author: BLANCHE, Justice. WATSON, Justice,

text:
    Sandra Leblanc SIMON et al. v. SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION et al.
    Nos. 67311, 67356.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
    Rehearing Denied Dec. 15, 1980.

      Oscar W. Boswell, II, Harrington & Boswell, Crowley, for plaintiff-applicant in No. 67311; for plaintiff-respondent in No. 67356.
    Larry T. Richard, Cline, Miller, Richard & Miller, Rayne, for plaintiff-applicant in No. 67356 and for plaintiff-respondent in No. 67311.
    Lawrence G. Pugh, Jr., Pugh & Craton, Crowley, J. J. Davidson, for defendants-respondents in both cases.
   BLANCHE, Justice.

Plaintiffs in these two lawsuits are the wives and minor children of two Acadia Parish residents who were fatally electrocuted on June 8, 1975. Plaintiffs respectively brought suits in damages for the wrongful death and for the survival action of Marvin G. Vincent and Harold John Simon against Southwest Louisiana Electric Membership Corporation (SLEMCO), the owner of the electric lines which transmitted the fatal shocks, and its insurer, United States Fidelity & Guaranty Company. The electrocutions occurred on a lot in Pine Acres subdivision near Crowley, Louisiana when a drilling pipe came in contact with, or close proximity to, an uninsulated electrical line in the course of a water well drilling operation undertaken by family members and friends of lot owner, Michael Vincent. Marvin Vincent, a brother of Michael Vincent, was electrocuted during his participation in the removal of the drilling pipe from the well hole, and Harold John Simon died from electrical shocks he received when he attempted to rescue Marvin and other persons injured in the accident.

The two lawsuits brought by decedents’ survivors were consolidated and tried before a jury in the Fifteenth Judicial District Court, Parish of Acadia. The jury returned a verdict for defendant in both instances, finding no liability on the part of SLEMCO for the deaths of Vincent and Simon. In reviewing that jury verdict, the Third Circuit Court of Appeal ruled that the verdict was not erroneous as a matter of law. 380 So.2d 1242. We affirm for the following reasons.

The undisputed facts reveal this chain of events: Michael Vincent planned to drill a water well on his land with the aid of family members and friends. The chosen drilling site proved to be approximately fifteen feet away from a point on the ground where a charged SLEMCO electrical line hung 25.1 to 26.7 feet above the ground. A few days prior to the actual drilling operation, SLEMCO employees were working near the proposed drilling site when they were informed by Percy Vincent, the father of the landowner, Michael Vincent, that they planned to drill a well there. The well had been “started”, or marked, by broken ground and the SLEMCO employees were persuaded by Percy Vincent and his offer of $5.00 to drill down a few feet through the harder ground with a mechanized auger attached to the SLEMCO truck.

On Sunday, June 8,1975, the actual completion of the drilling took place along with a Vincent family gathering and barbeque. The persons engaging in the drilling effort were Michael Vincent, his brother, Marvin (one of the decedents), their brother, Heu-lan, their father, Percy, Bufford Richard and Jerry Thompson. Harold John Simon, the other decedent, prepared the barbeque for the gathering. The parties employed a method of drilling more common in earlier times whereby lengths of %-inch pipe were attached to a hand-turned auger as the auger dug deeper into the ground. These lengths of pipe and auger were periodically pulled out of the hole so that the accumulated mud and sand could be removed from around the auger. When the flexible %- inch drilling pipe became lengthy, one of the men stood on a ladder to balance it as the entire pipe was pulled out of the hole, the auger cleaned, and the pipe fed back into the hole. It was a slow process, and approximately seven hours was spent before the desired depth was reached.

The accident occurred when the pipe was removed for the final time before plastic casing could be placed in the well hole. The pipe had, at this point, reached a length of about 42 feet. Heulan Vincent was balancing the pipe as it was removed from the hole. He stood on the ladder and grasped the pipe at approximately 18 feet above the ground. When the drilling pipe was completely removed from the hole, about 24 feet of it extended above his grip. This portion of the pipe apparently swayed over toward the nearby electrical lines as the men attempted to begin laying it down on the ground.

Electricity was transmitted through the drill pipe, fatally shocked Marvin Vincent, and injured other parties aiding in the drilling. When Harold John Simon saw what had happened, he attempted to remove the pipe with his hands from where it had fallen onto the bodies of some of the men. Upon his second attempt he, too, was fatally shocked.

There is a direct conflict in the testimony or inferences from the facts on the following key points. SLEMCO employees testified that they warned Percy Vincent, the father of the owner of the land where the well was drilled, that the selected well location was near the electric lines in question, that the lines were charged, and that it would be dangerous if any contact was made with these lines. They allegedly gave this warning when they were working near the well site a few days prior to the planned drilling and when they agreed with Percy Vincent to drill “a ways down into the ground” with the SLEMCO truck auger. Percy Vincent maintained that the SLEM-CO employees gave him no such warning.

The other major area of dispute was as to the visibility, or the knowledge, of the drilling party’s members of the existence of the electrical lines near the well site. All witnesses for the plaintiffs who participated in the drilling testified that they had never seen the wires and were unaware that they were there. The facts indicate that these lines were only approximately 15 feet from the well where the workers drilled for about 7 hours prior to the accident. Further, as related above, the drilling pipe was periodically removed from the hole and balanced in the air by a person grasping the pipe 18 feet above the ground on a ladder. The participants in the drilling operation would, therefore, have cause to frequently look upward in the course of their efforts. Although Percy Vincent was one of the drillers who testified he did not know there were power lines near the well site, SLEM-CO employees testified they informed him of the existence of these lines. Finally, a photograph of the scene of the accident introduced in evidence by the defense depicts the electrical lines. These lines were slightly obscured by trees, but appear to be visible to even a casual observer working nearby.

We recognize that electric companies who utilize and maintain high power lines are required to exercise the utmost care to reduce hazards to life as far as is practicable. Nessmith v. Central La. Electric Co., 257 So.2d 744 (La.App.3d Cir. 1972), writ den., 259 So.2d 921, 922 (La.1972). If it should be reasonably anticipated that persons may come into contact with electric lines, the operator of those lines is required to insulate them, or to give adequate warning of the danger, or to take other proper and reasonable precautions to prevent injury. Nessmith, supra. However, an electric company is not legally bound to safeguard against occurrences that cannot be reasonably expected or contemplated. Bordelon v. Continental Casualty Co., 229 So.2d 761 (La. App.3d Cir. 1969), writ den., 231 So.2d 396 (1970). We agree with the court of appeal that operators of power lines are not required to anticipate every possible accident which may occur and are not the insurers of safety of persons moving around power lines in the course of everyday living.

The power line in question was 26.7 feet above the ground at the point of contact with the drilling pipe, a height of 11.7 feet in excess of the requirements of the National Bureau of Standards Safety Rules for the Installation and Maintenance of Electrical Transmission Lines. Compliance with these safety standards does not, per se, relieve SLEMCO from negligence, and SLEMCO must take additional steps to protect persons from injury due to contact with power lines where the surface below the lines is used for reasonably foreseeable purposes. McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.1978). In 1940, when wells were more commonly drilled by the method utilized in the case at hand, the Second Circuit Court of Appeal was confronted with a factual situation similar to the instant case. Under the facts of Webb v. La. Power & Light Co., 199 So. 451 (La.App.1940), the plaintiffs husband and friends had removed a well pipe from a well hole and contacted an electrical line 24 feet above the ground and 18 feet away from the well hole. The court resolved the issue of foreseeable use and liability in favor of the defendant electric company, reasoning as follows:

“It appears to us that defendant fulfilled all legal duties imposed on it. Although the wires in question were not insulated, there was a compliance with the other alternative, namely, the placing of them beyond the danger line of contact with human beings. While engaged in the ordinary course of their affairs, pedestrians would experience no harm from them. Defendant could not have reasonably anticipated that decedent would withdraw from the ground connected well pipe of a length, here more than 30 feet, that would make contact with the transmission line. On the contrary, it could have reasonably expected that in the event of the pulling of the pipe from the well, a disassembling of it, joint by joint, would be the course pursued.” Webb, at 453.

It is admitted by all persons testifying on point in the case at hand that the lengths of pipe could have been disassembled from each other one at a time rather than removing the entire connected pipe from the hole at once.

Plaintiffs contend that their case is distinguishable from the Webb, facts. The alleged distinction is that SLEMCO was apprised, through its employees’ conversation with Percy Vincent, that a dangerous well-drilling operation would be undertaken on the Vincent property. Due to this knowledge, plaintiffs argue that SLEMCO had a duty to deenergize a line which, as admitted by SLEMCO, would deprive only one customer of service. Under the facts of this case, we find that SLEMCO owed no duty to decedents to ascertain the exact time of drilling and deenergize its line.

It is true that SLEMCO may be charged with the knowledge of its employees that a well would be drilled on the Vincent property approximately fifteen feet from the SLEMCO power lines. However, the employees testified that they warned Percy Vincent to take care in the planned drilling operation and warned him of the potential danger should contact be made with the electric lines. Percy Vincent is the well site landowner’s father, he was present at the well site a few days prior to the drilling when he requested SLEMCO to aid him in drilling a portion of the well at the point he indicated and he, in fact, participated in the actual well-drilling operation the day of the accident. Under the circumstances, this warning by SLEMCO employees to this individual, coupled with SLEMCO’s placement of these lines so that their presence was apparent to others, were sufficient to discharge the duty of care owed to the decedents by SLEMCO.

Plaintiffs cite the case of Bouré v. New Orleans Public Service, Inc., 255 So.2d 776 (La.App.4th Cir. 1971), writ ref. 257 So.2d 432 (La.1972), in which the court of appeal found a warning by an electric supplier insufficient and found it incumbent upon that supplier to deenergize its lines. We find the Bouré ease distinguishable from the instant case. In that ease, a painter received an electrical shock when a spray paint apparatus he was operating came in contact with a “live” wire while he was painting the underside of an interstate bridge. The key factual distinction between Bouré and this case is that in Bouré, the supplier of electricity was aware of the painting operation in progress, and was aware of the continuous close proximity of the painters to the electric wires as they proceeded, for weeks, to paint the bridge. The facts in the case at hand show that SLEMCO had no notice of the exact time of the drilling operation, had no knowledge of the depth to which the well was to be drilled or of the type of drilling equipment or method to be used, or how close that equipment could potentially come to the high wire lines placed 26 feet above the ground and, certainly, SLEMCO did not observe the one-day drilling operation in progress.

As we view the record, and as did the court of appeal, there is sufficient evidence to support a jury determination that SLEMCO was free from negligence in this case. The jury apparently resolved conflicting testimony against the plaintiffs and in favor of the defendants. We regard such a resolution of conflicting evidence as one of the essential functions of a trier of fact and find no manifest error in the conclusion of the jury.

Since we rule that the evidence supports a finding that SLEMCO was free from negligence, it is unnecessary to discuss any potential contributory negligence on the part of either of the decedents. Also, as the court of appeal noted, although Harold John Simon was a rescuer and, therefore, occupies a special status in the law, none of the plaintiffs may recover where SLEMCO is found to be free from any negligence.

For the above reasons, the decision of the court of appeal is affirmed.

AFFIRMED.

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

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

This matter is factually indistinguishable from Bouré v. New Orleans Public Service, Inc., 255 So.2d 776 (La.App. 4 Cir. 1971) writ refused 257 So.2d 432 (La.1972). Slem-co’s employees knew exactly where this water well was to be dug. Slemco’s employees also knew that the drilling would take place that Sunday. Slemco’s employees probably knew how the well would be drilled, that is, with a hand turned auger, because they started the well with their mechanical auger. These employees were aware of the danger; their testimony was that they warned Percy Vincent, the father of the landowner.

Since Slemco, through its employees, knew the day and location of the proposed drilling, they should have re-energized the “hot” line. In Bouré, New Orleans Public Service offered to de-energize its line. It is undisputed that this possibility was not mentioned to the Vincents by Slemco’s employees. Slemco had knowledge of the proposed activity adjacent to its dangerous line. Its employees were aware of the hazard. Otherwise, they would not have warned Percy Vincent. The warning to him was of no benefit to the others. It was not communicated to them. The danger should have been foreseen by Slemco. Slemco admitted in answers to interrogato-ríes that they had turned off electric current in a line when similar activities were taking place and no reason is shown for not doing so here.

Slemco’s “hot” line did not, in and of itself, pose an unreasonable risk of injury. However, when Slemco became aware through its employees of the proposed drilling activity, failure to shut off the power in the line that Sunday created an unreasonable risk of foreseeable harm. Allien v. Louisiana Power & Light Co., 202 So.2d 704 (La.App. 3 Cir. 1967) writ denied 251 La. 392, 204 So.2d 574. The utility of the line to the one customer it served was outweighed on this particular day by the hazard it presented to those drilling the well. Balancing the two, it is clear that Slemco should be strictly liable for the harm. Contributory negligence is not a defense to strict liability. See Rodrigue v. Dixilyn Corp., 620 F.2d 537 (5 Cir. 1980). Here, as in Dixilyn the jury was erroneously charged that contributory negligence would bar plaintiff’s recovery. Even if there were a voluntary assumption of a known risk on the part of those actively engaged in drilling the well, this would not bar recovery by rescuer Simon, who disregarded the danger and lost' his own life trying to save his friends.

I respectfully dissent.

      . There is some question whether a warning was actually issued. When John LeJeune was called on cross-examination he refused to repeat his earlier testimony to that effect. See page 163 of the transcript:
      “Q. Isn’t it a fact Mr. LeJeune that you did not tell Percy Vincent, Michael Vincent, or
      Marvin Vincent anything at all about that hot line.
      “A. (No response).
      “Q. Isn’t that a fact?
      “A. (No response).”


source: Caselaw Access Project

author: PER CURIAM. LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Robert BICE.
    No. 67331.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
    Rehearing Denied Dec. 15, 1980.
    Larry P. Boudreaux, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Robert Bice was charged in separate bills of information with attempted second degree murder, in violation of La.R.S. 14:27; 14:30.1, and armed robbery, La.R.S. 14:64. The prosecutions were consolidated, and after trial by jury beginning on December 3, 1979, defendant was found guilty as charged of both offenses. On December 21, 1979, the trial court denied defendant’s application for a new trial and thereafter sentenced him to sixty years’ imprisonment at hard labor on the armed robbery charge, and fifty years at hard labor for the attempted murder, the sentences to run concurrently. Defendant has now appealed his convictions and sentences to this Court, urging nine assignments of error filed below. We have reviewed the assignments which allege trial error and find them without merit. To this extent, defendant’s convictions and sentences are affirmed. We agree with counsel, however, that the trial court should hear the testimony of one Harold Seallon, a co-participant in the case, before ruling finally on the motion for a new trial. Accordingly, we remand this case for a rehearing of that motion.

According to the state’s theory of the case, Harold Seallon recruited defendant, together with an Ernest Arceneaux and John Costales, in a plan to extort money from a Doris Guidry. In the course of that effort, the victim was shot and stabbed when the men burst into her home. At trial, Arceneaux and Costales testified for the state, bolstering Guidry’s account of the offense and her identification of defendant as one of her assailants. For his part, defendant claimed an alibi. In the recess that followed defendant’s testimony, the prosecutor learned (apparently for the first time) that Seallon claimed defendant had helped in the planning, but did not directly participate in the assault on the victim. That account contradicted, at least in part, testimony from other state witnesses, including the victim. Informed of Scallon’s story by the prosecutor, counsel attempted to call the witness to the stand, Seallon, whose charges out of the incident were still pending, claimed his Fifth Amendment privilege, and did not testify.

At the hearing on the motion for a new trial, counsel testified that he had talked with Seallon in the parish prison after defendant’s conviction. At this time, according to counsel, Seallon completely exonerated defendant of any involvement in the offense. Counsel hoped to place this testimony before the trial court, on a claim of newly discovered evidence. La.C.Cr.P. Art. 851(3). Cf. State v. Brooks, 386 So.2d 1348 (La.1980), Seallon was again called to the stand and, with his own trial date less than three weeks away, again claimed his Fifth Amendment privilege. Accordingly, counsel suggested that the trial court postpone ruling on the motion until after Scallon’s trial date. The trial court refused any delay. It noted that “... where someone is charged with being a co-defendant with another person and subsequently . . . comes forward to give evidence favorable to a defendant, that such newly discovered evidence should be received with extreme caution ...” and that a “. .. trial judge is not compelled to credit new evidence which he considers suspicious or even incredible.”

In oral argument before this Court, counsel stated that Seallon has now resolved his case with the state on a plea bargain, and that he has again completely exculpated defendant, this time in a statement given to a probation officer conducting a presen-tence investigation. On this showing, he asks for a remand in order to pursue Scal-lon’s testimony.

This Court has repeatedly held that “[i]n considering a motion for a new trial based on newly discovered evidence, the test employed is whether the new evidence is so material that it ought to produce a different result than the verdict reached.” State v. Manning, 380 So.2d 54, 59 (La.1980) (citations omitted). Under this standard, we agree with the trial court that it should receive Scallon’s testimony with caution. See State v. Jackson, 253 La. 205, 217 So.2d 372 (1968).

Nevertheless, we think it clear that the trial court should hear that testimony before making any final determination as to its weight and materiality. Defendant’s appeal is still pending, and Scallon’s testimony is now apparently available where it was not before. We therefore deem it appropriate to remand this case for rehearing of the motion. The trial court is to determine in the context of the entire record whether Scallon’s testimony is so compelling that it ought to produce a different result before a different jury. State v. Manning, supra. In the event of adverse ruling, we reserve to defendant the right to appeal the denial of his motion for a new trial.

CONVICTION AFFIRMED; CASE REMANDED.

LEMMON, J., concurs with reasons.

LEMMON, Justice,

concurring.

Although I concur in the affirmation of this conviction with the remand for continuation of the hearing on the motion for new trial, I note what I perceive as portentous implications underlying the basic problem presented here.

It is fundamentally unfair for the prosecution effectively to preclude the presentation of evidence favorable to an accused by placing a defense witness in such a position that, by giving testimony which is exculpatory to the defendant, he must incriminate himself. Concededly, the present case does not yet present this problem, because there has not yet been a showing that the witness (the alleged mastermind of the robbery for which defendant was sentenced to sixty years imprisonment) would in fact give exculpatory testimony. Nevertheless, this court will eventually be faced with the question of judicial authority to grant immunity to defense witnesses, when the circumstances are appropriate and an adequate showing has been made.

Thus far, only the prosecution has had the availability of the powerful investigative and truth-seeking device of “use immunity”. See La.C.Cr.P. art. 439.1; 18 U.S.C. § 6002; Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Decisions of the federal courts of appeals have conflicted with regard to the relationship between the accused’s right to compulsory process and the power of the judiciary to immunize a witness on appropriate motion and showing by the accused. See Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir. 1980); United States v. Lenz, 616 F.2d 960 (6th Cir. 1980); United States v. Turkish, 623 F.2d 769 (2d Cir. 1980). While this court has previously declined the opportunity to address the problem, the divergent views expressed by the different federal circuits creates an appropriate climate for definitive treatment by the Supreme Court of the United States.

Until the issue of defense witness immunity is resolved, the appropriate procedure when a defense witness is not able to testify at trial because of self-incrimination problems, but the favorable testimony subsequently becomes available after conviction, is to file a motion for new trial or a motion for remand within any reasonable period after the witness’ testimony becomes available. If the evidence is such that the result would have been different, it is an abuse of discretion to refuse to consider the evidence.

       Article 853 provides in pertinent part that:
      • “When the motion for a new trial is based on ground (3) of Article 851, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case.


author: DIXON, Chief Justice.

text:
    Frances Mathews BAKER v. PAYNE AND KELLER OF LOUISIANA, INC., Georgia Pacific, Inc., Maryland Casualty Company et al.
    No. 67437.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.

      Maurice D. Robinson, Jr., Kopfler, Robinson & Moody, Hammond, for plaintiff-applicant.
    John S. White, Jr., Kennon, White & Odom, David W. Robinson, Watson, Blanche, Wilson & Posner, W. S. McKenzie, Taylor, Porter, Brooks & Phillips, Horace C. Lane, Lane & Clesi, Felix R. Weil, Baton Rouge, for defendants-respondents.
   DIXON, Chief Justice.

This wrongful death action was brought against several defendants, including Payne and Keller and Maryland Casualty Company, the decedent’s employer and the employer’s insurer. Both excepted, arguing that plaintiff’s exclusive remedy, as to them, was under the workmen’s compensation act. (Plaintiff was receiving workmen’s compensation benefits; Maryland later intervened to recover them if plaintiff’s suit should be successful). These peremptory exceptions were sustained, and the employer was dismissed from the suit. Maryland, however, was not dismissed; plaintiff was given fifteen days to amend and allege a cause of action against Maryland.

The original petition alleged that Fred Baker, Jr., while at work for Payne and Keller, his employer, on January 27,1976 at a Georgia Pacific, Inc. plant, suffered an injury when a piece of pipe under the care and control of an employee of either Payne and Keller or Georgia Pacific was dropped on him, an injury from which Baker died on January 30,1976. The accident was caused by the fault, it was alleged, of the employees and agents of Payne and Keller and Georgia Pacific in failing to provide a safe place to work, safety procedures and medical and emergency treatment.

The judgment sustaining the peremptory exceptions of Payne and Keller and Maryland was rendered and signed on March 11, 1977.

On March 17, 1977 plaintiff filed her amended petition, naming as new defendants (in addition to Hartford Accident and Indemnity Company, an insurer of Georgia Pacific) five named employees of Payne and Keller (and some unidentified supervisory employees of Georgia Pacific) all of whom were charged with fault in the death of Baker, for the same reasons, amplified, as in the original petition. Maryland Casualty, named the liability insurer of Payne and Keller in the original petition, was, in the amended petition, said to be the liability insurer of both Payne and Keller and their executive officers.

Maryland Casualty, having intervened in July, 1977 to recover compensation benefits paid plaintiff, filed on April 21, 1978 a plea of prescription of one year to the demand in the amended petition. Pleas were also filed on behalf of the named employees. All pleas of prescription were sustained. The Court of Appeal affirmed on the authority of Trahan v. Liberty Mutual Insurance Co., 314 So.2d 350 (La.1975).

In the Trahan case this court explained: “... Stated another way, there must be a solidary obligation to plaintiff of one or more of the six named executive officers (and, as a consequence, their insurers) and Chrzanowski, as in this case the insurers are liable only in their capacities as insurers of their respective insureds... . ” 314 So.2d at 356.

This statement was made in explaining why C.C. 2097 (“A suit brought against one of the debtors in solido interrupts prescription with regard to all.”) did not require a finding that the first suit interrupted prescription against the new defendants and their insurers in the second suit. The first suit had gone to final judgment; those six named executive officers and their insurers, in that capacity, were absolved, and could not, therefore, be solidary debtors with Chrzanowski to the plaintiffs; those executive officers had never been indebted to plaintiffs.

As for the contention that R.S. 9:5801 effected an interruption, the Trahan court found the cause of action in each of the two suits different. R.S. 9:5801 provides:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants ... by the commencement of a civil action ...”

The cause of action consists of the juridical facts-the material facts giving rise to the demand. The material facts in the first suit were the acts of the six defendants; the material facts in the second suit giving rise to the demand were the acts of the new defendants-former plaintiffs-alleged to have caused the accident. Since the second suit was based on a new cause of action, there was no interruption under 9:5801.

But in the case now at issue, there has never been but one cause of action. It is the same in the first petition and in the amended petition. The employees and agents (not named in the first petition) of Payne and Keller and Georgia Pacific failed to furnish a safe place to work and other protective measures, and permitted a piece of pipe in their control to injure Fred Baker.

There has been no finding in this suit that the actors in the first petition were not liable, as there was in Trahan. Here the actors are the same in the two petitions. The conduct causing the harm is the same. The cause is the same. For prescription to be interrupted by suit, it is not necessary for the plaintiff to meet the requirements of both C.C. 2097 and R.S. 9:5801. If one solidary obligor is sued, prescription is interrupted as to the others; if one cause of action is sued on, a 11 prescriptions affecting the cause of action are interrupted as to all defendants. National Surety Corp. v. Standard Accident Insurance Co., 247 La. 905, 175 So.2d 263 (1965).

The Trahan case was properly interpreted in 36 La.L.Rev. 382, 386:

“These decisions [Trahan and others] also lead to the conclusion that a timely suit against an ‘answerable’ defendant, financially responsive for the acts of a tort-feasor, will interrupt prescription as to that tortfeasor even though he might not himself be sued until well after the prescriptive period has expired....”

See Pearson v. Hartford Accident & Indemnity Co., 281 So.2d 724 (La.1973), where suit against a named defendant interrupted prescription as to the liability insurer, not named a party until after the prescriptive period had run.

Further, C.C.P. 1153 provides:

“When the action . .. asserted in the amended petition .. . arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”

Maryland was never dismissed from this suit; as distinguished from Trahan, where there was a full trial on the merits and the defendants in the first suit were exonerated, Payne and Keller was dismissed only because it was the decedent’s employer and enjoyed immunity under the workmen’s compensation act. The trial judge retained Maryland in the suit and permitted plaintiff to amend her petition to state a cause of action against Maryland. The amended petition stated that Maryland was being sued in its capacity as insurer of Payne and Keller and its named executive officers.

It is well established that Louisiana Code of Civil Procedure article 1153 permits amendment despite technical prescriptive bars where the original pleading gives fair notice of the general fact situation out of which the amended claim or defense arises. In his article, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211, 233 (1969), Justice Tate states:

“... The article deliberately adopts no test of identity of cause or legal theory between the original and amending petitions; the amendment’s thrust need only be based upon or factually relate to (‘arise out of’) the ‘conduct, transaction, or occurrence’ originally alleged. If the original timely pleading gives actual notice to a party that a formal claim or defense is being made based upon a particular factual situation, no essential protective purpose of a prescriptive statute is violated by permitting relation back of a postprescription amendment based on the same factual situation. Through the original pleading the opponent knows that judicial relief is sought arising from the general factual situation alleged, and he is put on notice that his evidence concerning it should be collected and preserved .... ” (Emphasis added).

Where there is “some factual con-nexity between the original and amended assertions, together with some identity of interest between the original and the supplemental party,” amendment should be allowed. 43 Tul.L.Rev. at 234. The only difference between the original and the amended petition is the inclusion of the allegation that Maryland was the insurer of certain of Payne and Keller’s employees as well as the insurer of the corporation. The transaction or occurrence giving rise to the demand for payment remains unchanged. Since the essence of interruption of prescription by suit is notice, and Maryland clearly had notice of the plaintiff’s suit against it and the occurrence upon which the demand was based, the running of prescription as to Maryland was interrupted.

For these reasons, the judgments of the courts below are reversed, the pleas of prescription are overruled, and the case is remanded for further proceedings, at the cost of the defendants.

      . Defendants before us are Maryland Casualty Company, M. J. Guillory, Ken Mitcham, A. J. Elisar, Danny Reagan and Roger Newman.


author: DIXON, Chief Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. William M. MacDONALD.
    Nos. 67378 and 67379.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, W. C. Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-appellee.
    Jack Quarles, Jr., Indigent Defender Program, Robert A. Buckley, Keiller & Buckley, for defendant-appellant.
   DIXON, Chief Justice.

On May 16,1979 officers of the Jefferson Parish Sheriff’s Office were conducting a search pursuant to a valid search warrant in a trailer owned by one Kenneth Melton. They arrested several people and seized a quantity of drugs. In the course of the search, the defendant knocked on the door and entered. An agent recognized him as one of the individuals named by the confidential informants as a possessor of Melton’s drugs. Another agent frisked the defendant and felt a capsule in the left pocket of this shirt. The agent removed the capsule and identified it as demerol. The defendant was placed under arrest and warned. He was brought to a rear bedroom, and told that the police had information about him and were preparing to execute a search warrant on his trailer also. The defendant then consented to a search of his trailer. A search there turned up several controlled substances-some liquid opium elixir, seconal, amytal, demerol and nembutal.

On June 5, 1979 the defendant was charged with one count of violating R.S. 40:967; on June 13 he was charged with five counts of violating R.S. 40:968. He pleaded not guilty to the charges and filed motions to suppress the evidence and to disclose the identity of the confidential informants. The motions were denied. The defendant then changed his pleas to guilty, reserving his rights to appeal. He was sentenced to five years’ imprisonment at hard labor on each bill of information. The two sentences were to run concurrently, with credit given for time served. The defendant now appeals, urging five assignments of error.

Assignments of Error Nos. 1 and 2

Defendant contends that the trial court erred in ruling that he had the burden to proceed at the motion to suppress hearing and in denying his motion to suppress the evidence seized from his pocket and from his trailer.

At the motion to suppress hearing defense counsel asked the court to order the state to proceed, arguing that the burden of proof shifted to the state to demonstrate that the search was reasonable once it was shown that the search was not made pursuant to a search warrant. The court refused and ordered the defense to call its witnesses.

We have previously held that:

“... once the defendant makes the initial showing at a motion to suppress hearing that a warrantless search occurred, the burden of proof shifts to the State to affirmatively show that the search is justified under one of of the narrow exceptions to the rule requiring a search warrant . .. . ” State v. Franklin, 353 So.2d 1315, 1318-1319 (La.1977).

The court may have erred in ordering the defense to proceed, but the state successfully carried its burden, and the defendant suffered no substantial prejudice from the procedure used.

Defendant’s charge that the evidence should be suppressed because it was illegally seized is more serious. The critical issue here is whether the actions of the law enforcement officers were reasonable. Both the federal constitution (Fourth Amendment) and the Louisiana constitution of 1974 (Article 1, § 5) guarantee the rights of persons to be secure against unreasonable searches and seizures. Evidence which is the product of an unreasonable search or seizure is held inadmissible at court under the exclusionary rule. Generally, a reasonable search is one conducted pursuant to a search warrant based on probable cause. Warrantless searches and seizures are considered unreasonable unless they fall within narrow and well delineated exceptions to the warrant requirement. The burden rests on the state to prove that the search is justified by special circumstances. State v. Franklin, supra; State v. Mitchell, 360 So.2d 189 (La.1978); State v. Dunbar, 356 So.2d 956 (La.1978).

In this case, the police had sufficient articulable knowledge of particular facts to justify their detention and search of the defendant. Confidential informants had told the police that the defendant was “holding” some of Melton’s drugs; the defendant was actually named in the search warrant as a possessor of some of these drugs. The police already had the defendant under investigation and were in the process of getting a search warrant for his trailer. They had reasonable grounds to fear for their safety as there were several people in the trailer who had just been arrested and who were beginning to give them some trouble. The agent who frisked the defendant confined his search to the defendant’s outer clothing; while he was conducting the legal search, he felt the capsule in the defendant’s pocket. Since he was an experienced narcotics officer, in the environment in which the search occurred, the officer was justified in believing the capsule contained contraband.

Defendant also argues that the search of his trailer was illegal. He contends that his consent to the search was not truly voluntary, but prompted by his concern that the officers would arrest his wife and child if he did not cooperate. He also argues that the consent exploited his illegal arrest. The arrest of the defendant was proper, and, consequently, the consent cannot be considered an exploitation of an illegal arrest. The testimony of the defendant that the police threatened his wife and child with imprisonment if he refused to cooperate was contradicted by the testimony of the policemen. The agents admitted that they told the defendant they were planning to get a search warrant on his trailer, but they denied that they had told the defendant they could get the warrant in five minutes. The defendant could easily have concluded from all the circumstances that it was in his best interest to cooperate. In any event, where there is contradictory testimony at trial, the trial judge’s evaluations of credibility are entitled to great weight. State v. Martin, 376 So.2d 300 (La.1979); State v. Dunbar, supra; State v. Tennant, 352 So.2d 629 (La.1977). We believe that a review of all the circumstances leading to the giving of consent indicates that the consent was voluntary. Consequently, the subsequent search of the trailer was legal.

These assignments of error are without merit.

Assignment of Error No. 3

Defendant contests the trial court’s refusal to disclose the identity of the confidential informants who supplied the information leading to the search of Melton’s trailer and who implicated him in the drug transactions.

The United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), has stated that in determining when to disclose, courts must balance the public interest in protecting the flow of information against the individual’s right to prepare his defense. Roviaro v. United States, supra, at 353 U.S. 62, 77 S.Ct. 629, 1 L.Ed.2d 646. The privilege must give way where disclosure is relevant and helpful to the defense, or is essential to a fair determination of the cause. Roviaro v. United States, supra, at 353 U.S. 60-61, 77 S.Ct. 628, 1 L.Ed.2d 645. Evidence that the informer set up or participated in the defendant’s crime will justify disclosure of his identity. Roviaro, supra; State v. Dotson, 260 La. 471, 256 So.2d 594 (La.1971), cert. denied 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972). However, merely supplying information used by police to obtain a search warrant is not in itself an exceptional circumstance justifying disclosure. State v. Dabon, 337 So.2d 502 (La.1976).

The record in this case indicates that the confidential informants told the police about the drugs but did not participate in the criminal activity. We find no exceptional circumstances to warrant disclosing their identities.

This assignment of error lacks merit.

Assignment of Error No. 4

Defendant contends that he did not get a proper Boykin examination before the court accepted his guilty pleas. He specifically alleges that the trial judge did not explain the specific elements of the offenses with which he was charged, nor the precise limits of the possible sentences. He cites State v. Allen, 263 La. 123, 267 So.2d 544 (La.1972) and United States v. Perwo, 433 F.2d 1301 (5th Cir. 1970) to support his contentions that an adequate Boykin examination must include a clear explanation of the elements of the crime and of the possible punishments therefor. The cases cited by the defendant are not germane. In Allen, the defendant pleaded guilty to theft but refused to admit that he intended to deprive the owner of his property permanently. In this case, the defendant never made any statement indicating a less than complete understanding of the crime with which he was charged. In Per-wo, the court held that the defendant’s guilty plea was properly accepted where the defendant was informed of the maximum possible penalty that might be imposed for the offense with which he was charged. The court did not suggest that the defendant had to be told the minimum penalty as well. In the case at bar, the trial judge told the defendant the nature of the offenses with which he was charged and the maximum penalties for the crimes. Both the trial judge and defense counsel explained defendant’s constitutional rights to him. He explicitly waived these rights and entered his guilty pleas knowingly and voluntarily. The pleas were part of a plea bargain arrangement; the defendant pleaded guilty to three counts and the state dropped three counts. The plea clearly helped the defendant avoid the risk of a greater penalty. As the United States Supreme Court stated in North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162, 168 (1970):

“... That he [the defendant] would not have pleaded [guilty] except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage . .. . ”

This assignment of error lacks merit.

Assignment of Error No. 5

Defendant contends that his sentence is excessive and that the trial court did not comply with the requirements of C.Cr.P. 894.1.

Article 1, § 20, La.Const. of 1974, prohibits the imposition of excessive punishment. The excessiveness of a sentence is a question of law reviewable under the appellate jurisdiction of this court. Article 5, § 5(C), La.Const. of 1974. A sentence may be excessive even though it is within statutory limits-either because of its length or because it specifies confinement rather than a less onerous alternative. State v. Sepulvado, 367 So.2d 762 (La.1979). To assist courts in rendering appropriate sentences, the legislature has enacted C.Cr.P. 894.1. This article enumerates three factors justifying a sentence of imprisonment and eleven factors favoring probation or suspension of sentence. It requires the trial judge to state for the record the considerations taken into account and the factual basis therefor in imposing sentence. This statement of reasons is designed to aid this court when it is asked to review a sentence alleged to be excessive. Where the trial judge does not comply with the requirements of article 894.1, this court may vacate the sentence and remand for resentencing. State v. Cox, 369 So.2d 118 (La.1979); State v. Jackson, 360 So.2d 842 (La.1978).

In the case at bar, the trial judge noted that a plea bargain had been arranged in which the state had dropped three counts in exchange for the defendant’s plea of guilty to the remaining three. The judge also noted that the defendant had previously been convicted of a felony in California. The sentences he imposed were well within the statutory limits. The violation of R.S. 40:967 could have brought the defendant a punishment of five years’ imprisonment at hard labor plus a $5000 fine, while the violations of R.S. 40:968 each carried a maximum sentence of ten years’ imprisonment at hard labor with a $15000 fine. The court sentenced the defendant to two five year terms, to run concurrently. Such a sentence can hardly be characterized as excessive.

This assignment of error is without merit.

The conviction and sentences are affirmed.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority opinion, in effect, adopts a construction of the Fourth and Fourteenth Amendments which has been specifically rejected by the Supreme Court. In Ybarra v. Illinois, 444 U.S. 85, 94, 100 S.Ct. 338, 344, 62 L.Ed.2d 238, 247 (1979), the Court was asked to interpret the Constitution “to permit evidence searches of persons who, at the commencement of the search, are on ‘compact’ premises subject to a search warrant, at least where the police have a ‘reasonable belief’ that such persons ‘are connected with’ drug trafficking and ‘may be concealing and carrying the contraband’ ” and pointedly refused.

Despite the majority’s efforts, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), cannot be stretched to cover the police conduct in this case. “Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons,’ or indeed, any search whatever for anything but weapons. The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.” Ybarra v. Illinois, supra, 444 U.S. at 94, 100 S.Ct. at 344, 62 L.Ed.2d at 247.


author: CALOGERO, Justice. DENNIS, Justice, MARCUS, Justice

text:
    STATE of Louisiana v. Marco Anthony THUCOS.
    No. 65499.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
    Leslie L. LaCroix, LaCroix & McKeithen, Monroe, for defendant-appellant.
   CALOGERO, Justice.

Marco Anthony Thucos was charged by bill of indictment with the crime of aggravated rape in violation of R.S. 14:42. A plea of not guilty was entered and defendant was tried by a twelve person jury. A verdict of guilty as charged was returned by ten of the twelve jurors. The trial court thereafter sentenced defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. We reverse defendant’s conviction and remand the case to the district court for a new trial because inculpatory statements, made by defendant after he had requested an attorney, were improperly admitted at the trial.

The initial contact between the defendant and the complainant (whom we shall refer to as Ms. Smith for the purposes of this opinion) occurred on Saturday, November 25, 1978. Defendant contends that he was at the public library on that day, and that he saw Ms. Smith there. He stated that she was sitting in the library with a very short red dress on and that when he looked at her she smiled at him. As she started to leave, he went outside to wait for her. He contends that he began talking with Ms. Smith and that he walked her half the way home. It was during this conversation that she told defendant that she had a car for sale.

Ms. Smith testified that, while she may remember seeing defendant at the library on that day, she definitely did not speak to him.

It is, however, not disputed by the parties that on November 27,1978, defendant went to Ms. Smith’s residence to discuss the purchase of her car. It was approximately 7:00 P.M. and Ms. Smith had already retired for the night. Ms. Smith came to the door upon hearing defendant’s knocking. She looked through the window and inquired as to the nature of defendant’s business. Defendant explained that he was there about the purchase of her car, but she refused either to allow the defendant to come in to discuss it or to go out herself and discuss the sale. However, it was suggested that defendant return in the morning. The following morning, defendant returned to Ms. Smith’s house and Ms. Smith left with the defendant. They went to a Steak and Egg Restaurant to talk over the terms of the sale. A price of two hundred dollars ($200.00) was agreed upon and defendant returned Ms. Smith to her home, explaining that he would come back that evening with the money to close the deal. It is principally from this point on that defendant’s and Ms. Smith’s version of the facts differ.

Ms. Smith maintains that when defendant brought her home the morning of November 28th, he instructed her to find out what further procedures must be followed to transfer the title of the automobile. Ms. Smith busied herself with cleaning the car and forgot to inquire about the necessary procedures. When defendant returned that evening, Ms. Smith stated that he told her that they needed to go to a notary to transfer the title. Ms. Smith accompanied defendant to the Vagabond Inn. She testified that defendant had told her that his friend who was a notary resided there. After entering the motel room and seeing that it was a normal motel room unoccupied by a notary, Ms. Smith stated that she turned quickly toward the door only to find that defendant had entered the room behind her, locked the door and drawn a knife. Ms. Smith contends that the defendant thereafter, forced her, at knifepoint, to disrobe and then raped her.

Defendant, on the other hand, contends that when he returned to Ms. Smith’s home on the evening of November 28th, he told her that he did not want to buy the car, but had used that as an excuse to get to know her. Thereafter, he testified that he asked Ms. Smith if she wanted to go out “for a good time” and that she readily agreed. They drove to the Vagabond Inn, went inside his room, and engaged in sex twice. Defendant consistently maintained that he did not force Ms. Smith to have sex with him and that, while he did own a knife, he never drew it or threatened Ms. Smith with it.

It was also not disputed that defendant and Ms. Smith thereafter dressed and went to Pizza Hut for dinner. While at Pizza Hut, defendant left the table to play the jukebox and go to the restroom. Ms. Smith made no attempt to signal the waitress, escape or anything of that nature. Defendant had five beers while at the restaurant and the waitress made several trips to the table but received no signals from Ms. Smith. During the evening, both stated that marriage was discussed. Defendant suggested that it was discussed with reciprocal interest. Although Ms. Smith stated that the discussion of marriage “thrilled” her, we surmise from the cold record that the remark was sarcastic rather than a candid comment. They left Pizza Hut and returned to the motel. At this point their stories again differ.

Ms. Smith contends that upon returning to the room she voluntarily disrobed because she did not want to take a chance on aggravating defendant, but admits that defendant did not ask her to undress and did not himself undress. Ms. Smith stated that defendant then passed out on the bed and she grabbed her coat and ran from the room to get help. It was at this time that she reported to the manager of the motel that she had been raped.

Defendant testified that the two returned to his motel room after he asked Ms. Smith if she wanted to go home and she responded that it did not matter. Upon returning to the room, defendant testified that they had sex again and then Ms. Smith requested that defendant take her home. He told her he would take her home in the morning and she got angry, stating .that she was a Christian woman and that she could not let peo-pie know that she had stayed out all night. Defendant promised to take her home very early in the morning but explained that he was tired and would not take her home at that time. Defendant then fell asleep.

When the police arrived at the scene, defendant was still sleeping in his room. He was awakened, advised of the complaint against him and of his constitutional rights, and questioned by the officers. Defendant spoke with the officers and readily agreed to allow them to search his room. Women’s clothing was found in the room and a pocket knife with a four inch blade was found. Defendant was arrested, charged with and convicted of aggravated rape. Defendant presents eleven assignments of error, each separately argued.

ASSIGNMENT OF ERROR NO. 3

Defendant argues in this assignment of error that the trial court erred in allowing into evidence certain statements made by the defendant, after he had requested an attorney.

Shortly after defendant was arrested on November 28, 1978, at about 12:00 midnight, he was taken to the stationhouse where he was interrogated. At that time defendant was again informed of his rights, including the right to have an attorney at the interrogation. He elected not to sign the waiver form and stated that he did not want to talk and that he would like to see an attorney. The officers allowed the defendant to make a phone call but testified that they did not know whether defendant reached an attorney or not. Thereafter defendant was brought to a cell.

Later that morning at approximately 9:00 A.M. defendant was taken from his cell, again brought to the interrogation room and interrogated, notwithstanding his earlier request for an attorney and the fact that no attorney had been provided him. Although defendant was again read his rights, he was never asked whether he had been able to contact an attorney of his own and no effort was made to have an attorney appointed for him. . Defendant at this time, unaccompanied by counsel, signed the waiver form and made an oral inculpatory statement. When asked if he would make a recorded statement, defendant refused to do so. Defendant was then returned to his cell for another day. The next morning, November 30, 1978, defendant was once again taken from his cell and to the interrogation room where he was readvised of his rights. (No waiver form was presented to him on this occasion.) A second oral incul-patory statement was then made by defendant. The trial court ruled that both of the inculpatory statements made by defendant were admissible.

Before a confession or inculpatory statement can be admitted in evidence, it must be established that the accused who makes the statement during custodial interrogation was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); R.S. 15:451. The Supreme Court in Miranda also stated: “Once warnings have been given, the subsequent procedure is clear. ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Although it has been recognized that an accused may later change his mind and waive the same rights which he earlier asserted, [State v. Manning, 380 So.2d 46 (La.1980), and State v. Dominick, 354 So.2d 1316 (La.1978)] once a defendant has invoked his constitutional right to remain silent or his right to counsel, the validity of any subsequent waiver depends upon the “scrupulous honoring” of that right by the police. Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Manning, supra. The state’s burden here is a heavy one. State v. Mouton, 366 So.2d 1336 (La.1978); State v. Peevy, 321 So.2d 324 (La.1975). The courts indulge in every reasonable presumption against the waiver of fundamental constitutional rights. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); State v. Manning, supra.

The state here, relying on State v. Manning, supra, contends that the inculpatory statements made by defendant were properly admitted because defendant waived his rights during the second interrogation session. The state argues that bringing defendant back to the interrogation room did not violate defendant’s rights because the officers only brought him back to inquire whether he had changed his mind and wanted to speak to them without an attorney.

We find Manning distinguishable from the case at bar and no support for the state’s argument. In Manning, defendant was arrested at 1:40 a. m., given his Miranda rights and brought to the police station. At 2:25 a. m. Manning was again given his rights and at that time signed a waiver of rights form. At 5:03 a. m. while Manning was again being explained his rights, Manning then chose not to speak anymore and requested an attorney. The officers immediately ceased quéstioning Manning, indicating to him that his rights would be respected. They told defendant in no uncertain terms that they would not question him until he was furnished counsel. As the officers were leaving the room with the recording equipment, Manning voluntarily stated to the officers that he did not need an attorney before speaking with them further. This statement by Manning was unsolicited; it was not in response to any statement or questioning by the officers.

In the present case, defendant was informed of his rights at the scene and did not speak to the officers after he was arrested. When he arrived at the police station he was again informed of his rights and expressly declined to speak to the officers, rather, he requested an attorney. At this point defendant was brought to his cell. Later that morning, after earlier having informed the officers that he did not wish to speak to them until he had conferred with an attorney, defendant was nonetheless again brought to the interrogation room for questioning without retained or appointed counsel. Unlike Manning, defendant received no indication that his rights would be respected. On the contrary, it could only have appeared to defendant that he would be questioned regardless of his assertion of his rights, since his earlier refusal to make a statement and his request for an attorney had proven unavailing. Under the facts presented here, we cannot say that defendant’s rights were “scrupulously honored” and that the state met its burden of proof. The officer’s initiation of further questioning in this case, after defendant asserted his right to be silent and right to have counsel present during questioning, is fatal to the admissibility of the statements made by the defendant.

As provided above, it was stated in Miranda that where an accused is being interrogated and he asserts his right to remain silent and his right to counsel, the interrogation must cease until his attorney is present. While it is true that the accused may waive his rights subsequent to asserting them, as was done in Manning, the state has not met its burden of proving that the waiver was voluntary where, as here, interrogation was again commenced the very morning after defendant asserted his rights and notwithstanding defendant’s request for an attorney. The same principles which cause us to exclude the November 29th statements apply to the November 30th statements where defendant was interrogated for the second time after he requested an attorney without one being appointed or present.

In view of our finding that the statements made by defendant on the morning of November 29, 1978 and November 30, 1978 were erroneously admitted in evidence at his trial, we conclude that defendant’s conviction must be reversed.

As we stated recently in State v. Gibson, 391 So.2d 421 (La.1980), the test for determining whether a conviction for a crime should stand when a state has failed to accord federal constitutionally guaranteed rights is, as held in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), “ ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and that ‘the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.’ ” Under neither strand of this test can we conclude that the admission of the statements made by the defendant at the two interrogations in question was harmless.

The essence of the statements made by the defendant at the two interrogation sessions in question is as follows. Defendant admitted to the officers that he did have sexual intercourse with Ms. Smith, but without force. Defendant also stated that although Ms. Smith went to his hotel room willingly, she did not know she was going for sexual intercourse. Defendant further told the officers, when asked about his sexual preferences and habits, that he especially liked blonds and that it was his dream to come to this country and marry a blue-eyed blond. He also told them that he had to have sex at least four times a week and that he “masturbated quite a bit.”

The case was apparently very close in the minds of the jury. The guilty verdict was returned by only ten of the twelve jurors after deliberating for about ten hours. We are simply unable to determine what persuaded the jurors.one way or the other. In view of the foregoing, and the damage to defendant’s character caused by the nature of the statements, we simply cannot hold that the admission of the above statements made by the defendant was harmless beyond a reasonable doubt. Rather, we find that there is more than a “reasonable possibility that the evidence complained of might have contributed to the conviction.”

Because we find that the inculpatory statements made by the defendant were erroneously admitted, and that this admission was harmful to defendant, we hold that his conviction must be reversed and the case remanded to the district court for a new trial. We will therefore only address the remaining assignments of error which will be pertinent to the new trial.

ASSIGNMENTS OP ERROR NOS. 1 AND 2

By these assignments of error, defendant contends that the trial court erred in allowing the introduction of evidence seized as the result of an illegal search and seizure.

When the officers responded to the rape complaint by going to the Vagabond Inn, they first heard the victim relate the details of the crime including the fact that her assailant had threatened her with a knife. She further informed the officers that defendant was asleep in room 639. Room 639 was registered to the defendant in his own name. The officers knocked on the door to room 639 awakening defendant. Defendant opened the door and the officers questioned him about the complaint. The officers asked defendant if they could search the room and he consented. A knife matching the description given by the victim was found wedged between the mattress and the box springs and some items of women’s clothing were found. Both were seized.

No motion to suppress was filed by the defense nor was any objection made to the introduction of the knife into evidence. While this precludes defendant from asserting his suppression claim on this appeal, we address the issue here nonetheless because of the probability that it will arise again during the new trial.

Both the United States Constitution and the Louisiana Constitution prohibit unreasonable searches and seizures. Absent one of the narrow exceptions to the requirement of a search warrant, warrantless searches and seizures are unreasonable. Collidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Bouffanie, 364 So.2d 971, (La.1978). One such exception to the warrant requirement arises when the defendant consents to the search of the premises. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

At trial, the state called Officer Deen, who testified that he asked defendant’s permission to search the motel room twice and that both times defendant consented. Moreover, defendant testified that he gave the officers permission to search his room and that, upon their discovery of the hidden knife, he admitted that it was his. Thus the instant search falls within the consent exception to the warrant requirement and the seized items were properly admitted in evidence at the trial.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 6

By this assignment of error, defendant argues that the trial court erred in failing to furnish an interpreter during trial since he was unable to understand the testimony fully.

The record shows that no motion requesting the appointment of an interpreter was filed by the defense prior to or during the trial. However, upon our review of the record and as noted by the trial judge in his per curiam, defendant’s testimony at trial reflects his unquestionable ability to speak and understand the English language. Moreover, the minutes indicate that on two separate occasions prior to trial, the court made independent determinations that defendant could read, write and speak the English language. On the record presently before us, there has been no showing that the trial court erred by not furnishing the defendant an interpreter during trial. This, however, does not preclude defendant’s attempting to show that an interpreter is needed at the new trial.

This assignment lacks merit.

Defendant’s other assignments of error are directed at certain rulings by the trial court during the hearing on the motion for a new trial based on newly discovered evidence. Since we hold, based on assignment of error number three, that defendant’s conviction must be vacated and the case remanded for a new trial, we pretermit consideration of these assignments.

Decree

For the foregoing reasons, defendant’s conviction is reversed and sentence vacated, and the case is remanded to the district court for a new trial.

REVERSED.

DENNIS, J., concurs with reasons.

MARCUS, J., dissents and assigns reasons.

DENNIS, Justice,

concurring.

I respectfully concur, being unsure that the rights denied defendant were not “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error. ... See, e. g., Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (coerced confession); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (right to counsel); Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (impartial judge).” Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967).

MARCUS, Justice

(dissenting).

Shortly after defendant was arrested (about midnight), he was taken to the sta-tionhouse where he was interrogated after again being informed of his rights. At this time, defendant stated that he did not want' to talk and that he would like to see an attorney. Thereafter, defendant was brought to his cell. The next morning (about 9:00 a. m.), after being again read his rights, defendant signed the waiver form and made an oral statement but refused to make a recorded statement. The next day, defendant was again advised of his rights; a second oral inculpatory statement was made by defendant.

I consider that defendant made these statements after a waiver of his rights to remain silent and to have an attorney present. Hence, the trial judge was correct in ruling the statements admissible in evidence. I respectfully dissent.

      . Essentially, these assignments of error raised by the defendant relate to the trial judge’s refusal to allow defendant to introduce certain evidence at his hearing on his motion for a new trial. Defendant contended that he had evidence that the complainant was undergoing psychological treatment, was paranoid and had made five complaints of criminal conduct directed toward her since the crime. The trial judge ruled that this evidence was not admissible and it was this ruling that defendant assigned as error.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. George Lee SHARP.
    No. 67374.
    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., James McMichael, Robert W. Gillespie, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Jeanette G. Garrett, New Orleans, Donald Minor, Shreveport, Indigent Defender Board, for defendant-appellant.
   MARCUS, Justice.

George Lee Sharp was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged. Subsequently, the district attorney filed an information accusing defendant of a previous felony conviction pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After a hearing, the trial judge found defendant to be a second felony offender and sentenced him to serve thirty-three years at hard labor without benefit of parole, probation or suspension of sentence. The court expressly directed that the sentence be served consecutively with “any other sentences” he was “required to serve.” On appeal, defendant relies on three assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to suppress a gun and shirt seized from him after his arrest. He argues that the arrest was made without probable cause.

The record of the suppression hearing reflects the following facts. In the early morning hours of April 18, 1979, Officer T. J. Robertson of the Shreveport Police Department received a radio report of an armed robbery at a Seven-Eleven store at Southern and Ockley. A description of the suspect was provided: a black male, approximately 5' 10" in height, medium build, dark complexion with short hair, wearing blue jeans and a blue and white shirt tied in the front. The broadcast also indicated that the suspect may be armed with a small caliber blue steel revolver that had some problems with its finish. The officer subsequently received a call (about 3:45 a. m.) reporting a suspicious person at another Seven-Eleven store at Southfield and Your-ee. The call was received about forty-five minutes after the prior armed robbery. Upon responding to the call, the officer observed defendant at the check-out counter of the store bending over and pulling on his right pants leg just above his shoe. The officer requested a re-broadcast of the description of the suspect in the previous armed robbery. The description fit defendant perfectly. When defendant exited the store, the officer placed him under arrest and conducted a weapons search. A .22 caliber pistol was recovered from inside defendant’s sock on his right leg. Defendant was advised of his Miranda rights, handcuffed and taken to the police station where the shirt he was wearing at the time of his arrest was taken from him.

This court recently held in State v. Tomasetti, 381 So.2d 420 (La.1980):

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable-subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of a person and the area in his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has been recently confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). But, in order to justify a search as incident to an arrest, an arrest must have already occurred and the arrest itself must have been lawful. State v. Marks, 337 So.2d 1177 (La.1976). Finally, when the constitutionality of a warrant-less search is at issue at a suppression hearing, the state must bear the burden of affirmatively showing that it was justified under one of the exceptions to the warrant requirement. State v. Adams, 355 So.2d 917 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

A warrantless arrest, no less than an arrest pursuant to a validly-issued warrant, must be based on probable cause. State v. Tomasetti, supra; State v. Thomas, 349 So.2d 270 (La.1977). Probable cause exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Marks, supra. Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Tomasetti, supra; State v. Marks, supra. Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Marks, supra.

In the instant case, the arresting officer, upon arriving at the Seven-Eleven store in response to a call concerning the presence of a suspicious person, observed defendant at that location. He had previously received police radio reports that an armed robbery had taken place at another Seven-Eleven store located a short distance away about forty-five minutes earlier. He had also been furnished with a detailed description of the suspect in the earlier robbery and defendant fit that description perfectly. We conclude that ample probable cause existed prior to the arrest of defendant. Accordingly, since the arrest was constitutionally valid, the seizure of the gun and shirt from defendant was permissible as incident to his lawful arrest. Hence, the trial judge did not err in denying defendant’s motion to suppress.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in allowing the state to elicit testimony concerning other criminal activity on the part of defendant during the testimony of Officer T. J. Robertson and Pam Colon and in denying his motions for mistrial because of this testimony.

Pursuant to a written motion filed by defendant, the trial judge, outside the presence of the jury, instructed the state witnesses not to refer to another crime committed or alleged to have been committed by defendant as to which evidence is not admissible. Subsequently, during the testimony of Officer T. J. Robertson concerning the facts surrounding defendant’s arrest at a Seven-Eleven store located a short distance from the Seven-Eleven store where the instant armed robbery had taken place forty-five minutes earlier, he stated that he observed defendant pulling on his pants leg just above his shoe. Defendant objected and moved for a mistrial. The jury was removed from the courtroom. After argument, the trial judge denied the motion. When the jury was returned to the courtroom, Officer Robertson responded in the negative to a question of whether he observed the man inside the Seven-Eleven store doing anything illegal for which he could have been arrested.

During the testimony of Pam Colon, an employee at a service station located across the street from the Seven-Eleven store where defendant was arrested, she stated that she had observed defendant prior to his arrest arrive at the convenience store in a car that stopped in the middle of the street and let defendant out of the back seat. The lights of the car were turned off and it then went into the parking lot across the street. After she had completed her testimony, defendant objected and moved for a mistrial on the ground that her testimony implied that another crime was about to be committed. The trial judge denied the motion.

La.Code Crim.P. art. 770 requires that a mistrial be ordered upon motion of defendant when a remark or comment made in the hearing of the jury by the district attorney refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. In the instant case, the testimony of the witnesses elicited by the district attorney did not refer to another crime committed by defendant. Moreover, the testimony served only to indicate the circumstances of defendant’s arrest and that he had the means to go from one location to another within a short period of time. Under the circumstances, we do not find that the trial judge erred in denying defendant’s motions for mistrial.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in finding him to be a second felony offender and in sentencing him under the provisions of the Habitual Offender Law (La. R.S. 15:529.1).

After conviction for armed robbery on January 10, 1980, the district attorney filed an information accusing defendant of a previous felony conviction for simple burglary based on a plea of guilty entered on January 13, 1978, for which he was sentenced to serve two years at hard labor. Defendant denied the allegations of the information. At a hearing, the state introduced into evidence certified copies of the court reporter’s transcript and of the minutes of the guilty plea as well as the warden’s certificates as evidence of imprisonment and discharge. Defendant was identified by counsel who represented him at the time the former guilty plea was entered. An expert in fingerprint identification, after comparing a fingerprint taken from defendant in connection with his prior conviction with one taken from him at the hearing, testified that they were identical. After reviewing the evidence presented, including the Boy-kin transcript at the time the guilty plea was entered, the trial judge found defendant to be a second felony offender.

In order to use a Louisiana state court plea of guilty made after December 8, 1971, as a prior conviction to enhance punishment in a habitual offender proceeding, the state must, if objection is made to its voluntariness or to its being a knowing plea, affirmatively show through a contemporaneously recorded transcript that the plea was voluntary and made with an awareness of its consequences. State v. Bolton, 379 So.2d 722 (La.1979); State v. Holden, 375 So.2d 1372 (La.1979); State v. Lewis, 367 So.2d 1155 (La.1979). The state met its burden in the instant case. Accordingly, we find that the trial judge did not err in finding defendant to be a second felony offender and in sentencing him under the Habitual Offender Law.

Assignment of Error No. 3 is without merit.

DECREE

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

      . Defendant also contends that he was incapable of making a knowing and intelligent waiver of his constitutional rights due to his low IQ, limited judgment and retardation. As the state had met its evidentiary burden in this habitual offender proceeding, we do not reach this issue. Defendant’s right to attack the plea may be brought by a subsequent application for a writ of habeas corpus in the district court.


author: MARCUS, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Joseph Louis STEVENSON.
    Nos. 67392, 67393.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Charles W. Richard, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Adam Gabe Nunez, Sulphur, for defendant-appellant.
   MARCUS, Justice.

Joseph Louis Stevenson was separately convicted and sentenced for two armed robberies. Separate appeals were taken to this court. In the appeal from his first conviction and sentence, defendant asserted fourteen assignments of error. In two of these, he contended the trial judge erred in denying his motion to suppress his confession grounded on a claim that it was coerced and involuntary and in allowing the confession in evidence. At the suppression hearing, defendant testified that following his arrest, Sulphur Chief of Police T. J. Andrus had slapped him while transporting him from DeQuincy to Sulphur and had told him that he might never reach Lake Charles because they were stopping in Sulphur first. Defendant stated that at the Sulphur city jail, he was alternately questioned and beaten by Chief Andrus and Calcasieu Parish Deputy Sheriff Harvey Boyd. Defendant further testified that on the following day, after being transported to Lake Charles, fearing further physical abuse and under threat that his wife would be charged with a criminal offense and his child placed in an orphanage, he made two statements confessing five armed robberies. The state failed to present evidence to rebut specifically the claims of physical abuse by defendant.

In State v. Monroe, 305 So.2d 902 (La.1974) (on rehearing), we held that, in view of the burden of the state to prove affirmatively beyond a reasonable doubt the voluntary nature of the confession, the state is required to rebut specific testimony introduced on behalf of the defendant concerning factual circumstances which indicates coercive measures or intimidation by police. Following Monroe and finding that none of the other assigned errors contained reversible error, we remanded the case to the district court for another suppression hearing to permit the state to meet its burden by specifically rebutting defendant’s allegations of physical abuse. State v. Simmons, 328 So.2d 149 (La.1976).

In the appeal from his second conviction and sentence, defendant asserted fourteen assignments of error, two of which challenged the voluntariness of his confession. This was the same confession that had been introduced in his prior trial. The issue raised was identical to that raised in his prior appeal; therefore, finding no merit to the other assignments of error, we followed the same procedure as we did in his earlier appeal and remanded the case to the district court for another suppression hearing to permit the state to meet its burden of proof by rebutting specifically defendant’s allegations of physical abuse. State v. Simmons, supra.

On remand, the trial judge consolidated the cases for a new suppression hearing and limited the scope of the hearing to defendant’s claims of physical abuse. The state adduced testimony from Chief Andrus denying that he had slapped defendant during the trip from DeQuincy to Sulphur or that he had made the statement to defendant that he might not make it to Lake Charles because they were going to stop in Sulphur first. Both Chief Andrus and Deputy Boyd testified that they had not struck defendant during questioning in Sulphur. Seven other officers who participated in the arrest and interrogation of defendant testified that they never saw anyone strike defendant. Testimony offered by defendant was substantially the same as that presented at the original suppression hearing. At the conclusion of the hearing, the trial judge found no evidence to support defendant’s allegations of physical abuse. He concluded that the state had borne its burden of proof; it has specifically rebutted defendant’s allegations of physical abuse. Hence, he ruled the confession was properly admitted at trial and denied the motion to suppress. On appeal, defendant relies on five assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in refusing to allow testimony by defense witnesses as to past acts of physical abuse by Chief Andrus and Deputy Boyd.

At the commencement of the suppression hearing on remand, defendant requested bench warrants be issued for three witnesses not present in court. Defense counsel informed the court that these and other defense witnesses would testify to past acts of physical abuse by Chief Andrus and Deputy Boyd upon persons other than defendant. He argued that he wanted to use their testimony to corroborate that of defendant and to impeach the testimony of the officers. He admitted that the witnesses had no knowledge of any physical abuse of defendant by the officers. The trial judge ruled that, if the witnesses were to testify, upon proper objection by the state, he would rule that the testimony was immaterial and irrelevant to the issues before the court.

To be admissible in a criminal proceeding, evidence must be relevant to a material issue. La.R.S. 15:435; State v. Johnson, 343 So.2d 155 (La.1977); State v. Major, 318 So.2d 19 (La.1975). Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and intent. La.R.S. 15:441. The trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. King, 355 So.2d 1305 (La.1978). Clearly, the evidence sought to be introduced by defendant could not be said to be relevant to the material issue at this hearing, that is, whether this defendant was physically abused by Chief Andrus and Deputy Boyd on the date in question. Defendant admitted that none of the witnesses had any knowledge of the incidents defendant complained of. We find no abuse of discretion by the trial judge in finding the testimony sought to be adduced at the hearing was irrelevant to the issue before the court and thus inadmissible.

Each side has the right to impeach the testimony and credibility of every witness sworn on behalf of the other side. La.R.S. 15:486. However, it is not competent to impeach a witness as to collateral facts or irrelevant matter. La.R.S. 15:494; State v. Bennett, 357 So.2d 1136 (La.1978). When the general credibility of a witness is attacked, the inquiry must be limited to general reputation and cannot go into particular acts, vices or courses of conduct, La.R.S. 15:490, 491, State v. Marshall, 359 So.2d 78 (La.1978), State v. Frentz, 354 So.2d 1007 (La.1978), or the witness’ credibility may be attacked only insofar as his credibility in the case on trial is concerned, La.R.S. 15:490. While evidence of bias in the special case on trial may be admissible, La.R.S. 15:492, a witness’ bias against the opposing party must be direct or personal rather than indirect or general in nature. State v. Lewis, 328 So.2d 75 (La.), cert. denied, 429 U.S. 833, 97 S.Ct. 98, 50 L.Ed.2d 98 (1976). Even jurisdictions which permit character-impeachment by proof of prior acts of misconduct limit that proof to what can be brought out on cross-examination and would not allow the calling of other witnesses to prove the discrediting acts. McCormick, Evidence (Cleary ed. 1972), § 42; 3A Wigmore, Evidence (Chadbourn rev. 1970), § 979. Moreover, the type of prior misconduct which is admissible for the purpose of impeaching the credibility of a witness has been expressly limited by the legislature to evidence of conviction of crime. La.R.S. 15:495.

In the instant case, testimony as to prior acts of physical abuse by Chief Andrus and Deputy Boyd against persons other than defendant clearly concerns facts collateral to the issue of this hearing, and such testimony would not be relevant on the question of whether this defendant was in fact physically abused. Hence, the trial judge did not err in refusing to permit this testimony for the purpose of impeaching the testimony of Chief Andrus and Deputy Boyd.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in limiting testimony at the suppression hearing on remand to the issue of physical abuse.

In separate appeals to this court involving the identical issue of voluntariness of the confession made by defendant, we remanded the cases to the trial court to permit the state to meet its burden of proof by producing additional evidence to rebut specifically the allegations of physical abuse alleged by defendant. Hence, the trial judge properly followed the mandate of this court. Moreover, the only evidence which defendant sought to introduce outside the question of physical abuse involved allegations that the police threatened to charge defendant’s wife as an accessory after the fact to armed robbery and to have his child placed in an orphanage if defendant refused to make a statement. This issue was considered by this court in the two previous appeals and we found that defendant’s allegations were in direct conflict with the testimony of two officers who stated at the original hearing that defendant was neither threatened nor promised anything as an inducement to make a statement. Hence, this argument was found to lack merit and was properly excluded from consideration at the hearing on remand.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in allowing testimony from state witnesses not present when the alleged physical abuse occurred.

At the suppression hearing on remand, the state introduced the testimony of seven officers (besides that of Chief Andrus and Deputy Boyd) who were involved in the arrest, transport and interrogation of defendant on the day in question. The officers testified that at no time did they witness anyone strike defendant nor had they heard any threats made against him. Defendant contends that this testimony should not have been allowed as not all of these witnesses were present when the alleged acts of physical abuse occurred.

The record indicates that all of the witnesses called were either present at the arrest of defendant, were involved in the transport of defendant when he was allegedly slapped and threatened by Chief Andrus, or were present at the Sulphur jail when defendant was allegedly questioned and physically abused by Chief Andrus and Deputy Boyd. Clearly, the testimony of these officers was relevant to rebut specifically defendant’s claims of physical abuse. Hence, the trial judge did not err in allowing the state to introduce this testimony.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in restricting defendant’s cross-examination of a witness concerning defendant’s state of mind shortly after his arrest.

At the suppression hearing on remand, defendant sought to adduce testimony from state witness Sgt. Harold Cooper as to defendant’s state of mind at the time of his arrest in DeQuincy. After Deputy William Morrison had testified that defendant was agitated and crying upon his arrival at the Sulphur jail, defendant asked Sgt. Cooper if he had “realized any particular mental happening concerning the defendant that would possibly cause someone to cry.” Upon objection by the state that the question was beyond the scope of the issue of physical abuse, the trial judge disallowed the question.

The ruling of the trial judge was correct as the suppression hearing on remand was limited to specific allegations of physical abuse as mandated by this court. Hence, any testimony as to defendant’s mental condition was properly excluded. In any event, the record indicates that defendant was allowed to elicit further testimony from Sgt. Cooper as to whether defendant had cried at the occasions of his previous arrests.

Assignment of Error No. 4 is without merit.

DECREE

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

LEMMON, J., dissents and assigns reasons.

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

LEMMON, Justice,

dissenting.

When the officers testified that they had not physically abused this defendant or any other person they had arrested in the past, defendant was entitled to impeach their credibility by introducing testimony by other persons that these officers had arrested and abused them. Such evidence was relevant, not to impeach evidence of the officers’ character, but to prove the likelihood of the use of physical abuse in obtaining defendant’s confession by showing the same type of conduct toward others arrested by the same officers. Such evidence is subject to reasonable restriction, but total exclusion of this evidence is reversible error, at least when the issue is by a trial to the court alone in a motion to suppress.

      . State v. Stevenson, 374 So,2d 1189 (La.1979).

      . State v. Stevenson, 377 So.2d 343 (La.1979).

      . Assignment of Error No. 5 consists of a letter from defendant to his counsel and lists four matters which he wanted raised on appeal. Each of these was covered by counsel in his brief to this court; hence, we need not treat them separately.

      . In State v. Silsby, 176 La. 727, 146 So. 684 (1933), defendant sought to corroborate his testimony that his confession was involuntary by introducing testimony from other persons arrested for other offenses to the effect that they had been beaten by officers other than those who allegedly mistreated defendant. This court held that evidence that some other police officer is of brutal character is wholly irrelevant for such purpose. In dicta, the court suggested that evidence that the particular police officers who arrested this defendant customarily maltreated their prisoners might be relevant to corroborate defendant’s testimony. After considering this language, we cannot agree that such testimony would be relevant under the facts of the instant case wherein none of the defense witnesses could testify as to alleged acts of physical abuse by these officers upon this defendant.