309 So.2d 306, 314 (La.1975) (Dixon, J., dissenting). The trial court judgment authorized the employer to offset against medical care due the employee under the worker’s compensation statute any insurance benefits related to the same medical expenses provided by a group health insurance plan which covered her in consideration for either her husband’s payment of premiums or as his earned employee fringe benefit. To enforce such an offset would permit the employer to collect indirectly from the employee contributions toward the medical care the employer is obliged to furnish under the worker’s compensation act. La.R.S. 23:1163 prohibits all employers, whether insured or self-insured, from receiving any indirect payment by an employee toward the cost of worker’s compensation benefits. Patterson v. City of Baton Rouge, 309 So.2d 306 (La.1975).

In Patterson v. City of Baton Rouge, this court recognized the foregoing rule hut carved out a narrow exception. A majority of the court held that it was not an indirect employee contribution to worker’s compensation for an employer to offset retirement disability benefits which would otherwise have been due to a disabled fireman with worker’s compensation previously paid to him. The majority reasoned that the employer did not cause its fireman to contribute to the employer or the funding of the employer’s self-insured worker’s compensation program because the employee had received full payment of each of the 500 weekly ' worker’s compensation payments due him, and “[t]he reduction of his monthly [retirement] disability benefits [by the amount of compensation paid] is a separate and distinct matter, which is dictated by the provisions of the Retirement System ordinance.” Id. 309 So.2d at 309. See also, Butler v. Bd. of Trustees, 333 So.2d 676 (La.App.2d Cir. 1976). Cf. Basco v. State thru Dept. Corrections, 335 So.2d 457 (La. App. 1st Cir. 1976) (sick pay offset by compensation paid).

In the Patterson case, and the court of appeal decisions cited above, the court allowed employers to enforce regulations which required non-worker’s compensation benefits, such as retirement and sick pay, to be offset by worker’s compensation benefits actually and fully paid to the employee. Three members of the Patterson court thought that even this constituted a prohibited indirect payment by an employee toward worker’s compensation benefits, 309 So.2d at 314 (Summers, Barham and Dixon, JJ., dissenting.) In the present case, the narrow holding of Patterson is inapposite. The trial court’s judgment here would permit a direct reduction of compensation benefits and not a mere use of fully paid compensation as an offset against some other type of employee benefit. Such a reduction or offset constitutes an indirect employee contribution to the cost of worker’s compensation and is prohibited by La.R.S. 23:1163.

We conclude, for the foregoing reasons, that this case is fully governed by the worker’s compensation statute, La.R.S. 23:1163. The question of whether the collateral source rule applies in this case is therefore irrelevant. For this reason we set the question to one side without deciding it and affirm the result reached by the court of appeal judgment solely for the reasons expressed in this opinion.

The court of appeal judgment is affirmed solely for the reasons expressed in this opinion.

AFFIRMED.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents for reasons assigned by LEMMON, J.

LEMMON, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

At the time of the injury being sued upon, La.R.S. 23:1203 provided in pertinent part as follows:

The employer shall in every case coming under this Chapter, furnish all necessary medical, surgical, hospital services and medicines or any nonmedical treatment recognized by the laws of this state as legal, not to exceed the total sum of twelve thousand five hundred dollars ($12,500.00), except in cases of undue and unusual hardship as hereinafter provided, unless the employee refuses to allow them to be furnished by the employer.
Upon a showing by the injured employee in a court of competent jurisdiction by a preponderance of the evidence that as a result of the injury he necessarily requires medical, surgical or hospital services or medicine to a sum in excess of twelve thousand five hundred dollars ($12,500.00) and that unless same are furnished by the employer he will be subjected to undue and unusual hardship, the court in its discretion may order the employer to furnish same, not to exceed the additional sum of twelve thousand five hundred dollars ($12,500.00).

I agree with the trial judge that plaintiff is not subject to undue and unusual hardship to the extent that her medical expenses in excess of $12,500 are paid by her husband’s group health insurance. To the contrary, she would be permitted to make a double recovery. Accordingly, I consider the ruling of the trial judge is clearly correct under the above statute. Moreover, I do not consider that either La.R.S. 23:1163 or the collateral source rule is applicable here. Accordingly, I respectfully dissent.

LEMMON, Justice,

dissenting.

The requirement that an injured employee prove “undue and unusual hardship”, in order to obtain reimbursement of medical expenses in excess of $12,500, has been eliminated by the 1975 amendments to the Act, which deleted the maximum limit. The vague and undefined standard had proved somewhat difficult to administer. W. Malone and H. Johnson, 13 Louisiana Civil Law Treatise — Workers’ Compensation § 287 (1980). Nevertheless, the standard had to mean something. The present case, in which almost all of plaintiff’s medical expenses were paid by . her husband’s group hospitalization insurer, is clearly one case in which the payment of excess medical expenses did not create an undue and unusual hardship, however the term is defined.

Moreover, defendant did not collect or receive any amount, directly or indirectly, from its employee for the purpose of paying its compensation insurance premiums, or for the purpose of funding its self-insured compensation program, in violation of R.S. 23:1163. The employer simply never became liable for medical expenses in excess of the statutory limits, because of plaintiff’s failure to prove the statutory requirements.

      . La.R.S. 23:1163 provides:
      It shall be unlawful for any employer, or his agent or representative, to collect from any of his employees directly or indirectly either by way of deduction from the employee’s wages, salary, compensation, or otherwise, any amount whatever, or to demand, request, or accept any amount from any employee, either for the purpose of paying the premium in whole or in part on any liability or compensation insurance of any kind whatever on behalf of any employee or to reimburse such employer in whole or in part for any premium on any insurance against any liability whatever to any employee or for the purpose of the employer carrying any such insurance for the employers own account, or to demand or request of any employee to make any payment or contribution for any such purpose to any other person.
      Nothing herein shall be construed to prevent any employer from carrying his own insurance towards his own employees; nothing herein shall apply to an employer qualified under the laws of this State to engage in the liability insurance business.
      Whoever violates any provision of this Section shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Coby HARRIS.
    No. 81-KA-1760.
    Supreme Court of Louisiana.
    May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon Picou, Jr., Dist. Atty., A. Zach Butterworth, William E. Woodward, Asst. Dist. Attys., for plaintiff-appellee.
    Clayton M. Perkins, Jr., St. Francisville, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Coby Harris, while serving a 40 year sentence for second degree murder at Angola, was charged with and convicted of simple escape, a violation of R.S. 14:110(A)(1). Harris was ordered to serve a 4'á year prison term to run consecutively with his present sentence. Defendant appeals his conviction and sentence, raising three assignments of error, one of which has been abandoned. We find that the remaining assignments of error have no merit and affirm defendant’s conviction and sentence.

The state’s case against Harris centered upon testimony given by Louisiana State Penitentiary Corrections Officers working at Angola. L. B. Johnston and Richard Mayeaux, two of the officers who were on duty at the time of defendant’s escape, established during the state’s case in chief that Harris was one of 155 inmates assigned to work in the penitentiary cotton fields. The prisoners were transported to the fields early in the morning and each inmate was assigned to work a separate row of cotton. When roll call was taken later that morning, Harris did not respond when his name was called. A head count of the inmates present revealed that one prisoner was missing. Officer Mayeaux, in attempting to locate defendant, proceeded down the row of cotton to which Harris had been assigned. All that he discovered was the absent defendant’s empty cotton sack.

Eight days later, J. S. Carter, an off-duty corrections officer, spotted an individual wearing what appeared to be a prison-issue rain slicker standing beside a tree outside the penitentiary gates. Officer Carter testified that this individual was positioned in a manner that would preclude detection by approaching vehicles. The off-duty officer stopped his vehicle and turned around to investigate this person’s presence. When Carter returned to where he observed the individual, he was no longer present. Prison officials were immediately notified and a search party was organized. Harris was found hiding in a nearby grass field and was peacefully apprehended.

Defendant testified that he remembered being brought to the cotton field, but once there he got lost. According to defendant, he did not even know whether he was on penitentiary grounds during the time he was missing. Though Harris acknowledged that he was the individual observed by Officer Carter outside the prison gates, he stated that he was weak and dizzy and did not know where he was at the time. Defendant urged at trial that he was relieved when he was apprehended by prison officials.

On rebuttal, the state recalled L. B. Johnston, who testified as to the number of guards on duty the day defendant escaped and the method employed in guarding the cotton field. He also testified that certain cotton stalks had been broken and removed and that tracks leading from the stalks had been intentionally “scratched out.” This statement tended to support the state’s claim that Harris purposely evaded prison guards in order to complete his escape. The jury found defendant guilty of simple escape and he was sentenced by the trial judge to serve 4‘A years at hard labor.

Assignment of Error Number 1

By this assignment of error, defendant urges that the trial judge erred in his denial of defendant’s motion for a new trial. To prove defendant’s guilt, the state was required to show that Harris’ absence was an “intentional departure” from a place where he was legally confined. In State v. Ligget, 363 So.2d 1184 (La.1978), this Court held that simple escape is a general intent crime. General intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have averted to the proscribed criminal consequences as reasonably certain to result from his act or failure to act. R.S. 14:10. In presenting his motion for a new trial, defendant urged that the state failed to establish during its case in chief that his escape was intentional. As defendant’s intent to escape was an essential element of the state’s case, Harris contends that he was unduly prejudiced when the state was permitted to present evidence concerning his intentional conduct through rebuttal testimony.

Initially, we note that, though defense counsel objected to Officer Johnston’s rebuttal testimony because of hearsay and leading questions, no contemporaneous objection was made as to the substance of this witness’ testimony. Thus, the provisions of C.Cr.P. art. 841, which require a contemporaneous objection and statement of the grounds therefor to preserve appellate review of a trial error, were not fully satisfied.

The grounds of counsel’s objections must be sufficiently brought to the attention of the trial judge to allow him the opportunity to make the proper ruling and correct any claimed prejudice to the accused. State v. Davis, 357 So.2d 1125 (La.1978). Accordingly, a new ground for objection cannot be presented for the first time on appeal. State v. Davis, supra; State v. Monroe, 397 So.2d 1258 (La.1981); State v. Bodley, 394 So.2d 584 (La.1981).

We are also of the opinion that the evidence adduced by the state during its case in chief was of sufficient character to establish an intentional escape. The corrections officers on duty at the time of Harris’ escape testified that there were a large number of persons in the general area where defendant claims he got “lost.” Defendant departed from his work detail without his cotton sack and, though he claimed to be looking for people while lost, he failed to attempt to flag down passing motorists on the highway outside the penitentiary gates. When Officer Carter observed him, defendant was standing beside a tree and appeared to be attempting to conceal his presence from approaching vehicles. Finally, the state established that, when Harris was eventually apprehended, he was trying to hide from prison officials in a grass field. This evidence, when considered in the light most favorable to the prosecution, was sufficient to establish an intentional escape beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1978).

Further, testimony presented by the state concerning the method of defendant’s escape was designed to discredit defendant’s claim that he was lost. Thus, it was properly admitted by the trial court on rebuttal. Accordingly, this assignment of error lacks merit.

Assignment of Error Number 2

By this assignment of error, defendant contends that his sentence is excessive and that the trial judge failed to properly consider and articulate the sentencing guidelines of C.Cr.P. art. 894.1. The maximum penalty for a conviction of simple escape is five years at hard labor. In the instant case, Harris was ordered by the trial judge to serve Ah years at hard labor for his escape from Angola. This sentence is to run consecutively with the present sentences. In sentencing defendant, the judge concluded that a lesser sentence would deprecate the seriousness of the crime and that “in consideration of your record and disciplinary reports (from the Department of Corrections)”, a Ah year sentence would be appropriate. Thus, it is apparent that the trial judge failed to articulate the factual basis of his considerations in sentencing defendant.

Although this brief statement by the trial judge, standing alone, did not fulfill the requisites of C.Cr.P. art. 894.1, we conclude that the record in this case “clearly illumines” the sentencing choice. State v. Martin, 400 So.2d 1063 (La.1981).

Harris’ incarceration at Angola resulted from his guilty plea to second degree murder. Originally, defendant was charged with first degree murder and armed robbery. The armed robbery charge was dropped. Besides the murder conviction, Harris’ criminal record also includes charges of two counts of armed robbery.

Further, defendant’s long history of disciplinary action while serving his 40 year murder sentence at Angola clearly supported the sentence imposed in the instant case. At the time the Ah year sentence was imposed, Harris had been subjected to disciplinary action on 31 separate occasions while at Angola. These disciplinary measures were the result of defendant’s violation of certain prison rules, such as possession of contraband (alcohol, marijuana and a knife), gambling activities, disrespect and defiance to prison officials, disorderly conduct, aggravated work offenses and simple escape. Other actions taken against Harris by prison officials dealt with such incidents as defendant’s stabbing a fellow inmate, his presence in unauthorized areas and defendant’s unsanitary practices, including defecating on the floor of his prison cell.

Defendant’s criminal and prison records show his total lack of respect and continued defiance against authority, as well as his tendency to engage in violent conduct. These records adequately support the conclusion that Harris is in need of a custodial environment and that a lesser sentence would deprecate the seriousness of his crime.

Harris’ prior conduct strongly indicates that, in the absence of a stringent sentence, the same conduct is likely to recur. We recognize that defendant’s escape did not, in the instant case, cause or threaten serious harm. Even so, his rebellious and often violent character lead us to conclude that the sentence imposed was necessary to impress upon defendant the seriousness of his criminal conduct. The imposition of a lesser sentence would not discourage this individual from attempting to escape from Angola in the future.

We conclude that, because there was no manifest abuse of discretion by the trial judge in imposing sentence, defendant’s sentence should not be set aside as excessive.

Accordingly, the conviction and sentence of Coby Harris are affirmed.

AFFIRMED.

      . R.S. 14:110(A)(1):
      A. Simple escape is:
      (1) The intentional departure, under circumstances wherein human life is not endangered, or a person imprisoned, committed, or detained, from a place where such person is legally confined or from a designated area of a place where such person is legally confined or from the lawful custody of any law enforcement officer or officer of the Department of Corrections;

      . Since the escape sentence was imposed, defendant has been subjected to disciplinary action on nine additional occasions.

      . The escape charge relates to the present offense, in which we note that Harris pleaded guilty to prison officials. As a result, defendant was transferred from Camp C to Camp J.


text:
    STATE of Louisiana v. Leonard SHARPLEY.
    No. 81-KA-2552.
    Supreme Court of Louisiana.
    May 17, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Herman Lawson, Asst. Dist. Attys., for plaintiff-appel-lee.
    Charles R. Whitehead, Jr., of Whitehead & McCoy, Natchitoches, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Leonard Ray Sharpley, Jr., entered a plea of guilty to a charge of simple burglary of an inhabited dwelling, a violation of R.S. 14:62.2. The trial judge imposed a sentence of ten years at hard labor, the first year to be served without benefit of parole, probation or suspension of sentence. On appeal, defendant attacks this sentence on the basis of two assignments of error.

Defendant, Audrey Mitchell and Greg Cochran were charged with the burglary of the DeSoto Parish residence of Robert Bass. On the night of March 22, 1981, Bass surprised two burglars inside his home. He fired at the men as they fled, but the thieves escaped, taking several firearms from the residence.

One week later, police arrested Greg Cochran for speeding and resisting arrest. Cochran’s vehicle was impounded and an inventory search uncovered a pistol taken in the Bass burglary. Cochran told police that defendant had been the driver of the speeding vehicle, and had fled on foot when officers stopped the automobile. In statements given to police, defendant and Cochran admitted burglarizing the Bass residence, and implicated Audrey Mitchell, the defendant’s ex-wife.

Defendant and Cochran subsequently pleaded guilty to simple burglary of an inhabited dwelling. Mitchell was allowed to plead guilty to a reduced charge of simple burglary.

Assignments of Error Numbers 1 and 2

By these assignments, defendant maintains that the sentence imposed by the trial court is excessive, and inadequately supported by reasons as required under C.Cr.P. art. 894.1. The maximum penalty for a violation of R.S. 14:62.2 is twelve years at hard labor. The statute also requires that the first year be served without benefit of parole, probation or suspension of sentence. In the instant case, the defendant was sentenced to ten years at hard labor.

In sentencing defendant, the trial court relied heavily upon the pre-sentence investigation report prepared by the Division of Probation and Parole. He noted that the 21-year-old defendant had been involved in criminal activity for a significant period of time. The trial court believed defendant had been the principal actor in several burglaries in the area, including the instant offense. He also stated that defendant had an unsatisfactory juvenile record and a very sparse record of employment.

The trial judge then concluded that there was an undue risk that, during the period of a suspended sentence or probation, the defendant would commit another crime. He stated that defendant was in need of correctional treatment or a custodial environment which can best be provided by his commitment to an institution and, accordingly, imposed the sentence at issue.

Although it does not appear that these remarks by the trial court fully satisfied the requisites of C.Cr.P. art. 894.1, we conclude that the record in this case “clearly illumines” the sentencing choice. State v. Martin, 400 So.2d 1063 (La.1981).

The pre-sentence investigation report reveals that defendant is a 21-year-old first felony offender. Defendant is divorced, but is living with his ex-wife, Audrey Mitchell, who gave birth to defendant’s child shortly before sentencing. According to the pre-sentence report, defendant has a history of prior criminal delinquency and was placed on juvenile probation in 1973 for theft. Defendant also has a lengthy arrest record, involving mostly charges of criminal mischief and traffic offenses. Approximately nine theft-related offenses are pending against defendant, including six charges of simple burglary.

The report also notes defendant’s refusal to cooperate with the Division of Probation and Parole in its preparation. Defendant did not appear for his scheduled appointment with the probation officer who prepared the report. On the basis of his lengthy arrest record and apparent lack of respect for the law or its officers, the report concludes by recommending that defendant receive the maximum sentence.

The defendant argues that the trial court was unduly influenced by the information contained in the pre-sentence investigation report. He also argues that the entire report is prejudicial. We note, however, that defendant was served with a copy of the report and notified of his right to traverse any of the information contained therein at least 25 days prior to sentencing. Before imposing sentence, defendant was allowed to explain his failure to meet with probation officers in connection with the preparation of the report. According to defendant, “I was under the impression that I was going to do time anyway and it didn’t really matter that much. I didn’t realize that it mattered as much as it did.” Although given the opportunity at that time to traverse the information contained in the pre-sentence report, defendant failed to do so.

Defendant, Cochran and Mitchell were sentenced at the same hearing held on August 19,1981. In noting his objection to the 10-year sentence, defendant’s counsel requested that the pre-sentence investigation reports prepared on Cochran and Mitchell be made a part of the record. We may, therefore, also look to information contained in these reports in evaluating defendant’s excessiveness claim.

The report on Greg Cochran contains his statement that the purpose of the burglary was the theft of guns. The trial judge sentenced Cochran to three years at hard labor, stating that this lesser sentence was based on the court’s belief that Cochran had been influenced by Sharpley in the commission of the burglary. Cochran’s report notes that his criminal activity began around 1979, at about the time he became close friends with Leonard Sharpley.

Reviewing all of the evidence contained in the record, we cannot say that the 10-year sentence imposed by the trial court is unconstitutionally excessive. Defendant has a long history of criminal involvement. Although the instant offense is the first to give rise to a felony conviction, we note that the circumstances of this offense alone justify a severe sentence.

Defendant and his accomplices burglarized a residence in order to obtain weapons, decidedly an aggravating factor. During the course of the burglary, the owner of the residence surprised the thieves, firing at least five times in their direction. Defendant’s conduct thus provoked a life-threatening situation, one which he logically could have foreseen.

Defendant’s lack of responsibility or respect for the law is further demonstrated in his failure to cooperate with the probation officers in the preparation of his pre-sen-tence report, when such cooperation would have been definitely in his own best interest.

As a mitigating factor, defendant now has one dependent, the child born to Audrey Mitchell. Defendant’s pre-sentence report, however, reveals that defendant can barely provide for his own support, leaving the possibility that he can meaningfully contribute toward the support of this small child at best marginal.

For the foregoing reasons, we conclude that the sentence imposed by the trial court is not excessive 'and it is, accordingly, affirmed.

AFFIRMED.

       Judges Philip C. Ciaccio and Israel M. Augustine of the Fourth Circuit Court of Appeal and Judge H. Charles Gaudin of the Fifth Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


text:
    CITY OF LAKE CHARLES v. Joseph HENNING.
    No. 82-KA-0254.
    Supreme Court of Louisiana.
    May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Louis Guidry, City Prosecutor, Peter A. Ciambotti, E. R. Robinson, III, Associate City Attys., for plaintiff-appellant.
    Gregory D. Lyons, Lake Charles, for defendant-appellee.
   BLANCHE, Justice.

This case involves the constitutionality of the Lake Charles “open container” law. Joseph Henning was stopped by law enforcement officers outside a Lake Charles bar with an open can of beer in his hand. Hen-ning was charged with drinking an alcoholic beverage from an open container in a public place, a violation of Section 3-7(B) of the City of Lake Charles Code of Ordinances. This local law makes it unlawful for any person to drink alcoholic beverages from open containers in or on any public street, sidewalk, park, playground, or any unenclosed public place within the Lake Charles city limits. The ordinance defines “open container” as any metai or glass container on which the seal has been broken, excluding drinking glasses which are packaged and contain no liquid.

Henning filed a motion to quash the bill of information, claiming that the Lake Charles ordinance was vague, overbroad and was applied selectively against minorities. After a hearing on this motion, the trial court struck down the ordinance, finding Section 3-7(B) to be an “unreasonable yoke on the balance of the public at large” and an abuse of the police power. The trial judge was also of the opinion that the ordinance was arbitrarily enforced against minorities, even though Henning abandoned his claim of discriminatory enforcement. Further, the trial judge held that prosecution of all violations of the ordinance would result in a “dry city” and that “you can’t go dry without a vote thereon.” Because the ordinance was declared unconstitutional, this case comes before us on an appeal of right. Louisiana Constitution, Art. 5, Sec. 5(D)(1).

On appeal, the City of Lake Charles urges that its open container law is a reasonable exercise of the police power and that it clearly defines the kind of conduct prohibited. Further, the City contends that Hen-ning abandoned his claim of selective enforcement and that the record is void of any evidence to support the trial court’s conclusion of discriminatory application.

“Police power” denotes the authority of a governmental body to reasonably regulate the actions of its citizens in order to protect or promote the health, safety, morals, peace or general welfare. City of Shreveport v. Curry, 357 So.2d 1078 (La.1978); City of New Orleans v. State of Louisiana, 364 So.2d 1020 (La.1978). It is well settled that laws are presumed to be constitutional. City of Crowley Firemen v. City of Crowley, 264 So.2d 368 (3rd Cir.1972), aff. 280 So.2d 897 (La.); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (1954). As a result, one who claims a violation of due process of law must show that the statute or ordinance exceeds the bounds of reasonableness because it is arbitrary or oppressive. City of Crowley, supra; Curry v. City of Shreveport, supra. See also Harry’s Hardware v. Parsons, 410 So.2d 735 (La.1982).

In the present case, the City of Lake Charles contended that the open container law is a reasonable means of promoting its objectives of public safety and community beautification. The trial judge rejected the city’s position, finding that other laws already in force would cover instances of littering or disturbing the peace. Further, the judge concluded that enforcement of the ordinance would effectively eliminate the consumption of alcohol within the city’s limits. Our review of the record leads us to conclude that the Lake Charles ordinance is a reasonable means of promoting and protecting the general welfare of her citizenry.

The open container law promotes aesthetic considerations and the appearance of the City of Lake Charles. Though the ordinance only prohibits certain public consumption out of metal or glass containers, it is clear that total public consumption will decrease, and the likelihood of discarded containers on the city’s streets, sidewalks, parks and other public places will be diminished. The City of Lake Charles might reasonably determine that the conduct prohibited would be unnecessarily offensive to the visual sensibilities and general welfare of its populace and would materially and economically detract from the community. These objectives are a proper subject of legislative concern and the wisdom of this reasonable legislative enactment is not subject to judicial review. Everett v. Goldman, 359 So.2d 1256 (La.1978). See also People v. Finch, 88 Misc.2d 581, 388 N.Y.S. 820 (1976).

We also note that the elimination of open metal or glass containers at certain public places is a legitimate mode of ensuring the health and safety of the community. Besides creating an eyesore, metal and glass containers pose a threat of injury to property as well as to the citizens of Lake Charles. Thus, elimination of certain public use of these potentially dangerous containers promotes the health and safety of the population. Accordingly, we conclude that there is a substantial relationship between the police power invoked and the problems sought to be addressed.

Contrary to the conclusion of the trial court, we are of the opinion that enforcement of the open container law would not result in a “dry city”. Under the ordinance, all consumption is not prohibited; only that which occurs in certain specified public places and involves metal or glass containers. Nothing in the regulation prohibits the consumption of alcohol on private property, in a bar or even in a public building. Further, consumption on a public sidewalk, street, park, playground or unenclosed public place is not proscribed as long as the container is not made of metal or glass. As a result, enforcement of the Lake Charles ordinance does not preclude the consumption of alcoholic beverages within city limits.

Moreover, we find the ordinance to be unambiguous as to what conduct it prohibits. The constitutional requirement of definiteness for a regulatory law accompanied by a penal sanction emanates from the due process clause of the United States Constitution and Article 1, Sections 13 and 16 of the Louisiana Constitution. If a statute with criminal sanctions is vague, the crippling constitutional defect is that it does not give individuals adequate notice of the conduct prohibited by law. By the same token, neither does it give adequate standards for those charged with administering the law to follow in determining whether the statute has been violated. State v. Farris, 406 So.2d 614 (La.1982); State v. Dousay, 378 So.2d 414 (La.1979); Schopler, Annotation, Indefiniteness of Language as Affecting Validity of Criminal Legislation or Judicial Definition of Common-Law Crime — Supreme Court Cases, 16 L.Ed.2d 1231 (1966).

As a result, a penal statute must describe unlawful conduct with sufficient clarity so that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Dousay, supra; State v. Farris, supra; State v. Baker, 359 So.2d 110 (La.1978).

Section 3-7 of the City Code of Ordinances provides, in pertinent part:

(b) It shall be unlawful for any person to drink alcoholic beverages of either high or low alcoholic content from any opened container as defined herein, in or on any public street, sidewalk, park, playground or unenclosed public place within the city limits of the City of Lake Charles.
(c) For purposes of this section, “open container” is defined as any drinking vessel made of metal or glass, upon which the seal has been broken, excluding drinking glasses which are packaged and which contain no liquid.

The ordinance prohibits the consumption of any alcoholic beverage from a metal or glass container in or on any public street, sidewalk, park, playground or unenclosed public place within city limits. Thus, the ordinance under attack clearly defines the kind of conduct and the place of occurrence which are prohibited. In the instant case, Joseph Henning was stopped on a public sidewalk outside a local bar while possessing an open can of beer. Because the words of the ordinance are of common meaning and understanding, we believe that an ordinary man of reasonable intelligence would have no trouble whatsoever in determining that Henning’s conduct was prohibited. Moreover, we conclude that those charged with enforcing the law would have ade quate standards to follow in determining whether the ordinance had been violated. Cf. State v. Farris, supra.

Finally, we disagree with the trial court’s conclusion that the open container law was discriminatorily applied. Initially, we note that Henning’s attorney, during the hearing on the motion to quash, unequivocally expressed his client’s intention to abandon his claim of discriminatory enforcement. Further, the record is void of any evidence which would support the trial court’s conclusion that the ordinance, which is constitutionally sound on its face, was purposely enforced only in the “black” area of Lake Charles. The only evidence concerning police conduct established that enforcement of the ordinance centered heavily upon those areas of the city which voiced complaints concerning violations. The trial judge’s holding of unequal enforcement was based on his prior experience in hearing prosecutions, and not on the evidence presented in this case. We conclude that the record does not support the lower court’s holding that the ordinance in question is unconstitutional.

Accordingly, the judgment of the trial court is reversed, and the case is remanded for further proceedings.