text:
    STATE of Louisiana v. Roray JENKINS.
    No. KA-1742.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Writ Granted Oct. 12, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Susan Scott Hunt, E. Sue Bernie, Asst. Dist. Attys., New Orleans, for appellee.
    Joseph Meyer, Jr., New Orleans, for appellant.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   GULOTTA, Judge.

Defendant, found guilty of manslaughter while resisting arrest in violation of LSA-R.S. 14:31, appeals from the denial of his motion for a post verdict judgment of acquittal and the imposition of an eighteen year sentence with credit for time served. We affirm.

On March 24, 1983, two uniformed NOPD officers in a marked car observed an automobile driven by defendant Roray Jenkins disregard a stop sign at the intersection of Congress and North Dorgenois Streets. The officers pursued defendant’s car until it stopped approximately one block away. Officer Lloyd Clark approached defendant’s vehicle, whereupon defendant fled in his car down Independence Street.

In the ensuing chase, defendant disregarded another stop sign and struck broadside a car moving on the right of way street. A 24 year old passenger in this car died as a result of injuries received in the collision with defendant’s car. After the accident, defendant was apprehended by the officers while he was attempting to flee on foot from the accident scene.

EVIDENCE

Defendant contends the trial judge erred in denying his motion for a post verdict judgment of acquittal because the evidence, viewed in a light most favorable to the State, did not permit a finding of guilty. See La.C.Cr.P. Art. 821; State v. Vaughn, 378 So.2d 905 (La.1979).

According to defendant, the State failed to show any evidence that defendant had resisted a lawful arrest, an essential element of manslaughter as defined in LSA-R.S. 14:31(2)(b), because the officers testified they had initially stopped defendant’s car intending only to issue a summons for disregarding the stop sign.

The denial of a post verdict judgment of acquittal may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion. See State v. Vaughn, supra and State v. Hargrave, 411 So.2d 1058 (La.1982).

LSA-R.S. 14:31, under which defendant was convicted provides:

“Manslaughter is: ... (2) A homicide committed, without any intent to cause death or great bodily harm...
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder....
Whoever commits manslaughter shall be imprisoned at hard labor for not more than twenty-one years.”

The question presented in this appeal is whether the homicide was committed while defendant was resisting lawful arrest at the time of the homicide.

“Resisting an officer” is defined in LSA-R.S. 14:108 as:

“... the intentional opposition or resis-tence to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or ■serving process is acting in his official capacity.”

Officer Clark testified he had intended to issue a summons and had not intended to arrest defendant before he attempted to flee, Officer John Evans, the second police officer, likewise testified he would not arrest a person for going through a stop sign.

Nonetheless, it is significant that defendant intentionally attempted to obstruct the officers from acting in their official capacity by trying to flee. Defendant’s flight from the scene altered a situation from the mere giving of a traffic violation citation to one justifying defendant’s arrest for resisting the officers in violation of LSA-R.S. 14:108. Furthermore, the attempt to flee on foot after the accident was likewise in resistence and obstruction of the officers who were acting in their official capacity. This running from the scene further justified defendant’s arrest in the totality of circumstances involving the homicide.

We recognize, as pointed out by defendant, that apprehension and restraint have been held to be a form of detention short of a purposeful arrest and that the issuance of a summons for a speeding violation has been held not to constitute an arrest justifying a search incident to a lawful arrest. Nonetheless, in the instant case, in the act of fleeing from the officers’ attempt to issue him a summons defendant subjected himself to lawful arrest for violating LSA-R.S. 14:108. He committed a homicide in the course of that flight, first in a car and later on foot. These circumstances differ markedly from those in the cases cited by defendant.

Heavy reliance is also placed by defendant on State v. Nix, 406 So.2d 1355, 1356 (La.1981) to support a conclusion that the homicide did not occur while he was resisting arrest. In Nix, during an investigation of a domestic dispute, the defendant at first voluntarily accompanied the officers to the police station for questioning but then attempted to flee in his own car. Concluding that the defendant had not been placed under arrest, the Supreme Court rejected the notion that interference with an officer’s investigation is sufficient to establish the offense of resisting an officer. In language pertinent to our case, the Nix court clearly set forth criteria necessary to constitute resisting arrest, and held that where the officer is not engaged in attempting to either seize property, serve process or effect an arrest, a fleeing defendant cannot be considered guilty of resisting an officer.

Our case is clearly distinguishable from Nix. In the instant case, the initial stop was for the purpose of issuing a traffic citation (one of the Nix prerequisites to resisting arrest). Moreover, defendant’s flight from the scene by car resulting in a homicide and his further attempted flight on foot after the accident constituted an intentional obstruction of the officers’ duty after defendant had knowledge the officers were acting in their capacity in attempting to issue a summons. See State v. Hawkins, 422 So.2d 1155 (La.1982); State v. Freeman, 411 So.2d 1068 (La.1982).

Under the circumstances, we conclude the trial judge did not err when he denied defendant’s motion for a post verdict judgment of acquittal.

SENTENCE

Defendant further contends the trial judge erred by imposing an unconstitutionally excessive sentence in violation of La. Const. Art. 1, Section 20, which prohibits “cruel, excessive or unusual punishment”.

The trial judge’s reasons in imposing sentence as required by La.C.Cr.P. Art. 894.1 are an important aid in determining whether a sentence complained of is excessive. Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Smith, 437 So.2d 252 (La.1983).

Defendant was sentenced to eighteen years in the Department of Corrections with credit for time served for manslaughter under LSA-R.S. 14:31, which provides for a maximum sentence of twenty-one years at hard labor!

In his oral reasons at the sentencing hearing, the trial judge stated:

“I have reviewed this case, involving a chase on the scene. There has been substantial talk between your attorney and I, in regard to sentencing, and I cannot give you life time on this case. The totality of the situation, plus your record, makes me give you on the high side.... The sentence of this Court is to sentence the defendant to eighteen years in the Department of Corrections, credit for time served.”

In response to defense counsel’s question whether defendant’s one year sentence for possession of stolen property was to run concurrently with defendant’s sentence for manslaughter, the trial judge responded: “It’s concurrent with the other time. One of the bearing factors here is that you have a previous armed robbery, sir, in your other record.”

The sentencing judge need not articulate every factor mentioned in La.C. Cr.P. Art. 894.1, but the record must show he adequately considered the guidelines. State v. Straughter, 406 So.2d 221 (La.1981). Where the record, as in the instant case, clearly shows an adequate factual basis for the sentence imposed, it cannot be said that remand is necessary, even where there has not been full compliance with La.C.Cr.P. Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). In our case, the trial judge apparently took into consideration the circumstances of the two chases, one at high speed, the two attempts by defendant to flee from the officers, and the victim’s death. Given the nature of this offense, the factual circumstances and the criminal propensity of defendant, we do not find the 18 year sentence severe on its face or unconstitutionally excessive.

Having so concluded, we affirm the verdict and sentence.

AFFIRMED.

      . After defendant entered a plea of guilty for possession of stolen property at the sentencing hearing on defendant’s conviction of manslaughter, the trial judge then imposed on defendant a one year sentence for possession of stolen property to run concurrently with the eighteen year sentence for manslaughter.

      . State v. Aguillard, 357 So.2d 535 (La.1978).

      . State v. Breaux, 329 So.2d 696 (La.1976).


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Darryl HAWTHORNE.
    No. KA-1707.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Writ Denied Oct. 5, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Dwight Doskey, Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   GULOTTA, Judge.

Darryl A. Hawthorne was unanimously convicted by a jury of aggravated burglary in violation of LSA-R.S. 14:60. In his sole assignment of error on appeal, defendant contends his thirty year maximum sentence, with credit for time served, is excessive. We affirm.

At approximately 4 a.m. on July 4, 1983, the victim, who had been asleep with her infant child in her second story bedroom, awoke to find a man lying on top of her, covering her mouth with his hand, and repeatedly telling her “Don’t cry, I will kill your baby”. Upon resisting, the victim felt the man’s hand choking her, but she succeeded in screaming. Her husband, who was attending to their second child in another room, thereupon chased the man downstairs and outside the residence for a short distance.

About 15 minutes later, at a distance of approximately 15 blocks from the crime scene, defendant was arrested as a suspect fitting the victims’ description of the perpetrator. When returned to the residence minutes later, Hawthorne was identified by the victims. The victim’s purse had been emptied and defendant was in possession of an incriminating quantity of coins and currency. A knife (not owned by the victims) was also found on the victims’ stairway, although defendant’s fingerprints were not identified on it or elsewhere at the crime scene. Further, defendant stated spontaneously at the time of arrest that he had not meant to harm anyone.

Although defendant has not raised an assignment of error concerning the sufficiency of evidence to support the conviction, we have reviewed the documents in the record and the 52 page transcript of the jury trial in accordance with State v. Raymo, 419 So.2d 858 (La.1982). Viewing the evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found defendant guilty of aggravated burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

We now turn to defendant’s arguments concernir g the excessiveness of the sentence.

After verifying defendant’s date of birth, the trial judge stated the following factual basis for imposing a 30 year sentence upon the twenty-three year old defendant:

“The Court in this matter during the trial of this case heard the evidence and testimony presented finding the defendant had broken into this residence during the early morning hours, terrorized the victim herein, more particularly, by threatening to kill her young child, baby, in the crib next to the bed. The Court finds this an extreme factual situation where a mother and a wife, husband and family, sleeping in their home and invaded by a burglar on top of her threatening to kill her infant child.
Therefore, it’s the judgment of this Court that the defendant be turned over to Custody of the Department of Corrections for the maximum penalty prescribed for Aggravated Burglary, thirty (30) years hard labor, credit for time served....”

Defendant argues that the imposition of the maximum sentence for his first burglary offense is “particularly suspect” because the trial judge’s “blanket statement” at sentencing could refer to many other aggravated burglaries, each involving a potential threat to life since the intruder must be armed or commit a battery to be guilty of the offense. Defendant further contends the facts recited by the trial judge do not justify the maximum sentence. He points out further that there was no pre-sentence investigation and that he did not even receive the benefit of his “apologetic and somewhat remorseful” post-arrest statement that he had “never intended to harm anyone.”

Although the sentencing judge need not articulate every factor set forth in LSA-C.Cr.P. Art. 894.1, the record must show he adequately considered the sentencing guidelines. State v. Straughter, 406 So.2d 221 (La.1981); State v. Jenkins, 454 So.2d 282 (La.App. 4th Cir.1984). LSA-C. Cr.P.Art. 894.1 is satisfied, without the necessity for a remand, where evidence in the record clearly shows an adequate factual basis for the sentence. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Jenkins, supra.

Although the trial judge in the instant ease did not enumerate the factors listed in LSA-C.Cr.P. Art. 894.1, he did consider the defendant’s age and articulated a number of aggravating circumstances in this particular case, including the time of the crime, the defendant’s terrorizing of the victim and the threat to kill her infant child. The record further indicates that the defendant had been convicted in December, 1982 for carrying a concealed weapon, and was on parole at the time of the instant offense.

Considering the nature of this crime and the aggravating factors involved, we cannot say the thirty year statutory maximum sentence imposed is unconstitutionally excessive as being “grossly out of proportion to the severity of the crime” or “nothing more than the purposeless and needless imposition of pain and suffering.” State v. Telsee, supra; State v. Prados, 404 So.2d 925 (La.1981).

We are not persuaded by defendant’s argument that the trial judge failed to consider defendant’s protestations that he had not intended to harm anyone. Defendant’s self-serving statements after his arrest carry little, if any, weight as a mitigating factor. His choking of the victim and his threat to kill her child certainly demonstrated an intent and wherewithal to commit serious bodily harm. Under these circumstances, we do not find the thirty year sentence severe or unconstitutionally excessive.

Having so concluded, we affirm the conviction and sentence.

AFFIRMED.

      . The victim testified that she had eighteen dollars in paper money and two handfuls of coins in her purse. A search of defendant revealed approximately the same amount of bills and coins.


author: GARRISON, Judge.

text:
    STATE of Louisiana v. Steven SAVAGE and Johnny Windsor.
    No. KA 1655.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    Before REDMANN, GARRISON and BARRY, JJ.
   GARRISON, Judge.

The defendants, Steven Savage and Johnny Windsor, were charged by bill of information on March 1, 1983 with simple burglary in violation of La.R.S. 14:62. On May 9, 1983, a jury found both defendants guilty as charged. Defendant Savage was sentenced to serve two years in Orleans Parish Prison with credit for time served. Pursuant to La.R.S. 15:529.1, the State of Louisiana filed a multiple bill against defendant Windsor because of his two prior felony convictions. Windsor pled guilty to the multiple bill and was given the maximum sentence allowable of twenty-four years at hard labor without benefit of good time.

The facts of this case are as follows: At approximately 5:00 a.m. on February 20, 1983, Edward Jackson heard a noise outside of his restaurant located on Gallier Street and St. Claude Avenue. As he looked out of his window to investigate, he saw two men beating on the window of the nearby Texaco station. By the time he had walked outside, the two men had broken the window with a piece of concrete. One of the men, later identified as Johnny Windsor, was rolling a tire out of the service station while the other man, later identified as Steven Savage, was acting as a lookout. Mr. Jackson had taken his gun outside with him and he ordered the men to stop and to return the tire. He then held the men at the scene until the police arrived.

The operator of the Texaco station was summoned to the scene and later found another one of his tires hidden behind a trash can. He denied knowing either defendant and denied giving permission to either of the defendants to be inside of the station.

On appeal, both defendants request a review of the record for errors patent. Additionally, defendant Windsor argues that the sentence given to him is unconstitutionally excessive.

A review of the record discloses that there are no errors patent.

Although not alleged as an assignment of error, the sufficiency of evidence to support appellants’ convictions must be reviewed in accordance with State v. Raymo, 419 So.2d 858 (La.1982). In assessing the sufficiency of evidence in a direct evidence case, the reviewing court must determine whether, viewing the facts in the light most favorable to the prosecution, any rational trier of fact could have found the defendants guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982). Both appellants were convicted of simple burglary in this case. Simple burglary is “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein.” La.R.S. 14:62. Viewing the facts of this case in the light most favorable to the prosecution, the jury could have convicted the appellants of simple burglary.

In the only assignment of error, defendant Windsor contends that the sentence imposed upon him is unconstitutionally excessive as prohibited by Article I, Section 20 of the 1974 Louisiana Constitution. According to the case of State v. Sepulvado, 367 So.2d 762 (La.1979), an appellate court may review a sentence for excessiveness even though it is within the statutory limit. In this case, the defendant Windsor was given the maximum sentence allowable for a multiple offender convicted of simple burglary whereas his co-defendant received a substantially lighter sentence.

In his reasons for sentencing, the trial judge noted that Windsor has two prior felony convictions and two prior misdemeanor convictions. His felony convictions include attempted burglary of an inhabited dwelling and attempted aggravated rape. The trial judge also commented that defendant Windsor’s role in the crime in the instant case was greater than the role of his co-defendant Savage who acted only as a lookout while Windsor was directly involved in the actual unauthorized entry. Additionally, defendant Savage has a much less extensive criminal history than Windsor. The trial judge felt that any lesser sentence given to Windsor would deprecate the seriousness of Windsor’s criminal activities and would present an undue risk of the future commission of other crimes by him.

The transcript of the sentencing hearing indicates that the trial judge complied with the sentencing guidelines of La. C.Cr.P. 894.1 which mandates that sentences be tailored to fit the particular offense and the particular offender in each case. The imposition of the maximum sentence upon defendant Windsor in this case was not an abuse of the trial judge’s discretion. Therefore, for the reasons discussed above, the convictions and sentences are affirmed.

AFFIRMED.

      . La.R.S. 14:62:
      Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Section 60.
      Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.


text:
    SUCCESSION OF James R. LAMY.
    No. CA 1692.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Writ Denied Oct. 26, 1984.
    Edwin R. Fleischmann, Jr., New Orleans, for plaintiff-appellant.
    John H. Butler, II, Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for defendant-appellee.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Maureen Feran Freedland, Asst. Atty. Gen., Louisiana Dept, of Justice, New Orleans, for appellee.
    Before REDMANN, GARRISON and BARRY, JJ.
   GARRISON, Judge.

On April 20, 1982, James R. Lamy died while domiciled in Orleans Parish. Mr. Lamy had no descendants but was survived by his mother, two sisters, children of his deceased siblings, and his wife, Irma Moore Lamy, from whom he was judicially separated. Prior to his death, Mr. Lamy filed suit for divorce from Irma Moore Lamy but he died before a judgment of divorce was obtained. In his statutory will, Mr. Lamy bequeathed the usufruct of his home to his mother, Mrs. Florence W. Lamy, and the remainder of his estate to Mrs. Florence Cressy, defendant herein. Florence Lamy and Florence Cressy filed a petition for probate of James Lamy’s will and asked to be recognized as sole testamentary heirs of the decedent and to be put into possession of all of decedent’s property. Edith Lamy English, sister of the decedent and plaintiff herein, then filed a plaintiff to set aside this will, alleging that the decedent and Cressy had lived together in open concubinage as contemplated by Civil Code Article 1481 and that, therefore, James Lamy was incapable of donating immovables to Cres-sy and could only donate movables to her if the donation was not in excess of one-tenth of the value of his entire estate. Cressy answered this petition claiming that she was not Lamy’s concubine and, alternatively, if she was found to be Lamy’s concubine, that C.C. Art. 1481 is unconstitutional in that it unfairly discriminates and deprives her of equal protection and due process of law.

In her suit, English claimed that the decedent and Ms. Cressy had been romantically involved from 1974 until the time of decedent’s death in 1982. In 1981, the decedent and Ms. Cressy became engaged to be married and in 1982, Cressy moved into the decedent’s home. English maintains that from the time of this move until the decedent’s death, the decedent and Cressy were living together in open concubinage as contemplated by Civil Code Article 1481.

Cressy admitted that she was romantically involved with the decedent during this period but she claims that she moved into the decedent’s home only after he was diagnosed as having cancer and was in need of someone who would be nearby in order to take care of him. Additionally, Cressy claimed that her move to the decedent’s home also enabled her to care for the decedent’s elderly mother who lived next door to the decedent and for whom the decedent was no longer able to care adequately.

At trial, Judge Joseph DiRosa entered judgment in favor of the defendant, Florence Cressy, finding that the evidence did not establish that the decedent and Cressy had lived together in open concubinage as contemplated by C.C. Art. 1481. Therefore, Judge DiRosa did not address Cres-sy’s alternative argument that C.C. Art. 1481 is unconstitutional.

On appeal, appellant English argues that the trial judge erred manifestly in applying the wrong test to determine whether the parties had lived together in open concubinage. The appellee, Cressy, urges that the trial judge was correct in his ruling, but that if this court finds that the trial judge committed manifest error, then the issue of the constitutionality of C.C. Art. 1481 should be remanded to the trial court for hearing and judgment.

Civil Code Article 1481, from which this case evolves, states as follows:

“Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vi-vos or mortis causa, any donation of im-movables; and if they make a donation of movables, it can not exceed one-tenth part of the whole value of their estate. “Those who afterwards marry are excepted from this rule.”

The Louisiana Supreme Court in the case of Succession of Franz, 232 La. 310, 94 So.2d 270 (La.1957), stated the test for open concubinage as follows:

“In LSA-Civil Code, article 1481, the word ‘concubinage’ describes a status and not mere acts of fornication or adultery however frequent or even habitual, it imports the maintenance of a status resembling marriage and the word ‘open’ means free from concealment, reserve or disguise, not secret, but plain and above board. The mere fact that two unmarried people reside in the same house is no proof of concubinage open or secret.”

In the case of Succession of Keuhling, 187 So.2d 520 (La.App. 3rd Cir.1966), the court cites the leading case of Succession of Jahraus, 114 La. 456, 38 So. 417 (La.1905), in which the Louisiana Supreme Court explained the rationale used by the redactors of Art. 1481 as follows:

“For these reasons, they carefully and studiously confined the provision to ‘those who have lived together in open concubinage,’ meaning by the word ‘open’ that the concubinage should be so public as to be practically avowed, not necessarily by word, but at any rate by unambiguous, unequivocal conduct; that the relations must be such that, when sought to be made the basis of judicial action, no odious inquisitions might be necessary, and no nice poising of testimony, as in this case.”

The recent case of Thomas v. Thomas, 440 So.2d 879 (La.App. 2nd Cir.1983), writ denied, 443 So.2d 597 (La.1983), further defined “open concubinage” as follows:

“Thus, it is not enough that concubinage be proven. The courts have additionally required that concubinage be ‘open’. Concubinage is said to be open when the illicit relationship is not disguised, concealed, or made secret by the parties. Concubinage is open when the parties involved avow their illicit relationship by words or conduct ...
However, efforts taken by parties to conceal their illicit relationship militates against a finding of openness. Moreover, it is not sufficient that an illicit relationship be ‘notorious’ or widely known in order for it to be ‘open’ ...”

In support of her position, English cites testimony given at trial which established the facts that the decedent and Cressy were openly affectionate toward one another and that they took several trips together during their relationship. Additionally, English points out that the decedent made rental payments on the Chalmette apartment in which Cressy was living and that Cressy admitted that she and the decedent had frequent sexual relations. Testimony at trial also indicated that the decedent gave Cressy’s phone number to his relatives and that Cressy’s landlord was under the impression that both Cressy and the decedent had occupied the apartment.

In contradiction of English’s position, Ms. Cressy’s daughter testified that she lived with her mother at the Chalmette apartment and that the decedent had never lived there. Harold Lamy, the decedent’s cousin and close friend, testified that, to his knowledge, the decedent had always lived in his house on Jackson Avenue and that the decedent and Cressy were not living together prior to 1982 and did not hold themselves out as husband and wife.

According to our standard of review as stated in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the appellate court should not disturb the factual findings of the trial court in the absence of manifest error. A review of the record in this case indicates that there was no manifest error on the part of the trial judge in finding that the decedent and Florence Cressy were not living together in open concubinage.

The facts that the decedent and the defendant committed adultery and that he helped pay the rent on her apartment are insufficient to establish open concubinage. As stated in the Keuhling case, supra, evidence of an adulterous relationship which was known to many people is not sufficient proof of open concubinage. James Lamy and Florence Cressy did not live together openly and publicly as husband and wife. If a state of concubinage did exist between them, it certainly was not ‘open’ as required by C.C. Art. 1481. Therefore, we affirm the judgment of the trial court.

We need not address the issue of the constitutionality of C.C. Art. 1481 in light of the fact that we affirm the finding of the trial court that the decedent and Cressy did not live together in open concubinage as contemplated by C.C. Art. 1481. For the reasons discussed above, we affirm the decision of the trial court. Appellant shall bear all costs of these proceedings.

AFFIRMED.


author: BARRY, Judge.

text:
    Ronald CHERRY v. OFFICE OF CRIMINAL SHERIFF.
    No. CA-1052.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Harry T. Widmann, New Orleans, for plaintiff-appellant.
    T. Allen Usry, Usry & Weeks, Metairie, for defendant-appellee.
    Before REDMANN, C.J., and GARRISON and BARRY, JJ.
   BARRY, Judge.

An Orleans Parish sheriff’s employee, formerly serving as a Captain, appeals a Civil Service Commission ruling which maintained his reduced rank and classified status as a deputy. The Sheriff answered that the employee forfeited his classified status by accepting an unclassified position without the required leave of absence.

Ronald Cherry was hired as a probationary Prison Officer I (deputy) on April 20, 1970 and acquired permanent status before December 31, 1974. In April, 1977 Cherry was promoted via civil service to P.O. Ill (Lieutenant) and in July, 1978 the Sheriff elevated him to P.O. IV (Captain) under his unclassified pay plan.

In June, 1977 the Supreme Court held the 1974 Constitution placed criminal sheriff’s employees in unclassified civil service. Civil Service Commission of the City of New Orleans v. Foti, 349 So.2d 305 (La.1977). Citing Article XIV § 9 of the 1974 Constitution, the Court stated:

“Accordingly, employees of the criminal sheriff who prior to the effective date had acquired classified status shall retain that status.” Id. at 310.

Shortly thereafter the sheriff's office filed papers on all deputies hired after January 1, 1975, changing their status from classified to unclassified. On December 2, 1977 Cherry’s status was changed to unclassified. The Sheriff continued using Civil Service forms and rank designations through December, 1980 because the payroll was prepared by City computers.

In January, 1981 the Sheriff began to administer his payroll. There were different pay scales for classified and unclassified personnel. The Sheriff testified he was faced with a 10% budget cut and a 25% increase in prisoners and decided to eliminate all overtime pay. Civil Service rules require that classified employees receive time and a half for overtime and double time on holidays. He determined civil service workers would revert to 8 hour shifts and unclassified employees would work 12 hours with no overtime pay.

In April and May, 1981 the Sheriff held several meetings with the’remaining classified employees in order to persuade them to accept unclassified status. He told them it was his position that under Foti they would revert to their rank held on the effective date of the 1974 Constitution if they chose to remain under Civil Service. Some personnel relinquished their classified status while others, including Cherry, did not. The Sheriff reduced Cherry’s classification to his pre-1974 Constitution status, i.e., P.O.I. Shortly thereafter he was placed on annual leave and appealed his “illegal demotion” to the Civil Service Commission and asked for restoration of his annual leave that he was forced to take. The Commission restored the annual leave but maintained Cherry’s status as classified Prison Officer I.

Cherry claims the Foti decision did not have the effect of locking classified employees of the Sheriff’s office into the rank they had achieved as of the effective date of the 1974 Constitution. Instead, he argues, Foti recognized that employees who had attained permanent classified status as of December 31, 1974 would retain classified status only: i.e., these employees could be promoted to a higher rank and still remain within the classified system. For this reason, he submits, his present rank within the classified service should be P.O.IV.

The Sheriff answered the appeal maintaining Cherry has no classified status. He argues Cherry accepted an unclassified position without following Civil Service Rule VIII § 6 of the City of New Orleans. Since he failed to obtain a leave from his classified position, he forfeited that status and the Commission had no subject matter jurisdiction. In the alternative, the Sheriff asserts the Commission erred by restoring Cherry’s annual leave because it was taken voluntarily.

The “grandfather” clause of the 1974 Constitution, Art. XIV § 9 is unambiguous that classified employees “shall retain said status in the position, class, and rank that they have on such date [the effective date of the Constitution] and [the employee] shall thereafter be subject to and governed by this constitution ...” This language simply means any change in “position, class, and rank” after December 31, 1974 will take the employee out of classified status and render him “subject to ... this constitution,” i.e., his status becomes unclassified. Beginning in 1975 there were no classified positions in the Criminal Sheriffs Office except those in the “position, class and rank” before that time. Therefore, Cherry’s position was a Prison Officer I. Once Cherry was promoted out of that “position, class, and rank” he became unclassified and worked at the discretion of the Sheriff.

Rule VIII § 6 of the Civil Service Rules of New Orleans provides that a civil service employee can accept an unclassified position and retain classified status by obtaining a leave of absence without pay. Cherry failed to take this step.

Admittedly, the status of all classified employees was questionable until Foti became final on September 2, 1977. Thereafter, Rule VIII § 6 came into play for those seeking promotions into unclassified positions. Cherry accepted advancement to Captain (unclassified) on July 27, 1978, more than ten months after Foti. The Commission had no authority to ignore Foti or waive Rule VIII § 6; therefore the Commission was effectively removed from subject matter jurisdiction.

The decision of the Civil Service Commission is reversed for lack of jurisdiction and Mr. Cherry’s petition is dismissed.

REVERSED.

      . Article X § 2(B)(10) and Article V § 32.

      . An appointing authority may grant a regular employee special leave of absence without pay whenever such leave is for the purpose of enabling such employee to accept an unclassified position in the city service, except an elective office. Any such leave heretofore granted by an appointing authority for the purpose herein expressed may be extended by such appointing authority from the date such leave was originally granted; provided, however, that the leave without pay herein authorized shall automatically end whenever an employee resigns from his unclassified position or his employment therein is otherwise terminated.

      . Footnote 2, supra.


text:
    STATE of Louisiana v. Albert WILLIAMS.
    No. KA-1217.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Before REDMANN, C.J., and GARRISON and BARRY, JJ.
   BARRY, Judge.

Defendant Albert Williams appeals his conviction for attempted armed robbery and his 99 year sentence as a second felony offender. He assigns as error the trial court’s refusal to grant a mistrial due to the state’s allegedly misleading response to defendant’s discovery request regarding his oral statement to the victim while in custody. Defendant contends his sentence is illegal because it was based on his decision to stand trial, rather than plead guilty, and argues the sentence is unconstitutionally excessive.

About 1:00 a.m. on Mardi Gras 1983 Charles Pugh, a sailor who had become separated from his friends by the crowds, met the defendant and two other men who invited Pugh to “party” with them. Pugh accompanied the three men out of the Quarter into a housing project where one of the men pulled a gun, pointed it in Pugh’s face, and demanded money. Pugh attempted to escape and the defendant struck him in the head with the gun, knocking him to the ground. Defendant continued to bludgeon Pugh in the head with the gun until police arrived, whereupon defendant and his cohorts fled.

Three police officers arrived in their patrol ear and observed the defendant hitting the victim with the gun. Each policeman chased one of the assailants but only the defendant was apprehended. Officer Deal, who caught the defendant after a six-block chase through the housing project, testified defendant had a gun in his hand when he fled the scene but did not have the gun when captured.

Meanwhile, Pugh got up and found his eyeglasses on the ground. After searching in vain for his watch and jacket (which contained $5), he left the area and was found 6 blocks away, his face covered with blood. Pugh apparently received first aid and was taken to the police station where he identified the defendant as his robber and assailant. Pugh asked the defendant why he robbed him and he replied that it wasn’t his idea, that the other two men were responsible, and that he tried to stop them.

At trial the defendant admitted he and his friends encountered Pugh in the Quarter, but denied he hit or robbed Pugh. He testified that he, his friend Shorty, and another man Shorty knew were walking down Bourbon St. when they met Pugh. The men agreed to take Pugh to a party at Williams’ girlfriend’s house and Pugh asked to buy marijuana. The men said they had none and Pugh became enraged and threw wine in defendant’s and Shorty’s faces. A struggle ensued and Pugh ran away, leaving his jacket behind. Defendant testified he was arrested 10 or 15 minutes later while he was walking to his aunt’s house “no where near the [Housing Project] office” and denied any chase by police through the housing project. Defendant similarly denied having a gun, robbing or striking Pugh, and saying anything to Pugh at the police station. He said the police officers and Pugh lied about the entire incident.

Although defendant has not challenged the sufficiency of the evidence to support his conviction, we have reviewed the record and are convinced that a rational trier of fact could have found every element of the crime proven beyond a reasonable doubt. State v. Fuller, 414 So.2d 306 (La.1982).

Defendant’s first specification of error concerns the following requests to the state:

b. Please inform the defendant of the existence of any oral confession or statement of any nature, made by the defendant, which the State intends to offer into evidence at trial. Please include information as to when, where and to whom said oral confession or statement was made. C.Cr.P. Art. 716.
c. Please furnish the defense with the existence, content, and substances of any oral statement which the State intends to offer into evidence made by defendant whether before or after arrest, in response to interrogation by a law enforcement officer. C.Cr.P. Art. 716.
The state responded:
b. The defendant made an oral statement to the victim and the arresting officers at the First District Police Station on February 15, 1983.
c. The defendant essentially denied doing the crime and said he only wanted to show the victim a good time.

The police officers testified that defendant told Pugh he had not intended to rob him. Officer Deal said defendant told Pugh, “It wasn’t my idea. I was just there ... I didn’t know what they were going to do.” Officer Small testified defendant said to Pugh, “I didn’t rob you. I didn’t want to rob you — The other guys wanted to rob you. I tried to stop them.”

Defendant asserts the testimony of the police officers came as a “total surprise” to the defense, which was misled by the state’s discovery response. Defendant argues the state’s description of defendant’s oral statement was exculpatory, but the officers’ testimony regarding that statement was inculpatory and highly prejudicial. Defendant concludes the resulting prejudice requires reversal because the state failed to comply with C.Cr.P. art. 716(B) and (C) which provide:

B. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.
C. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.

Initially, we note there is some question as to whether the state was required to divulge the contents of defendant’s statement since it was made in a conversation between the victim and the defendant, not in response to police interrogation. Additionally, the state did not characterize defendant’s statement as either exculpatory or inculpatory; rather, its response indicated that defendant’s statement essentially denied wrongdoing but he admitted being on the scene at the time of the crime.

In our view, the state’s responses accurately described the oral statement testified to by the police officers. We see no substantive discrepancy between the state’s description of the statement and the officers’ testimony. The statement on its face is exculpatory, perhaps a self-serving statement. The defendant was advised of its contents. The fact that the statement was later used by the state to impeach the defendant’s testimony does not change the nature of the statement or the accuracy of the state’s response. This specification has no merit.

Defendant’s next assignment concerns the imposition of an “excessive” sentence because he chose to go to trial rather than plead guilty. Defendant attached to his brief an appendix of statistics gleaned from the docket book of Section B, Criminal District Court for Orleans Parish. These figures represent a compilation of all sentences in armed robbery and attempted armed robbery convictions from April, 1976 to September, 1979.

Defendant claims the statistics point to a consistent, overwhelming disparity between sentences to defendants who stood trial and to defendants who pled guilty. Those same statistics were attached to the’ defendant’s brief in State v. Oubichon, 422 So.2d 1140, 1141-42 (La.1982) which declined to consider them, declaring:

However, in the context of this case, we are unable to reach these questions. First, the defendant failed to introduce any of this evidence into the record of these proceedings. Only that which is in the record may be reviewed by this court. State v. Augustine, 252 La. 983, 215 So.2d 634 (La.1968). Second, the defendant did not make any objection at or before the time of his sentencing. While we have held that there is no need for a contemporaneous objection for the issue of excessive sentence to be raised upon appeal, State v. Lewis, 416 So.2d 921 (La.1981); State v. Bourgeois, 388 So.2d 359 (La.1980), State v. Cox, 369 So.2d 118 (La. 1979), we have been careful to limit this rule to prevent the defendant from being relieved of all obligations for objection in connection with sentence review.

Defendant’s counsel argues the “injustice” of which he complains is “couched in the past actions of a trial judge, never on the record, but heavy in the air of the courtroom.” Our review must be confined to the record. For the reasons expressed in Oubichon, this Court cannot consider the compilation.

Defendant assigns the trial court’s failure to comply with the sentencing guidelines of C.Cr.P. art. 894.1. He contends the trial court imposed an unlawfully excessive sentence which was not “particularized to this defendant” and is not supported by the assigned reasons or the record itself.

Article I, Section 20 of the 1974 Louisiana Constitution prohibits the imposition of excessive punishment. A sentence may be reviewed for excessiveness even though it is within statutory limits. State v. Soco, 441 So.2d 719 (La.1983). A sentence is unconstitutionally excessive if it is “so disproportionate to the severity of the crime as to shock the sense of justice” or “is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Montero, 433 So.2d 426 (La.App. 4th Cir.1983).

The factors used by the trial court in its determination of the sentence must be apparent to the reviewing court to ensure adequate review. The first three criteria of C.Cr.P. art. 894.1 are essentially aggravating circumstances which mandate imprisonment, while the remaining eleven factors are mitigating circumstances which “while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation.” Although the possibility of parole, probation or suspension of sentence is interdicted in an attempt armed robbery case by R.S. 14:64, our courts have required that even where such benefits are not available, the trial judge must consider such mitigating factors in determining an appropriate sentence for a particular offender within the statutory range. State v. Soco, supra. Mere “tracking” of the aggravating factors enumerated in art. 894.1 A is insufficient to justify imposition of a maximum sentence; the trial judge must state the factual basis. State v. Kenner, 384 So.2d 413 (La.1980).

Before imposing sentence the court stated:

Okay. Of course, this is attempted armed robbery and you cannot be given a suspended sentence, because there’s no suspension of sentence permitted in armed robbery cases. The Court further finds that because of the fact that you are presently on probation, and you committed another more serious crime while on probation, that there is an undue risk that you will commit another crime soon as you are released.
The Court feels that you are [in] need of correctional treatment in a custodial environment that can be provided most effectively by committing you to an institution. You must remember that you viciously pistol whipped the victim in this case. Throughout your trial, and coming into this Courtroom you displayed no remorse for having committed this crime.

The trial judge established that defendant, who was 19 years old, had pled guilty to simple burglary on November 11, 1982, only 2V2 months before he committed the instant attempted armed robbery, and had been given 2 years probation. Thus, in this case the trial court’s conclusions concerning the “undue risk” of defendant’s committing another crime and the necessity for lengthy incarceration (two of the aggravating factors delineated in art. 894.1) are amply supported in his reasons and in the record. Likewise, the third aggravating circumstance — that “a lesser sentence will deprecate the seriousness of the offense”— is supported by the trial judge’s comment about the particularly vicious method by which defendant perpetrated this crime.

The record fully supports the conclusion that this crime was heinous and among the worst in its class. The defendant and his partners picked out an innocent stranger partying on Bourbon Street, put a gun to his face, and demanded money. When the frightened victim attempted to escape, defendant pushed him to the ground and mercilessly bludgeoned him in the head with a gun. There is every indication the savage beating would have continued until the victim was comatose or dead if the police had not intervened.

The trial judge also cited defendant’s lack of remorse. This Court agrees that a defendant who lies about every aspect of his crime, attempts to exonerate himself by blaming his companion, and accuses the victim of illegal drug solicitation, shows little inclination towards remorse or rehabilitation.

In State v. Montero, supra, at 428, this Court stated:

Although the trial judge need not articulate every aggravating and mitigating circumstance, the record must reflect that the sentencing guidelines were considered in particularizing the sentence to the defendant.

We note the trial judge did not refer to the mitigating factors in Art. 894.1. However, the circumstances of the offense negate the applicability of any of those factors. There was neither provocation nor excuse, and defendant knew his beating would cause the victim “serious harm.” With regard to the sixth factor, the record does not indicate any interest by defendant in compensating the victim for his loss or injuries. The fact that defendant committed this crime only 2½ months after conviction of another felony, and while on probation for that crime, contravenes the applicability of the factors listed in art. 894.1 B(7)-(10). As to art. 894.1(B)(11), there is no indication that defendant has any dependents or that his imprisonment would entail “excessive hardship to himself.” Thus, defendant’s youth appears to be the sole mitigating factor, but age alone does not render his sentence so severe as to “shock the sense of justice.”

Perhaps the trial judge may have been influenced by the jury’s obvious leniency in convicting defendant of attempted armed robbery, rather than the completed offense. In view of the victim’s testimony that defendant and his companions took his watch, jacket and cash, the court may well have felt that defendant deserved the maximum sentence, which is only V2 of the 198 year potential sentence for the greater offense.

Our Supreme Court has expressly sanctioned the imposition of a maximum sentence for an “attempt” conviction in certain situations when the trial judge feels the jury exercised leniency in giving a responsive verdict. In affirming the maximum sentence in State v. Freeman, 409 So.2d 581, 587 (La.1982), the court noted:

Leroy Freeman was given a maximum sentence of five years for attempted cruelty to a juvenile because the trial court concluded that he was guilty of the larger offense of cruelty and had been given lenity by the jury.

Similarly, State v. Kimble, 407 So.2d 693, 699 (La. 1981), affirmed the maximum sentence for manslaughter when the defendant was charged with second-degree murder, rejecting the defendant’s argument that “the probation officer was attempting to second guess the jury.” Kimble said:

The pre-sentence investigation report indicated that defendant Kimble had demonstrated, by his actions, a flagrant disregard for human life and had been shown leniency by the jury in being convicted of manslaughter. The report recommended that defendant receive the maximum allowable sentence.

This Court finds the trial judge did not abuse his discretion in sentencing the defendant to 99 years. The conviction and sentence are affirmed.

AFFIRMED.


text:
    GREAT FALLS INSURANCE COMPANY as Subrogee of Freddie Williams v. Willie J. JORDAN and XYZ Insurance Company.
    No. CA-1738.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Jules A. Fontana, New Orleans, for plaintiff-appellant.
    Temple A. Stephens, Metairie, for defendants-appellees.
    Before REDMANN, C.J., and GARRISON and BARRY, JJ.
   BARRY, Judge.

Great Falls Insurance Company appeals a summary judgment denying its subrogation claim against Willie Jordan and his insurer, Liberty Mutual Insurance Company.

On January 27, 1979 Jordan’s car collided with a car driven by Freddie Williams. On April 13, 1979 Williams’ insurer, Great Falls, paid him for the vehicle damage (minus the deductible) and he subrogated his claim.

Four months later, unknown to Great Falls, Williams settled with Jordan and his insurer, Liberty Mutual and he signed a receipt and release discharging both on all claims. Neither Williams nor his attorney advised Liberty Mutual of his subrogation agreement with Great Falls. Great Falls did not contact Liberty Mutual prior to its settlement with Williams, nor did it notify Liberty Mutual of its settlement and subro-gation agreement with Williams. Great Falls filed this suit on January 29, 1980 based on Williams’ subrogation.

On June 24, 1980 Liberty Mutual and Jordan filed an exception of one year prescription applicable to torts. The record shows no judgment on the exception; however, Liberty Mutual asserts the exception was overruled.

Liberty Mutual filed an answer and moved for summary judgment, alleging Great Falls’ petition is barred because of the release executed by its insured, Williams. Great Falls asserted that Williams had no authority to compromise his claim and his release had no effect. The trial court granted summary judgment without written reasons.

We affirm. The identical issue presented in this case was decided adversely to plaintiff’s position in Audubon Insurance Co. v. Farr, 453 So.2d 232 (La.1984), in a factual situation slightly more sympathetic to that plaintiff-insurer’s position than the subject case. Audubon involved a hit-and-run driver who ran into a home, causing property damage for which the homeowner was promptly reimbursed by her homeowner’s insurer, Audubon Insurance Co. The homeowner, Ms. Paul, executed a subrogation receipt in favor of Audubon. Subsequently, upon ascertaining the identity of the tortfeasor and his liability insurer, Ms. Paul accepted a settlement check from the insurer, Allstate Insurance Co. in violation of the subrogation agreement.

As in the instant case, the tort victim’s insurer did not notify the tortfeasor’s insurer of its subrogation rights until after the tortfeasor’s liability insurer had settled and made a payment to the victim. When Audubon filed a subrogation suit against Allstate Insurance Co., Allstate argued the suit was barred by the release signed by Ms. Paul. Audubon countered that the release was ineffective because Ms. Paul had already relinquished her rights against Allstate by the subrogation agreement and therefore no longer had the power to discharge the debt. Our Supreme Court rejected plaintiff’s contention, holding:

The compromise settlement by Allstate and Farr [the tortfeasor] with Paul “without knowledge or notice that the latter had assigned its claim” to Audubon bars this suit by Audubon. Jackson, Etc. v. Shreveport Producing & Ref. Corp., 6 La.App. 216 at 218 (1927). Allstate had no notice of Audubon’s subro-gation rights and should not be penalized for its good faith settlement with Paul. The Court further held:
Paul violated the terms of the subrogation agreement by settling with Allstate without the consent of Audubon. Audubon was aggrieved by its insured. [Pennsylvania Fire Ins. Co. v.] Harrison [94 So.2d 92 (La.App. 1 Cir.1957)], supra, correctly held that Audubon’s remedy is against that insured who holds the excess recovery as trustee for Audubon. The insured, rather than a stranger to the contract of insurance, is responsible to the insurer for breach of the contract. Audubon’s recourse is against Paul, not Allstate and Farr.

In his concurring opinion in Audubon, Chief Justice Dixon noted that, while he agreed with the majority reasoning, he felt that:

... the result is more appropriately mandated by C.C. 2644 which provides:
If previous to notice having been given of the transfer to the debtor, either by the transferrer or by the transferree, the debtor should have made payment to the transferrer, the debtor is discharged of the debt.
In this case, Paul transferred her rights against Farr to Audubon in exchange for $4412. She gave no notice to Allstate. Allstate’s subsequent payment was therefore prior to any notice of the assignment, and its debt to Paul and/or Audubon was thereby discharged.

Likewise, the instant case is governed by C.C. Arts. 2643 and 2644 and by Audubon. Since Liberty Mutual [the debtor] “made payment to the transferrer” [Williams] “previous to notice having been given of the transfer [i.e., the subrogation agreement] to the debtor, ... the debtor [Liberty Mutual] is discharged of the debt.” Thus, any debt of Liberty Mutual was extinguished by its payment to Williams.

The summary judgment in favor of Liberty Mutual Insurance Company is firmed. af-

AFFIRMED.

      . The cash register imprint on the petition shows January 28, 1980.


author: WILLIAMS, Judge. BARRY, Judge,

text:
    Florence JACOBS v. PIK-QUICK, INC., et al.
    No. CA-1663.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Roma Rita Plunkett, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for defendants-appellees.
    Darleen M. Jacobs, New Orleans, for plaintiff-appellant.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiff brought this suit for total and permanent disability benefits in workers’ compensation. After a bench trial, plaintiff was awarded judgment against defendant in the amount of $3,500.00 plus interest. Plaintiff appeals.

While working in defendant’s grocery store on January 2, 1977, plaintiff tripped over a loose floor board and fractured her left kneecap. She was treated by Dr. Es-sam Elmorshidy, who placed her leg in a cast. The cast was removed on February 24, 1977. Dr. Elmorshidy considered plaintiff’s recovery uneventful and complete and on May 25, 1977, discharged her to return to her normal activities.

On March 29, 1978, 10 months after her discharge from Dr. Elmorshidy's care, plaintiff consulted Dr. Marshall Book complaining of recurrent pain and swelling in her left knee and episodes of weakness in the knee which caused it to give way. A tear in the medial meniscus cartilage of the knee was diagnosed. Evidence of the earlier fracture, however, was no longer visible by x-ray and Dr. Book considered it completely healed.

Plaintiff underwent further diagnostic testing and saw Dr. Book a second time on April 17, 1978. At this time surgery was recommended, but plaintiff did not consent. At follow-up evaluations on August 23, 1978, and August 20, 1979, Dr. Book continued to recommend surgery. Plaintiff agreed to, but then cancelled, surgery scheduled for September, 1979.

Plaintiff was next seen on August 6, 1980, and underwent surgery on September 18, 1980. It was Dr. Book’s opinion that from the time plaintiff entered his care in March, 1978, until she underwent surgery in September, 1980, plaintiff could perform her job as a waitress, and that six weeks after her surgery plaintiff was able to resume work.

Dr. Book saw plaintiff nine times between her initial surgery and a second knee ■ operation on April 29, 1982. Dr. Book felt that plaintiff was capable of working until the second operation. He saw plaintiff several times after the second operation up to the time of trial, and felt that after a recovery period, plaintiff was again capable of resuming work.

At trial, Dr. Book gave plaintiff a 10% permanent partial physical imparity rating for her left knee.

On appeal, plaintiff asserts that the trial court erred in failing to find that plaintiff is an “odd-lot” employee entitled to permanent total disability benefits under La.R.S. 23:1221(2). That provision directs that compensation be paid:

(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training and experience, sixty-six and two-thirds per centum of wages during the time of such disability.

Plaintiff contends that the fall she suffered while in defendant’s employ on January 2,1977, not only resulted in a fractured kneecap, but also was the proximate cause of the torn medial meniscus and other progressive knee damage responsible for the surgery she underwent in 1980, and 1982. The pain she suffers due to her degenerative knee condition, plaintiff asserts, is so substantial that it precludes her ability to engage in any gainful occupation for wages and renders her totally and permanently disabled within the terms of the Workers’ Compensation Act.

A claimant is not considered disabled solely because he suffers some residual pain and discomfort upon returning to work following a work-related accident; the pain must be substantial or appreciable. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980). Whether the pain suffered by a claimant is substantial enough to be disabling is a question of fact for the trial court to decide. Newell v. U.S. Fidelity & Guaranty Co., 368 So.2d 1158 (La.App. 3d Cir.1979). Proof of disability caused by subjective pain depends to a great extent on the trial court’s evaluation of a claimant’s credibility in light of medical testimony presented. Holmes v. Morville Plantation, Inc., 314 So.2d 752 (La.App. 4th Cir.1975).

Within five months of her fall on January 2, 1977, Dr. Elmorshidy considered plaintiff fully recovered and ready to resume work. Dr. Book felt the only time plaintiff was incapable of work was during a six week recovery period after her first operation, and a slightly longer period after the second. Plaintiff, however, has never resumed any kind of work since January 2, 1977.

Plaintiff testified that her pain was too great to seek employment and that even when she did try, she was turned away because of her knee condition. The only effort to find employment that plaintiff related at trial, however, was a visit in May of 1981, to a restaurant the name of which she was unable to recall.

As of the date of her accident, January 2, 1977, plaintiff had worked for defendant for two weeks. She testified that the only other occasion she had been employed was from 1962 to 1964, when she worked at an A & G Cafeteria.

The issue of substantial pain in a workers’ compensation case is a credibility question that the appellate court will reverse only where the trial court, in weighing lay and medical testimony, has committed manifest error. Farrar v. Guy Atkinson Co., 325 So.2d 893 (La.App. 2d Cir. 1976). The trial court weighed the testimony of plaintiffs doctors against plaintiff’s own testimony and concluded plaintiff was not totally and permanently disabled. We find no manifest error. In fact, defendant’s insurer voluntarily paid plaintiff 66%% of her weekly wages, the equivalent of total permanent disability compensation, from January 2, 1977, until the trial court’s judgment on April 19th, 1983, 348 weeks later. At trial, the $58.67 weekly defendant had paid plaintiff amounted to $20,417.16. Further, defendant’s insurer has paid, and agrees to continue to pay, all medical expenses connected with plaintiff’s knee condition.

The trial court judgment ordered the defendant to pay plaintiff $3,500.00. This sum is distinct from, and in addition to, the funds voluntarily paid and to be paid by the defendant. Since the defendant has not disputed this supplement, we find no reasons to disturb the award.

For the foregoing reasons the decision of the trial court is AFFIRMED.

AFFIRMED.

BARRY, J., concurs.

BARRY, Judge,

concurring.

The $3,500.00 is a lump sum for future disability, clearly not provided by the comp statute.

However, as noted, this gratuitous award was not questioned and should stand.


author: WILLIAMS, Judge. SCHOTT, Judge,

text:
    Dominic C. GRIESHABER, Natural Tutor of His Minor Son, Lee P. Grieshaber v. Louis MARCOTTE, et al.
    No. CA-1693.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.

      Kenneth J. Berke, New Orleans, for plaintiff-appellant.
    David M. Packard, Metairie, for defendant-appellee.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision by the trial court granting summary judgment in favor of defendant.

Plaintiff filed suit on behalf of his minor son for personal injuries he received when he was struck by a rental U-Haul truck being operated by defendant Marcotte. Marcotte was operating the truck at the request of Barbara Hingle who Greishaber was also assisting. Greishaber was injured and plaintiff sued Marcotti, Hingle, and U-Haul, as well as their insurers. Continental Insurance Company [“Continental”], the personal liability insurer of Barbara Hingle, was also a named defendant. Continental filed a motion for summary judgment requesting its dismissal from the suit, which was granted by the trial judge. It is from this decision that plaintiff now appeals.

Barbara Hingle rented a U-Haul truck in order to move some furniture. She was assisted by Louis Marcotte and Lee Greish-aber. After having completed one trip with a load of furniture, the truck returned to Hingle’s home in Marrero to be loaded for a second trip. Marcotte had parked the truck in the front yard too close to the house and had to move it forward in order that the loading ramp could be fully extended. Apparently due to a problem with the clutch, the truck jolted backward when he started it, and the loading ramp struck and injured Greishaber.

At issue is whether Continental’s personal liability insurance on defendant Hingle excludes coverage for an accident such as the one which occurred in this case. The pertinent provision of the insurance policy states as follows:

“EXCLUSION: This insurance does not apply ... (b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of: (1) any automobile or aircraft owned or operated by, or rented or loaned to any insured, or (2) any other automobile or aircraft operated by any person in the course of his employment by any insured; but this exclusion does not apply to the parking of any automobile on insured premises, if such automobile is not owned or rented or loaned to any insured.”

The major issue before this court on appeal, therefore, is whether the trial court properly granted summary judgment on the basis of the exclusory language contained in the insurance policy.

The plaintiff has relied upon the Third Circuit decision of Dofflemeyer v. Gilley, 395 So.2d 403 (La.App.3d Cir.1981). In Dofflemeyer, the tortfeasor was the son of the insured. The insurance policy contained language similar to that which is contained in Continental’s insurance policy for defendant Hingle. In Dofflemeyer, the court held that the provision did not apply to the defendant’s son because he was found not to be an insured under the policy. In the instant case, plaintiff argues that Marcotte was not an insured under Hingle’s policy, and, therefore, the exclusion does not apply.

Continental relies upon the Louisiana Supreme Court decision Picou v. Ferrara, 412 So.2d 1297 (La.1982), which, as appellee points out in his brief to this court, was decided subsequently to Dofflemeyer. Pi-cou also involved a similar exclusionary clause in the insurance policy: coverage of an employee while in the employment of the insured, was specifically excluded. In Picou, the Supreme Court held that' this exclusionary clause was applicable in an accident that arose when a plaintiff was hurt by a car operated by the defendant while on an errand for his employer at the time of the accident.

According to the policy issued by Continental to Barbara Hingle in this case, Mar-cotte is an insured. The policy defines “insured” as “any other person operating with the permission of the named insured any such equipment registered in the name of the named insured and any person or organization legally responsible for such operation, but only if there is no other valid and collectible insurance available, either on a primary or excess basis, to such person or organization.” Because there has been no evidence that there is other valid and collectible insurance available, the decision of the trial court finding Marcotte an insured, and therefore that the exclusionary clause was applicable was correct. The trial court was properly granted the motion for summary judgment on this basis.

Plaintiff, however, argues that Hin-gle is also liable because she failed to provide adequate supervision for the move. Plaintiff argues that this is a separate and distinct cause of action based upon defendant Hingle’s independent negligence. In its memorandum in opposition to motion for summary judgment, plaintiff failed to assert this “independent and separate” cause of action. In brief to this court, the plaintiff claims that Hingle’s negligence is apparent from the depositions of Marcotte and of Hingle. After reading the depositions, we are unable to find any evidence that would be sufficient to raise the issue of negligence. See generally Badeaux v. East Jefferson Gen. Hosp., 364 So.2d 1348 (La.App. 4th Cir.1978).

For the foregoing reasons, the decision of the trial court dismissing Continental Insurance Company on summary judgment is AFFIRMED.

AFFIRMED.

SCHOTT, J., concurs.

SCHOTT, Judge,

concurring:

Plaintiff’s argument that Hingle is liable because she failed to supervise Marcotte and that the Continental exclusion would not extend to this liability is the identical argument rejected by the court in Picou v. Ferrara, 412 So.2d 1297 (La.1982).


author: WILLIAMS, Judge.

text:
    In the Interest of Amanda and Michael GRAY.
    No. CA-1725.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.

      Bradley N. Gater, Margaret J. Boeringer, Tulane Juvenile Law Clinic, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   WILLIAMS, Judge.

Elizah Gray, Jr. appeals the juvenile courts' judgment adjudicating his children, Amanda and Michael Gray, in need of care and placing them in the custody of the Department of Health and Human Resources. We affirm.

Appellant alleges that the trial court erred in: (1) permitting Elizah Sproles, who was neither offered, qualified, nor ruled to be an expert, to testify as an expert and give his opinions in support of adjudication; (2) admitting Elizah Sproles’s testimony as to what the children said to him because it constituted hearsay and also because the children had been found incompetent by the court; and (3) finding that the state had proven its case by a preponderance of the evidence.

FACTS

On February 28, 1983, the testimony of Elizah Thomas Sproles, M.D. and Detective Joan Charles was taken before Judge Sal-vadore Mule of the Orleans Parish Juvenile Court.

Dr. Sproles stated that he was the pediatric consultant for the Orleans Parish Child Protection Center and a pediatric consultant at Louisiana State University. He testified that he examined Amanda and Michael Gray on September 20, 1982.

Dr. Sproles testified that upon physical examination of Amanda, who was six years old at the time, he found that she had hypo-pigmented linear lesions in both corners of the mouth, compatible with having been gagged; multiple loop and linear marks on the extremities, primarily the upper extremities; multiple round contusions of about three-quarters of an inch in circumference; abrasions on the back, abdomen, and lower chest; a large hematoma on the left anterior forearm overlying an area of swelling and tenderness that he felt represented a callus, or large area of calcification, occurring around the site of a healing fracture; swelling of the top of her left foot; resolving bilateral black eyes; and an irregular, healed scar on the left buttock compatible with a burn. Counsel for appellant entered an objection, which was overruled, when Dr. Sproles began to relate a statement Amanda had made to him. Dr. Sproles testified as follows:

[t]he child said that both the mother and father had hit her with a hammer and belt and had tied her up. She said also that her mother burned her on the buttocks with a hot comb and that her father hit her on the arm at the fracture site with a hammer.

Dr. Sproles further testified that upon examining Michael, also six years old at the time, he found reddish-purple contusions on both hips and a one-inch linear contusion of approximately the same age on the left thigh. He testified, “Michael told me that his father had hit him with a belt and with a hammer.”

Dr. Sproles testified that he found Amanda’s and Michael’s explanations as to how they received their injuries to be compatible, on all counts, with his physical examination of the children.

Joan Charles, a police officer with the New Orleans Police Department’s Child Abuse Unit, testified that on September 18, 1982, she was contacted by Patrice Green, a social worker, and advised of a complaint of physical abuse of Amanda Gray. Detective Charles went to the children’s school and interviewed them both. She asked them both to disrobe. She saw that Amanda had dried blood about her nose; linear marks about the sides of her mouth that .were like bruises; a circular bruise to the middle left side of her face; a black eye to her left eye; a raised, discolored bruise to the middle part of her left arm; various scratches in different stages of healing on her neck; an old lacerated bruise in the center of her back; a raised discolored bruised area about two inches by one inch in the middle of her chest; a lacerated bruise to her chest; and several old linear marks on her back. Her left foot was extremely swollen and she was barely able to walk. Detective Charles examined Michael and saw circular marks, discolored and raised, on his hips, and arch-like marks on his back that were discolored.

The trial judge then called the children into his chambers to determine their competency to testify. After deeming them incompetent, the trial judge ruled that the state had proven by a preponderance of the evidence the allegations of its petition and found Michael and Amanda Gray children in need of care.

TESTIMONY OF DR. SPROLES

At the same time that both Mr. Gray’s and Mrs. Gray’s counsel objected to the statement of Amanda Gray as hearsay, Mrs. Gray’s counsel noted that Dr. Sproles had not been tendered to the court as an expert. Mrs. Gray’s counsel then stipulated that Dr. Sproles was a licensed physician. Since the court did not, at this time, qualify Dr. Sproles as an expert in child abuse, whatever expert testimony Dr. Sproles put forth would not be admissible. We do not consider, however, that Dr. Sproles’s testimony went beyond that of a licensed physician, and therefore consider all of it admissible. The fact that a witness called as an expert is not competent to give expert testimony does not affect his competency to testify as to matters not requiring expert knowledge. La.R.S. 15:467. The only statement we can consider even to approach expert testimony was Dr. Sproles’s assertion that while one black eye could be compatible with accidental injury, the presence of two black eyes indicated intentional injury. While we consider this knowledge well within the reach of any physician and not limited to the child abuse specialist’s expertise, we do note that exclusion of this minor portion of evidence would have no effect upon the substantial basis for the court’s adjudication.

CHILDREN’S STATEMENTS TO DR. SPROLES

Appellant asserts that because the trial judge ruled the children incompetent to testify at trial, statements made by the children to Dr. Sproles six months before should likewise be held inadmissible.. We cannot analogize the physician-child situation to the courtroom situation. In deciding whether to put these small children on the witness stand, the trauma of reliving their painful beatings, of testifying against and in the presence of their parents, and of being subjected to the multitude of strange and possibly frightening adults in the courtroom, were important considerations. The decision not to allow the children on the witness stand simply is not highly relevant to the truth of statements made by each child during a private examination by a physician a short time after receiving his or her injuries. The weight of the children’s testimony to Dr. Sproles was appropriately left for the trial judge to assess.

Appellant further asserts that the statements of the children are inadmissible as hearsay. The children’s statements to Dr. Sproles were an integral part of his examination of them, aiding him in the formation of a precise diagnosis. We cannot see any reason to doubt the truth of the children’s statements considering the environment in which they were made and noting that Dr. Sproles found the children’s statements to be completely verifiable by the physical evidence he uncovered in the examination. Hearsay history of a case related to a physician is admissible under federal law, F.R.E. 803(4), and under Louisiana criminal jurisprudence, State v. Watley, 301 So.2d 332 (La.1974). In Louisiana, evidence is more liberally admitted in a civil trial than in a criminal one. We are not troubled with the verity of the children’s statements. The trial court was not in error in admitting them into evidence; an assessment of their weight was properly within the realm of the trial judge.

BURDEN OF PROOF

Appellant asserts the state has not proven its case by a preponderance of the evidence, and further asserts that the trial judge supplemented the state’s case by calling the children as witnesses and using evidence gathered from them in chamber to complete the case in order to deny appellant’s motion for dismissal.

We have reviewed the transcript of the trial judge’s examination of the children in his chambers, and find that absolutely nothing was spoken among them that had any relation whatsoever to the matter at trial. The judge simply evaluated their ability to respond adequately in a courtroom situation. This was entirely appropriate. C.J.P. Art. 74.

Article 13 of the Code of Juvenile Procedure reads in pertinent part:

(14) “Child in need of care” means a child:
(a) Whose parent inflicts, attempts to inflict, or, as a result of inadequate supervision, allows the infliction or attempted infliction of physical injury or sexual abuse upon the child which seriously endangers the physical, mental or emotional health of the child ...

We agree with the trial court that the state proved, by a preponderance of the evidence, that Amanda and Michael Gray are children in need of care.

For the foregoing reasons, the decision of the trial court is AFFIRMED.

AFFIRMED.

      . In the record Mr. Gray is referred to both as Elizah and as Elijah.


text:
    Richard M. DAWES v. Nancy Zoder DAWES.
    No. C-2483.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 12, 1984.
    Writ Denied Sept. 28, 1984.
    Franklin V. Endom, Jr. and Robert M. Rosenberg, New Orleans, for relator.
    Robert G. Creely, Gretna, for respondent.
    Sally A. Shushan, New Orleans, for DePaul Hospital.
    Before CIACCIO and BYRNES, JJ., and JULIAN SAMUEL, Judge ad hoc.
   WRIT GRANTED AND ORDER VACATED

Plaintiff, Richard Dawes, brought this action seeking to have a prior custody order amended, so as to obtain joint custody of his two minor daughters (ages eight and ten years). In opposing the plaintiffs action, defendant, Nancy Zoder Dawes, caused to be issued subpoenas duces tecum for the production of prescription records and hospitalization records of the plaintiff, from DePaul and Osehner Hospitals. The plaintiff moved to quash the subpoenas on the basis that the information sought was privileged. The trial court granted the defendant’s motion to quash the subpoenas and the plaintiff sought supervisory writs from that ruling.

There are three issues presented for our consideration: (1) Is the information which is sought by the defendant protected by the plaintiffs doctor/patient privilege? .(2) Did the subsequent enactment of the joint custody provision of C.C. Art. 146 create an additional exception to the doctor/patient privilege? (3) If no new exception has been created, did the plaintiff waive the privilege?

The doctor/patient privilege is provided for by statute, which reads, in pertinent part:

R.S. 13:3734: Privileged communication health care provider and patient A. As used in this Part:
(1) “Health care provider” means a hospital, as defined in Paragraph (3) hereof, and means a person, corporation, facility or institution licensed by the state to provide health care or professional services as a physician, hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist or psychologist, and/or an officer, employee or agent thereof acting in the course and scope of his employment.
(2) “Patient” means a natural person who receives health care from a licensed health care provider.
(3) “Hospital” means any hospital as defined in R.S. 40:2102; any “Nursing home” or “home” as defined in R.S. 40:2009.2; or any health care provider’s offices or clinics containing facilities for the examination, diagnosis, treatment or care of human illness.
(4) “Representative” means the spouse, parent, tutor, curator, trustee, attorney or other legal agent of the patient.
(5) “Communication” means the acquiring, recording or transmittal, of any information, in any manner whatsoever, concerning any facts, opinions or statements necessary to enable the health care provider to diagnose, treat, prescribe or to act for the patients; said communications may include, but are not limited to any and all medical records,office records, hospital records, charts, correspondence, memoranda, laboratory tests and results, x-rays, photographs, financial statements, diagnoses and prognoses.
B. Except as hereinafter provided, in civil cases, proceedings before a medical review panel, pursuant to R.S. 40:1299.47 and in medical and dental arbitration proceedings, pursuant to R.S. 9:4230-4236, and in proceedings and investigation preliminary to all such actions, a patient or his authorized representative, has a privilege to refuse to disclose and to prevent a health care provider from disclosing any communication, whereever made, relating to any fact, statement or opinion which was necessary to enable that health care provider or any other health care provider to diagnose, treat, prescribe or act for the patient.
⅝ Jjs 4s ⅜5 5⅜ ⅜

The hospitalization and prescription records which are maintained at De-Paul and Oschner Hospitals appear to fall within the protective confines of this statute. However, we hold that the doctor/patient privileges protected by R.S. 13:3734, et seq., are subject to the additional exception created by the subsequent enactment of the joint custody provisions of C.C. Art. 146 which specifically require the evaluation of the mental and physical health of the parents. The trial court has the power to preserve the confidentiality of this information by the usual methods of sealing the records, taking testimony in chambers, etc. as may be done in this case.

Assuming, arguendo, that no new exception has been created by C.C. Art. 146, and that the records are privileged, has Dr. Dawes waived the doctor/patient privilege which applied to these records, thus making them subject to discovery? This Court is of the opinion that Dr. Dawes did in fact waive the doctor/patient privilege.

In the case of Arsenaux v. Arsenaux, the Louisiana Supreme Court held that a wife who alleged that she was free from fault in a suit for separation did not thereby waive her doctor/patient privilege. 428 So.2d 427 (La.,1983). In Arsenaux, supra, the husband attempted to prove his wife’s adultery by showing that she had had an abortion a year before they separated. Additionally, Mr. Arsenaux alleged that he had undergone a vasectomy some time before this incident. In reaching its conclusion, the Court reasoned that the legislature had not delineated separation suits as one of the exceptions to the doctor/patient privilege. R.S. 13:3734. The Court also stated:

Because Ms. Arsenaux’s physical condition is not an essential element of her suit, no implied waiver of the privilege should be inferred. Arsenaux v. Arsenaux, supra at 430.

However, in this case we find that the plaintiff’s physical and/or mental conditions are essential elements to his action for joint custody. That is, there exists a rebuttable presumption that joint custody is in the best interest of the child. C.C. Art. 146(C). However, the presumption may be rebutted by a showing that it is not in the best interest of the child. C.C. Art. 146(C)(2). In order to make such a showing, evidence may be introduced regarding the fitness of the parent to care for the child, including among other factors, the moral fitness of the parties involved as well as the mental and physical health of the parties. C.C. Art. 146(C)(2)(f) and (g).

Contrary to the allegations of the respondent, these records form part of the best evidence of these issues.

Accordingly, we vacate the order of the trial court which quashed the defendant’s subpoenas ducas tecum and we' hereby reinstate those subpoenas previously issued.

We also vacate the protective order issued on May 31, 1984.

WRIT GRANTED AND ORDER VACATED.


author: L. JULIAN SAMUEL, Judge, Pro Tem.

text:
    STATE of Louisiana v. Alton LANDRY.
    No. KA-1654.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant.
    Before BYRNES and CIACCIO, JJ., and L. JULIAN SAMUEL, J. Pro Tern.
   L. JULIAN SAMUEL, Judge, Pro Tem.

The defendant, Alton Landry, was charged with illegal possession of pentazo-cine, a violation of La.R.S. 40:967(c). He filed a motion to suppress the evidence— the pentazocine — but the trial court denied the motion, finding no violation of the Constitution. The defendant then entered a guilty plea and was sentenced to serve three years at hard labor.

In tendering his plea, Landry reserved his right under State v. Crosby, 338 So.2d 584 (La.1976) to appeal the trial court’s ruling on the motion to suppress, which ruling is now the subject of this appeal.

These are the undisputed facts:

At approximately 8:15 p.m. on April 23, 1983, Officer Roland Matthews of the New Orleans Police Department received a telephone call from a confidential informant. This C.I., who had proved reliable in the past, stated that he had just bought some “sets” of “T’s and blues” from a person called Cutno at 1826 St. Philip Street. That address is in an area well known by law enforcement authorities for its volume of illicit drug traffic. Upon receipt of this information, Matthews’ partner, Officer Doucette, instructed Officers Glasser and Collins to establish immediate surveillance of Cutno’s residence.

At approximately 9:00 p.m., Glasser and Collins watched as an unknown man approached the house and knocked on the door. Someone answered, but the officers were unable to see any details of what transpired. The visitor departed after a few minutes.

The defendant then arrived at the St. Philip Street address about twenty minutes later and knocked on the front door. Again, one of the occupants — perhaps Cut-no — answered. Landry removed something from his pocket and gave it to the occupant, who then went back into the house. He returned a few moments later and handed something to the defendant. Landry placed the object in his left front shirt pocket and walked away. Officer Collins then radioed a description of these events and of the defendant to Officers Matthews and Doucette, who were stationed nearby.

Matthews and Doucette spotted Landry and stopped him. They identified themselves as police officers, told Landry he had been seen leaving the St. Philip Street house and advised him that he was under investigation for the possession of narcotics. Landry spontaneously told Matthews and Doucette that he had drugs in the left front pocket of his shirt. The officers then removed two “sets” from the defendant’s shirt pocket.

Landry claims the trial court should have suppressed the evidence because there was no probable cause to arrest him and therefore his inculpatory statement and the subsequently recovered evidence were illegally obtained. We disagree and further find that under the circumstances, probable cause for an arrest did exist pursuant to La.C.Cr.P. Art. 213(3).

Probable cause for an arrest exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution to believe the person to be arrested has committed or is committing an offense. LSA-C.Cr.P. Art. 213, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Elliot, 407 So.2d 659 (La.1981); State v. Herbert, 351 So.2d 434 (La.1977). It is to be judged by the probabilities and practical considerations of everyday life on which average men, particularly average police officers, can be expected to act. State v. Smith, 377 So.2d 1220 (La.1979).

In the present case, the encounter between the police and the defendant was initiated by a temporary “stop” which was legal and proper under LSA-C.Cr.P. Art. 215.1(A). This detention was justified by several factors which gave the officers grounds to reasonably suspect the defendant was committing a crime. First, the information provided through the personal knowledge of the reliable confidential informant gave the officers reasonable cause to believe that Cutno, an occupant of 1826 St. Philip Street, was engaged in illegal distribution of narcotics. Furthermore, the officers’ own observations of the activity at that address gave the officers reasonable grounds to suspect that certain visitors to the house, including the defendant, were there for the purpose of obtaining drugs. Finally, the area of the observed activity was well known for its high incidence of drug traffic. State v. Buckley, 426 So.2d 103 (La.1983).

The reasonable suspicion which justified the defendant’s temporary detention certainly ripened into probable cause to arrest under LSA-C.Cr.P. Art. 213(3) when, almost immediately after being informed of his Miranda rights, the defendant spontaneously admitted to the officers that he had drugs in his front pocket. There being probable cause to arrest, the officers had authority to search for and seize the evidence which the defendant now seeks to suppress.

In conclusion, we hold that the officers did not violate the Fourth Amendment at any time during their encounter with the defendant, and therefore, the trial court did not err in denying the defendant’s motion to suppress the evidence. The judgment is affirmed.

AFFIRMED.