text:
    STATE of Louisiana v. Lorenzo CARPENTER.
    No. 67558.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., for plaintiff-appellee.
    Joseph T. Dalrymple, Antoon, Dalrymple & Beck, Alexandria, for defendant-appellant.
   MARCUS, Justice.

Lorenzo Carpenter was charged in the same information with three separate counts of armed robbery in violation of La.R.S. 14:64. At the arraignment, the state nolle pressed count one. After trial by jury on count three, defendant was found guilty of armed robbery and sentenced to serve seventy-five years at hard labor. The court expressly directed that the sentence be served consecutively with any other sentence defendant was serving. The state nolle pressed count two of the information. On appeal, defendant relies on forty-four assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 13, 26, 27, 39, 40, 41 AND 42

Defendant contends the trial judge erred in failing to ascertain whether he actually desired to represent himself, to determine whether he was capable of representing himself and to advise him of his right to counsel at all stages of the proceedings.

At the time of arrest and twice during incarceration, defendant was advised of his Miranda rights which included his right to counsel. Prior to arraignment, an attorney was appointed to represent defendant. At the arraignment on October 19, 1979, defendant, accompanied by his appointed counsel, informed Judge Robert P. Jackson that he did not desire the services of his appointed counsel, stating:

Your Honor at this time I would like to exercise my right under the 6th amendment to represent myself on certain issues of the matter. My family is in the process of contacting another attorney from a different state than the State of Louisiana, so at this time I would represent myself.

Judge Jackson acknowledged defendant’s constitutional right to represent himself and asked defendant if he understood that armed robbery was an extremely serious offense in Louisiana. Defendant replied that he understood, adding that he had studied law for eight years at the University of Illinois Law School, was familiar with the laws of different states, had read the Louisiana Code of Criminal Procedure, and could properly represent himself. The court then relieved defendant’s counsel of his appointment and granted defendant’s request to represent himself. Defendant filed several pretrial motions on his behalf. On November 19, 1979, after denying defendant’s motion to quash, Judge Jackson appointed “standby counsel” to assist defendant in obtaining legal materials and in contacting witnesses. This action was taken “in the interest of justice” to insure protection of defendant’s sixth amendment rights. At a hearing on various pretrial motions held on December 6, 1979, with Judge Richard E. Lee presiding, attorney Robert Nida stated that he had been appointed by Judge Jackson as defendant’s standby counsel but that defendant was representing himself. Mr. Nida also addressed the court in an attempt to clarify an objection defendant was having difficulty expressing.

Trial commenced on December 17, 1979, and was presided over by Judge Lee. Although defendant stated that he wished to relieve his standby counsel of his duties, Mr. Nida sat with defendant throughout the trial and occasionally intervened on defendant’s behalf. At the end of the second day of trial, defendant was found guilty of armed robbery.

On January 8, 1980, defendant, without presence of counsel or standby counsel, appeared before the court for sentencing. After sentence was imposed by Judge Lee, defendant complained that the court had failed to advise him of his right to counsel at each critical stage of the proceeding, particularly at the sentencing stage, and stated that he had never waived his right to counsel in front of Judge Lee. An attorney was appointed to perfect defendant’s appeal.

The sixth and fourteenth amendments of the federal constitution guarantee that a person brought to trial must be afforded the right to assistance of counsel before he can be validly convicted and punished by imprisonment. The sixth amendment further grants to an accused the right of self-representation. Because an accused managing his own defense relinquishes many of the traditional benefits associated with the right to counsel, he must knowingly and intelligently forego these benefits in order to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether defendant was waived his right to counsel. State v. Harper, 381 So.2d 468 (La.1980). The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458,58 S.Ct. 1019, 82 L.Ed. 1461 (1938); State v. Harper, supra. The record must establish that the accused knew what he was doing and that his choice was made “with eyes open.” Faretta, supra; Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Thus, before a trial judge can allow a defendant to represent himself, he must determine whether defendant’s waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La.1977).

In the instant case, defendant clearly and unequivocally declared to Judge Jackson at arraignment that he desired to exercise his sixth amendment right to represent himself and that he did not desire the services of his court-appointed counsel. The record affirmatively shows that defendant was literate, competent and understanding and that he was voluntarily exercising his informed free will. Furthermore, defendant stated that he had studied law for eight years, was familiar with the laws of different states, had read the Louisiana Code of Criminal Procedure and could properly represent himself. Defendant also filed pretrial motions on his behalf. Although the judge did not specifically warn defendant of the dangers and disadvantages of self-representation, he did inquire into whether defendant was aware that armed robbery was an extremely serious offense in Louisiana. Thus, the court did not err in allowing defendant to represent himself.

Defendant’s contention that he waived his right to counsel only for arraignment is not supported by the record. At no time prior to the conclusion of his sentencing did defendant indicate to the court that he desired assistance of counsel or that he no longer wished to represent himself. Moreover, at the commencement of trial, defendant stated that he did not want his standby counsel present during the proceedings. Despite defendant’s objection, his standby counsel remained and occasionally intervened on defendant’s behalf.

Defendant further contends that the court erred in failing to advise defendant of his right to counsel at all stages of the proceedings and in particular .at sentencing. The sixth amendment to the federal constitution mandates the right, unless waived, to the assistance of counsel at every critical stage of the proceedings including sentencing. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). La.Const. art. 1, § 13 recognizes the right to the assistance of counsel at every stage of the proceedings against a person accused of a crime unless this right is intelligently waived. State v. White, 325 So.2d 584 (La.1976). While the sixth amendment right to counsel applies to all critical stages, including sentencing, it does not follow that once the assistance of counsel has been competently waived, a new waiver must be obtained at every subsequent appearance by the defendant. A competent election by the defendant to represent himself and to decline the assistance of counsel once made before the court carries forward through all further proceedings in that case unless the defendant expressly requests that counsel be appointed for subsequent proceedings or circumstances suggest that the defendant’s waiver was limited to a particular stage of the proceedings. Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970).

We have already determined that defendant made a competent election to represent himself and to decline the assistance of counsel at arraignment. We have further found that there is nothing in the record to indicate that defendant’s waiver was limited to his arraignment. The record clearly shows that defendant did not expressly request that counsel be appointed for subsequent proceedings until after he was sentenced by Judge Lee. Thus, the court did not err when it failed to advise defendant of his right to assistance of counsel at his sentencing hearing. After handing down his sentence, Judge Lee acted properly by granting defendant’s request for counsel to perfect his appeal. Accordingly, these assignments of error are without merit.

Having reviewed the remaining assignments of error asserted by defendant, we find that they present no reversible error and do not require published explanation because they do not present any question of unsettled law. Therefore, these assignments of error are discussed in an unpublished but publicly-recorded appendix to this opinion.

DECREE

Defendant’s conviction and sentence are affirmed.

      . Although defendant represented himself during trial, an attorney was appointed to represent him for his appeal. Assignment of Error No. 44 incorporated defendant’s twenty-three pro se assignments of error which were neither briefed nor argued. Also, Assignments of Error Nos. 4, 8, 10, 16, 30, 32 and 38 were neither briefed nor argued. We therefore consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . The court may-even over objection by defendant-appoint a “standby counsel” to aid defendant if and when he requires help and to be available to represent defendant in the event that termination of defendant’s self-representation is necessary. Faretta, supra, at 835 n.46, 95 S.Ct. 2541 n.46.


source: Caselaw Access Project

author: DENNIS, Justice. LEMMON, Justice,

license: Public Domain

text:
    Raymond ALLEN v. Sylvester SMITH, Jr.
    No. 67457.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.
    Gordon Hackman, Boutte, for plaintiff-applicant.
    Dermot S. McGlinchey and Lawrence J. Centola, Jr., McGlinchey, Stafford, Mintz & Hoffman, New Orleans, for defendant-respondent.
   DENNIS, Justice.

The issue in this case is whether the trial court abused its discretion in ordering the dismissal with prejudice of the plaintiff’s claim against one of the defendants for failure to permit or provide discovery. We find dismissal inappropriate under the facts in this case and accordingly reverse and remand.

Allen filed suit against Smith on Aügust 1, 1977 for injuries sustained on March 19, 1977 when the motorcycle the plaintiff was operating collided with a vehicle driven by Smith. Allen amended his petition on September 11,1978 to join Suzuki Motor Corporation alleging that the motorcycle he had operated was defective. On October 24, 1978, Suzuki answered and also propounded a set of interrogatories to the plaintiff which was never answered. Suzuki obtained an ex parte court order to compel the production for inspection of plaintiff’s motorcycle on January 4, 1979. Plaintiff failed to comply with this order. Also, the plaintiff failed to appear at his lawyer’s office on February 8, 1979, the date set by written notice for the taking of his deposition by Suzuki.

Suzuki filed a motion to dismiss or compel answers to the interrogatories on January 25, 1979 and later supplemented its motion to point out the plaintiff’s failure to appear for deposition or to comply with the production order. After a hearing on March 16, 1979 on the motion, the trial court granted the motion to dismiss and ordered briefs to be submitted regarding whether the dismissal should be with prejudice. The plaintiff failed to submit such a brief and the trial court subsequently ruled that the dismissal would be with prejudice. Though the trial judge assigned no written reasons for the dismissal, the court of appeal found no abuse of discretion. Allen v. Smith, 380 So.2d 174 (La.App. 1st Cir. 1979).

Louisiana civil discovery rules authorize a party to take the deposition of another litigant upon oral deposition after giving reasonable notice in writing, Article 1438 of the Louisiana Code of Civil Procedure, to serve written interrogatories to be answered by another party, Article 1457, and to serve on another party a request to produce a tangible thing for inspection. Article 1461. When a party served with such a notice or request fails to attend a deposition, serve answers to interrogatories, or respond to a request for inspection, the court may on motion make such orders in regard to the failure as are just, including an order that the designated facts be taken as established, an order that the disobedient party be refused the right to support or oppose designated claims or defenses, an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment of default against the disobedient party, or an order assessing costs and attorney’s fees caused by the failure against the disobedient party and his attorney or both. La.C.C.P. arts. 1471, 1473. The Louisiana rule empowering a court to impose these sanctions is identical to Federal Rule of Civil Procedure 37(b), (d). Accordingly, the jurisprudence interpreting and applying the federal rule may provide useful precepts in bringing La.C.C.P. art. 1473 into action in the present case.

The United States Supreme Court held in Societe Internationale Pour Participations Industrielles v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255, 1267 (1958) that Rule 37

“should not be construed to authorize dismissal of [a] complaint because of petitioner’s noncompliance with a pretrial production order when it has been established that a failure to comply has been due to inability, and not to wilfulness, bad faith, or any fault of petitioner.”

While there have been amendments to the rule since the decision in Rogers, the high court has indicated that the changes will not affect the teachings of the quoted language from that decision. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).

Many of the federal courts of appeal have decided that the dismissal of a complaint with prejudice is such a drastic penalty for failure to make discovery that a district court should apply it only in extreme circumstances. E. g., Bonaventure v. Butler, 593 F.2d 625 (5th Cir. 1979); Campbell v. Gerrans, 592 F.2d 1054 (9th Cir. 1979); Israel Aircraft Industries, Ltd. v. Standard Precision, 559 F.2d 203 (2d Cir. 1977); Kropp v. Ziebarth, 557 F.2d 142 (8th Cir. 1977); Ali v. A & G Co., Inc., 542 F.2d 595 (2d Cir. 1976); Thomas v. United States, 531 F.2d 746 (5th Cir. 1976). Accord Butts v. Cummings, 360 So.2d 534 (La.App. 2d Cir. 1978).

Before his suit was dismissed with prejudice, plaintiff failed to attend a deposition for which he was given notice, failed to answer interrogatories served on him six months previously and failed to produce his motorcycle for inspection as requested. However, the record contains no evidence, or even a transcript of the attorneys’ arguments at the sanction hearing, to which we may turn to find support for the drastic penalty imposed. Consequently, it is not clear to what extent, if any, the plaintiff, rather than the attorney advising him, was at fault in failing to make discovery. Under these circumstances, we conclude that the trial judge exceeded his discretion by imposing the ultimate sanction of dismissal with prejudice; the record does not support a finding that the failure was due to the plaintiff’s wilfulness, bad faith, or fault.

On the other hand, plaintiff’s noncompliance cannot be totally excused. When a failure to make discovery occurs, it becomes incumbent upon the disobedient party to show that his failure was justified or that special circumstances would make an award of expenses unjust. La.C.C.P. arts. 1469, 1471, 1473; David v. Hooker, 560 F.2d 412 (9th Cir. 1977). Since the record is devoid of evidence or showing to the contrary, we find that costs and attorney’s fees caused by the discovery failures should be assessed. Because the record contains no evidence that the plaintiff was personally at fault, but several indications that the failures were due to the inattention of his counsel, plaintiff’s counsel alone will be required to pay reasonable expenses of defendant’s motion to dismiss, including the costs of all proceedings and attorney’s fees in this Court, the court of appeal and the trial court. See Szilvassy v. United States, 71 F.R.D. 589 (S.D.N.Y.1976). Further, it is appropriate that the plaintiff be placed under an order compelling him to comply with the requests for discovery and that his suit be stayed until the order is obeyed. La.C. C.P. art. 1471(3).

Accordingly, the judgments of the trial court and the court of appeal are set aside, and the case is remanded to the district court for further proceedings consistent with this opinion, including a hearing to determine and assess reasonable expenses caused by the discovery failures, including attorney’s fees, against plaintiff’s attorney, and the entry of an order staying plaintiff’s suit and compelling discovery.

TRIAL AND APPELLATE COURT JUDGMENTS VACATED; REMANDED FOR FURTHER PROCEEDINGS.

LEMMON, Justice,

concurring in denial of rehearing.

On application for rehearing defendant argues that its ability to investigate plaintiff’s claim and to prepare its defense has been severely handicapped by the delays attributable to plaintiff or his counsel. While this is not sufficient ground to dismiss plaintiff’s suit, it may be a basis for obtaining a protective order limiting evidence which cannot be adequately rebutted because of the delay.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Robert MOSLEY, Jr.
    No. 67562.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., for plaintiff-appellee.
    Jeanette G. Garrett, New Orleans, for defendant-appellant.
   DENNIS, Justice.

Defendant, Robert Mosley, Jr., was indicted by a grand jury for the crimes of aggravated rape and armed robbery, in violation of La.R.S. 14:42 and 14:64. After trial by jury, he was found guilty of both offenses. The trial court, following pre-sentence investigation, sentenced the defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for the aggravated rape, and twenty years at hard labor without benefit of parole, probation, or suspension of sentence for the armed robbery. Defendant now appeals his conviction and sentence to this Court urging six assignments of error. We affirm his conviction and sentence because a review of these assignments reveals no reversible error.

During the afternoon of July 10, 1979, a black male, waving a gun, entered the Knox Grocery Store in Shreveport. He ordered three young women store employees to place the cash register’s contents in a paper bag. He forced one woman to watch at the store window while he raped another in the back of the store with his weapon pressed to her head. Afterwards he searched the store for more money and took a pistol from behind the counter. The robber left with the money and pistol after forcing the women to lie on the floor and threatening to kill them if they got up to observe his flight. After waiting a short while, the women reported the incident to the police and gave them a description of the man. A few hours later, the defendant, a black male fitting the physical description supplied by the victims, was arrested in a public park in the vicinity of the Knox Grocery Store. A line-up was conducted at the stationhouse and the defendant was identified by each of the three women as the person who had committed the rape and armed robbery earlier that day.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant argues that the trial court erred in denying the defense motion to suppress certain evidence seized from the defendant at the time of his arrest, including clothing and two hand guns, one of which was identified as the same weapon taken from the Knox Grocery Store during the robbery. The defendant contends that the police did not have probable cause to arrest him and consequently the evidence was seized during a warrantless search pursuant to an illegal arrest.

The state and the defense agree that the applicable standard for testing probable cause to arrest was recently set forth by this Court in State v. Collins, 378 So.2d 928 (La.1979) as follows:

Probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Wilkens, 364 So.2d 934 (La.1978); State v. Johnson, 363 So.2d 684 (La.1978); State v. Marks, 337 So.2d 1177 (La.1976). Although mere suspicion cannot justify an arrest, State v. Thomas, 349 So.2d 270 (La.1977), the officer does not need sufficient proof to convict. State v. Randolph, 337 So.2d 498 (La.1978).
One of the most important elements in determining whether probable cause existed is satisfied when the police know a crime has actually been committed. When a crime has been committed and the police know it, they only have to determine whether there is reasonably trustworthy information to justify a man of ordinary caution in believing the person to be arrested has committed the crime. In many cases the police do not know that a crime has been committed. When the arrest or search is made when the police do not know that a crime has been committed, more and better evidence is needed to prove that probable cause exists for the arrest than is the case when the police know a crime has been committed. State v. Johnson, supra, 378 So.2d at 930.

Applying these principles to the case at bar, we conclude that the facts and circumstances within the police officers’ knowledge or of which they had reasonable and trustworthy information justified a person of average caution in the belief that Mosley had committed the rape and armed robbery at the Knox Grocery Store approximately three hours earlier.

The police had been alerted to the defendant’s presence in the park by a Mrs. Peterson, who lived across the street from the scene of the crime. The investigating officer testified that after taking the victims’ statements, he questioned Mrs. Peterson, who informed the officer that an individual whom she did not know had come to her front door that afternoon and asked her for a date, but that she had refused to allow him in the house. She described this man as a black male, approximately 5'4" tall, weighing roughly 145 pounds; dressed in black, and having plaited hair. Two officers testified at the motion to suppress hearing that Mrs. Peterson stated she saw the suspect enter the grocery store after leaving her house. However, at trial Mrs. Peterson maintained that she did not see the man actually enter the store but rather noticed him departing her house in that direction. In any event, Mrs. Peterson observed this same man in a public park in her neighborhood later that day while riding in an automobile with friends. By that time she had heard the name Robert Mosely circulated in the neighborhood as the man linked to the robbery. As revealed by other testimony at the hearing, that same afternoon an individual dressed like the suspect, with a gun visible in the waistband of his trousers, had cashed two rolls of coins at the Pounce Street Grocery, which is in the vicinity of the Knox Grocery Store. A Pounce store clerk had identified that man as Robert Mosley, Jr. Mrs. Peterson informed the police that she had seen the man she assumed was named Mosely in the park, and later led the arresting officers to that site and pointed out the defendant as the same man who had come to the front door of her house that afternoon.

The defense contends that the arresting officers were not justified in arresting Mosely because at best they were acting only upon the suspicions of Mrs. Peterson linking the man who had come to her door with the man who had committed the crimes at the Knox Street Grocery. However, the officers testified that the information supplied by Mrs. Peterson augmented three descriptions of the robber which had been obtained from the victims of the crime. When questioned separately each described the perpetrator as a young black male, armed with a revolver, having plaited hair, and wearing all black clothing, including a long-sleeved shirt. All had observed a scar over one of the man’s eyes. Estimates for height and weight varied between 5' 4" and 5' 8", and between 145 and 160 pounds. In view of the eyewitnesses’ descriptions and the additional facts the police possessed at the time of the arrest, the observation of a young black male, dressed in black with a long-sleeved shirt, having plaited hair, of the same described size, appearing in the vicinity of the crime some three hours later, and pointed out by a woman who reported having seen the suspect prior to the offense leaving her house in the direction of the store across the street, certainly supplied the officers with a justifiable belief that the suspect had committed the crime. Therefore, the search of the defendant was conducted pursuant to a legal arrest supported by probable cause. State v. Rawls, 376 So.2d 117 (La.1979); State v. Taylor, 347 So.2d 172 (La.1977); State v. Robinson, 342 So.2d 183 (La.1977).

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 3 and 4

By these assignments of error the defendant argues that the trial court erred in allowing the prosecutor to ask two police officers testifying for the state if the defendant had been advised of his constitutional rights at the time of his arrest. Defendant submits that such a line of questioning is necessary and relevant only if the state seeks to lay a predicate for the introduction of written or oral statements or confessions made by the defendant. See La.C.Cr.P. art. 703; La.R.S. 15:451-52. Because the state in this case had no such material in its possession, defendant argues that the only purpose and effect of this questioning was to draw to the jury’s attention the fact that the defendant had remained silent after his arrest. Defense cites Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, and State v. Montoya, 340 So.2d 557 (La.1976), to support his contention that this sort of prosecutorial examination is reversible error.

In Doyle v. Ohio, supra, the United States Supreme Court rule that it was a denial of due process for the state to utilize a defendant’s post-arrest silence when cross-examining him at trial in order to impeach his exculpatory trial testimony. The defendant had received the post-arrest warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court in Doyle observed:

The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arres-tee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S. at 177, 95 S.Ct. at 2137 [45 L.Ed.2d 99]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives such warnings, [footnotes omitted] 426 U.S. at 617; 96 S.Ct. at 2244, 49 L.Ed.2d at 97.

This Court followed Doyle in State v. Montoya, supra, holding that it was reversible error for the prosecutor to elicit from the arresting officers the fact that the defendant did not respond to police questioning. Defense argues that Montoya governs this case because the prosecutorial examination here is also so prejudicial as to constitute reversible error.

Although we disapprove of the conduct of the prosecuting attorney in this case, we cannot say that the oblique and obscure reference to the defendant’s post-arrest silence amount to reversible error. We agree with the defendant that whether he was advised of his rights at the time of arrest was irrelevant. However, the prosecutorial examination did not stress the right to remain silent or attempt to elicit testimony regarding defendant’s failure to respond to police questioning. The prosecutorial actions in this case, albeit improper, cannot be said to have resulted in prejudice to the defense of the accused.

These assignments are without merit.

A review of the three other assignments of error discloses that these contain no reversible error, are governed by well settled rules, and do not require any novel interpretation or application of the law. Publication of our reasons for decision with respect to them is not warranted. Accordingly, our reasons for finding the other assignments without merit are set forth in an unpublished, but publicly recorded, appendix to this opinion.

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

AFFIRMED.

LEMMON, J., concurs.


author: BLANCHE, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Thomas Ray JERNIGAN.
    No. 67213.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.
    Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiffs-respondents.
   BLANCHE, Justice.

The defendant, Thomas Ray Jernigan, was charged by bill of information with the crime of possession of marijuana in violation of La.R.S. 40:966(C). The trial court denied the defendant’s motion to suppress evidence seized as a result of a warrantless search of his vehicle. We granted this Writ of Certiorari to review the trial court’s finding that the warrantless search was justified as a valid inventory search of a vehicle. Upon a closer examination of the record we find that a valid inventory search of the vehicle was made by the arresting officer and this writ is recalled.

The following facts were adduced at the motion to suppress hearing: On October 10, 1979, at approximately 11:49 p. m., State Police Trooper G. Van Dawson stopped a brown 1971 Oldsmobile on U. S. Highway 61 in the vicinity of Gonzales, Louisiana, in Ascension Parish. Officer Dawson had clocked the vehicle travelling 94 miles per hour in a 55 miles per hour zone. The defendant, who was driving the car, was carrying an out of state driver’s license. Because of this the officer informed the defendant that he would have to follow him to Ascension Parish Sheriff’s Office in Gonzales in order to post bond for the speeding offense. As the parties were proceeding to Gonzales, Officer Dawson noticed the defendant’s car, which was very close behind him, repeatedly weaving across the center line of the highway. Thereupon, the officer pulled the car to the side of the road in front of the Colonial Drive Inn in Gonzales. At this time the defendant was arrested on a charge of driving while intoxicated, handcuffed and placed in the back seat of the patrol car. Officer Dawson testified that he did not entrust the vehicle to the two passengers accompanying the defendant because they had been drinking and neither had a valid driver’s license. The officer called on the Ascension Parish Sheriff’s unit to transport the two passengers to the Sheriff’s Office where they could make further transportation arrangements. He told the defendant that his car would have to be stored, and summoned a wrecker service. The officer proceeded to inventory the car, without obtaining defendant’s consent, and discovered a quantity of marijuana in the glove compartment.

It is undisputed that a warrantless search and seizure occurred in this case. Hence, the burden of proof was upon the state to show affirmatively that the search and seizure were justified under one of the well-recognized exceptions to the warrant requirements of the Fourth Amendment and the state constitution. State v. Hatfield, 364 So.2d 578 (La.1978); State v. Braud, 357 So.2d 545 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

The state claims that the evidence was seized pursuant to a valid inventory search. Accordingly, the state bears the burden of showing that the impoundment of the defendant’s vehicle was necessary, and the inventory of the vehicle’s contents was necessary, and reasonable in its scope. State v. Jewell, 338 So.2d 633 (La.1976). Some of the factors which this Court has considered significant in determining if the state has carried its burden are whether: the vehicle could have remained safely at or near the place it was stopped; the search was conducted in the field; formal im-poundment procedures were followed; the tow truck was called before commencing the search; the vehicle operator was asked if he consented to a search, if the car contained valuables, or if he would consent to the agency’s failure to afford him the protection of an inventory search; arrangements could have been made for someone designated by the operator to take possession or protective custody of the vehicle for him. State v. Killcrease, 379 So.2d 737 (La.1980); State v. LaRue, 368 So.2d 1048 (La.1979); State v. Schmidt, 359 So.2d 133 (La.1978); State v. Hatfield, supra; State v. Gaut, 357 So.2d 513 (La.1978); State v. Rome, 354 So.2d 504 (La.1978).

Applying these factors to the present case we conclude that the state has shown that the impoundment was necessary and the inventory of the automobile’s contents was required.

First, the vehicle was stopped on the side of the heavily travelled highway inside the city limits of Gonzales at midnight in front of the Colonial Drive Inn. Under these circumstances, the vehicle was in a place and at a time when it was necessary to remove it for both reasons of safety and security.

After the defendant was stopped the second time, he was placed under arrest for driving while intoxicated and placed in the trooper’s vehicle. At this point, the trooper testified that he tried to get one of the two passengers in the defendant’s automobile to drive, but they both had been drinking and neither had a driver’s license. It was at this time that Trooper Dawson advised the defendant that he would have to store his vehicle. In accordance with standard procedure, he requested troop headquarters to send him the next wrecker off the “wrecker list” and Don’s Wrecker Service was called to the scene. Thereafter, the trooper began to inventory the contents of the automobile and found a bag of marijuana in the glove compartment.

We completely agree with the following reasons given by the trial judge in denying the motion to suppress:

“The court feels, after listening to the evidence in this case, that the state has sustained the burden. That court does not feel, in this particular case, that the inventory was a subterfuge for a warrant of search. The court feels that the officer was truly, and diligently, trying to make an inventory of the contents of this vehicle. And, all circumstances being what they were, this vehicle being stopped on the shoulder of a public highway, at twelve, shortly after midnight; with a foreign license; with three individuals (he testified that he explored the possibility of releasing the vehicle to the occupants of the car, that not being possible), because of the circumstances, of their not having a valid license, and because of the further circumstances, of the possibility of they too, may have been drinking alcoholic beverages. The court feels, that the state has carried forth its burden, and the court orders that the motion to suppress be dismissed.”

For the foregoing reasons, the ruling of the trial judge on the motion to suppress is sustained, and the writ previously issued herein is recalled, vacated, and set aside.

Writ recalled.

DIXON, C. J., and CALOGERO, J., dissent.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

I could not agree with the majority opinion’s statement of the pertinent legal percepts any more, even if I had written it myself. It is only with the majority’s application of the precepts to the facts of this case that I disagree.

It is undisputed that a warrantless search and seizure occurred in this case. Hence, the burden of proof was upon the state to show affirmatively that the search and seizure were justified under one of the well-recognized exceptions to the warrant requirements of the Fourth Amendment and the state constitution. State v. Hatfield, 364 So.2d 578 (La.1978); State v. Braud, 357 So.2d 545 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

The state claims that the evidence was seized pursuant to a valid inventory search. Accordingly, the state bears the burden of showing that (1) the impoundment of the defendant’s vehicle was necessary, and (2) the inventory of the vehicle’s contents was necessary, and reasonable in its scope. State v. Jewell, 338 So.2d 633, 638, citing Annotation, Inventory Search of Impounded Vehicles, 48 A.L.R.3d 537, 544 (1973). See also, 2 LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 7.4(a) (1978). Some of the factors which this Court has considered significant in determining if the state has carried its double burden are whether: the vehicle could have remained safely at or near the place it was stopped; the search was conducted in the field; formal impoundment procedures were followed; the tow truck was called before commencing the search; the vehicle operator was asked if he consented to a search, if the car contained valuables, or if he would consent to the agency’s failure to afford him the protection of an inventory search; arrangements could have been made for someone designated by the operator to take possession or protective custody of the vehicle for him. State v. Killcrease, 379 So.2d 737 (La.1980); State v. LaRue, 368 So.2d 1048 (La.1979); State v. Schmidt, 359 So.2d 133 (La.1978); State v. Hatfield, supra; State v. Gaut, 357 So.2d 513 (La.1978); State v. Rome, 354 So.2d 504 (La.1978).

Applying these factors to the present case I conclude that the state failed to show either that the impoundment was necessary or that an inventory of the car’s contents was required. First, the vehicle was stopped on the side of a highway inside the city limits of Gonzales in front of the Colonial Drive Inn; one of the defendant’s companions offered to stay with the vehicle while he was booked at the station in the same town. The record is devoid of any convincing evidence that the vehicle could not have been left locked and under the watch of the companion at or near the place it was stopped. Second, the defendant was not asked for his consent to the search; he was not asked to consent to waive the protection of an inventory search; the officer was unable to produce the inventory record at the motion to suppress hearing; and the search was conducted in the field rather than the place of impoundment. Moreover, the record is not clear whether the tow truck was called before or after the search began. In my opinion, the totality of the evidence fails to show that either the im-poundment of the vehicle or the inventory search were necessary to the arrest of the defendant for DWI and speeding in this case.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Robert L. WADE.
    No. 67565.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Cornelius Regan, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Orleans Indigent Defender Program, Howard McCurdy, Dwight Doskey, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

This case is an appeal from a conviction for armed robbery. La.R.S. 14:64. The single assignment of error challenges the trial court’s denial of a motion to suppress physical evidence, a statement given to the police and a one-on-one identification made by the victim.

On January 24, 1979 at approximately 8:10 p. m., two plainclothes police officers were patrolling the New Orleans French Quarter in a blue and white “unmarked typical Ford LTD, the type police use”. The officers observed the defendant, Robert Wade, walking in a hurried manner and continually turning his head “as if looking for someone”. The officers decided to keep Wade under surveillance for a few minutes as they approached him from the rear in their vehicle. As the car drew nearer to Wade, he caught sight of it and immediately began to run. The officers felt that Wade’s actions indicated that he had just perpetrated a crime, so they decided to question him. The officers raced their vehicle until they had pulled alongside Wade. At that time, they stopped and jumped out of their vehicle, identified themselves as police officers, and blocked Wade’s path, thereby stopping him.

Officer Oris Buckner explained that they did not draw their pistols when they began walking toward Wade because they could see Wade’s hands and he made no sudden move to reach for anything on his person. Buckner testified that because of the nature of Wade’s conduct and his presence in a high crime area, he felt that his own safety was in jeopardy and, for this reason, Wade was frisked. The frisk resulted in the seizure of a .38 special chrome-plated revolver from a shoulder holster type bag concealed under Wade’s jacket. Wade was immediately arrested for carrying a concealed weapon. The officers also recovered $68.

Their curiosity aroused, the officers radioed their dispatcher and asked if there had been any recent reports of robberies or other crimes involving guns in the area. A reply came back that there had just been a robbery perpetrated at Makin’s Grocery, approximately 5 to 7 blocks from the scene of Wade’s arrest. The officers, after informing Wade of his Miranda rights, told him that he was under suspicion for the crime of armed robbery. En route to Makin’s Grocery, Wade allegedly stated that he committed the robbery at Makin’s.

When the officers arrived at the robbery scene, they stood outside the picture window of the grocery with Wade. Craig Le-Blanc, the victim of the robbery, was standing inside the store. He glanced through the window and immediately identified Wade as the perpetrator. Wade fit the same description as the man described to the police by Mr. LeBlane before the one-on-one confrontation occurred.

Defendant contends that the actions of the police in stopping and frisking him were illegal and that, therefore, all evidence obtained as a result of the initial confrontation was inadmissible.

The landmark case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), established that the constitution permits a police officer to investigate possible felonious criminal behavior by temporarily stopping and questioning a suspect where there is reasonable cause to believe that a crime has been or is about to be committed. This “stop” can be effected even though there is not sufficient probable cause to subject the suspect to a full custodial arrest. Further, a police officer has the right to conduct a limited “frisk” for weapons after making the investigatory stop when he has drawn a specific reasonable inference from facts and experience that he is dealing with an armed and dangerous individual. The principles embodied in Terry and its progeny provide the constitutional basis for C.Cr.P. art. 215.1, the Louisiana “stop and frisk” statute.

In defining reasonable cause sufficient to justify an investigatory stop, this Court stated in State v. Chopin, 372 So.2d 1222, 1224 (La. 1979);

“[Reasonable cause is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference.”

At the time the officers decided to stop defendant, they had no knowledge that a crime had been recently committed, nor had they observed the defendant committing any crime. In the past, this Court stated that startled looks, State v. Truss, 317 So.2d 177 (La. 1975), or nervousness, State v. Chopin, supra, at the approach of the authorities do not provide reasonable grounds for an investigatory stop. On the other hand, the officers had "not only defendant’s nervousness (“looking around”) but also his apparent sudden flight through a “high crime” area. In State v. Cook, 332 So.2d 760, 763 (La. 1976), this Court held that a defendant’s actions “. .. in an area of nighttime robberies and purse snatchings . .. consistent with an intention to commit this type of crime ...” sufficient to justify an investigatory stop. In State v. Taylor 363 So.2d 699, 703 (La. 1979), this Court also observed (albeit in dicta) that defendant’s sudden reaction to the presence of the police (in that case, from a fast walk to slow), coupled with his presence at night “in an area where robberies, rapes and purse-snatchings are common”, supported a stop and frisk.

The Taylor case is factually distinguishable from the present case in that the defendant fled after viewing the police officer riding in a marked vehicle rather than an unmarked one. However, this distinction does not compel a different result so long as the police officers reasonably believed that Wade knew their identity and reasonably believed that his actions were indicia of criminality.

The testimony of Officer Buckner at the suppression hearing and the trial established that the officers were riding in the same type of vehicle that the marked patrol utilized. He stated that the car was blue and white, although it was not the same blue and white “as a regular police car”. Officer Buckner also pointed out that it is common knowledge that this particular type of vehicle is utilized for unmarked patrol. This knowledge gained from experience as a police officer when coupled with the defendant’s immediate flight through a high crime area upon seeing the vehicle in which Officer Buckner was riding, was more than enough for him to reasonably suspect that he had. been recognized as a police officer, and that some criminality was underway. Thus, the investigatory stop was lawful.

In State v. Hunter, 375 So.2d 99 (La. 1979), this Court pointed out that merely because there are reasonable grounds to justify a lawful investigatory stop, such grounds do not automatically justify a frisk for weapons. The basis for that statement was the implicit realization that criminality and weaponry are neither synonymous nor mutually inclusive. However, because there often is an overlap between the two, in many situations the circumstances that justify the stop also warrant the frisk. See State v. Taylor, supra.

The purpose of allowing a limited weapons search is to prevent harm to police officers by allowing action prior to a crisis stage. Terry, supra. Police officers are not required to stand by and give a suspect the first move before taking action. “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. Equally important is the protection of the suspect, presumed innocent by law, from the harm that could result to him should he naively do an act interpretable as reaching for a weapon at a time when a police officer may reasonably suspect the presence of a weapon. Within this class of actions could be such innocent acts as reaching into the back pocket to produce a wallet or thrusting a hand into a jacket for a pack of cigarettes.

The frisk of the defendant was supported by reasonable cause. The officers knew they were riding in a high crime area where violent crimes were numerous. They observed the defendant walking nervously. This alone would not lead a reasonable person to believe that the defendant was armed. But when the defendant appeared to “make” the officers as policemen and began to flee, the very same action which gave the officers reasonable cause to make the investigatory stop also appeared to indicate that the defendant was worried about apprehension for more than just a minor crime. The presence of a weapon on the defendant was certainly something the officers could rightly fear when they halted his flight by “cornering” him and identifying themselves as police officers. Further, the defendant was wearing a leather jacket, thereby rendering a visual search for a suspicious “bulge” in his clothing inadequate to insure their safety-

The defendant contends that an opposite result is required by the decision of the United States Supreme Court in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In Ybarra, the police had obtained a warrant to search a bartender and the area behind his bar counter for heroin. The warrant was served during business hours, and several customers, including Ybarra, were frisked and then searched. Ybarra’s conviction for possession of heroin (resulting from the search) was reversed because although the bar and its owner appeared .connected with heroin traffic, there was no specific reason to suspect that Ybarra was armed and dangerous and, consequently, no legal justification for a frisk.

The instant case is clearly distinguishable from Ybarra. Ybarra was searched simply because he was present in a place for which a search warrant had been issued. The warrant did not extend to patrons and Ybarra did nothing to indicate either that he was somehow associated with a crime or that he was armed. In the present case, the defendant, through his own actions, indicated to the police officers that he possessed guilty knowledge, Terry, 392 U.S. at 66, 67, 88 S.Ct. at 1904, by his act of fleeing at the sight of the officers, and this, coupled with the other facts previously mentioned, justified the stop and frisk of Wade.

After the frisk, the officers had probable cause to place the defendant under custodial arrest for carrying a concealed weapon and to seize the weapon. Further, other evidence pursuant to a full search following arrest is equally admissible.

In light of our holding that the defendant was lawfully stopped and frisked, the defendant’s contention that the statement given by the defendant and the one-on-one confrontation made by the victim were inadmissible products of an illegal arrest is, a fortiori, without merit.

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

AFFIRMED.

DIXON, C. J., dissents.

CALOGERO, J., concurs.

DENNIS, J., dissents being of the opinion there was not reasonable cause for the stop.

      . La.C.Cr.P. art. 215.1 reads as follows:
      “A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.
      “B. When a law enforcement officer has stopped a person for questioning pursuant to this Article, and reasonably suspects that he is in danger of life or limb, he may search the outer clothing of such person for a dangerous weapon or for any other thing the possession of which may constitute a crime.
      “C. If the law enforcement officer finds a dangerous weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”

      . “In determining whether the ruling on defendant’s motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case [citations omitted].” State v. Fisher, 380 So.2d 1340, 1342, note 1 (La. 1980).

      . The exchange between defense counsel and Officer Buckner was as follows (Tr. pp. 65, 66):
      “Q. Now there is no way he [defendant] could tell that was a police vehicle, is there? A. Yes, sir. We drive through the project every day and kids five years old know we are policemen.
      * * * * * *
      Q. It’s a non-descript car, isn’t it?
      A. It’s an unmarked typical Ford LTD,'the type police use.
      Q. Isn’t the purpose of it so people won’t know it’s a police car? The same reason you all were wearing plain clothes instead of uniforms.
      A. Yes, sir. That was their initial intentions (sic).
      Q. So this man saw two men in a car that wasn’t a police car, so there is no reason he could know that you all were policemen, is there?
      A. Yes, sir. Usually these types of cars are known on the street from doing police work, such as stopping people or going on calls and the public will see them and know that they are police cars.
      Q. If everybody knows that you all are policemen, why don’t you go out in regular police cars and wear uniforms?
      A. I can’t answer that. You would have to take that up with the police administration.”

      . It is important to note that the record is devoid of any testimony which would indicate that the police officers actively created the grounds for the street encounter by somehow forcing the defendant to run. See State v. Saia, 302 So.2d 869 (La. 1974).


author: WATSON, Justice.

text:
    STATE of Louisiana v. Keith A. REED.
    No. 67233.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.
    Donald R. Miller, Shreveport, for defendant-appellant.
   WATSON, Justice.

Defendant, Keith Arnold Reed, was convicted by an eleven to one jury vote of aggravated arson, in violation of LSA-R.S. 14:51. The sentence was five years at hard labor, the statutory minimum. Reed has appealed from his conviction and sentence, assigning five errors in the trial court.

FACTS

Late at night, on November 17, 1978, the Shreveport home of the Reverend and Mrs. Sammy Williams was destroyed by fire. The occupants were awakened by a popping noise and escaped without injury.

Keith A. Reed had attended a nearby party that evening and had left, looking for his brother’s car. As he walked along, he flipped lighted matches. He cut through the J. C. Davis yard, and some clothes on a line were burned. Davis and Williams are back door neighbors. Reed continued on the path between their yards and arrived at the Williams’ residence.

A neighbor across the street, Ora Lee Wright, saw the boy in the carport. Her testimony was that he threw a lighted rope in the back of the Williams’ van and then squatted down for a few seconds in the back corner of the carport. There was a “firecracker” sound, and the blaze appeared. (Tr., Vol. 3, p. 9) The boy drove off in Charles Flournoy’s Mercury automobile, which had the keys in the ignition.

Two five gallon cans of kerosene and cleaning fluid, some lumber and a small can of motor oil were stored under the Williams’ carport. The fire originated on the outside back wall of the carport. Keith Reed was apparently unacquainted with the Reverend and Mrs. Williams.

The next morning the Mercury was in a ditch by a Mrs. Sheperd’s home. She called Keith Reed’s father, who talked to his son and told him to report his unauthorized use of the automobile to the police. Keith Reed was taken into custody at 8:50 A.M. At the police station that morning, Saturday, November 18, Keith was advised of his rights, handcuffed and put in a police car. He was taken to the Shreveport City Jail.

Keith Reed was born November 11, 1961, and was only a few days past his seventeenth birthday when the fire occurred. He was in the twelfth grade in high school. After the arrest Saturday morning, Keith saw his parents briefly on Sunday afternoon, November 19, for about ten minutes. Captain Robert E. Mayence, Jr. of the Fire Department and Detective Fuller had advised Mr. Reed that they were going to charge his son with arson; that he could not be held in the city jail longer than seventy-two hours; and that he would be in court on Monday morning. When Mrs. Reed asked about bond, the officers advised her and her husband to be in court Monday morning. Mr. Reed told his son that he was going to employ an attorney for him and did so early Monday morning, November 20.

Mr. Reed engaged an attorney on Monday around 9:30 A.M. The two appeared in court at 10:00 A.M. but could not locate Keith. The attorney’s first inquiries at the jail were unsuccessful. He was finally advised that the boy would be produced in court at 2:00 P.M.; that there were transportation problems. Keith did not appear at 2:00 P.M. or again at 4:00 P.M., allegedly because of lack of transport. Each time his attorney called the jail and identified himself as the lawyer for Keith Arnold Reed. Each time he was assured his client would be in the next “jail docket”. (Tr., Vol. 1, p. 110) Keith failed to appear on Tuesday morning at 10:00 A.M. and again on Tuesday afternoon. A writ of habeas corpus was filed on Tuesday afternoon. Keith was then transferred from the city jail at 7:50 P.M. Tuesday night. He was booked for aggravated arson and unauthorized use of an automobile at that time. He was not produced in court until 10:00 A.M. on Wednesday, November 22, the first time he saw his lawyer.

Keith made three oral statements on November 18. Early on November 19, he made a recorded statement in which he admitted flipping matches at the clothes in the Davis’ yard but denied using any matches under the Williams’ carport. However, in a recorded statement on Tuesday morning, November 21, Keith admitted accidentally starting a small fire in the Williams’ carport.

The only substantial issue on appeal is whether the statement given on Tuesday, November 21, should have been suppressed.

Keith Reed was not brought before a judge within seventy-two hours of his arrest. However, Saturdays and Sundays are excluded from the seventy-two hour maximum period provided in LSA-C.Cr.P. art. 230.1:

“A. The sheriff having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel. Saturdays, Sundays and legal holidays shall be excluded in computing the seventy-two hour period referred to herein.
“B. At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or. review a prior determination of the amount of bail.”

The primary requirement of this article is that an arrested person be brought before a judge promptly. The seventy-two hour period is the outer limit of what constitutes promptness. Keith Reed was not brought before a judge for four days. Although fully advised of his rights, he was prevented from seeing the counsel retained by his father. A person arrested has a right to confer with counsel. LSA-C.Cr.P. art. 230. It is doubtful that Keith’s nonappearance on Monday and Tuesday resulted from lack of transportation. The only reasonable inference is that Keith Reed was kept at the jail for further, more successful, interrogation. LSA-C.Cr.P. art. 228 provides for prompt booking of each arrested person. The official revision comment to the article points out that the booking requirement is a protection against improper police tactics. The effect of those tactics here was to prevent young Keith from conferring with his counsel and to encourage him to incriminate himself. Reed’s only communication with the outside world during a period of four days was a brief ten minute visit with his parents on the second day.

It appears that the last two days’ confinement, between the nineteenth and the twenty-first, undermined Reed’s resistance to questioning. Attorney Miller did not specifically request that Reed not be interrogated after he was engaged to represent him. Compare State v. Weedon, 342 So.2d 642 (La.,1977). However, this was only because the jail personnel repeatedly told Miller that his client was going to be produced.

Unaware that an attorney had been retained for him, Keith Reed waived his right to the assistance of a lawyer. However, it is doubtful that the waiver he signed on November 21, while his counsel was attempting to locate him, was an informed one. State v. Jackson, 303 So.2d 734 (La.,1974). Whether there has been an intelligent waiver of the right to counsel is determined from the particular circumstances of each case. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Here, the effect of not booking Reed “promptly” and not taking him before a judge “promptly” was his un-counselled self-incrimination. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). A young and unsophisticated boy was the focus of an accusatory interrogation while his lawyer was expecting him in court. This continued for two days after the lawyer was retained. An “.. . incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights.” Miranda v. State of Arizona, 384 U.S. 436 at 476, 86 S.Ct. 1602 at 1629, 16 L.Ed.2d 694 (1966). Even though Reed’s attorney did not physically present himself at the jail, access to his client was effectively denied. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). When the government interferes with the Sixth Amendment right to counsel by giving erroneous information to a defendant’s attorney, it cannot take advantage of any time gained by that ploy to obtain incriminating statements.

The trial court erred in not suppressing the statement given by Keith Reed on Tuesday, November 21.

For the foregoing reasons, the judgment of the trial court herein is reversed and the matter is remanded for a new trial.

REVERSED AND REMANDED.

MARCUS, J., dissents.


text:
    STATE of Louisiana v. Clarence SIMMONS and Sammy Bernard.
    No. 67655.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Sonia D. Peters and Ronald R. Inderbitzin, Asst. Dist. Attys., for plaintiff-appellee.
    Leon L. Emanuel, Shreveport, Indigent Defender Program of Caddo Parish for defendants-appellants.
   WATSON, Justice.

Defendants, Clarence Simmons and Sammy Bernard, were caught red-handed at midnight on December 9, 1978, inside the Medic Pharmacy in Shreveport, Louisiana. The two, armed and equipped with all the necessary paraphernalia for burglary, were apparently attempting to enter the narcotics storage room. Both were convicted of attempted simple burglary of a pharmacy and sentenced to four and a half years at hard labor without benefit of parole, probation or suspension of sentence. After a multiple offender hearing, the previous sentences were vacated and the two were sentenced as multiple offenders to life imprisonment without benefit of parole, probation or suspension of sentence. Both defendants have appealed, alleging, respectively, thirty-nine and forty-two assignments of error. Because Bernard’s assignment of error number ten and Simmon’s assignment of error number seven, relating to prospective juror Carter, have merit the other assignments of error will not be considered.

Mrs. Sherrie Carter is an investigator with the Caddo Parish Sheriff’s Department. She was eligible to claim exemption from jury service. LSA-C.Cr.P. art. 403; Louisiana Supreme Court Rule XXV, Section 2(c). However, in a commendable spirit of public service, she expressed her willingness to serve. Louisiana Supreme Court Rule XXV, Section 3. Mrs. Carter was challenged for cause on behalf of both defendants but the challenge was denied. A peremptory challenge was used to excuse her from service. Defendants exhausted their peremptory challenges and are therefore entitled to complain on appeal of an erroneous overruling of the challenge for cause. State v. Ballard, 337 So.2d 481 (La., 1976); State v. Madison, 345 So.2d 485 (La., 1977); State v. McIntyre, 365 So.2d 1348 (La., 1978).

Mrs. Carter testified on voir dire that she is acquainted with the majority of the employees in the District Attorney’s office and deals with them in her work as a deputy sheriff. She has a master’s degree in law enforcement and had been with the Sheriff’s office for one year, specializing in crimes against women. She has made approximately twenty-five arrests and has participated in judicial proceedings as a witness. Mrs. Carter had herself been a crime victim two years before trial. She has not seen any instances where the Sheriff’s Department has arrested the wrong person for a crime. From her attendance at various special schools, Mrs. Carter was acquainted with the four officers scheduled to testify on behalf of the State, Michael W. Newman, Mike Burns, John Snell, and David Ford Lewis. Mrs. Carter said that she would not have any problems in applying the Judge’s instructions to the facts. However, one with a graduate degree in law enforcement, employed by the Sheriff’s office, and working closely with the District Attorney’s office, must be affected by that employment relationship. It is reasonable to conclude that it would have influenced her verdict. LSA-C.Cr.P. art. 797; State v. McIntyre, supra. The guarantee of an impartial trial in Article 1, Section 16, of the Louisiana Constitution of 1974 is offended by the presence on a jury of a badge-wearing law enforcement officer. See Gaff v. State, 155 Ind. 277, 58 N.E. 74 (1900); Robinson v. Territory of Oklahoma, 148 F. 830 (U.S. 8 Cir. 1906); Tate v. People, 125 Colo. 527, 247 P.2d 665 (1952); State v. West, 157 W.Va. 209, 200 S.E.2d 859 (1973). Deputy sheriffs have served on Louisiana juries. State v. Reese, 250 La. 151, 194 So.2d 729 (1967); State v. Foster, 150 La. 971, 91 So. 411 (1922); and State v. Forbes, 111 La. 473, 35 So. 710 (1903). However an actively employed criminal deputy sheriff is not a competent criminal juror. Any jurisprudence to the contrary is expressly overruled. Compare State v. Bailey, 261 La. 831, 261 So.2d 583 (1972) and State v. Hunt, 310 So.2d 563 (La., 1975). The trial court erred in failing to sustain the challenges for cause and requiring the exercise of a peremptory challenge for Mrs. Carter.

For the foregoing reasons, the convictions and sentences herein are reversed and set aside and the matter is remanded for new trials.

REVERSED AND REMANDED.

DIXON, C. J., recused.


author: DENNIS, Justice. MARCUS, Justice BLANCHE, Justice

text:
    Mrs. Marie Camps OSTER v. WETZEL PRINTING, INC., et al.
    No. 66687.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      Sidney F. Braud, Leonard B. Levy, New Orleans, for plaintiff-applicant.
    Rene A. Curry, Jr., New Orleans, for defendants-respondents.
   DENNIS, Justice.

In this workers’ compensation case we must determine if the plaintiff, a sixty-one year old bookbinder whose hand was severely injured in her employer’s machine, is unable “to engage in any gainful occupation for wages” within the meaning of La.R.S. 23:1221(2) (Supp.1975) and thus should be awarded compensation for permanent total disability. A commissioner appointed by the trial court determined that the plaintiff, Mrs. Oster, was totally and permanently disabled. Initially the trial court concurred in all respects with the commissioner’s report, but subsequently awarded Mrs. Oster only permanent partial disability compensation. The court of appeal decided total temporary disability compensation for a period of 104 weeks should be awarded, otherwise affirming the trial court judgment. We reverse and amend the judgment of the court of appeal to award Mrs. Oster permanent total disability benefits.

In determining whether an employee is permanently and totally disabled, it is not a prerequisite that he be absolutely helpless. If the evidence of his physical impairment and of other such factors as his mental capacity, education, and training indicates that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist, the injured employee is entitled to total disability compensation unless the employer or his insurer is able to show that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to his residence. In the present ease, the plaintiff’s employment capabilities were severely restricted because of her emotional, educational, and physical limitations, as well as her age, and the employer did not demonstrate the existence of an actual job in the employee’s general locality at which she has a reasonable opportunity to be employed. Thus, Mrs. Oster is properly deemed totally and permanently disabled and is entitled to benefits calculated on that basis.

On December 1, 1976, while Mrs. Oster, a sixty-one year old bookbinder employed by Wetzel Printing, Inc., was attempting to unclog a printing machine, a fellow worker restarted the machine. The plaintiff’s right hand became entangled in the gears and could not be extracted for roughly one hour. As a result of the incident, Mrs. Oster lost large portions of the index and middle fingers of her right hand and sustained a severe laceration of her ring finger as well.

Wetzel’s workers’ compensation insurer, United States Fidelity and Guaranty Company, paid the plaintiff benefits of $92.24 per week for 41 weeks. Thereafter, the insurer tendered an offer of $37.98 per week for 107 weeks, corresponding to 41% of the schedule loss for a hand under La. R.S. 23:1221(4)(e) and (o). The plaintiff refused this offer and filed suit claiming that she was totally and permanently disabled.

The trial judge appointed a commissioner to evaluate the evidence presented and make recommendations. The commissioner made a thorough report in which he determined that the plaintiff was totally and permanently disabled. The testimony heard by the commissioner was given by two orthopedic surgeons, Dr. Stokes and Dr. Licciardi; a psychiatrist, Dr. Diamond; and by the plaintiff, Mrs. Oster.

Dr. Stokes was the treating physician and had close contact with the plaintiff from the date of injury until he discharged her June 6, 1977. He made no further examination of the plaintiff in the intervening period of slightly over one year before trial on August 15, 1978. Dr. Stokes had performed the surgery amputating the portions of the index and middle fingers and stitching the laceration on the ring finger. Upon discharge of Mrs. Oster, he estimated that she suffered a permanent total impairment of the middle finger, 85% impairment of the index finger and 35% impairment of the ring finger of her right hand. Dr. Stokes testified that in his opinion this translated to a 40.5% disability of the right hand. He found that the plaintiff suffered from hypersensitivity, a condition common in amputation cases in which the injured area becomes extremely sensitive and the slightest touch sometimes causes great pain. Dr. Stokes testified that at the time of discharge of Mrs. Oster, her hypersensitivity had diminished and was within acceptable levels, and that he felt the pain would further subside. He recommended that she try to use her hand to find the extent of her disability. He stated the plaintiff was employable “within the confines of her amputation,” but did not know what work would be within those confines, nor just what Mrs. Oster’s former duties as. a bookbinder entailed.

Some nine months after being discharged by Dr. Stokes, Mrs. Oster was seen by a second orthopedic surgeon, Dr. Licciardi, for evaluation purposes. Consistent with Dr. Stokes’ findings, Dr. Licciardi found that the impairment of Mrs. Oster’s right hand was between 35 and 45% with residual nerve damage and some numbness of the fingers. Contrary to Dr. Stokes’ prediction, however, Dr. Licciardi also found that the plaintiff still suffered to a significant degree from hypersensitivity. He noted that the pain generally decreases with time, but did not expect this in Mrs. Oster’s case since he examined her well over one year after the accident. This combination of sensitivity and numbness caused a marked lack of coordination, which in his opinion, would preclude Mrs. Oster from performing a job that required the use of both hands.

In addition to plaintiffs physical injuries, Mrs. Oster suffered an emotional problem as the result of the accident. On November 4, 1977, Dr. Diamond, a psychiatrist, examined plaintiff and diagnosed her condition as a post-traumatic psychoneurotic reaction with marked anxiety and depression. According to Dr. Diamond, plaintiff has a marked depression which centers on the present deformity of her hand. She also has acquired a fear of machines and a feeling of being of little worth because of her inability to work. The doctor recommended two years of psychiatric treatment. The plaintiff, however, could not afford to pay the approximately $6240 that such a treatment would cost.

On May 10, 1978, Dr. Diamond again examined Mrs. Oster finding minimal improvement. The plaintiff was still very emotional and depressed. The doctor testified that therapy with individuals over 55 is a slow process and was pessimistic about Mrs. Oster’s chances of improvement. In his opinion, Mrs. Oster’s ability to return to gainful employment at that time was “zero.”

Mrs. Oster testified that she was 61 years old at the time of the accident. She had been employed for 12 years at various printing shops throughout the city, working for the last six and one-half years at Wetzel Printing. Her work at these printing shops, as well as all her previous jobs, required the use of both hands. She had no formal education past one year of junior high school. She testified further that she had trouble doing even simple household chores and believed that, since her trade emphasized speed and production, her old duties were beyond her capabilities. Mrs. Oster testified that her former employer did not contact her after her accident.

Based on the evidence presented to him, the commissioner recommended that the plaintiff be declared totally and permanently disabled. The trial court accepted the findings of evidentiary facts proposed by the commissioner. He concluded, however, that these facts warranted an ultimate conclusion that plaintiff was only partially, permanently disabled.

On appeal to the fourth circuit, the judgment of the trial court was modified. The appellate court held that plaintiff’s disability was primarily psychological. In fact, that court disregarded the physical disability noting that “the only disability that this record established would ‘hopefully’ (if guardedly) be eliminated by two years of psychotherapy.” Oster v. Wetzel Printing, Inc., 378 So.2d 195, 196 (La.App. 4th Cir. 1980). Based on this conclusion, the court of appeal awarded plaintiff benefits from temporary total disability for 104 weeks.

The crucial question in this case is one of statutory construction: What degree of impairment disables an employee “to engage in any gainful occupation for wages?” Although the trial court and the court of appeal failed to set forth a definition of inability to engage in any gainful occupation for wages, it is apparent these tribunals thought it requires that an employee be completely helpless or, at least, completely unemployable. We reject this position as being contrary to the aim of the legislation in view of its language, history, and social purpose.

Prior to the 1975 amendment of La.R.S. 23:1221(2), redefining total and permanent disability, the statute provided that a worker would be deemed totally and permanently disabled if he was unable to “do work of any reasonable character.” Under the jurisprudential interpretation of this language, an injured employee was found totally and permanently disabled in virtually all cases in which he was no longer able to do the same or similar work as that in which he was engaged at the time of the injury. Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9 (1932). Criticism of the interpretation made by this Court in Knispei and its progeny has surfaced intermittently. For example, Professor Arthur Larson states that in this line of cases Louisiana courts have all but forgotten the normal meaning of total disability while making artificial and contradictory distinctions turning on the similarity of claimant’s post-injury occupation to that immediately preceding the injury. Larson, The Law of Workmen’s Compensation, § 57.22, pp. 10-48 (1976). The Knispei interpretation resulted in an unusually high percentage of total and permanent disability awards when compared with workers’ compensation cases in other states, Malone & Johnson, Workers’ Compensation § 273 in 13 La.Civ.L. Treatise 606 (2d ed. 1980). According to Professors Malone and Johnson, factors such as the relatively low level of benefits payable at the time and the inability of courts to exercise continuing supervision over compensation awards probably influenced them to err in favor of finding the worker totally disabled. Malone & Johnson, supra, at § 274, pp. 607-615. If a court overestimates an injured worker’s ability to rejoin the workforce, not only does the worker suffer a personal tragedy, but also the public fisc may be further burdened.

In 1975, La.R.S. 23:1221(2) was revised to constrict the broad “same or similar occupation” formula then being applied by the courts. Total disability compensation can now be obtained only if the employee is unable “to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged . . . . ” La. R.S. 23:1221(2) (Supp.1975). It was not the aim of the legislative revision, however, to require that an employee be completely helpless before he could recover total and permanent disability compensation. The extensive amendments made in 1975 more likely represent a compromise between labor and industry: employers benefiting from a narrower definition of total disability, and employees receiving increased benefits, both in amount and duration of payments. The possibility that an injured employee could obtain a higher paying job in a dissimilar field and still receive total disability compensation was eliminated. Nevertheless, most of the basic reasons supporting the Knispel doctrine originally still exist except for the now greatly increased benefits payable and weigh against reading the statute too restrictively. Malone & Johnson, Workers’ Compensation, supra, § 276. If the legislative purpose had been to replace the extremely broad Knispel formula with a definition for total disability more restrictive than that of any other jurisdiction, surely the drafters would have chosen a more restrictive definition: “unable to engage in any gainful occupation for wages” is not synonymous with “unable to obtain employment.” Malone & Johnson, Workers’ Compensation, supra, § 276 at pp. 625-26; Johnson, Work of the Louisiana Appellate Courts 1977-78, 39 La.L.Rev. 881, 892-93 (1979). Furthermore, a requirement that an employee be utterly helpless in order to recover total permanent disability benefits would violate the compensation principle that those persons who enjoy the product of a business should ultimately bear the cost of the injuries or deaths that are incident to its production. Malone & Johnson, Workers’ Compensation, supra, § 32. An injured employee, finding himself at a severe disadvantage in competing with healthy counterparts in any recognized labor market, should not be forced to bear his economic loss alone, unaided by the enterprise his labor has benefited.

Other jurisdictions with similar total disability statutes in keeping with the basic principle of workers’ compensation, have developed a body of interpretations known as the “odd-lot” doctrine. E. g., Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977); Interlake Steel Corp. v. Industrial Comm’n, 60 Ill.2d 255, 326 N.E.2d 744 (1975); Barbato v. Alsan Masonry & Concrete, Inc., 64 N.J. 514, 318 A.2d 1 (1974); Deaton v. State Accident Ins. Fund, 13 Or.App. 298, 509 P.2d 1215 (1973); Facciolo Paving & Const. Co. v. Harvey, 310 A.2d 643 (Del.1973); Brown v. Safeway Stores, 82 N.M. 424, 483 P.2d 305 (App.1970); Reese v. Preston Marketing Assoc., 2114 Minn. 150, 142 N.W.2d 721 (1966); Nordahl v. Erickson, 174 Neb. 204, 116 N.W.2d 275 (1962). Although any one sentence description of the doctrine necessarily tends to oversimplify it, some treatise writers have provided helpful starting points for understanding it as applied by the courts. Professor Johnson observes:

“Simply stated, this doctrine is that a claimant may be considered totally disabled if, after his injury, he is considered an ‘odd-lot’ in the competitive labor market, i. e., that he may be capable of holding various jobs from time to time, but that the kind of work he may perform is so limited in quality, dependability or quantity that a reasonably stable market for that work does not exist.” Johnson supra, 39 La.L.Rev. at 889.

In his treatise on workers’ compensation, Larson says that the essence of the odd-lot doctrine, which has been accepted in virtually every jurisdiction, is

“the probable dependability with which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the super-human efforts of the claimant to rise above his crippling handicaps.” Larson, supra, § 57.51, pp. 10-109 and 10-119.

In order to determine whether the plaintiff fits within this category of odd-lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he “cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity.” Reese v. Preston Marketing Assoc., 274 Minn. 150, 142 N.W.2d 721, 723 (1966). If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with “a gainful occupation.” It is fairer to place the burden on the defendant to show that there are steady jobs available to the plaintiff, after plaintiff has shown his odd-lot status, than to require the plaintiff to prove the universal negative of not being employable at any occupation. Brown v. Safeway Stores, 483 P.2d 305, 308 (N.M.App.1971); Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360, 1363 (1977); Larson, supra, § 57.61 at pp. 10-136-137. This apportionment of the burden of proof is equitable in our jurisdiction for the additional reason that the Louisiana statutory scheme does not include any effort to rehabilitate the injured worker. Thus, for all the reasons stated above and because we consider the doctrine to be consistent with the underlying policy and purpose of our workers’ compensation statute, and essential to its interpretation in accordance with the compensation principle, we conclude that the odd-lot doctrine should be employed as the guiding concept in determining permanent total disability.

Applying the odd-lot analysis to the facts as found by the commissioner and adopted by the trial court, we hold that the plaintiff is totally and permanently disabled.

Plaintiff’s evidence shows that she was 61 years old at the time of the accident in December, 1976. She has no formal education beyond one year of junior high school and her previous employment has been limited to manual labor, for the past fifteen years as a skilled journeyman bookbinder. She is right-handed. Parts of her index and middle fingers of that hand were amputated. Her ring finger was severely injured and partially disabled. Because of the injuries of these fingers, the plaintiff still suffers from hypersensitivity. According to the unrebutted testimony of the psychiatrist, she suffers from a psychoneurotic reaction to her injury, is emotional and depressed. Although the psychiatrist recommended a two-year course of therapy, and thought it possible Mrs. Oster would realize some improvement at the end of this time, he stated that her “prognosis at best is guarded.” At the time of the trial, the psychiatrist rated her ability to return to gainful employment as “zero.”

We conclude that Mrs. Oster established a prima facie case that she is totally and permanently disabled. The evidence shows that, because of her severely injured hand, her neurosis, her lack of education and her age, she can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist.

The evidence introduced by the defendant fails to rebut a finding that Mrs. Oster is permanently totally disabled to engage in a gainful occupation for wages. The defendant offered only the testimony of the treating physician to rebut the plaintiff’s showing of permanent, total disability. Dr. Stokes testified that he had advised Mrs. Oster to try to go back to work, but never made an unqualified statement that she was able to work. His testimony reflected more the nature of advice that use of the hand might prove therapeutic. We agree with the commissioner that Dr. Stokes’ testimony regarding the plaintiff’s ability to return to work was “vague and indefinite.” Also Dr. Stokes did not examine the plaintiff after June 6, 1977 which was over one year prior to trial. We find the defendant’s evidence insufficient to rebut Mrs. Oster’s showing that she can perform no services other than those which are so limited that a reasonably stable market for them does not exist. Accordingly, we hold that the plaintiff is entitled to an award of total and permanent disability benefits.

Decree

For the reasons assigned, we amend the judgments of the previous courts so as to award the plaintiff total and permanent disability benefits commencing October 5, 1977 for as long as the plaintiff’s disability continues, together with legal interest on all past due installments and for all costs of these proceedings. The judgment of the court of appeal is affirmed with regard to the award of penalties and attorney’s fees.

REVERSED IN. PART; AFFIRMED IN PART; AND RENDERED.

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

MARCUS, Justice

(concurring).

I interpret La.R.S. 23:1221(2) to mean that an employee is totally and permanently disabled when the disability makes him unable to engage in any occupation for which he is qualified. In the instant case, Mrs. Oster established by a preponderance of the evidence that, because of her severely injured hand, her neurosis, her lack of education and her age, she is unable to engage in any gainful occupation for which she is qualified. Accordingly, I respectfully concur.

BLANCHE, Justice

(concurring).

I concur based on the fact that I agree Mrs. Oster is totally and permanently disabled within the meaning of R.S. 23:1221(2), but I cannot agree with the injection of the majority’s version of the “odd lot doctrine” into our jurisprudence.

I fully agree with the majority that an employee should not be required to prove that he is. absolutely helpless before he is entitled to recover total and permanent disability benefits under La.R.S. 23:1221(2). Rather, that statute places the burden on an injured employee to prove that he is unable to engage in any gainful employment. The phrase “unable to engage in gainful employment” does not imply, as is suggested by the majority, that the employee be absolutely helpless or that he can engage only in odd jobs from time to time. Rather, in order to be able to engage in gainful employment, an employee must be able to perform activities which, individually or in combination, are the type required of him in a recognized field of work.

The statute in question, however, focuses on the employee’s physical and mental abilities or disabilities to perform such work. It does not focus on the availability of work in the area of the employee’s residence. According to the “odd lot doctrine” as set out by the majority, availability of work which the employee can perform is one of the factors in establishing a prima facie case of “odd lot” status. At the point where plaintiff establishes this status, the burden shifts to the employer to, in effect, find the employee a job that is available to him in the area of his residence in order to avoid a determination of total and permanent disability. This approach may be a socially desirable one, but it is not within the province of the judiciary to so legislate.

      . Louisiana has not previously had need of such a doctrine. Under the jurisprudence interpreting the pre-1975 law, a person who, because of his work related injury, could not go back to the same or similar employment was termed permanently and totally disabled. Therefore, our definition of permanent and total disability'was much more liberal in granting benefits than the odd-lot doctrine. Johnson, supra, 39 La.L.Rev. at 892.