author: DENNIS, Justice. CALOGERO, Justice,

text:
    Leota Mae David PESCHIER v. Marjorie Morris PESCHIER, As Testamentary Executrix of the Succession of Lionel Joseph Peschier.
    No. 81-C-3143.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      Thomas W. Sanders, Lake Charles, for applicant.
    Kenneth W. DeJeans, Fruge & DeJean, Lafayette, for respondents.
   DENNIS, Justice.

We granted writs in this case to determine whether the courts below erred in declaring null a 1960 divorce judgment between the deceased, Lionel Peschier, and the plaintiff, Leota Davis Peschier. Ultimately, we affirm the result reached by the courts below.

The procedural history and facts not in dispute were correctly summarized by the court of appeal as follows:

“On November 28, 1960, the Thirteenth Judicial District Court for the Parish of Evangeline granted Lionel J. Peschier a judgment of divorce against his first wife, Leota Davis Peschier. Leota Peschier instituted this suit on May 17, 1977, against Marjorie Peschier, the deceased Mr. Peschier’s executrix, asking that court to declare the 1960 divorce judgment null and void. Judgment was rendered in favor of the plaintiff, decreeing the 1960 divorce proceeding null and void for lack of venue and jurisdiction and also because the divorce was obtained through fraud and ill practices on the part of Lionel Peschier.

“On March 2, 1938, Lionel Peschier and Leota Davis were married and established their domicile in Lafayette Parish. Their first child, Louise Peschier Sims, was born on October 12, 1938. Around 1940 Lionel Peschier and his family moved to and became domiciled in Rapides Parish. On January 9, 1952, a second child, Candice Maria Peschier, was born of the marriage.

“Leota Peschier filed suit in the Ninth Judicial District Court, Rapides Parish, Louisiana against Lionel Peschier for a separation from bed and board and obtained a judgment in her favor on October 14, 1955. On that same day the parties entered into an agreement partitioning the community of acquets and gains. On September 28, 1957, Leota Peschier signed a supplemental community property agreement which recited that the parties were still living separate and apart from each other.

“Lionel Peschier filed the aforementioned divorce suit on October 5, 1960, on the ground that he and his wife had been living separate and apart for more than two years. The petition set forth that Mr. Pes-chier had been a resident of Evangeline Parish for two and a half years, that reconciliation had not taken place since the 1955 separation and that his wife was an absentee believed to be residing in Amarillo, Texas. This petition was verified by Mr. Pes-chier on September 30, 1960. Upon the allegation that his wife was an absentee, the court appointed a curator ad hoc to represent Leota Peschier. The curator sent her a certified letter to Amarillo, Texas, but it was returned unclaimed. On November 28, 1960, the trial court rendered judgment in favor of Lionel Peschier granting him a divorce.

“On January 11, 1961, Lionel Peschier contracted a second marriage to Marjorie Aylene Null in Angelina County, Texas. They lived together thereafter at Peschier’s home in Lake Charles and the defendant, Marjorie Peschier, has continued to reside in that city. No children were born of this marriage.

“Leota Peschier filed another suit against Mr. Peschier on October 15, 1976, for separation from bed and board in the Ninth Judicial District Court for Rapides Parish. On December 13, 1976, Mr. Peschier died in an automobile accident in Evangeline Parish and Marjorie Peschier was appointed testamentary executrix of his estate.

“As mentioned, this suit for nullity of the 1960 divorce judgment was filed by Leota Peschier on May 17, 1977. The testimony of witnesses and the exhibits offered at the trial established that Mr. Peschier was engaged in the business of coin-operated machines, such as music boxes and so forth, and he owned interests in nightclubs and lounges. His business activities were conducted in several parishes, including Rap-ides, Evangeline and Calcasieu, requiring him to travel and spend various periods of time in each of these parishes.

“Among others, the trial court made the following findings from the evidence adduced at trial: 1) Lionel Peschier was not a domiciliary of Evangeline Parish at either the time he verified or filed his divorce petition in that parish; 2) Leota Peschier was not an absentee from this state from September 1 to December 31, 1960, but instead was a resident of and domiciled in Rapides Parish during all of that time; 3) Evangeline Parish was not the parish of proper venue for the 1960 divorce suit and therefore the court lacked jurisdiction thereof; and 4) Lionel Peschier deliberately misled his counsel and deliberately practiced a fraud upon the court as he knew that his wife was residing in Rapides Parish and not Amarillo, Texas, when the suit was filed. Therefore, judgment was rendered in plaintiff’s favor declaring the 1960 divorce judgment a nullity.” [footnotes omitted]

The Third Circuit Court of Appeal found that the record supported the trial court’s conclusion that the 1960 divorce judgment was a nullity due to improper venue and because the judgment was obtained through fraud or ill practices on the part of Lionel Peschier. Nevertheless, the court of appeal chose to rest its affirmation of the trial court’s decision on the ground that the judgment was defective for a vice of form, the lack of a valid citation and service of process. Peschier v. Peschier, 407 So.2d 1240 (La.App. 3d Cir. 1981). We granted writs to review the correctness of that decision. 410 So.2d 760 (La.1982).

There is a strong public policy against disturbing or declaring invalid a judgment of divorce, especially after a long period of time where the marital status of innocent parties who relied on the validity of that judgment would be disturbed, and more particularly where a decree would render innocent parties guilty of bigamy. Wilson v. Calvin, 221 La. 451, 59 So.2d 451 (1952); Walsh v. Walsh, 215 La. 1099, 42 So.2d 860 (1949); Rouse v. Rouse, 219 La. 1065, 55 So.2d 246 (1951). Because of this strong public policy and a presumption as to the regularity of the judicial proceedings, plaintiff must prove by clear and convincing evidence the grounds for annulment of the 1960 divorce judgment. Wilson v. Calvin, supra; Logwood v. Logwood, 85 La. 1, 168 So. 310 (1936).

The basic issue presented by the court of appeal’s decision is whether the 1960 divorce judgment should have been declared null for a vice of form, viz., the lack of a valid citation and service of process. La.C. C.P. art. 2002(2) provides that a final judgment shall be annulled if it is rendered:

“(2) against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken * * * >>

La.C.C.P. art. 6(2) provides that valid service of process may be made on an attorney at law appointed by the court to defend the suit when the defendant is either an absentee or an incompetent.

Lionel Peschier’s verified petition for divorce filed on October 5, 1960 alleged that his wife was an absentee believed to be residing in Amarillo, Texas. In apparent reliance on this allegation, the trial judge appointed a curator ad hoc pursuant to La. C.C.P. arts. 5091-5095. The curator sent a certified general delivery letter to Amarillo, Texas, but it was returned unclaimed. The validity of the appointment of the curator ad hoc necessarily depends on whether Leo-ta Peschier was an “absentee,” which is defined by La.C.C.P. art. 5251(1) as follows:

“Absentee” means, a person who is either a nonresident of this state, or a person who is domiciled in but has departed from this state, and who has not appointed an agent for the service of process in this state in the manner directed by law; or a person whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domiciled or actually present in the state; or a person who may be dead, though the fact of his death is not known, and if dead his heirs are unknown.

Absenteeism requires more than a temporary absence from the state, Spence v. Spence, 158 La. 961, 105 So. 28 (1925). Our courts have consistently held that a defendant domiciled in Louisiana qualifies as an absentee only if his whereabouts are unknown to the opposing party and could not have been discovered after a diligent search. Bryant v. Austin, 36 La.Ann. 808 (1884); Leatherman v. Parish of East Baton Rouge, 275 So.2d 806 (La.App. 1st Cir. 1973); Leidig v. Leidig, 187 So.2d 201 (La.App. 3d Cir. 1966).

The trial court found that Leota Peschier was not an absentee at the time of the 1960 divorce proceedings. It also found that there was no evidence whatsoever that Leo-ta was ever a resident of Amarillo, Texas. The court of appeal affirmed these findings, noting as follows:

“We are convinced from our review of the record that Leota Peschier established ‘by exceptionally strong and convincing proof’ that she resided and was domiciled at No. 6 Baywood Drive in Pineville, Rapides Parish, Louisiana, and was not an absentee from this state during the time that the 1960 divorce suit was before the district court in Evangeline Parish. While she may have visited her sister in Pasadena, Texas, during the latter part of 1960, her whereabouts on such brief visit or visits were known or easily ascertainable by her husband.” 407 So.2d at 1242.

The record fully supports these findings. The trial court was apparently convinced by the testimony of Leota, her daughters Louise and Candace, her grandson Duke, her sister Louise Davis Delahoussaye, and her niece Donna Delahoussaye. This uniform testimony tells of their uninterrupted presence at their Pineville residence during the period in question, and of Lionel’s regular returns from business trips to that residence, where he kept his business equipment and permanent wardrobe and slept with Leota. The record justifies the previous courts’ reliance on this testimony and rejection of Mr. Delahoussaye’s testimony to the contrary as the product of his animosity for his daughter, Donna Delahous-saye. We find even more convincing, however, the testimony of disinterested witnesses such as Leota’s neighbors, Agnes Smith and Mr. and Mrs. Kenneth Hum-phries; garbage collector, Mr. Scott Perry, Jr.; and Leota’s insurance agent, Mr. Richard Owen Wilson.

Agnes Smith testified that Leota lived in a neighboring house in Pineville from the mid-1950’s to the mid 1970’s, and was never gone for more than two or three days at a time. Mrs. Smith also recalled frequently seeing Lionel Peschier and his truck at the house during the years from 1959 to 1961. Similarly, Kenneth Humphries, whose home in Pineville was separated from the Pesehier dwelling only by a vacant lot, recalled the continuous presence of Leota and the children during the 1950’s and 1960’s, and also Lionel’s constant coming and going through the late 1960’s or early 1970’s. Mrs. Humphries generally echoed the testimony of her husband, and added a particular recollection of Lionel’s presence at the Peschier residence in 1960. Richard Owen Wilson recalled with certainty that he sold burial insurance to Leota and her daughters at their Pineville residence soon after he moved to the area around Christmas of 1959. He also regularly collected the premiums from Leota at this address, and saw Lionel several times at the house on such visits. Finally, Mr. Scott Perry, a trash collector, personally collected garbage from the Peschier residence from 1958 to about 1970, collected payment for such services from both Mr. and Mrs. Peschier during this time and specifically recalled hauling away some additional brush from the residence in the summer of 1960 at Lionel’s request.

Taken together, the testimony of all of these witnesses provides overwhelming proof that Leota was not an absentee at the time of the 1960 divorce proceedings and that her whereabouts were either known or easily ascertainable by her husband, Lionel Peschier.

Citation and service thereof are essential in all civil actions except summary and executory proceedings. Without them all proceedings are absolutely null. La.C. C.P. art. 1201. Consequently, this court has held that a spouse, who is not an absentee, cannot be cited in divorce proceedings through a curator ad hoc, and a judgment rendered contradictorily with a curator under such circumstances is void. Spence v. Spence, 158 La. 961, 105 So. 28 (1925); Elmore v. Johnson, 121 La. 277, 46 So. 310 (1908). Cf., Whitney v. Finnegan, 129 La. 572, 56 So. 512 (1911); Wood v. Hyde, 209 So.2d 51 (La.App. 4th Cir. 1968); Dickey v. Pollock, 183 So. 48 (La.App. 2d Cir. 1938); Ventress v. Akin, 177 So. 117 (La.App. 2d Cir. 1937). Because Leota was not an “absentee” at the time of the 1960 divorce proceedings, the divorce judgment rendered against her was defective for a vice of form, the lack of a valid citation and service of process. La.C.C.P. arts. 6(2); 1201: 2002(2).

The relator, Marjorie Peschier, urges in brief that Leota Peschier’s action for annulment cannot succeed because she voluntarily acquiesced in the divorce judgment. La.C.C.P. art. 2003 provides as follows: But no such acquiescence as is thus required has been shown in this case; the most that is alleged or proved being that Leota Pes-chier learned of the existence of the 1960 divorce judgment in January of 1976 but did not bring this action to annul it until over one year later, which is not the same thing as executing the judgment or permitting it to be executed. Andrews v. Sheehy, 125 La. 217, 51 So. 122 (1910). A mere failure to act immediately after receiving notice of an invalid judgment does not amount to acquiescence. Wilson v. King, 227 La. 546, 79 So.2d 877 (1955); Termplan Gentilly, Inc. v. Parker, 281 So.2d 163 (La.App. 4th Cir. 1973); Spinks v. Caddo-Bossier Services, Inc., 270 So.2d 604 (La.App. 2d Cir. 1972).

A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.

Accordingly, the judgment of the court of appeal is affirmed.

AFFIRMED.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent from the majority opinion.

The trial court judgment, rendered September 17, 1980, in favor of plaintiff, was primarily based on the trial court’s determination that Lionel Peschier obtained the 1960 divorce from Leota Peschier by practicing a fraud on the court. In my view that judgment was wrong for the reasons so ably stated by Judge Domengeaux in his dissent to the Court of Appeal judgment: that Leota Peschier’s action to have the 1960 divorce judgment declared null because it was procured by fraud and ill practices has prescribed. La.C.C.P. art. 2004.

The Court of Appeal majority apparently likewise found the trial court’s reasons for judgment in error since they based their decision, affirming the trial court judgment, on other reasons. The Court of Appeal concluded that the seventeen year old judgment of divorce should be declared null because of a deficiency in the service of process.

This voluminous record contains evidence both in support of and in opposition to the Court of Appeal's and this Court's majority determination that Leota Peschier was not an absentee at the time of the 1960 divorce proceedings. Had this record been made up in a lawsuit against Mr. Peschier during his lifetime, perhaps I too would then agree that plaintiff had carried her burden of proof.

However, that is not the case. Leota Peschier, the deceased’s first wife, waited seventeen years after the 1960 divorce judgment was rendered, and waited until after Lionel Peschier’s death, before bringing this suit to annul that judgment, which also annuls his sixteen year marriage to Marjorie Peschier. Lionel Peschier, the only person who could have countered Leo-ta Peschier’s allegations by testifying concerning his knowledge of his first wife’s whereabouts at the time he filed the suit for divorce, had no opportunity to do so (this suit being filed subsequent to his death), with the result being that innocent persons’ rights are being affected.

As correctly pointed out by the majority: There is a strong public policy against disturbing or declaring invalid a judgment of divorce, especially after a long period of time where the marital status of innocent parties who relied on the validity of that judgment would be disturbed, and more particularly where a decree would render innocent parties guilty of bigamy. Wilson v. Calvin, 221 La. 451, 59 So.2d 451 (1952); Walsh v. Walsh, 215 La. 1099, 42 So.2d 860 (1949); Rouse v. Rouse, 219 La. 1065, 55 So.2d 246 (1951). Because of this strong public policy and a presumption as to the regularity of the judicial proceedings, plaintiff must prove by clear and convincing evidence the grounds for annulment of the 1960 divorce judgment. Wilson v. Calvin, supra; Logwood v. Logwood, 85 La. 1, 168 So. 310 (1936).

Plaintiff’s burden can only be even greater, in a case like the present one, where the suit is brought after the death of the principle person who could have countered the allegations against him.

In my view, for the reasons above expressed, plaintiff has simply not met her burden of proving by clear and convincing evidence the grounds for the annulment of the 1960 divorce judgment.


source: Caselaw Access Project

author: LEMMON, Justice. BLANCHE, Justice DIXON, Chief Justice DENNIS, Justice,

license: Public Domain

text:
    FRATERNAL ORDER OF POLICE CRESCENT CITY LODGE NO. 2, William Roth, William Patin, Ronald Kennedy, Ira Austin, Sr., John Graham and Patricia Childress v. The CITY OF NEW ORLEANS, The City Civil Service Commission of New Orleans, and The New Orleans Police Department.
    No. 82-C-0375.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Keith R. Credo, Dennis M. Angelico, Hess & Washofsky, New Orleans, for applicant.
    Salvador Anzelmo, City Atty., Galen S. Brown, Deputy City Atty., for respondents.
   LEMMON, Justice.

This is an action to require defendants to pay the City’s policemen additional wages which are allegedly due under the 1928 amendment to La.Const.Art. 14, § 25 (1921).

The trial court dismissed plaintiffs’ petition on defendants’ exception of no cause of action, and that judgment was affirmed by the court of appeal. 409 So.2d 411. We granted certiorari to review the correctness of those decisions. 412 So.2d 1095.

In their petition (which is the only thing a court may consider when ruling on an exception of no cause of action), plaintiffs alleged that the City collected the avails of the property tax as constitutionally required and used the collections to make an annual lump sum payment to policemen, over and above their regular salary, for over 40 years until January 1, 1971. Plaintiffs further allege that the City violated the 1928 constitutional amendment when it continued to collect the avails of the property tax after January 1, 1971, but discontinued payment of the proceeds in an annual lump sum payment which was over and above the regular salary of the policemen, using the proceeds of the collection instead to pay part of the regular salaries of the policemen.

In this court, plaintiffs contend that the City after 1971 effectively reduced policemen’s salaries without following Civil Service procedures. They argue that the City prior to 1971 paid policemen a regular salary every other week, according to a salary schedule of the Civil Service Commission, and an additional lump sum bonus once a year on a per capita basis from the avails of the tax collections, while the City after 1971 used the proceeds of the tax collections to pay part of the policemen’s regular salary, thereby effecting a reduction in the regular salary. (There were no factual allegations in the petition to support this argument.) In essence, plaintiffs argue that the City is obligated to use the general fund to pay the policemen’s regular salaries, as fixed by the Civil Service Commission in the overall salary schedule for City employees, and to use the avails of tax collections exclusively for the purpose of “an increase” in (meaning an amount over and above) the regular pay of policemen.

On the other hand, defendants contend that the 1928 constitutional amendment contemplated a one-time increase, which the policemen received in 1929, and that the City’s only present obligation is “to appropriate from the general fund for the support of the Police and Fire Department an amount not less than the amount of support given to the department . . . prior to the time the Amendment became effective”. While admitting that they changed their method of payment in 1971, defendants argue that the new method of payment does not violate the provisions of the 1928 amendment, because the tax proceeds have been used every year to pay policemen an amount in excess of their 1928 salaries.

The Legislature, in proposing the 1928 constitutional amendment, clearly intended to enact a tax which would be collected every year. The Legislature also recognized that policemen and firemen at that time did not receive adequate wages and accordingly dedicated a portion of the annual proceeds of that tax for the purpose of providing these particular employees with “an increase in the pay”. Certainly for the first year (and arguably for every year until the tax is repealed), the tax was intended as a source of funds to pay these particular employees an amount of pay over and above the amount of their salaries listed in the overall salary schedule for all City employees payable out of the general fund. The tax proceeds in the first year were used precisely in this manner, and (according to plaintiffs’ petition) the tax proceeds were used each year thereafter, until 1971, to pay these particular employees an amount over and above their regular salary which was fixed by the agency charged with the responsibility of fixing salaries of City employees and was payable out of the general fund.

The key issue is whether the 1928 constitutional amendment, by requiring use of a portion of the tax proceeds for an increase in policemen’s salaries, correspondingly required the City to use the general fund to pay all of the regular salary for policemen as fixed in the overall salary schedule for City employees. This determination depends upon the intent of the Legislature in proposing the 1928 constitutional amendment and of the people in adopting the amendment. It is highly unlikely that the Legislature and the voting citizens intended for the City, for example, to use the tax proceeds to give policemen and firemen cost of living increases in regular salary while using the general fund to provide simultaneously a similar increase to other City employees. It is much more likely that the Legislature and the voters intended that an overall general increase (or decrease) in salaries for all City employees in a particular year would affect only the regular salaries payable out of the general fund and that the avails of the annual tax collections for each year would be used as a supplement to that base pay.

However, the fact that the City after 1971 discontinued paying the tax proceeds to policemen in the form of an annual bpnus and began paying it as part of a biweekly salary does not necessarily mean that the City reduced policemen’s base pay for the purpose of avoiding payment to policemen of the amount generated by the annual tax as an “increase” over and above their regular salaries payable out of the general fund, thereby releasing a proportionate amount of the general fund for other purposes. The overall pay plan for policemen after 1971 may include the tax proceeds as a supplemental increase in regular salary over the amount which otherwise would be base pay. Other possibilities also come to mind, but the present posture of this case prevents a proper determination of whether there has been a violation of the 1928 constitutional amendment.

How regular salaries of firemen, policemen and other City employees were fixed in 1928 and in the period between 1928 and 1971 is not shown by plaintiffs’ petition. Defendants, choosing to proceed by means of an exception of no cause of action, were precluded from introducing depositions, affidavits or other evidence on this and other key points. Moreover, as to the period after 1971, the only factual allegation of plaintiffs’ petition is that the method of paying the regular salary of policemen was different than the pre-1971 method. We are unable to determine, on the scant allegations of this petition, whether the new method of payment violates the provisions of the 1928 constitutional amendment, because we have not been furnished with sufficient information.

We therefore conclude that plaintiffs have not alleged facts which necessarily establish a violation of the 1928 constitutional amendment, and in that respect plaintiffs have failed to state facts constituting a cause of action. Thus, we cannot say that the lower courts erred in maintaining the City’s exception of no cause of action. However, the lower courts did err in not affording plaintiffs an opportunity to amend their petition and to supplement the factual allegations in an attempt to remove the grounds for the objection and thereby state a cause of action. C.C.P. Art. 934. We therefore amend the judgment to allow this opportunity to file a supplemental and amended petition. If the plaintiffs avail themselves of the opportunity to present additional allegations of fact which more properly place the issue before the court for adjudication, then defendants may test the sufficiency of the amended petition by another exception of no cause of action or by a motion for summary judgment (at which either party may file affidavits, depositions or other appropriate documents in order to complete the record for an informed disposition of the legal issue presented).

For these reasons, the judgment of the lower courts is affirmed insofar as the judgment maintains the exception of no cause of action, but the judgment is amended so as to give plaintiffs' 30 days from the date this judgment becomes definitive to attempt to remove the grounds of the objection by filing a supplemental and amended petition alleging additional facts.

BLANCHE, J., concurs and assigns reasons.

MARCUS, J., concurs in the result.

DIXON, C. J., and DENNIS, J., dissent with reasons.

BLANCHE, Justice

(concurring).

I concur in the holding plaintiff’s petition does not state a cause of action. Although not necessary to the decision this writer believes that the city’s argument that the statutory provision mandates only a single increase is as persuasive as the opinions conclusion that the avails of the tax is an annual supplement over and above police regular salaries.

DIXON, Chief Justice

(dissenting).

I respectfully dissent. The petition states a cause of action, and need not negative all possible defenses.

DENNIS, Justice,

dissenting.

I respectfully dissent from the majority’s determination that the plaintiff’s petition failed to allege sufficient facts to state a cause of action. The majority’s own reading of the petition (in the third paragraph of the opinion) recognizes allegations that the 1928 constitutional amendment mandates an annual wage supplement from special tax proceeds, that prior to 1971 the city paid an annual lump supplement over the regular base salary from such proceeds, and that, henceforth, the City has discontinued the supplement and used the tax proceeds to pay part of the regular salaries of the policemen. These allegations of ultimate fact are sufficient to state a cause of action.

An exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis upon which recovery can be based; that is, unless plaintiff has no cause of action under any evidence admissible under the pleadings. Haskins v. Clary, 346 So.2d 193 (La.1977); West v. Ray, 210 La. 25, 26 So.2d 221 (1946); Babineaux v. Southeastern Drilling Corporation, 170 So.2d 518 (La.App. 3d Cir. 1965). Because a petition is subject to more than one interpretation or is vague, does not mean that it is subject to the exception of no cause of action. A vague, uncertain or indefinite petition is subject instead to an exception of vagueness. Haskins v. Clary, supra. Brunson v. Mutual Life Ins. Co. of N.Y., 189 La. 743, 180 So. 506 (1938); McMahon, The Exception of No Cause of Action in Louisiana, 9 Tul.L.R. 17, 30 (1934).

The allegations of the petition do not exclude the reasonable hypothesis that after 1971, the avails of the tax were improperly used to replace funds available for policemen’s salaries from other sources, thereby preventing use of the avails for an increase in police salaries. That the petition does not state the methods of salary determination and payment should not deny the plaintiffs an opportunity to present their evidence. Haskins v. Clary, supra, Pence v. Ketchum, 326 So.2d 831 (La.1976); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971). I would remand this case for trial on the sufficiency of these allegations.

      . La.Const.Art. 14, § 25 (1921), as amended in 1928, was continued in effect as a statute by La.Const.Art. 14, § 16(1974). The 1928 constitutional amendment provided:
      “In addition to such other taxes as the City of New Orleans is now, or may be hereafter, authorized to levy, said City shall levy annually a special tax, not exceeding three mills on the dollar, on all taxable property in said City, as assessed and valued for city taxation purposes. The avails of said special tax are hereby dedicated to the maintenance of a double platoon system in the Fire Department and a triple platoon system in the Police Department of said City, and for an increase in the pay of the officers and men in said departments, respectively, and shall be used by said City exclusively for said purposes, respectively, according to such apportionment as said City may make from time to time; provided, however, that one-half the avails of said tax in excess of two mills shah

        be used exclusively for the purpose of an increase in the pay of officers and men in the Fire Department of said City, while the other half shall be used exclusively for the purpose of an increase in the pay of officers and men in the Police Department of said City." (Emphasis supplied.)

      . The pertinent allegations of plaintiffs’ petition are as follows:
      “VI. Prior to January 1, 1971, the avails of said property tax were paid to those individuals employed as policemen by the New Orleans Police Department in a lump sum, annually, which sum was over and above the regular salary of said policemen.
      “VII. Since January I, 1971, the City of New Orleans, the City Civil Service Commission of New Orleans, and/or the New Orleans Police Department have used the avails of said property tax as a contribution to the regular salary of the individuals who are, have been, or may be employed as policemen, thus depriving said individuals of the additional pay which was intended under the Louisiana Constitution of 1921 and 1974. Accordingly, defendants have been and continue to be in violation of the provisions of the Louisiana Constitution of 1921 and 1974.”

      . In Ziemer v. City of New Orleans, 195 La. 1054, 197 So. 754 (La.1940), the court held that:
      “In our opinion the amendment contemplated that the City would continue to maintain the department in the same manner as it had before and would use the funds derived from the tax to increase the services of the department and the pay of the men.” (Emphasis supplied.) 197 So. at 758.
      The court accordingly affirmed a judgment which ordered the City to appropriate out of the general fund a sum adequate to maintain the fire department and to segregate the proceeds of the tax collections for the purpose of increasing the pay of firemen. The court thus rejected the City’s contention that it had no duty to appropriate out of the general fund an amount adequate to maintain the fire department.

      . This reasoning also answers the City’s argument that the Legislature in 1928 could not have intended that all future wage increases, once granted, could never be reduced. The City’s power to implement a general reduction in the regular salaries of City employees is not at issue. What is at issue is the City’s power to effect a special reduction in the regular salaries of particular employees solely because those employees receive a salary supplement from a source other than the general fund.

      . The fact that the policemen did not complain (insofar as this record shows) of the discontinuation of the annual bonus until 1980 suggests that the change in 1971 may have been a mere revision (of which both sides must have been aware) in the method of payment of all wages for each year.

      . This case illustrates the problems created when a party attempts to present a defense by means of an exception of no cause of action, rather than by evidence at a trial on the merits or by a motion for summary judgment. When a petition is incomplete or vague, the more appropriate procedure is to utilize discovery (or other exceptions) and then present the issue clearly in a motion for summary judgment.


author:
FRED C. SEXTON, Jr., Justice Ad Hoc.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. William B. EASTIN.
    No. 81-KA-2928.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-appellee.
    Preston N. Aucoin, Ville Platte, for defendant-appellant.
   FRED C. SEXTON, Jr., Justice Ad Hoc.

Defendant William B. Eastin was charged by a bill of information with the offense of simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2. After a trial in July of 1981 in which the defendant was found guilty as charged, he was sentenced to seven years at hard labor. He appeals originally asserting eleven assignments of error, seven of which he now argues. Those assignments not argued are considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

FACTS

The defendant was arrested on April 5, 1980, in connection with the break-in and resulting theft at the residence of Jimmy Reed a neighbor and contemporary of the defendant. After arrest Mr. Eastin signed a permission to search an automobile which he had been using and the area surrounding his residence. During this search two pieces of stereo equipment belonging to the complainant were located.

ASSIGNMENTS OF ERROR NOS. 1 AND' 2

In these two separate assignments of error the defendant apparently complains of the fashion in which the defendant was charged, and also complains of the court’s denial of a request for a continuance when the prosecutor refused to indicate which of several charges he planned to try the defendant on.

The first assignment of error asserts that the state failed to elect which of several separate charges filed against the defendant would proceed to trial until the morning of the trial. Assignment of error number two complains that there were two separate bills of information pending charging the defendant with the same burglary (one for simple burglary and one for burglary of an inhabited dwelling) which somehow prejudiced the defendant.

Originally, after the defendant’s arrest, the District Attorney filed a bill of information (or indictment) charging the defendant with seven separate offenses in the same information. Contained therein were three simple burglaries and three thefts related to each of the burglaries, as well as a weapons charge. The District Attorney subsequently filed three additional bills of information. Each of these new bills charged a separate burglary and the theft related thereto. Additionally the burglaries were now alleged to have been burglaries of inhabited dwellings. Also the weapons charge was contained in one of the other two bills, not the subject of these proceedings.

On July 10, 1981, the minutes indicate that the matter came up for hearing on motions previously set on June 80. It is not clear from the colloquy or the minutes which specific motions came on for hearing on that date. As the hearing got under way it became apparent that while both counsel thought the previous seven count information had been dismissed, that this information was still pending. As a result of this confusion the case was continued until July 13 at which time a motion to quash on behalf of the defendant was allowed. The defendant urged the court that since the original information had not been dismissed it superceded the others and acted as a sort of criminal lis pendens barring prosecution on the subsequent three bills. After considerable discussion the trial court on its own motion dismissed the original seven count information over defense objection. Assignment of error number two, then, refers to this objection.

Defense counsel plainly stated on at least two separate occasions to the court that he had assumed that the original information had been dismissed and it was his understanding that the District Attorney was of the same view. He has cited no prejudice resulting from these circumstances, and we are unable to perceive of any. This assignment lacks merit.

Assignment number one specifically asserts error because of the District Attorney’s refusal to state which one of the seven offenses which the defendant was alleged to have committed would be called to trial first; and further asserts error in the denial of a continuance filed July 21, the morning of the trial. The main thrust of defendant’s argument is that he was prejudiced by having to prepare so many cases for trial at one time. He cites no specific instance of prejudice, however, other than to contend that having to prepare for these seven cases on the same day resulted in “prejudice.”

These matters had been pending for a significant period of time. The record indicates that the preliminary examination occurred on June 20, 1980, and that the seven count information had already been filed at that time. This trial occurred on July 21, 1981. Thus, there was ample time for counsel to be prepared. Likewise, the state was in the same boat as the defense in having to be prepared on all counts. We know of no authority, nor have we been cited any, which would require the state to elect in advance of the date of trial which of several pending offenses which are set on the same date it plans to call first. The orderly administration of justice requires that the state’s discretion in calling cases for trial not be interferred with absent a clear showing that such discretion has been abused so as to cause some specific prejudice to the defendant. No such specific prejudice has been shown here.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 5

By assignment of error number three defendant contends that the trial court erred in overruling his motion to quash the jury venire. At the trial of the motion defendant showed that the venire was taken strictly from the voter registration rolls. He asserts that this method of selection systematically excludes a certain class of persons, i.e. non-voters. State v. Daigle, 344 So.2d 1380 (La.1977), is fatal to defendant’s position in the context of this record. Daigle expressed concern over the propriety of using voter registration lists as the only source from which a venire was compiled, but went on to state that using such a list was satisfactory unless the defendant could show that such use discriminated against a class of people to the extent that it “did not represent a fair cross section of the community.” Daigle, supra, at p. 1390 (emphasis added).

The defendant has made no showing that the exclusion of non-voters resulted in racial or class discrimination, or that the ve-nire did not represent a reasonable cross section of the community.

This assignment of error lacks merit.

By assignment of error number five the defendant complains of the failure of the trial judge to entertain his motion to quash the jury panel selected for the trial after the completion of that panel, citing State v. Bias, 354 So.2d 1330 (La.1978).

This reliance on Bias is misplaced. Bias involved a contention of systematic exclusion of blacks in the process of jury selection itself by the use of peremptory challenges. In this case the defendant made no contention that a class of persons available for selection to the panel were systematically excluded by the prosecution’s use of peremptory challenges, which could be the only basis for such a motion. He was still complaining about the failure to include non-voters in the general venire, therefore resulting in their exclusion from the petit jury panel itself. Obviously this motion was a corollary to the motion discussed in assignment number three and fails with that assignment.

Thus assignment of error number five also lacks merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment of error the defendant contends that the trial court erred in denying the defense challenges for cause to three prospective jurors; Joseph K. Johnson, Neltada Brown and Renis Fontenot. Defendant exhausted all peremptory challenges.

It was apparent from the voir dire that the defense was going to assert that the defendant was a long term drug addict under the influence of drugs at the time of the offense. The jurors were routinely inquired of as to whether they had any specific prejudice against drug addicts such that they would judge defendant guilty of this offense simply because he was a drug addict.

The trial court is vested with broad discretion in ruling on challenges for cause. That ruling should not be disturbed on appeal unless there is a showing of an abuse of that discretion. A review of the entire voir dire is essential to determine if the trial court’s discretion was arbitrary and resulted in prejudice. State v. Bates, 397 So.2d 1331 (La.1981).

Prospective juror Joseph K. Johnson, when asked about his feelings concerning drugs responded:

A. I don’t like drugs. I don’t like people that use drugs. I don’t like them around me.
Q. You feel like Mr. Stevens or worse?
A. Maybe worse.

Defense counsel then moved to challenge the juror for cause as a Mr. Stevens had just been. At the invitation of the state the court conducted a further inquiry of Mr. Johnson. He went on to say, “I’m not saying the man’s guilty or not guilty. The question was, you know, how I feel about drugs?” Later on Mr. Johnson, though indicating that the defendant had already committed a crime by using drugs, responded that he would try the defendant on the burglary charge alone. He also indicated that he would listen to the evidence.

The trial court stated in evaluating Mr. Johnson’s responses and in deciding the challenge for cause:

“. . . we don’t want anyone to want to say to the court that I don’t have any feeling one way or the other about drugs in order to sit on this jury because we know we have feelings and I think what Mr. Johnson has just said satisfies the court that he would try him on the burglary charge alone.”

Obviously the court was aware that all of the jurors had a distaste for drugs but was convinced that this juror had been rehabilitated and would try the defendant strictly on the law and evidence relating to the case at hand. See State v. McClure, 249 So.2d 109 (La.1971), where a juror who was prejudiced against the use of alcohol indicated that he would follow the court’s instructions with regard to intoxication as a defense was considered rehabilitated.

Thus, a seemingly prejudicial juror had demonstrated, upon further inquiry by the court the ability to try the case impartially in the view of the trial court. State v. Bates, supra. Though, concededly, the issue with respect to this juror is a close one, considering the entire voir dire we find no abuse of discretion by the trial court.

With respect to Neltada Brown, after a somewhat confusing voir dire exchange, defense counsel zeroed in on whether the juror would presume the defendant guilty of this offense because of his use of illegal drugs. She stated she would find him. guilty, “If it would be proven to me.” Then after additional questioning, she stated again, “it would have to be proven that he committed the burglary.”

The trial court did not abuse its discretion in denying the challenge for cause to this juror. The totality of her responses made it clear that she would judge the defendant only on the basis of the charge at hand.

The final juror complained of, Renis Fon-tenot, was the father of a law partner of an assistant district attorney. It is not contended that this assistant had any involvement in the prosecution of this case. When the defense attorney asked Mr. Fontenot if he could actually serve impartially notwithstanding this relationship, Mr. Fontenot replied:

A. I’m surprised you’d ask that question. Would you think I’d convict a man just because my son is in the same office with the assistant D. A. Preston?
Q. Well I’m not sure about that. You know we all love our children.
A. Well, if you’re in doubt, just take me out.
Q. You want to take yourself off?
A. If that’s the way you feel, yes.
Q. Okay. I do.

This colloquy occurred toward the end of the examination of Mr. Fontenot. Though the challenge was not well articulated defense counsel told the court, “I mean, obviously the hostility has been formed.” The trial judge intervened, specifically stating that he saw no hostility on the part of the juror and emphasized that he wanted the record to so reflect.

Considering the examination of the juror as a whole the trial judge’s finding is correct. Relationship to a District Attorney itself is insufficient to disqualify Mr. Fon-tenot from service absent an additional showing that that relationship would influence the juror improperly. State v. Jones, 345 So.2d 1157 (La.1977); State v. Sugar, 408 So.2d 1329 (La.1982). The entire voir dire of the juror reflects no prejudice as a result of the relationship.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

Defendant argues that the trial court erred in failing to grant a mistrial on the basis of the prosecutor’s prejudicial reference to other crimes perpetrated by defendant. The District Attorney asked the following:

Q. Let me ask you ... on June 20th there is a Note of Evidence here that shows you were on the stand under oath.
A. Yes sir.
Q. And you were asked this question. Was the taking of pills did it cause an affect on you where you have committed these burglaries and don’t remember? Do you remember being asked that question? (Emphasis added). ’

At this point an objection was made, the jury was removed and defense counsel moved for a mistrial based on LSA-C.Cr.P. Art. 770(2). Defendant based his interpretation of Article 770(2) on this court’s holding in State v. Collins, 283 So.2d 744 (La.1973) that the prosecutor’s reference to another burglary was improper and constituted a mandatory mistrial. Therefore, defendant submits that the trial judge in the instant case erred by not granting a mistrial.

As the trial judge noted in ruling on the motion, evidence of at least one other burglary was before the jury. In direct testimony the defendant had described a lengthy history of drug abuse, and in response to his counsel’s questions freely admitted to the burglary and drug theft at the office of a Dr. Barry Fuselier. Thus, from the evidence before them the jury could well have inferred that the inquiry was directed at the instant burglary, and the Fuselier burglary, rather than other burglaries outside the evidence of the case. In the context made there is no prejudicial effect to this defendant and any possible error was harmless.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 7

By this assignment of error the defendant complains of the failure of the trial court to give 13 of the 16 special charges submitted by the defense. While the assignment lists 13 of the charges specifically, the defendant only argues to us the failure to include charge number 16 with respect to a drugged condition as a defense. The defendant cites State v. Lentz, 306 So.2d 683 (La.1975). In that case this court held that where the defense was intoxication it was error for the trial court to fail to give the defendant’s specially requested charge if that charge was wholly correct and there was arguable evidence of that defense. No charge at all was given on intoxication in Lentz. This defendant submitted essentially the same lengthy and complicated charge as that submitted by the defense in Lentz. But in the instant case the trial court did instruct the jury on the issue as follows:

“The fact that the defendant was in an intoxicated or drugged condition at the time of the commission of the crime is usually no defense.
However, where the circumstances indicate that the defendant voluntarily became intoxicated or drugged and that his intoxicated or drugged condition precluded the presence of a specific criminal intent, this fact constitutes a defense to a prosecution for that crime.”

The trial judge did not misstate the law and the defendant has pointed to no specific prejudice as a result of the trial judge’s condensation of the law at issue. This court has consistently refused to reverse a conviction on the basis of a disputed jury charge unless that charge when considered as a whole is shown to be erroneous or prejudicial. State v. Dupre, 369 So.2d 1303 (La.1979).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 10

By this assignment of error defendant contends that the trial court erred in denying a motion for a new trial based on the same alleged errors subsequently cited to this court as Assignments of Error. These issues have already been considered and found without merit, thus this assignment lacks merit.

Accordingly the conviction and the sentence of the defendant are affirmed.

AFFIRMED.

CALOGERO, Justice,

dissenting.

There is merit in A/E # 4. Juror J. K. Johnson should have been excused for cause. He was not rehabilitated.

       Judges Fred C. Sexton, Jr., and William Norris, III, of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis,-Jack C. Watson, and Harry T. Lemmon.

      . The three bills with a total of seven counts were all set for trial on the same day.

      . Shortly before the examination of Mr. Johnson a rather confusing exchange occurred between defense counsel and Mr. Stevens wherein Mr. Stevens seemed to indicate that the state would have a reduced burden of proof if it were shown that the defendant was under the influence of drugs at the time of the alleged offense.

      . LSA C.Cr.P. Art. 770. Prejudicial remarks; basis of mistrial
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      S{! * * * * S|5
      (2) Another crime committed or alleged to have been committed by the defendants as to which evidence is not admissible;
      tfc H* Hs * * *


author:
WILLIAM NORRIS, III, Justice Ad Hoc.

      LEMMON, Justice,

text:
    STATE of Louisiana v. Bruce F. STUCKE.
    No. 81-KA-3088.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, P. Michael Cullen, Arthur J. Lentini, Asst. Dist. Attys., for plaintiff-appellee.
    Lawrence Blake Jones, Scheuermann & Jones, New Orleans, for defendant-appellant.
   WILLIAM NORRIS, III, Justice Ad Hoc.

Defendant was charged by bill of information with attempted first degree murder in violation of La.R.S. 14:27 and 14:30 respectively. After trial by jury, he was found guilty of aggravated battery and sentenced to serve ten years at hard labor. It is from this conviction and sentence that defendant appeals urging twelve assignments of error.

FACTS

On November 20, 1980, at approximately 12:15 a. m. Deputy Charles Donovan while off duty from the Jefferson Parish Sheriff’s Office was approached at a Metairie Exxon Station by Deputy Barry Wood, also off duty, who advised Deputy Donovan that he believed an armed robbery was in progress at the Time Saver Store across the street from the service station. Prior to leaving the store, Deputy Wood had alerted the Time Saver employee on duty of a possible shoplifting attempt. When he exited, he noticed two men, one of whom was clad in a long coat from which an object was protruding that appeared to be a gun stock. Thereafter, he proceeded immediately to the service station to obtain assistance when he saw Deputy Donovan. The deputies advised the station's night attendant to contact the Sheriff’s office before they returned to the Time Saver.

As the deputies approached the store, they saw a man standing near the wall walk up to the window of the store and motion to another man who was inside. The inside man immediately came out of the store and both men ran to the back of the building. The deputies, after identifying themselves and ordering the suspects to halt, pursued the men on foot. Woods pursued and subsequently lost the man suspected of carrying the gun. Donovan pursued the other suspect and as he neared him shouted again that he was a police officer after which he again ordered him to stop. At that point, the suspect stopped but turned and pointed a blue steel revolver in Donovan’s direction. Donovan then pointed his gun at the suspect with the revolver but was shot in the right arm before he could fire. Donovan dropped his weapon when he was shot and was attempting to retrieve his gun with his left hand when he saw the man whom he later identified as defendant, Bruce Stucke, standing near him pointing a single barrel shotgun in his direction. When Donovan attempted to remove himself from the defendant’s line of fire, the defendant fired striking Donovan in the left arm. Donovan thereafter looked up and saw the defendant standing a few feet away, pointing the shotgun at him again, and threatening to kill him.

¡ Deputy Woods heard the shots, returned toward their location and observed the assailant advancing toward Donovan. Woods then fired, at the assailant which caused him to flee to a waiting automobile.

The defendant was tentatively identified from a photographic line-up by Donovan as the person who had shot him and identified again by Donovan from a physical line-up conducted two weeks later.

ASSIGNMENTS OF ERROR NOS. 1 AND 11

In these two assignments of error, defendant contends that the trial court erred in refusing to permit expert psychological testimony regarding the ability of a witness to perceive and recall events pertaining to the shooting incident. He further asserts that the trial court erred in refusing to admit a proffer of the expert testimony sought and that the trial court erred in failing to suppress the photographic and line-up identifications of defendant.

Defendant filed a Motion to Suppress the photographic and line-up identifications. At the hearing on the motion Deputy Donovan testified that he gave a description of the suspect to three officers. While Donovan was hospitalized on the night of the shooting, three men were brought to the hospital for him to view. At that time, he mentioned to the other officers that one of the men somewhat resembled the assailant’s physical appearance but did not identify him as the assailant. He further reviewed approximately 200 photographs while he was in the hospital but was unable to identify anyone.

Donovan viewed more photographs after he returned home identifying both the defendant and his co-defendant from photographic line-ups. His identification of defendant from the photographic line-up was not positive, but he requested that defendant be placed in a physical line-up. At the physical line-up [which was viewed and agreed to by defendant’s attorney] Donovan positively identified the defendant as his assailant.

Defendant argues that the “prior depiction of the photographic spread of lineups was impermissibly suggestive and reduced the degree of accuracy that would enable someone at a physical line-up to correctly identify the perpetrator.” He further contends that the fact that defendant and one other line-up participant were wearing black crepe, jail-issued shoes made the line-up suggestive.

We conclude that defendant’s contention that the fact that defendant was one of two line-up participants wearing jail issued shoes rendered it suggestive is without merit. It was established that at the jail soft soled shoes were distributed to inmates who only had hard soled shoes. However, if at time of arrest, a prisoner had soft soled shoes, e.g., tennis shoes, then no issue is necessary. In the instant lineup, two participants (one of whom is defendant) appear to be wearing jail issued shoes, three were in tennis shoes, and one was in hard soled shoes. The participant in hard, soled shoes was defendant’s brother placed in the line-up at defense counsel’s request. Additionally, defense counsel was present during the line-up and our review of the record does not reveal that he objected to the wearing of jail issued shoes. Viewing the procedure as a whole, this factor does not render the line-up unduly suggestive.

We have carefully reviewed the record and the evidence does not indicate that the identification procedures were unduly suggestive. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 S.Ct. 140 (1977).

In the instant case the photographs of the line-up are in the record for our review. Our review of the six subjects in the line-up leads us to conclude that it was not suggestive. It is clear from the testimony adduced at the hearing on the motion to suppress identification that the procedures employed relative to the showing of the photographs and the conducting of the line-up were proper and free from undue suggestiveness. There was a sufficient matching of basic physical appearance, [e.g. build, hair, facial hair, and complexion] of the participants to reasonably test the identification. See State v. Guillot, 353 So.2d 1005 (La.1977); State v. Gray, 351 So.2d 448 (La.1977); State v. Anthony, 347 So.2d 483 (La.1977).

Even if the identification procedures had been determined to have been suggestive, that alone would not render the identification inadmissible nor result in reversal. See State v. Nicholas, 397 So.2d 1308 (La.1981). State v. Davis, 385 So.2d 193 (La.1980). In the testimony of the victim here, he was positive in his identification of the defendant. He testified that he had an opportunity to view his face at the time of the shooting and the degree of his attention to the face of defendant was high because of the very nature of the incident. See State v. Guillot, supra.

The trial court did not err in refusing to suppress the identification of defendant. The totality of circumstances here demonstrates that the identification was reliable.

Defendant further contends that the trial court erred in excluding the testimony of an expert concerning the quality of an identification. At trial defendant called as a witness Dr. Robert Buckhout, an experimental psychologist who specializes in the psychology of witnesses. Defendant sought to elicit testimony from this witness to enlighten the jury as to the quality of the victim’s identification so that the jury would have a standard against which they could make an evaluation of the victim’s identification. Dr. Buckhout testified that in his studies he creates incidents for case crimes and stages them in live situations. In other words the crimes are staged; the person acting as the criminal and very often the victim are both actors. No actual crime has ever been an issue in his studies and none of his victims have been shot in his staged crimes.

After argument, the trial judge ruled that the doctor’s testimony would not be presented to the jury because of his “grave doubt about the competency of this evidence.” This concern was the manner in which the tests were conducted and the number of variables in the experiments. He further rejected this testimony concluding that the jury did not need this testimony to evaluate the identification of defendant and that the jury’s standard in judging such evidence is their own training and experience.

It is a well settled rule that a trial judge is vested with wide discretion in determining the competence of an expert witness. State v. Boyer, 406 So.2d 143 (1981). Competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge; his rulings on the qualification of expert witnesses will not be disturbed in the absence of manifest error. State v. Drew, 360 So.2d 500 (La.1978).

Although our research has revealed no cases where the issue of the acceptance of expert testimony regarding eyewitness identification has arisen in Louisiana, we have noted such cases in other jurisdictions. In State v. Ammons, 208 Neb. 797, 305 N.W.2d 812 (1981), the Supreme Court, in a case which involved a robbery, affirmed the trial court’s refusal to allow a psychologist to testify to prove that eyewitness identification testimony tends to be inaccurate and unreliable. The trial court held that the prejudicial effect of the testimony outweighed its probative value, that the issue was not a proper subject for expert testimony and that the evidence would usurp the function of the jury. The Supreme Court further noted that the accuracy or inaccuracy of eyewitness observation is a common experience of daily life and such testimony would invade the province of the jury.

The Supreme Court of Nevada considered this issue in Porter v. State, 576 P.2d 275 (Nev.1978), which involved a prosecution for robbery where defendant offered testimony from a clinical psychologist to challenge the validity of the eyewitness identification. The trial court rejected the testimony on the grounds that the proffered testimony was not in a recognized field of expertise, the foundation was inadequate, and it would invade the province of the jury. The appellate court affirmed the rejection on the basis that there was no express showing that the witness would have addressed himself to the testimony of the victim with reference to the victim’s retention and recollection capacity, the effect of stress (if any) on the victim’s power of perception or other relevant considerations. Rather, he would have testified about the unreliability of eyewitness accounts in general. The court further concluded that there existed a substantial risk that the potential persuasive appearance of the expert witness would have had a greater influence on the jury than the evidence presented at trial, thereby interfering with the province of the jury.

United States v. Brown, 540 F.2d 1048 (10th Cir. 1976), involved another situation where a defendant was charged and convicted of taking money from an FSLIC institution by force and violence by the use of a pistol. The trial court refused to permit defendant’s expert witness to testify to the limitation and weakness of lay eye-witness identification. The witness offered was a psychologist who had conducted studies of eye-witness identification and problems of perception. The court therein stated:

Generally, expert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men. 3. Am.Jur.2d, Expert and Opinion Evidence, § 21; 100 A.L.R.2d 1421; 92 A.L.R. 1223. Put another way, the test of admissibility is often predicated upon the proposition that opinion evidence cannot usurp the functions of the jury or be received if it touches the very issue before the jury. Frase v. Henry, 444 F.2d 1228 (10th Cir. 1971); Wigmore on Evidence, Third Ed., Vol. VII, §§ 1920, 1921; 31 Am.Jur.2d, Expert and Opinion Evidence, § 22.
In United States v. Brown, 501 F.2d 146, 150 (9th Cir. 1974), reversed on other ground, United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (decided June 23, 1975), the Court said:
Nobles offered the testimony of Dr. Robert Buckhout as an expert witness to describe the problems of eyewitness identification in general and the specific difficulties with the identifications in this case. The court refused the proffered testimony, concluding that the testimony would invade the province of the jury, that the undue consumption of time would substantially outweigh its probative value, and that the offer of proof was inadequate. We in turn cannot conclude that the trial court was in error. United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973).
We, too cannot conclude in the case at bar that the trial court erred. (540 F.2d at 1054).

It should be noted that the testimony in United States v. Brown, 501 F.2d 146 (9th Cir. 1974), sought to be admitted was from the same expert offered in the instant case on behalf of the defendant.

The rationale expressed in the foregoing cases is equally applicable to the instant case. We conclude that the prejudicial effect of such testimony outweighs its probative value because of the substantial risk that the potential persuasive appearance of the expert witness will have a greater influence on the jury than the other evidence presented during the trial. Such testimony invades the province of the jury and usurps its function.

We therefore conclude that the trial court did not abuse his discretion in failing to allow the expert witness to testify. The testimony sought to be elicited from him would not have been an aid to the jury. We further conclude for the reasons contained herein that the trial court did not err in denying defendant’s motion for a proffer of the evidence.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, defendant contends that the trial court erred in refusing to admit an unsigned report from the FBI which showed that one of the early suspects in the shooting had recently fired a gun.

At trial one of the officers testified that three individuals were arrested on the night of the shooting but were later eliminated as suspects. Prior to their elimination as suspects, a neutron activation test of their hands was made. Defendant argues that an unsigned FBI report on the results of the neutron activation test showed that one of the suspects had recently fired a gun. When counsel for defendant sought to introduce the report at trial, the state objected on the basis that it was hearsay which objection was sustained by the court.

Because the defense sought to introduce the report for the truth of its contents, the evidence was clearly hearsay. State v. Martin, 356 So.2d 1370 (La.1978). While scientific reports may be admissible at trial under the business record exception to the hearsay rule [State v. Perniciaro, 374 So.2d 1244 (La.1979).], the trial court’s exclusion of the evidence in this case was not erroneous. The unsigned report offered no assurance that its writer spoke from personal knowledge about the neutron activation test nor that the writer was in a position to vouch for its reliability. Furthermore, defense counsel made no showing that the writer was unavailable for trial. All of these requirements are key elements in the application of the business record exception. See State v. Perniciaro, supra. The underlying basis of the exception is the probable trustworthiness of the evidence. Therefore, the trial court was correct in its ruling.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

In this assignment defendant contends that the trial court erred in disallowing the introduction of the results of a polygraph examination of two of defendant’s seven alibi witnesses and in failing to order a polygraph examination of defendant.

Our review of the record indicates that the purpose for which the introduction of the results of the polygraph tests was sought was to persuade the jury that the defendant was innocent of the crime charged. In State v. Catanese, 368 So.2d 975 (La.1979) we concluded that for numerous reasons it should be the judicial policy of Louisiana to exclude polygraph evidence in criminal trials because its probative value is so outweighed by the reasons for its exclusion, i.e., its accompanying dangers.

Based on the rationale expressed in Cata-ñese, the trial judge did not err in barring the introduction of the polygraph examinations or in failing to allow the defendant to submit to a polygraph examination.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment, defendant contends that the trial court erred in refusing to admit defendant to bail after his conviction pending his appeal to this court.

Defendant was convicted of aggravated battery, received the maximum sentence of ten years at hard labor, and was remanded to the Department of Corrections. Defendant then requested that the trial court allow him to remain free on bail pending this appeal. The state opposed the motion which was denied.

The applicable provision is Article I, Section 18 of the 1974 Louisiana Constitution which provides:

After sentencing and until final judgment, a person shall be bailable if the sentence actually imposed is five years or less; and the judge may grant bail if the sentence actually imposed exceeds imprisonment of five years. [Emphasis added.]

It is clear under this article that a defendant has no mandatory right to bail pending appeal after he receives a sentence of ten years at hard labor. This provision leaves the matter solely within the discretion of the trial judge when he imposes a sentence in excess of five years. We conclude that the trial judge did not abuse his discretion in denying defendant bail.

The record shows that defendant was convicted of a serious offense — aggravated battery resulting from his shooting a police officer. The evidence adduced at trial shows that not only did defendant threaten to kill the officer but that he was prevented from doing so only by the intervention of another officer. Additionally, defendant’s expressed belief at sentencing that he was being unjustly persecuted tends to support a conclusion that he may abscond pending the final disposition of his case. Under these circumstances, the trial judge obviously considered defendant to be a poor bail risk pending appeal. Thus, we cannot say he abused his discretion by denying bail. See State v. Glass, 389 So.2d 387 (La.1980).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment, defendant contends that the trial court erred in imposing an excessive sentence by sentencing him to serve ten years at hard labor, the maximum sentence which could have been imposed for a violation of La.R.S. 14:34 [Aggravated battery].

During sentencing, the trial judge stated that defendant was a twenty-eight year old male first felony offender with a prior arrest for aggravated battery and a misdemeanor conviction for possession of marijuana. While recognizing that under these circumstances a suspended sustenee was not expressly prohibited, the trial court felt that such a sentence would be totally inappropriate under the circumstances of this case. The court felt that the violent act of shooting a police officer who was. in the lawful exercise of his duties in protecting the lives and property of the people of the parish necessitated a maximum sentence because anything less would deprecate the seriousness of the offense. The judge further stated for the record that he had considered the defendant’s background as well as the seriousness of the crime and had concluded that the maximum sentence must be imposed.

Our review indicates that the trial judge adequately complied with the requirements of La.C.Cr.P. Art. 894.1 in sentencing this defendant. Therefore, our review now focuses on whether the great discretion afforded the trial court in sentencing has been abused in this case. See State v. Cox, 369 So.2d 118 (La.1979).

We conclude that the trial court did not abuse its discretion in imposing the maximum sentence. The test for determining the excessiveness of a sentence is whether or not it is grossly out of proportion to the crime or whether or not it is nothing more than the purposeless or needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). We have noted prior that maximum sentences are appropriately imposed in cases involving the most serious violations of the described offense, and for the worst kind of offender. State v. Jones, 398 So.2d 1049 (La.1981). The evidence is sufficient to support a verdict of guilty of attempted second degree murder. The facts show that defendant was attempting to commit armed robbery with a loaded shotgun. There is also ample evidence to conclude that not only did defendant shoot the officer two times but that he was in the process of attempting to inflict a third, possibly fatal wound when he was fired at by the other officer. Under the circumstances of this case, we cannot say the trial judge abused his discretion in imposing the maximum sentence.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

In this assignment defendant contends that the trial judge erred in restricting his voir dire examination of prospective jurors.

It is well established that the scope of voir dire examination is within the trial judge’s discretion and his ruling will not be disturbed in the absence of a clear abuse of that discretion. State v. Robinson, 404 So.2d 907 (La.1981). In evaluating the fairness of the ruling, the entire examination must be considered. State v. Robinson, supra; State v. Monroe, 329 So.2d 193 (La.1976).

A review of the entire voir dire examination in the instant case shows that the defendant was afforded wide latitude in the examination of prospective jurors. The complained of ruling was only an attempt by the trial judge to have defense counsel clarify a confusing question. Furthermore, the trial judge admonished the prospective jurors that defendant had a right to complete voir dire and that the court did not want them to infer from its statement that the question should not be asked. There was no restriction of voir dire examination in this case.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 9

In this assignment, defendant contends that the trial court erred in admitting evidence of the attempted armed robbery, and the aggravated assault after the firing of the two shots at the victim. He further asserts that it was error for the state to elicit certain testimony from his brother and sister-in-law concerning defendant’s behavior a short time after the shooting.

Although defendant concedes that the attempted armed robbery and threat to the victim were part of the res gestae, he contends that the probative value of this evidence was outweighed by its prejudicial ef-feet. He further contends that the prejudicial effect must balance the probative value. We disagree.

All of the evidence complained of is clearly a part of the res gestae. What forms any part of the res gestae is always admissible. La.R.S. 15:447 and 448; State v. Drew, 360 So.2d 500 (La.1978). Evidence of other crimes which are part of the res gestae is always admissible without balancing its probative value against its prejudicial effect. State v. Williams, 375 So.2d 364 (La.1979); State v. Wilson, 363 So.2d 481 (La.1978).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 10

In this assignment of error, defendant contends that the trial court erred in denying his discovery requests.

Defendant filed a motion for disclosure, a motion for discovery and inspection, and a motion for a bill of particulars. A hearing was held on these pre-trial motions and certain of defendant’s requests were denied.

We note initially that it is conceded by defendant that the state allowed defense counsel to review its entire file. Additionally, the hearing on the discovery motions was held after the preliminary examination and defense counsel was aware of most of the answers requested. In his brief, defense counsel argues that “full discovery of all tape recorded statements of witnesses identifying others [suspects] miss identifying (sic), or changing characteristics of identification as absolutely essential here.” However, he fails to state why under these particular circumstances they are essential. Under the facts of this case, it appears that he received all of the information available to the district attorney.

Additionally, defendant does not have a right to the names and addresses of state witnesses. State v. Jackson, 362 So.2d 1082 (La.1978); State v. Passman, 345 So.2d 874 (La.1977). Furthermore, La.C. Cr.P. Art. 723, relative to state information, and disclosure provides:

“This chapter does not authorize the discovery or inspection ... of statements made by witnesses or prospective witnesses, ... to the district attorney, or to agents of the state.”

While the article does not prohibit the discovery of the names and addresses of state witnesses or the discovery of the statements of state witnesses, rulings of the trial judge in pre-trial matters are generally shown great deference absent a clear showing of abuse of discretion. See, e.g., State v. Burch, 365 So.2d 1263 (La.1978); State v. Thornton, 351 So.2d 480 (La.1977); State v. Huizar, 332 So.2d 449 (La.1976). In his discretion, the trial judge refused to order such discovery. We cannot say that his ruling was an abuse of his discretion. The defendant cannot use discovery motions as a vehicle to discover the details of evidence with which the state expects to prove its case. See generally, State v. Hennigan, 404 So.2d 222 (La.1981); State v. Landry, 384 So.2d 786 (La.1980); State v. Carthan, 377 So.2d 308 (La.1979); State v. Hunter, 340 So.2d 226 (La.1976).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 12

In this assignment of error defendant contends that the trial court erred in failing to declare a mistrial based on a defense witness’ prejudicial reference to other crimes committed by defendant.

Defendant’s sole argument is that the girlfriend of defendant was obviously not capable of understanding the importance of not referring to past arrests or crimes of the defendant and that the forced statement by counsel in the presence of the jury to put on the record the grounds for the mistrial is especially onerous.

At trial, Linda Diecke, defendant’s girlfriend, testified as an alibi witness for the defense. On direct examination she testified that she had formerly been convicted of the crime of possession of marijuana. On cross examination she testified that she was on probation for possession of marijuana and that she was employed until “[rjright before [she] got into trouble.”

The state then sought by a line of questioning to find out the relationship between the witness and the defendant at the time of this offense and at the time of trial. The witness testified she was no longer defendant’s girlfriend. The state then asked, “So how long have you not been his girlfriend?” to. which the witness replied unresponsively, “Since we got in all this trouble, the marijuana.” The witness’ answer was confusing and ambiguous in that it could have indicated that she was involved with the defendant in the instant offense. No objection was made at this point, however. The prosecutor then asked, obviously trying to pinpoint the previous answer:

Q. So, since when is that:
A. November, I think it was November 27th.
Q. So, you just broke it off with him, then?
A. No, I didn’t really break it off.

At this point, defense counsel asked for both counsel to approach the bench which was done. The court did deny his request that the jury be removed. Thereafter, defense counsel stated that the questioning was headed toward revealing to the jury prior arrests or prior criminal activities of his client. The state responded that it did not call the witness and ask for the unresponsive testimony. No motion or objection was made, but the court stated “Motions are denied. Let’s continue.” This ruling [which was surplusage in that no motions of record had been made] was objected to and defense counsel requested a mistrial which was properly denied.

The state then proceeded as follows:

Q. So, you — you broke off the relationship on November 27, 1980?
A. No, I just didn’t break it off, you know, right when we got into that trouble.

The witness’ answer was again unresponsive in that the latter part of the answer referring to “that trouble” was unnecessary. Furthermore, it was confusing still as to when she broke off the relationship and as to whether or not she was possibly talking about the instant offense or just “trouble” such as may occur between a boyfriend and girlfriend. Again in order to clarify the unresponsive and ambiguous answer of the witness, the prosecutor asked:

Q. Who’s we?
A. Huh?
Q. Who is_

At this point defense counsel objected and before the court had a chance to rule on the objection, the witness responded:

A. We? I didn’t say “we.”

This answer was directly contrary to her previous answer. The court overruled the objection ' and the prosecutor repeated, “Who is ‘we?’ ” at which point defense counsel requested a mistrial. Before the court could rule on the request the witness blurted out the answer, “We is me and Bruce.” At this point defense counsel admonished his witness as he had done earlier not to answer until the judge gave her permission.

The motion for mistrial at that point before the court as to the prosecutor’s previous question was denied. Defense counsel objected to the denial but did not again move for a mistrial based on the witness’ volunteered answer. The prosecutor then asked:

Q. So when did you break it off?

The witness’ answer was again vague and unresponsive but did not allude to any “trouble.” Thereafter, no references to arrests, crimes, or “trouble” were made by the witness.

The unresponsive, spontaneous and ambiguous remarks of defendant’s own witness do not necessarily lead to the assumption that another crime was referred to. They might just as well have referred to something in connection with this particular crime or to personal trouble which the witness was having with the defendant. In the context of the interrogation, the state was trying to elicit the witness’ personal attitude or feeling toward the defendant in order to show bias. This was certainly relevant to her credibility as she was seeking to provide defendant with an alibi.

Under these particular circumstances, the witness’ reference to “trouble” and the unobjected to cryptic reference to “marijuana” were unsolicited references and not imputable to the state. See State v. Jones, 332 So.2d 466 (La.1976).

Therefore, this situation does not entitle the defendant to a mistrial under La.C.Cr.P. Art. 770. A direct or indirect reference to a crime committed or alleged to have been committed by a defendant, as to which evidence would be inadmissible made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument, would require a mistrial on motion of the defendant. La.C. Cr.P. Art. 770(2), A defense witness is not a “court official.” Rather La.C.Cr.P. Art. 771 would be applicable to the instant situation.

La.C.Cr.P. Art. 771 provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

It does not appear, we do not find, nor does defendant contend that the allegedly impermissible remarks by the defendant’s own witness deliberately were planned or were obtained by the design of the prosecutor to prejudice the rights of the defendant. The answers and remarks were unsolicited, volunteered, ambiguous and unresponsive— as had been much of her testimony while on cross-examination. Certainly the references were not designed or uttered by the witness to prejudice the defendant. Furthermore, her remarks were at most cryptic, obscure references to other crimes made without elaboration or explanation. See State v. Jackson, 396 So.2d 1291 (La.1981).

Additionally, even if the witness’s unresponsive answers had been crystal clear that defendant had been in trouble over marijuana, introduction of the evidence does not constitute reversible error. In light of the entire record, we cannot say that knowledge of Stucke’s involvement with marijuana would so inflame the jury that it would unjustifiably convict the accused of aggravated battery. See State v. Vernon, 385 So.2d 200 (La.1980).

Even conceding the applicability of La.C. Cr.P. Art. 771(2) it does not follow that a mistrial should have been granted since in the absence of clear prejudice the defendant is only entitled to request that the judge admonish the jury to disregard the objectionable remark of the witness. No such request was made, and the motion for mistrial was properly denied. See State v. Lewis, 315 So.2d 626 (La.1975).

This assignment of error is without merit.

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

DIXON, C. J., concurs.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Although I agree that the trial judge, under the circumstances of this case, did not abuse his discretion in refusing to permit defendant to offer the testimony of the “identification expert”, it is not necessary to decide whether the trial court must, under all circumstances, exclude such testimony as unhelpful to the trier of fact. Trial courts should not view this decision as imposing a “rule of inadmissibility” with regard to expert testimony of the nature offered here. Rather, trial courts should cautiously approach the question of admissibility of such evidence in each instance and decide whether, under the peculiar facts of the particular case, the “specialized knowledge” of an expert in the form of opinion evidence would assist the jury in deciding the question of identity. See Fed.R.Evid. 702.

       Judges William Norris, III, and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . The requests denied concerned the disclosure of the juvenile, youthful offender and adult criminal record of the victim and the victim’s mental status and character. Defendant also requested the name and business address of every individual who participated in the lineup.

      . It is unclear from the record if this statement was at the bench or within the hearing of the jury. However, even if it was within the hearing of the jury we note defense counsel’s failure prior to argument to advise the court of any basis for the removal of the jury.