text:
    BEACH PLACE JOINT VENTURE, Owner of Beach Place, a condominium, Appellant, v. BEACH PLACE CONDOMINIUM ASSOCIATION, INC., a corporation not for profit, for itself, and for the unit owners of Beach Place, a condominium, Appellee.
    No. 84-411.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.

      Eurich Z. Griffin of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellant.
    Otto E. Halboth, St. Petersburg, for ap-pellee.
   PER CURIAM.

Appellant, Beach Place Joint Venture, owner of Beach Place, a condominium, seeks review of the trial court’s finding that a second floor unit was a common element. We reverse.

Appellant contends that when there is a change between the proposed plat of a condominium, the recorded plat and the condominium “as built,” by the addition of one unit, that unit does not automatically become a common element. In the limited context of this case, we agree.

The proposed condominium plat, recorded prior to construction of Beach Place, a condominium, shows Building No. 1 as a six-story building. The ground floor was designated as covered parking. The first floor plans show four apartments or living units, running approximately east to west, and one office unit. The office unit is in what is shown as a three-story “appendage,” built on the northeast corner of Building No. 1 behind an outside stairwell. The three stories of this “appendage” were to be a covered patio on the ground floor, an office on the first floor, and a mechanical room on the second floor. The second floor plans for Building No. 1 show four living units and the mechanical equipment room, a common element, above the first floor office unit. The third, fourth and fifth floor plans indicate four living units and nothing above the mechanical equipment room.

After construction began, appellant, the developer, decided to add a unit on the third floor in the area above the mechanical equipment room. These units in the office and mechanical room appendage were not similar to the living units. Because the City of Madeira Beach required appellant to certify that the additional space would not be used as living space, appellant moved the mechanical equipment room to the additional third floor unit and converted the second floor space into an office unit. This change is shown in the final survey and plat. According to the testimony of a condominium association board member, the final survey and plat had to be approved by the board. This action occurred sometime in 1980.

The final survey and plat were not properly recorded. The final documents were presented to the title company for recording. Allegedly, someone at the title company or a clerk at the Clerk of the Court’s Office, decided there had been no changes to the condominium since the proposed survey was recorded. Only the first page of the final survey was recorded. The additional third story space was excluded from the document.

In 1981, sales of the condominium units began. Purchasers were given copies of the survey and plat as they had been erroneously recorded. In July 1981, the unit owners took control of the condominium association. At an association meeting in late 1981 or early 1982, someone mentioned that the condominium plans did not show office space owned by appellant on the second floor, but instead indicated a mechanical equipment room.

The condominium association, appellee, informed appellant that rent had to be paid on the second floor unit. This was the first indication to appellant that the plans, as recorded, were not correct. Appellant informed appellee that a mistake had been made in recording the condominium documents and asked appellee to sign an amended plat to correct the error. Appel-lee refused. The corrected documents show office space on the first and second floors and a mechanical equipment room on the third floor, as the building was actually constructed. Appellee filed a complaint for declaratory relief, seeking to have the court declare that the second floor unit was a common element based on the plans showing the space as the mechanical equipment room. Appellant answered, claimed ownership of the unit and maintained affirmative defenses of waiver and estoppel based on appellant’s continued use and enjoyment of the unit with appellee’s knowledge. Appellant also sought reformation of the documents. The trial court found that the second floor area was a common element and ordered reformation of the condominium documents to conform with its order.

Appellant argues it was error to find that the second floor office unit was a common element. Appellant urges that a good faith attempt was made to comply with the Condominium Act, chapter 718, Florida Statutes (1981), and that the recording error should not be used to provide a windfall to the condominium owners. We agree.

The additional third floor space was not shown in the plans the condominium received by the purchasers. Thus, by observing the actual construction, unit owners should have been on notice that there was a change in the plans. When the unidentified additional unit was built, purchasers had no reason to believe that it was to be a common element under the terms of the Declaration of Condominium. Cf. Mayfair Engineering Co. v. Park, 318 So.2d 171 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 20 (Fla.1976).

The Declaration of Condominium defines common element as “all parts of the improvements which are not included in the apartments.” However, a subsequent clause provides for office units owned by the developer which are outside the apartments. This provision contradicts the definition of common element. According to the survey and plat they received and the Declaration of Condominium, purchasers could only rely on holding an interest in the mechanical equipment room, not on an interest in the mechanical equipment room and the additional unit when they bought the property.

Despite the change in the plans, purchasers have received an interest in a mechanical equipment room of the same size and configuration as represented in the survey and plat they received. There was no finding by the trial court that the relocation of the mechanical equipment room was a material change. See, e.g., Palma Sola Harbour Condominium Inc. v. Huber, 374 So.2d 1135 (Fla. 2d DCA 1979). Further, it appears that appellant made a good faith attempt to comply with the disclosure requirements of the Condominium Act. See, e.g., Bruce v. O’Neill, 445 So.2d 379 (Fla. 4th DCA 1984). There is testimony that appellant obtained approval of the amendments from the board of directors of appellee prior to the sale of the first condominium unit. Appellant also attempted to record the amended documents. However, the amendments were not properly recorded. In the absence of a showing of prejudice to the purchasers represented by appellee, appellee is not entitled to an interest in the additional unit. It would be improper to deprive appellant of the additional space created because of a technical error, when the purchasers nonetheless received substantially the same interest they bargained for.

For the reasons stated above, we reverse the trial court and remand for any necessary proceedings consistent herewith.

HOBSON, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. FRANK D. UPCHURCH,

license: Public Domain

text:
    Eugene B. THOMPSON, Appellant, v. Dorothy M. LANCASTER, Appellee.
    No. 83-1421.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    Ronald K. Zimmet, Daytona Beach, for appellant.
    Charles L. Carlton of Carlton & Carlton, P.A., Lakeland, for appellee.
   PER CURIAM.

AFFIRMED.

COBB, C.J., and ORFINGER, J., concur.

FRANK D. UPCHURCH, J., dissents with opinion.

FRANK D. UPCHURCH,

dissenting.

I respectfully dissent. In view of the fact that the parties agreed thirteen years ago that the husband would not have to pay any more child support in exchange for his agreement to stay away from the child, which he has done, I would reverse the award of arrearages. See Panganiban v. Panganiban, 396 So.2d 1156 (Fla. 2d DCA 1981); Warrick v. Hender, 198 So.2d 348 (Fla. 4th DCA 1967). But see Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979).


author: HUBBART, Judge.

text:
    Carl EIERLE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-877.
    District Court of Appeal of Florida Third District.
    Sept. 18, 1984.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HUBBART and JORGENSON, JJ., and NORRIS, WILLIAM A., Jr. (Associate Judge).
   HUBBART, Judge.

This is an appeal from a summary denial of the defendant Carl Eierle’s motion to vacate judgment and sentence filed pursuant to Fla.R.Crim.P. 3.850, based on a claim of ineffective assistance of counsel. The defendant Eierle was charged and convicted of first degree murder at a trial in which the defense of insanity was asserted and rejected by the jury. The gist of the claimed ineffective assistance of counsel is that counsel did not seek to introduce in evidence at trial, in support of the insanity defense, an adjudication of not guilty by reason of insanity which had been entered by the court in an unrelated criminal case, involving the defendant Eierle, prior to the commission of the murder in the instant case. In that prior criminal case, the defendant Eierle had been adjudged by the trial court to be mentally competent to stand trial. It is also claimed that counsel was ineffective because he did not seek an appropriate jury instruction that this prior insanity acquittal created a rebuttable presumption of insanity as to the charged murder in the instant case. See Fla.Std. Jury Instr. (Crim.) 3.04(b) (second to last paragraph). We disagree and affirm.

In our view, counsel’s failure to seek the introduction of the above evidence at trial and to request the subject jury instruction did not, as a matter of law, amount to a “deficient” performance by counsel falling “below an objective standard of reasonableness,” Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674, 693 (1984), or “a substantial and serious deficiency measurably below that of competent counsel,” Knight v. State, 394 So.2d 997, 1001 (Fla.1981), and therefore cannot constitute a valid ground for collateral attack of the judgment of conviction and sentence under Fla.R.Crim.P. 3.850 based on a claim of ineffective assistance of counsel. Jackson v. State, 452 So.2d 533 (Fla.1984); Knight v. State, supra. We reach this conclusion for two reasons.

First, we think counsel committed no error at all in failing to seek the introduction of the above evidence and to request the subject jury instruction, because there was little or no legal basis for pursuing this line of defense. No Florida case, of which we are aware, has ever held that an adjudication of not guilty by reason of insanity, as here, creates a presumption of insanity as to criminal acts committed by the defendant after the entry of such an adjudication; on the contrary, at least one Florida case appears to have rejected such a rule. Johnson v. State, 440 So.2d 464 (Fla. 1st DCA 1983). The defendant - Eierle cites Wells v. State, 98 So.2d 795 (Fla.1957) and Corbin v. State, 129 Fla. 421, 176 So. 435 (1937), as authority for this asserted proposition of law, but both of these cases involved mental incompetency adjudications entered in civil commitment proceedings, rather than acquittals based on a defense of insanity, and are entirely inapposite to the instant case. Indeed, these cases are in line with other similar Florida cases on this subject, all involving mental incompetency adjudications entered in civil commitment proceedings, rather than insanity acquittals entered in criminal proceedings. See e.g., Horace v. Culver, 111 So.2d 670 (Fla.1959); State ex rel. Deeb v. Campbell, 123 Fla. 894, 167 So.805 (1935); Deeb v. State, 118 Fla. 88, 158 So. 880 (1935); Hixon v. State, 165 So.2d 436 (Fla. 2d DCA 1964); Johnson v. State, 118 So.2d 234 (Fla. 2d DCA 1960); see also Eason v. State, 421 So.2d 35 (Fla. 3d DCA 1982).

The reason for this implicit distinction in the cases seems clear. An acquittal by reason of insanity in a criminal case is not a determination of present mental incompetency, as is true of an adjudication of mental incompetency entered in a civil commitment proceeding. Such an acquittal is, instead, an adjudication that the defendant in the past was temporarily insane when he committed the criminal act for which he was charged. This past mental incompetency, however, does not continue to the time of the defendant's trial where, as here, the defendant has been adjudged by the court to be mentally competent to stand trial. Indeed, such an adjudication of competency to stand trial would seem to dissipate any prior presumption of insanity which may have arisen from the defendant’s past acts of temporary insanity. It would, therefore, seem clear that an acquittal by reason of insanity in a criminal case, where the defendant has been adjudged competent to stand trial, cannot create, as urged, a presumption of insanity as to any criminal act committed by the defendant subsequent to the acquittal.

Second, even if there was some arguable basis for extending the law on this subject to acquittals based on insanity and that counsel was technically at fault for failing to pursue this theory of defense at trial, we can hardly call such a failure a “deficient” performance, falling “below an objective standard of reasonableness,” or “a substantial or serious deficiency measurably below that of competent counsel,” so as to constitute ineffective assistance of counsel under the Strickland-Knight standards stated above. Counsel, we think, is not required by these standards to pursue novel legal theories in defending a client accused of a crime, even if those theories in hindsight be considered reasonably arguable.

The summary denial of the defendant’s motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850 is therefore

Affirmed.

      . On appeal, we affirmed and certiorari review was denied. Eierle v. State, 358 So.2d 1160 (Fla. 3d DCA), cert. denied, 364 So.2d 884 (Fla.1978).


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Frank HORTON.
    No. 84-KK-0207.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
    Rehearing Denied Nov. 15, 1984.

    Paul Weidenfeld, George Hesni, New Orleans, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William Campbell, Dolores V. Mason Smith, Asst. Dist. Attys., for respondent.

       Calogero and Dennis, JJ., would grant a r'ehear-ing.

   DIXON, Chief Justice.

Defendant, Frank Horton, was charged in a single bill of information with three counts of armed robbery in violation of R.S. 14:64. The charges stem from three separate incidents.

The defendant is charged with robbing the same Church’s Fried Chicken retail outlet located at 3501 Washington Avenue in New Orleans on two occasions, once on September 26, 1981 and again on October 13, 1981. The defendant’s third charge is for robbery of two patrons at a gas station near the fried chicken outlet, and included the theft of an automobile. This robbery was carried out by two persons on October 15, 1981. A witness to this third incident was a victim in the first and has positively identified the defendant as a perpetrator in the first and third robberies. In all three robberies, the perpetrator used a blue steel handgun.

The defendant pleaded not guilty to all three charges. In March, 1983 the defendant changed his plea from not guilty to not guilty and not guilty by reason of insanity. On January 20, 1984 the defendant filed a motion to sever the offenses for trial pursuant to C.Cr.P. 495.1. The trial court denied his motion on January 27, 1984; the court of appeal denied his application for writs. This court stayed all proceedings pending consideration of the writ application, 444 So.2d 1212, then granted the writ to review the trial court’s denial of the motion to sever. 444 So.2d 1249.

Joinder of these three offenses in a single bill of information was proper under C.Cr.P. 493:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

The offenses charged, all armed robberies, are of a similar character and are tria-ble by the same mode of trial, a jury composed of twelve jurors, ten of whom must concur to render a verdict. C.Cr.P. 782.

Proper joinder in the bill of information, however, does not complete the inquiry. State v. Nelson, 357 So.2d 1100 (La.1978). A defendant properly charged with multiple counts in a single indictment may request a severance of the offenses for trial. Under C.Cr.P. 495.1, the trial court may order separate trials, or grant other relief, whenever it appears that the defendant or the state is prejudiced by the joinder for trial.

Defendant argues that the joint trial of these offenses creates an impermissible, prejudicial effect, allowing the jury to cu-mulate evidence against the defendant, and to cumulate its hostility toward both the crime of armed robbery and the defense of insanity. He contends that the jury will be confused by the three sets of facts because there is some overlap of the people and places involved.

The defendant plans to present both a factual defense, and the defense of insanity for each charge, and will stress one or the other of his defenses depending on the facts giving rise to the charge. He argues that no jury instruction can cure the prejudice he will suffer if he must defend all three charges in one trial.

The state contends that the charges are properly joined for trial because the facts are not of a complex nature. The three crimes charged were committed on three different dates and involved a variety of victims, but the facts of each crime are simple and straightforward. The case could only be complicated by poor lawyer-ing and forgetful witnesses.

The joint trial of offenses creates some inherent prejudice against the defendant.

“... the jury may become confused in trying to apply the applicable law and evidence to the correct offense; that the jury may consider that a person charged with doing so many things is a bad man who must have done something, a feeling that might lead to a cumulation of the evidence; that the judge might find it difficult to adequately charge a jury as to the law with respect to each offense; that the prosecutor may find it troublesome to present his evidence in a compartmentalized and understandable manner; and that a defendant may be confounded or embarrassed in his defense because of the sheer number or complexity of the charges against him. ...” State v. Proctor, 354 So.2d 488, 491 (La.1977).

In State v. Washington, 386 So.2d 1368 (La.1980), it was held that C.Cr.P. 495.1 permits a trial judge who finds prejudice in the joinder of offenses for trial either to order separate trials, or to provide whatever other relief is required. We stated there that “a severance need not be granted if the prejudice can effectively be avoided by other safeguards.” 386 So.2d at 1372.

In State v. Robinson, 404 So.2d 907 (La.1981), this court permitted the joint trial of two charges of armed robbery where the two robberies occurred at the same drug store fifteen days apart and both were witnessed by the same cashier. The nature of the offenses was relatively uncomplicated, and the instructions given by the trial judge were clear.

Were separate trials held in that case, evidence related to one charge would not have been admissible in the trial of the other charge; nevertheless, we concluded that “there is no prejudicial effect from joinder of ... offenses when the evidence of each offense is relatively simple and distinct ... because, with a proper charge, the jury can easily keep the evidence of each offense separate in its deliberations.” State v. Robinson, supra, at 910.

In many instances the trial judge can mitigate any prejudice resulting from joinder of offenses by providing clear instructions to the jury. The state can further curtail any prejudice with an orderly presentation of evidence. State v. Celestine, 452 So.2d 676 (La.1984). The facts of these charges are not so complex as to prevent the state from presenting its evidence in an orderly manner not confusing to the jury.

The state asserts that, if separate trials were held, evidence of each of the charges would be relevant and admissible in the trial of each of the other charges to establish the defendant’s identity.

State v. Moore, 278 So.2d 781 (La.1973) on rehearing, provides a test for admissibility of “other crimes” evidence. (1) Is it relevant to an issue of the case? (2) If relevant, is it too prejudicial? 278 So.2d at 788.

Willie Clay, a victim in both the September 26 and the October 15 robberies, knew the defendant’s first name and was able to point out to police officers where the defendant lived. Clay later identified the defendant’s photograph in a photographic array of eleven persons who lived on the same block as the defendant. This personal knowledge of the defendant by this victim is highly probative, and not unfairly so.

The victims of the October 13 robbery likewise identified the defendant in a photo lineup or in a physical lineup.

In State v. Ester, 436 So.2d 543 (La.1983), we examined the state’s use of other crime evidence to prove the defendant’s identity. The defendant had been charged with the sale of Preludin to an undercover agent. He gave the state notice of his intention to use an alibi defense. The state sought to rebut his alibi with evidence that the defendant had sold Preludin to this undercover agent on another occasion.

The sales involved the same parties, the same illegal substance and occurred at the same location within a week’s time. They were not signature crimes because drug sales are endemic to that location and are not necessarily the work of a single individual. The court permitted the use of the other crime evidence to prove identity.

We found there that the “... evidence of that other crime would have been so relevant to the critical issue of his identity as the perpetrator of this crime that the probative value of the other crime would outweigh its prejudicial effect....” State v. Ester, supra, at 546.

See State v. Banks, 307 So.2d 594 (La.1975).

The three armed robberies with which the defendant before us is charged are not signature crimes, but they are similar offenses committed within a three week period within a few feet of each other. The identification of the defendant in each case is highly relevant in the other cases, and is said by the defendant to be a real issue in the case. Willie Clay knew defendant, saw him commit not one, but two robberies, and identified his picture. Each identification reinforced the other and reduced the chance of error.

This is what is meant when the court says “the prejudicial effect of the evidence of other crimes is overcome by its probative value.” It may be more accurate to say that the probative value of the other crimes evidence is so great that society is vindicated (justice is served) for lumping the three offenses together, and depriving the defendant of his right to a trial for one offense only.

The decisions of the lower courts are affirmed, and the ease is remanded for further proceedings in accordance with this opinion.

      . "If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.” C.Cr.P. 495.1.


author: MARCUS, Justice. LEMMON, J., PER CURIAM.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Harry C. STUMPF, et al.
    No. 84-CC-1113.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Rehearing Denied Nov. 15, 1984.

      Ralph L. Kaskell, Jr., New Orleans, Counsel for Applicant;
    William W. Irwin, Jr., Bernard L. Malone, Jr., Frederick J. Fuselier, Robert L. Ledoux, Dept, of Transportation & Development, Baton Rouge, Counsel for Respondents.
   MARCUS, Justice.

The State of Louisiana, through the Department of Transportation and Development (DOTD), instituted this suit, pursuant to La.R.S. 48:441 et seq, for the expropriation of a strip of land known as Whitney Terrace for a downramp as part of the approach system for the Greater New Orleans Bridge. The only issue in the suit is the amount of just compensation to which the landowners are entitled. Two appraisers, Peter Talluto and Jack Evans, were employed by DOTD to measure compensation for the property expropriated. When their reports with appraisals of about $1,700,000 were submitted, they were rejected and DOTD employed two additional appraisers, Edward Deano and Irving J. Eppling. DOTD used the highest of the second appraisals as the measure of just compensation in its petition of expropriation, an amount about $700,000 or forty percent less than the original appraisals, and does not intend to call Talluto and Evans, the first appraisers, as witnesses at trial. The questions presented in this case concern the scope of discovery that the landowners can obtain from Talluto and Evans, as well as their right to call those appraisers as their own witnesses and talk with them before trial.

Upon court order, DOTD answered interrogatories concerning access to the remaining land and the comparables used by each appraiser and produced its contractual agreement with each appraiser and all the construction sheets, engineering data and instructions which the appraisers were given. However, DOTD indicated in its answers to interrogatories that certain information could be obtained only from the appraisers themselves:

STATE’S RESPONSE TO NUMBER 16 The most important and most apparent difference [between the appraisals of Messrs. Talluto and Evans and Messrs. Deano and Eppling] is that Messrs. Tallu-to and Evans' assumed that there would be no access to the remainder land from Terry Parkway, and Messrs. Deano and Eppling made the opposite assumption. Whether there were less important and less apparent bases for the differences, only the appraisers can say.

Similarly, in response to Request No. 2 for production, DOTD answered that “only they [the appraisers] can say on which of the documents they ‘based their appraisal of the subject property.’ ”

Landowners attempted to depose the appraisers in a further effort to determine the bases for the differences in their measures of just compensation. DOTD responded that it did not intend to call Evans and Talluto as expert witnesses and, therefore, pursuant to La. Code Civ.P. art. 1425(2), would instruct the appraisers that in any deposition they could only give their opinions and not the facts on which their opinions were based and, furthermore, that they should not respond to any subpoena duces tecum served in connection with the depositions. During the depositions of Tal-luto and Evans, DOTD repeatedly instructed the appraisers not to respond. On the question of access to the remaining land, affecting the amount of severance damages, Talluto testified nonetheless and, contrary to DOTD’s answer to Interrogatory 16, responded that he had assumed there would be limited access.

Landowners then filed a rule to compel full depositions of the appraisers and order compliance with the subpoenas duces te-cum. They argued that they were entitled to discovery under La.Code Civ.P. art. 1425(2) because there were present “exceptional circumstances” in that DOTD wished to conceal the facts, was not in good faith and had not sought a fair valuation. Landowners pointed out that even DOTD had indicated in its responses to interrogatories and requests for production that the facts sought were in the “exclusive control” of the experts. Landowners further contended that the questions the appraisers were instructed not to answer were essentially parts of opinion, not facts. The trial judge denied landowners’ motion to compel discovery.

Landowners then filed a motion for declaratory judgment that they be allowed to call Evans and Talluto as their own witnesses and talk to them prior to trial. In support they cited numerous decisions from other jurisdictions and argued that provisions in the contractual agreement whereby DOTD prohibited the appraisers from furnishing information without DOTD's written permission and reserved the appraisers as expert witnesses for DOTD should be declared inoperative. The trial judge ruled, “Discovery of opinion not permitted” and subsequently denied the motion for declaratory judgment stating:

... Because of the limitations of Art. 1425 regarding discovery of experts, defendants may not confer with Messrs. Talluto and Evans before trial, but may subpoena them as witnesses. At the time of trial, the Court will decide whether they may testify and with what limitations, if any.

Landowners sought writs with the court of appeal on the trial judge’s denial of their motions to compel discovery and for declaratory judgment. The court of appeal denied writs stating:

LSA C.C.Pr. art. 1425(2) expressly prohibits pretrial discovery under these circumstances unless exceptional circumstances can be shown “... under which it is impractical for the party seeking discovery to obtain facts on the same subject by other means.” No such showing has been made. The remainder of the writs request — i.e., use of these experts at trial — is premature as the trial judge has said: “At the time of trial, the Court will decide whether they may testify and with what limitations, if any.”

Upon landowners’ application to this court, we granted certiorari to review the correctness of the trial judge’s rulings.

ISSUES PRESENTED

The issues presented for our consideration are:

1. Whether landowners can depose the experts, retained or specially employed by DOTD but whom DOTD does not intend to call as witnesses, on their opinions and/or the facts on which those opinions are based.

2. Whether landowners can require production of documents from the experts reflecting their opinions or the facts on which their opinions are based.

3. Whether landowners can talk with the experts before trial.

4. Whether landowners can call the experts as their own witnesses at trial.

Common to all four issues is the question of whether the contractual provisions in the agreement whereby DOTD prohibited the appraisers from furnishing information without the Department’s written consent and reserved the appraisers as expert witnesses for DOTD should be declared inoperative. Article 1, § 2 of La. Const. (1974) provides that “No person shall be deprived of life, liberty, or property except by due process of law.” The discovery provisions of La.Code Civ.P. art. 1422 et seq. and the procedural articles affecting the right to trial were established to ensure due process. Any contractual provision contrary to these articles would be contrary to public policy. Therefore, we conclude that nothing in the contract between DOTD and its appraisers can affect landowners’ procedural rights during discovery or at trial. Having so determined, we now address the issues concerning those rights.

1. The Scope of Discovery Deposition

La.Code Civ.P. art. 1425 provides in pertinent part:

(2) A party may discover facts known by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only ... upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts on the same subject by other means.

The limitations of art. 1425(2) do not apply' to the discovery of opinions of experts. Weidenbacher v. St. Paul Fire and Marine Ins., 347 So.2d 1160 (La.1977) (Plaintiff in medical malpractice action could depose medical expert whom defendant retained but did not intend to call as a witness at trial on his opinions).

Hence, landowners are entitled to depose Talluto and Evans on their opinions. Landowners can depose the experts on the facts underlying their opinions only if they have shown “exceptional circumstances under which it is impracticable for [them] to obtain facts on the same subject by other means.” The question remains whether they have made this showing.

Landowners have been given all the construction sheets, engineering data and instructions given to each of DOTD’s appraisers. By use of interrogatories they have obtained detailed information on the availability of access to the remaining land and on the comparables used by each of DOTD’s experts. Hence, landowners have at their disposal all the facts on which the first set of appraisers could have based their opinions. Landowners can give these facts to their own experts to hypothesize on the bases for the differences in the appraisals of Talluto and Evans and DOTD’s second set of appraisers. Thus, we do not consider that landowners have shown “exceptional circumstances under which it is impracticable for [them] to obtain facts on the same subject by other means.” We conclude that landowners are entitled to depose Talluto and Evans on their opinions but not on the facts underlying the opinions. The trial judge erred insofar as he held otherwise.

2. Production Of Documents On Discovery

La.Code Civ.P. art. 1424 provides in pertinent part:

The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, expert, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. The court shall not order the production or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney or an expert.

An expert’s written opinion is clearly not subject to production or inspection under any circumstance. To obtain non-opinion writings or parts of writings, á showing of unfair prejudice or undue hardship is required. This showing does not substantially differ from the burden under Rule 26(b)(3) of the Federal Rules of Civil Procedure. Ogea v. Jacobs, 344 So.2d 953 (La.1977). According to Moore’s Federal Practice:

A mere showing of relevance is insufficient. To justify disclosure, a party must show the importance of the information to the preparation of his case, and the difficulty he will face in obtaining substantially equivalent information from other sources if production is denied. The clearest case for ordering production is when information is in the exclusive control of the opposing party. This is true, ... with respect to test results which cannot be duplicated. 4 Moore’s Federal Practice, Par. 26-362 [3. -1].

The party seeking discovery has the burden of making this showing.

Landowners contend the information sought by them is within the “exclusive control” of the experts and that even DOTD has indicated so in its answers to interrogatories and requests for production. However, as we have already stated, we consider that landowners can utilize the discovery they have already achieved to obtain facts on the same subject and furthermore we consider that such efforts will yield “substantially equivalent information” to that being sought. Hence, we conclude that landowners have not made a showing of unfair prejudice or undue hardship and, therefore, the trial judge properly denied landowners’ motion to compel production.

3. The Right To Talk With Another Party’s Experts Before Trial

Prior to trial a party can talk with any “fact witness.” The witness, however, has the right to refuse to talk. Similarly, a party can talk to any expert witness although the expert can refuse to talk. Once the witness, whether fact or expert, refuses to talk, the party seeking disclosure can invoke the discovery rights in La.Code Civ.P. art. 1422 et seq. and compel disclosure within the limitations of those articles.

Thus, in this case, landowners may approach Talluto and Evans before trial. The experts have the right to refuse to talk; to do otherwise may place them in breach of their contract with DOTD. But, as we have already held herein, landowners can then utilize their discovery rights and depose Talluto and Evans on their opinions. Weidenbacher v. St. Paul Fire and Marine Ins., 347 So.2d 1160 (La.1977). To the extent the rulings of the trial judge conflict with this holding, they are reversed.

4. The Right Of A Landowner In An Expropriation Case To Call Condemning Authority’s Non-Testifying Expert As His Own Witness

Landowners filed a motion for declaratory judgment allowing them to call Talluto and Evans as their own witnesses. The trial judge denied the motion but stated that landowners could subpoena Talluto and Evans and that, at the time of trial, the court would decide “whether they may testify and with what limitations, if any.”

In support of being able to call these experts as their own witnesses, landowners cite numerous decisions from other jurisdictions which have held that a landowner can call the expert appraiser originally hired but not called as a witness by a condemning authority. Board of Education of South Sanpete School District, etc. v. Barton, 617 P.2d 347 (Utah 1980); State ex rel. State Highway Dept. v. 1st National Bank in Albuquerque, 91 N.M. 240, 572 P.2d 1248 (1977); Town of Thomaston v. Ives, 156 Conn. 166, 239 A.2d 515 (1968); Urban Renewal and Community Development Agency of Louisville v. Fledderman, 419 S.W.2d 741 (Ky.1967); State v. Steinkraus, 76 N.M. 617, 417 P.2d 431 (1966); Rancourt v. Watterville Urban Renewal Authority, 223 A.2d 303 (Me.1966); Levitsky v. Prince George’s County, 50 Md.App. 484, 439 A.2d 600 (Ct.Spec.App. 1982).

DOTD contends this issue has been specifically addressed in Humble Pipe Line Co. v. Roy Aucoin, Inc., 230 So.2d 365 (La.App. 1st Cir.1969), and State Department of Highways v. Finkelstein, 340 So.2d 1040 (La.App. 1st Cir.1976). These cases are inapposite. In both, the appraisers were called as witnesses on cross-examination. In this case, landowners wish to call the appraisers as their own witnesses on direct examination.

Articles 1425(2) and 1424, limiting the rights of an opposing party to compel disclosure by another’s expert of his opinion or the facts on which his opinion is based, do not create a privilege against the use of the expert as a witness at trial by the opposing party. The articles are neither limited by nor do they limit the admissibility of evidence at trial. Hence, we agree with landowners that in an expropriation case the landowner should bé allowed to call as his own witness an expert retained but not called as a witness by the condemning authority.

In sum, we conclude that landowners can talk with Talluto and Evans prior to trial if the experts are willing to talk with them. Otherwise, landowners’ only available discovery is to depose the experts on their opinions. Landowners can subpoena the experts to appear as their own witnesses at trial.

DECREE

For the reasons assigned, the rulings of the trial judge are reversed insofar as they denied landowners the opportunity to talk with the experts Talluto and Evans before trial; insofar as they denied landowners’ motion to compel Talluto and Evans to comply with depositions on their opinions; and insofar as they denied landowners’ motion for a declaratory judgment allowing them to call the experts as their own witnesses. The case is remanded to the district court for further proceedings in accordance with law and the views herein expressed.

LEMMON, J.,

dissents in part, believing that the depositions of the experts should extend to opinions and facts underlying the opinion.

ON REHEARING

PER CURIAM.

Landowners’ application “For Clarification of Opinion” will be treated as an application for rehearing which we deny with this per curiam. Prior to trial a party can talk with any witness; but the witness need not respond to his inquiries. However, the party can compel the witness to answer inquiries prior to trial to the extent provided by the rules of discovery and can call the witness at trial. Any contract in derogation of these rights would be contrary to public policy. Therefore, in the instant ease, as we have held, landowners can compel the experts to respond to depositions on their opinions and can call the experts as their witnesses at trial. Any provisions in the experts’ contracts with DOTD to the contrary would be against public policy and therefore of no legal effect.

      . Article 1, § 4 of La. Const. (1974) provides that "[i]n every expropriation ... the owner shall be compensated to the full extent of his loss." La.R.S. 48:453 and 455 govern the measure of compensation.

      . 452 So.2d 697 (La. 1984).

      . See Rancourt v. Watterville Urban Renewal Authority, 223 A.2d 303 (Mc.1966); State v. Steinkraus, 76 N.M. 617, 417 P.2d 431 (1966).


author: DENNIS, Justice. WATSON, J., LEMMON, Justice,

text:
    STATE of Louisiana v. James MARTIN.
    No. 82-KA-2262.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Rehearing Denied Nov. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Harmon Drew, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    John W. Montgomery, Fish, Montgomery & Robinson, Minden, for defendant-appellant.
   DENNIS, Justice.

Defendant, James Martin, was indicted for second degree murder, convicted by a jury of that same charge, and sentenced to life imprisonment, without benefit of parole, probation, or suspension of sentence. Defendant appeals his conviction and sentence alleging 12 assignments of error. Because none of the assignments of error have merit, the defendant’s conviction and sentence are affirmed. Since we have found that all but three of the defendant’s assignments of error concern the application of settled principles of law, we have rendered our decision on all but those three assignments in an unpublished opinion attached to this opinion as an appendix.

FACTS

The decedent, Gloria Martin, the defendant’s wife, was killed during a domestic argument which occurred in the early morning hours of December 13, 1980. The shooting occurred in the family’s van which was parked in the driveway of the Martin house. The three Martin sons, Carl, Darren, and Eric, (ages 22, 19, and 13, respectively at the time of trial), were all living at home at the time. Carl testified that the kitchen table in the house had been broken while he and his younger brother, Eric, were engaged in horseplay the previous afternoon. Eric testified that the table had been broken when Carl threw him against it while they were fighting. In any event, the broken table in the kitchen precipitated the argument which resulted in Gloria Martin’s death.

The decedent had gone to work at Western Electric at about 2:30 p.m. on the afternoon of December 12th. She normally returned home from work around 1:30 to 1:45 a.m. However, on the morning of December 13th, she returned home later than usual. According to expert testimony, Gloria Martin was acutely intoxicated at the time of her death. The defendant acknowledged that he also had been drinking shortly before the incident but stated that he was not drunk. Gloria Martin and James Martin were sitting at the kitchen table after Gloria’s arrival. Apparently when Gloria leaned on the table, the table fell, and she began to argue with the defendant. The defendant testified that he then woke Carl to find out what happened to the table, although Carl stated that he awoke when his father began beating him. Eventually, the whole family gathered in the kitchen. The defendant testified that after Eric had told him about the fight and the damage to the table, he told Carl that he had “had enough.” There was evidence of previous difficulties between Carl and the defendant. The defendant told Carl to get out and Carl said he would leave. The defendant testified that Gloria Martin told him that if Carl left then she would leave also. Both the defendant and Eric testified that Gloria Martin went into the back part of the house. The defendant testified that he was afraid that she was going to get a gun. After Carl left on foot the defendant told the other boys to go to bed. Eric testified that he was in the living room near a front window for the next hour or so, trying to go to sleep on the couch.

As to almost all of the remaining events which led to Gloria Martin’s death, there are no available witnesses other than the defendant. The defendant testified that he went outside and hid himself in the carport because he was afraid of Gloria Martin. He also stated that he saw Gloria Martin come out and she had his dark colored .32 caliber pistol in her hand. Gloria Martin frequently carried a .357 magnum with her for protection, and the .357 was in fact found beneath her body when the police arrived later. However, the .357 was unloaded and unfired. The defendant admits that he was armed with a silver colored .32 caliber pistol at the time. The defendant says he came out from hiding when he thought Gloria Martin had calmed down, but that they continued to argue. After a while the two got in the van, Gloria Martin on the driver’s side and the defendant on the passenger’s side. At one point the defendant left the van and started up the family pick up, but the defendant then returned to the van. According to the defendant the two were outside and sitting in the van for an hour or more before the shooting occurred. However, Carl Martin testified that he was only gone for twenty minutes before he heard the shots.

The defendant claims that the shooting occurred after he had been pleading with Gloria not to leave. According to the defendant, Gloria Martin still had the dark colored .32 when she became angry and told him to get out of the van or she would kill him. Eric, who was inside the house on the couch claimed to have heard Gloria Martin make this statement. At that point, according to the defendant, Gloria raised the .32 as if to shoot the defendant and the defendant grabbed it out of her hand. She then pulled the .357 magnum out of her purse, according to the defendant, and when she did he shot her. Thus, the defendant contends he acted in self-defense.

A number of facts conflict with the defendant’s testimony of how he acted in self-defense. Most significant is the fact that the defendant shot Gloria Martin not once but three times. There is significant evidence that he fired one or possibly two other shots at her as well. Also important is the fact that after shooting Gloria Martin the defendant turned the dark colored .32 on himself in a clear suicide attempt. He survived apparently only because of a defect in the cartridge which was in the pistol when he fired it at his head. In addition, medical evidence established that the shots which killed Gloria Martin were fired from at least 24 inches away, a fact inconsistent with defendant's contention that the shooting occurred immediately following a struggle for the .32. Finally, the defendant’s credibility is undermined by statements he made immediately after the shooting. The defendant told one witness, Lola Gilliam, that Gloria had shot him first, and that he then took the gun away and shot her. In a later conversation with a Ronald Garrett, the defendant said that Gloria shot him first in the bedroom, and that he then took the gun and shot her. Both of these statements contradict the defendant’s testimony during the trial.

After the defendant shot himself he threw the gun down and then left the van to tell Darren (the middle son) that he had shot his mother. Defendant testified that he did not know what to do next, and that he then pulled out his other gun (the silver colored .32) from his pocket. He approached a neighbor’s house exclaiming that he had shot his wife and asking that an ambulance be called. When the neighbor became frightened at the sight of the defendant approaching the door with the gun in his hand, he threw the gun down into some bushes. When the police came the defendant repeated that he had shot his wife and asked whether an ambulance was coming.

ASSIGNMENT OF ERROR NO. 9

By this assignment the defendant contends that the trial court erred in sustaining the state’s objection when the defendant attempted to testify that approximately five years before the shooting his wife “ran over” him. We agree that the trial court erred in its ruling, but the error does not warrant reversal of this conviction.

The defendant in this case argued that he acted in self-defense. When a defendant claims that he had to kill in self-defense, the state has the burden of proving beyond a reasonable doubt that he did not act in self-defense. State v. Lynch, 436 So.2d 567 (La. 1983); State v. Patterson, 295 So.2d 792 (La.1974). Before the defendant can introduce evidence of the decedent’s dangerous character or threats against the accused, the defendant must present appreciable evidence of an “overt act” of the decedent directed at the defendant which manifests to the mind of a reasonable person a present intention of the decedent to kill or do great bodily harm to the defendant. La.R.S. 15:482; State v. Edwards, 420 So.2d 663 (La.1982); State v. Lee, 331 So.2d 455 (La.1976). The defendant’s testimony that Gloria Martin “came up” with the .32 and threatened him constitutes appreciable evidence of an overt act in this case. Thus, the evidence of the decedent’s prior threats or acts of violence against the defendant should have been admissible, since it was relevant to show either (1) the defendant’s reasonable apprehension of danger that would justify his conduct, or (2) that the victim was the aggressor in the conflict. See State v. Edwards, supra.

The trial court barred admission of the testimony as to the prior incident on the ground that the incident was not “close enough in time to be relevant.” The incident about which the defendant wished to testify occurred five years before the shooting. We find that the trial court erred in not admitting the testimony. We have previously stated that “the distance in time from the moment of the offense on trial does not necessarily destroy the capacity of the deceased’s violent act to create apprehension.” State v. Thibeaux, 366 So.2d 1314, 1317 (La.1978). Generally, the remoteness in time of the prior difficulties between the defendant and the deceased should go to the weight of the evidence rather than its admissibility. State v. Thi-beaux, supra. For these reasons we conclude that the trial court erred in finding that the evidence was not relevant because it was too remote in time. The evidence was relevant to the defendant’s case and his attempt to show that he reasonably believed that his conduct was necessary. See generally, La.R.S. 15:441-42; State v. Ludwig, 423 So.2d 1073 (La.1983).

Our finding that the trial court erred in not admitting this evidence does not, however, end our inquiry. La.C.Cr.P. article 921 provides that a judgment or ruling “shall not be reversed ... because of any error ... which does not affect substantial rights of the accused.” Moreover, in State v. Gibson, 391 So.2d 421 (La.1980), we adopted the test for “harmless error,” of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under that test for “harmless error,” the question is whether there is a reasonable possibility that the admission or exclusion of certain evidence, depending on the case, “might have contributed to the conviction.” We also stated that the court must be able to declare that the error was “harmless beyond a reasonable doubt.” Gibson, supra, 391 So.2d at 427. Considering the nature of the evidence which was excluded and the evidence which was received in this case, it is clear that the impact of the excluded evidence would have been minimal and that exclusion of the evidence was harmless beyond a reasonable doubt. First, even though admissible, the incident five years earlier would be accorded less weight by the jury because it was so distant in time. Second, and more importantly, the defendant was allowed to testify about another incident which occurred only a few months before the shooting. The defendant testified that about three months before Gloria Martin was shot she had scratched his face and had pointed the .357 magnum at him with its hammer cocked while he begged for his life. Since this testimony was admitted, evidence concerning the much earlier incident would have added little or nothing to show defendant’s apprehension. If the jury was not persuaded by the testimony concerning this most recent incident, it would not have rendered a different verdict if it had known of an additional incident much more distant in time. For these reasons, we find that although the trial court erred in refusing to allow evidence concerning the five year old incident, the error was harmless beyond a reasonable doubt.

ASSIGNMENT OF ERROR NO. 10

By this assignment of error the defendant contends that hearsay testimony was admitted in the following question by the •assistant district attorney and response by the witness Ethel Parker:

Q: Mrs. Parker, did Gloria Martin ever tell you that if she would ever try to leave James [the defendant] that he might kill her?
A: Yes, sir.

The defense attorney then objected that the evidence was hearsay. After hearing the arguments of counsel outside the presence of the jury the trial court admitted the evidence to show state of mind of the victim, citing State v. Raymond, 258 La. 1, 245 So.2d 335 (1971).

Hearsay is “testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out of court asserter.” State v. Martin, 356 So.2d 1370, 1373 (La.1978) (This is Professor McCormick’s short definition of hearsay. See McCormick, Evidence, section 246 (Cleary ed. 1972)). Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability. See State v. Weedon, 342 So.2d 642 (La.1977); State v. Sheppard, 371 So.2d 1135 (La.1979); McCormick, supra, section 245. Thus, when an out-of-court statement is offered for a purpose other than to establish that a true assertion has been made the value of the statement as evidence does not depend on the credibility of the out-of-court assert-er and the statement falls outside the scope of the hearsay exclusionary rule. McCormick, supra, section 249; 6 Wigmore, Evidence, sections 1766, 1788 (Chadbourne rev., 1976); 4 J. Weinstein, Evidence, Par. 801(c)[01] (1981).

The uses of an out of court statement “to show state of mind” present several instances of nonassertive uses of out of court statements. An out of court statement may be used circumstantially to show its effect on the state of mind of a person who heard the statement. See State v. Webb, 372 So.2d 1209 (La.1979); State v. Ford, 368 So.2d 1074 (La.1979); State v. Morgan, 211 La. 572, 30 So.2d 434 (1947); McCormick, supra, section 249; 6 Wigmore, supra, sections 1788-1789. An out of court statement may also be offered to show the speaker’s state of mind. The statement may be a direct assertion of the speaker’s state of mind or it may indirectly tend to establish that the speaker had a particular state of mind. If the statement is a direct assertion of the speaker’s state of mind, then it is offered for the truth of the matter asserted but it usually falls within an exception to the hearsay rule for declarations of a then existing state of mind. See McCormick, supra, section 249; 6 Wigmore, supra, section 1790; 4 Weinstein, supra, Par. 801(c)[01] p. 801-72; Federal Rule of Evidence 803(3). If the statement only indirectly tends to prove a certain state of mind then it is not hearsay because the truth of the assertion and the credibility of the declarant are not relied upon. Rather, the fact that the statement was made, regardless of its truth, is relevant to show the speaker’s knowledge, intent, or some other state of mind. State v. Edwards, 420 So.2d 663, 671 (La.1982); State v. Sheppard, 371 So.2d 1135, 1142 (La.1979); McCormick, supra, sections 249, 295; 6 Wigmore, supra, section 1790. Although in each of the above instances the use of a statement to show state of mind would qualify as nonhearsay or as an exception to the hearsay rule, state of mind evidence is admissible only if the particular person’s state of mind which is being shown is itself in issue or is relevant to prove a fact in issue. See State v. Weedon, supra. The fact that the statement is offered for a nonhearsay purpose does not alone make the statement admissible; the general requirement of relevance must also be met before the out of court statement is admissible evidence.

In this case a statement by the victim that her husband might kill her if she tried to leave him was offered as indirect proof of her state of mind. Therefore, the question is whether, regardless of the truth of the statement, the statement tends to prove a state of mind of the victim which is relevant to this case. The victim's statement that her husband might kill her if she tried to leave indicates that her state of mind was one of fear of the defendant and of anticipation that a certain event might trigger violence against her by the defendant. This state of mind is certainly relevant in this case. The case depended on a determination of whether Gloria Martin or James Martin was the aggressor in the conflict which occurred after she stated that she was leaving. The defendant attempted to show that the victim had armed herself and that she was the one who was likely to have provoked the violence. He specifically testified that she had threatened him with a gun before. Thus, the state acted properly in attempting to counteract the defendant’s characterization of the victim and to explain certain aspect’s of the victim’s conduct. The fact that the victim took a gun with her out to the van could be explained by her fear that the defendant might attempt to harm her. Likewise, other seeming acts of aggression by the victim take on a different light if a reasonable fear of the defendant on the part of the victim is taken into consideration. Whether the victim had such a fear, whether there was a basis for it, and whether the victim’s fearful state of mind continued until the night of this incident, were for the jury to decide. The prosecution was entitled to present relevant and otherwise admissible evidence of the victim’s fear in support of its version of the events of that night. Therefore, because the victim’s state of mind may have tended to prove that any apparently violent or hostile acts on her part were in fact only defenseive in nature, and because it may also have tended to prove that she was not the aggressor as the defendant contended, the statement showing state of mind was relevant state of mind evidence and therefore admissible. See State v. Sheppard, supra, 371 So.2d at 1142.

It is important to distinguish this case from certain past cases in which we dealt with state of mind evidence. This is not a case where the declarant’s state of mind is offered to prove the acts of some person other than the declarant. In some of our past cases we dealt with the difficult problem of state of mind evidence offered to prove the acts of another. See State v. Weedon, 342 So.2d 642 (La.1977); State v. Doze, 384 So.2d 351 (La.1980); State v. Johnson, 381 So.2d 436 (La.1980). Those cases demonstrate the importance of the relevance requirement, but they are factually distinguishable from the instant case. Where the victim-declarant’s state of mind is offered to prove the victim’s subsequent acts, the problems of relevancy are not nearly so great as where the defendant’s or another person’s acts are sought to be proved. Although a state of mind evidenced by a speaker’s remarks cannot be used to prove the speaker’s past conduct, see Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933), McCormick, supra, section 294(c), it can be used to prove the speaker’s subsequent conduct. State v. Sheppard, supra; See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892); McCormick, supra, section 294(b). Finally, although it might be argued in this case that the length of time between the statement showing state of mind and the conduct sought to be proved or explained affects the determination of relevancy, such time considerations generally go to the weight of the evidence rather than to its admissibility.

For the foregoing reasons this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 12

By this assignment of error the defendant contends that that the evidence against him was not sufficient to support a conviction of second degree murder. Under the due process standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), a conviction cannot stand unless viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Under Louisiana statutory law, when circumstantial evidence is involved the rule is that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438. In State v. Chism, 436 So.2d 464 (La.1983), we explained the relationship of the circumstantial evidence standard and the Jackson standard:

Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence. 436 So.2d at 470.

In addition to these standards when a defendant claims self-defense the state has the burden of disproving that claim. State v. Lynch, supra; State v. Patterson, supra. Thus, .the state had to prove that James Martin was not justified in killing Gloria Martin because he reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary to save himself. See La.R.S. 14:20.

Bearing in mind these standards, we have determined that there is sufficient evidence to support the defendant’s conviction of second degree murder. There is no issue as to whether the defendant killed Gloria Martin. The only issue is whether he acted with legal justification. The following facts provide a sufficient basis on which the jury could have properly concluded that the defendant did not act in self-defense. The defendant shot Gloria. Martin three times, and may have fired two other shots at her as well. Since one shot probably would have been all that was necessary for the defendant to defend himself, the fact that he fired at least three shots indicates that none of the shots were necessary. The fact that the defendant attempted suicide after the incident also weighs against the self-defense theory. The suicide attempt is more consistent with the mental state of a man who has murdered his wife than with that of a man who has killed his wife in self-defense. Furthermore, scientific evidence established that the shots were fired from more than 24 inches away. This fact is inconsistent with the defendant’s claim that he shot Gloria Martin when she pulled the .357 magnum after he struggled with her to get the .32. Finally, the defendant gave several accounts of the incident which contradict his testimony at trial that he was in the van when he shot Gloria Martin in self-defense. The defendant told Lola Gilliam that Gloria shot him first, and that he then took the gun away and shot her. He told another witness, however, that Gloria shot him first in the bedroom, and that he then took the gun and shot her. All of the evidence outlined above, when considered together, is sufficient for a rational trier of fact to reasonably conclude beyond a reasonable doubt that the defendant did not act in self-defense.

For the foregoing reasons we find this assignment of error to be without merit.

THE CONVICTION AND SENTENCE ARE AFFIRMED.

MARCUS, J., concurs.

WATSON, J.,

concurs but would find the evidence in Assignment of Error # 9 too remote in time.

CALOGERO, J., dissents. Assignment of Error # 10 is meritorious, in my opinion.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The issue is very close on whether the exclusion of the evidence that defendant’s wife had attempted to run over him with a car five years earlier was harmless beyond a reasonable doubt. Irrespective of that issue, however, I believe that the conviction should be reversed because of the admission of the testimony concerning the wife’s out-of-court declaration that she believed her husband would kill her if she left him. The actual impact of this evidence was to inform the jury that the wife was of the opinion (an “opinion” presumably based on unspecified past acts) that defendant would kill her with no provocation (or justification) except her attempt to leave him.

I disagree with the majority that such evidence was admissible as tending to prove the subsequent conduct of the de-clarant (that her acts at the time of the killing were of a defensive nature because she feared defendant). ' There is a great danger that the jury mistook the evidence as probative of the conduct of the defendant (that he killed his wife without justification when he attempted to leave her). The logical implication of the evidence is that defendant acted aggressively (and therefore not defensively, as he claimed). This was the issue in the case, since defendant did not deny killing his wife.

The real problem is relevance. Evidence of the wife’s out-of-court statement reflecting her state of mind (that is, her opinion concerning her husband’s future conduct in the event that she left him) was at best only marginally relevant to the jury’s determination of the critical issue in this case: which of the two was the aggressor. The problem with such evidence is that it appears to untrained jurors to prove something which it does not really tend to prove (defendant’s conduct, as opposed to his wife’s state of mind). The disputed evidence in this case probably appeared to the untrained jurors to be directly probative of the fact that defendant killed his wife when she attempted to leave him.

When marginally relevant evidence has little or no probative value and has a substantial prejudicial effect, then the evidence must be excluded. Since the prejudicial effect of the wife’s out-of-court statement (its appearance of proof that defendant killed without justification) greatly outweighed any slight probative value (any tendency to prove the wife’s fearful state of mind), the evidence should have been excluded.

      . The defendant argues in his brief to this court that there is a double hearsay problem because the basis of Gloria Martin’s statement to Mrs. Parker was a threat made by the defendant to Gloria Martin. We do not consider this issue because the testimony in the record does not establish a double hearsay problem. There are other possible explanations of why Gloria Martin believed the defendant might kill her.

      . The time at which the victim indicated her state of mind sought to be proved is not evident from the record. Defense counsel was not precluded by the trial court’s ruling from establishing the amount of time involved or the weight that should be given to the evidence. The principle that such time considerations generally go to the weight of the evidence rather than its admissibility can be seen by analogy in our statements that the distance in time of a prior threat by the victim against the defendant does not make the threat inadmissible in support of the defendant’s self-defense claim but simply goes to the weight of the threat as evidence. See State v. Thibeaux, supra.

      . The trial judge refused to permit defendant to testify concerning this incident. The majority concludes that the exclusion of this evidence was harmless error because the incident was remote and because there was other evidence that the wife had recently threatened defendant with a gun.
      Evidence of the attempt by defendant's wife on his life could have been extremely significant to show (1) that the wife had a violent disposition of long standing; (2) that the wife had actually attempted to kill defendant, which is much more significant than the recent threat to kill him; and (3) that the wife’s recent threat to kill was not a single isolated incident, but was a typical display of her violent disposition. However, since the real issue was defendant’s credibility (and the excluded evidence consisted of the testimony of the defendant himself rather than the testimony of another witness), perhaps one could conclude that the jury had no more reason to believe the defendant’s testimony as to the remote attempt on his life than his other testimony regarding her more recent threat to kill him.

      . Of course, the prosecution probably wanted to introduce the statement for that very purpose.

      . The majority does not suggest that the out-of-court statement was admissible hearsay, that is, that it was admissible to prove the truth of the assertion (that defendant would kill his wife if she left). Arguably, if the Legislature had enacted an "omnibus” hearsay exception such as Fed. R.Evid. 803(24) and 804(b)(5), leaving to the courts the perogative to admit hearsay not falling within the traditional exceptions but having equivalent circumstantial guarantees of truth-worthiness and reliability, such a statement might qualify as admissible hearsay. Nevertheless, it was not admissible hearsay under present Louisiana law, and, as "non-hearsay”, its probative value was greatly outweighed by its prejudicial tendency to prove something it was not admissible to prove.


text:
    DIXIE SAVINGS ASSOCIATION v. Vivian C. Smith KINCHEN.
    No. 84-C-1616.
    The Supreme Court of the State of Louisiana.
    Nov. 2, 1984.
   In re: Kinchin, Vivian C., Applying for Writ of Certiorari, Writ of Review to the Court of Appeal, Fourth Circuit, Number CA-1354; Parish of Orleans Civil District Court Div. “E” Number 78-15439.

Denied.

DIXON, C.J., would grant. No judge below was given a reasonable explanation for the denial, nor have we.

DENNIS, J., would grant and remand for reconsideration in light of McCastle.


text:
    STATE of Louisiana v. Daniel SINGER.
    No. 84-KK-1728.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In re State of Louisiana, applying for remedial writ, Traffic Court, Div. “A”, No. F577777; Parish of Orleans, Criminal District Court, Div. “M”, No. 303-348; to the Court of Appeal, Fourth Circuit, No. K-2830.

Prior report: 457 So.2d 690.

Denied.

MARCUS, WATSON and LEMMON, JJ., would grant the writ.


text:
    Gladys Brown THOMAS, Irma Thomas Hayes, Barbara Thomas Adams, Wanda Thomas Sims, and Carolyn Thomas McCray v. MISSOURI PACIFIC RAILROAD COMPANY, and State of Louisiana, Through the Department of Transportation and Development. Darrill Dewayne MOCK, Darren Dewayne Mock, Felicia Evett Ward, and Michele Ward v. MISSOURI-PACIFIC RAILROAD COMPANY and the State of Louisiana, Through the Department of Transportation and Development. Florine BEARD v. Billy R. ADAMS, Missouri Pacific Railroad Company the Unopened Succession & Estate of Herman Thomas, MFA Insurance Company and the State of Louisiana.
    No. 84-C-1131.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Gladys Brown Thomas, et ah, applying for writ of certiorari and review to the Third Circuit Court of Appeal, Nos. 83-532, 83-533, and 83-534; Parish of Rap-ides, 9th Judicial District Court, Nos. 199402, 119679 and 119118, Division E.

Prior reports: 451 So.2d 1152; 451 So.2d 1161; 451 So.2d 1162.

Granted.


text:
    STATE of Louisiana v. Keffal WHITTAKER.
    No. 84-K-1188.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re State of Louisiana, through the District Attorney, Ossie Brown, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-KA-0902; 19th Judicial District Court, Parish of E. Baton Rouge, No. 8-82-552.

Prior report: 449 So.2d 611.

Granted.


text:
    STATE of Louisiana v. Keffal WHITTAKER.
    No. 84-K-1193.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Keffal Whittaker, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-KA-0902, Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 8-82-552.

Prior report: 449 So.2d 611.

Granted.


text:
    IT CORPORATION v. COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 84-C-1227.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Commission on Ethics for Public Employees, applying for writ of review, to the First Circuit Court of Appeal, No. 83-CA-0711; Commission on Ethics for Public Employees (Department of State Civil Service), Nos. 81-09; 81-10; 81-11; 81-12 and 81-13.

Prior report: 453 So.2d 251.

Granted.


text:
    IT CORPORATION v. COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 84-C-1233.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re IT Corporation, applying for writ or certiorari or review to the First Circuit Court of Appeal, No. 83-CA-0711; Commission on Ethics for Public Employees, (Department of State Civil Service) Nos. 81-09; 81-10; 81-11; and 81-13.

Prior report: 453 So.2d 251.

Granted.


text:
    Roger SIGSWORTH v. Jan B. GERNON and Latter & Blum, Inc.
    No. 84-C-1412.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Sigsworth, Roger, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0829; Parish of St. Tammany, 22nd Judicial District Court, Div. “E”, No. 65639.

Granted.


text:
    C.J. and Lois CLARK v. Irving and Bonnie MANUAL and the Lafayette Association of Retarded Citizens.
    No. 84-CC-1601.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Manual, Irving et al., Manual, Bonnie, Lafayette Assoe./Retd. Cit., applying for writ of certiorari, stay to the Court of Appeal, Third Circuit, No. 84-371; Parish of Lafayette, 15th Judicial District Court, Div. “G”, No. 84-1106-G.

Granted.


text:
    STATE of Louisiana v. Henry RANKIN.
    No. 84-K-1618.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Rankin, Henry, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. KA-0788; Parish of Orleans, Criminal District Court, Div. “B”, No. 288-636.

Prior report: 454 So.2d 880.

Granted.


text:
    STATE of Louisiana ex rel. Billy HENDERSON and Frank Matthew v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1593.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Billy Henderson and Frank Matthew, applying for supervisory writs, Criminal District Court, No. 251-487, Orleans Parish.

Granted. From the transcript of his remarks at sentencing, it is unclear whether the trial judge was aware of his sentencing alternatives at the time but chose not to exercise them in that particular ease. Accordingly, the sentences of relators are va-catea and this case is remanded to the trial court for resentencing in accord with the law.

WATSON, J., dissents from the order.


text:
    STATE of Louisiana, ex rel., Donald ARBUTHNOT v. Hon. Shirley WIMBERLY, Judge, Criminal District Court, Sec “I”, Parish of Orleans.
    No. 83-KH-2259.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Donald Arbuthnot, applying for writ of mandamus, Parish of Orleans, No. 252-417.

Granted. The district court is ordered to furnish relator with an estimate of the cost of the materials sought.


text:
    STATE of Louisiana ex rel. Lonzell GARDNER v. Hon. Douglas J. NEHRBASS, Judge, 15th Judicial Court.
    No. 83-KH-2370.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Lonzell Gardner, applying for writ of certiorari or review from the Fifteenth Judicial District Court, Parish of Lafayette, No. 45358.

Granted. Trial judge ordered to grant relator an out-of-time appeal to the Court of Appeal.


text:
    STATE ex rel. Edward Earl JACKSON v. Matthew S. BRANIFF, Judge, Section “B”, Through the Clerk of Court, Criminal District, Parish of Orleans, State of Louisiana.
    No. 84-KH-1083.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Edward Earl Jackson, applying for writ of certiorari; review and mandamus, to the Criminal District Court, Parish of Orleans, No. 238-374.

Granted. Boykin transcript ordered furnished.


text:
    STATE ex rel. Bruce M. DEVERNEY a/k/a Eric Smith v. Honorable Ross MAGGIO, Jr., Warden, et al.
    No. 84-KH-1181.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Bruce M. Deverney a/k/a Eric Smith, applying for writs of mandamus and supervisory remedial, to the Criminal District Court, Parish of Orleans, No. 276-266, Division F.

Granted. Trial judge is ordered to see that relator’s appeal is lodged within 60 days.


text:
    Murlon WEBB v. POLK CHEVROLET, INC.
    No. 84-C-1248.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Murlon Webb, applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 83-CA-0620, 19th Judicial District Court, Parish of East Baton Rouge, No. 214632, Division F.

Prior report: 451 So.2d 139.

Granted. The judgment of the Court of Appeal dated May 30, 1984 is reversed. It is ordered that the judgment of the trial court rendered on February 12, 1981 and signed on February 13, 1981, dismissing Webb’s suit against Polk Chevrolet, is hereby annulled. The case is remanded to the trial court for trial on the merits.


text:
    STATE of Louisiana v. Michael CALLOWAY.
    No. 84-K-1717.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Calloway, Michael, applying for writ of certiorari, writ prohibition and mandamus to the Court of Appeal, First Circuit, No. 84-KA-0850; Parish of Terre-bonne, 32nd Judicial District Court, Div. “D”, No. 89531.

Granted. The appeal is reinstated. The case is remanded to the court of appeal with instructions to require defense counsel to file a brief under penalty of contempt and to docket the appeal for disposition in normal course. See State v. Simmons, 390 So.2d 504 (La.1980), State ex rel. Johnson v. McGougan, 433 So.2d 687 (La.1983), State v. Lavene, 343 So.2d 185 (La.1977).


text:
    Susan Dupre, Wife of and Michael DUPRE v. RAY’S FAMILY HAIR STUDIO and State Farm Fire and Casualty Company.
    No. 84-CC-1853.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Ray’s Family Hair Studio et al., State Farm Fire & Cas. Co., Beulke, Raymond, applying for writ of certiorari, prohibition or mandamus, Parish of Jefferson, 24th Judicial District Court, Div. “K”, No. 284-417; to the Court of Appeal, Fifth Circuit, No. 84-0525.

Granted. It is ordered that relator be allowed to take the depositions of Dr. Hegre and Michael Dupre prior to trial.


text:
    Lucius DOUCET, D.D.S. v. DENTAL HEALTH PLANS MANAGEMENT CORPORATION and Guaranty Income Life Insurance Company.
    No. 84-CD-1462.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Guaranty Income Life Ins. Co., applying for remedial writs, Parish of St. Landry, 27th Judicial District Court, Div. “C”, No. 81591-2.

Granted. This matter is transferred to the Court of Appeal for its consideration.


text:
    STATE of Louisiana v. Blanchard HINES, Jr.
    No. 84-KK-1549.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Hines, Blanchard Jr., applying for stay, supervisory writs, Parish of DeSoto, 11th Judicial District Court, Div. “B”, Nos. 52781, 52782, 52783, 52784; to the Court of Appeal, Second Circuit, No. 16698-KW.

Writ granted. The matter is transferred to the Court of Appeal for its consideration.


text:
    STATE of Louisiana v. Louis HALL.
    No. 84-KH-1625.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Hall, Louis, applying for writ of certiorari, writ of mandamus and supervisory writ to the Court of Appeal, Fourth Circuit, No. K-2666; Parish of Orleans, Criminal District Court, Div. “B,” No. 287-370.

Granted. This matter is transferred to the Court of Appeal for its consideration.


text:
    STATE of Louisiana v. Shedrick DAVIS.
    No. 84-KH-1774.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Davis, Shedrick L., applying for remedial writs, Parish of Orleans, Criminal District Court, Div. “G”, No. 295-748.

Granted. Transferred to Court of Appeal, 4th Circuit, for action.


text:
    STATE of Louisiana ex rel. Robert Lee JOHNSON v. Frank BLACKBURN, Warden, L.S.P.
    No. 84-KH-1781.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Johnson, Robert Lee, applying for writ of habeas corpus, Parish of Rapides, Ninth Judicial District Court, Div. “C”, Nos. 202-538, 202-539, 202-540.

Granted. Application transferred to the Court of Appeal, Third Circuit, for its consideration.


text:
    STATE of Louisiana ex rel. Reginald YOUNGBLOOD v. STATE of Louisiana.
    No. 84-KH-1231.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Reginald Youngblood, applying for writs of certiorari, prohibition and mandamus from Criminal District Court, Parish of Orleans, Nos. 260-172 and 268-042, Section “B”.

Granted. The trial court is ordered to furnish relator with a copy of his Boykin transcript. The writ is otherwise denied.


text:
    Willie H. RICHARDSON v. L.S.U. MEDICAL CENTER, et al.
    No. 84-C-1213.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Willie H. Richardson, applying for reconsideration of denied writ of September 28,1984, 457 So.2d 13; Court of Appeal Second Circuit, No. 16,225-CA; First Judicial District Court, Parish of Caddo, No. 289411.

Not considered. The judgment is definitive. La.C.C.P. Art. 2166.


text:
    STATE of Louisiana v. Alfred WILLIAMS.
    No. 84-KD-1467.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Alfred Williams, applying for reconsideration of writ not considered on September 14, 1984, 456 So.2d 161; Court of Appeal, First Circuit, No. KA-83-1297; 19th Judicial District Court No. 3-83-716, E. Baton Rouge Parish.

Not considered. See Rule 10 § 4(b).


text:
    STATE of Louisiana, ex rel., Larry LAFLEUR v. Warden GUILLORY, Wade Correctional Center.
    No. 83-KH-2003.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Larry LaFleur, applying for remedial writs, Parish of Evangeline, Nos. 29433; 29434; 29435.

Denied.


text:
    STATE of Louisiana ex rel. Preston H. DAIGRE v. John T. KING, Secretary, Louisiana Department of Corrections.
    No. 83-KH-2225.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Preston H. Daigre, applying for writ of certiorari, prohibition, mandamus or habeas corpus to Criminal District Court, Parish of Orleans, No. 239-339, Section H.

Denied.


text:
    STATE of Louisiana ex rel., Bernard C. MORROW v. J.D. MIDDLEBROOKS, Warden, Louisiana Correctional and Industrial School, Dequincy, La.
    No. 83-KH-2256.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Bernard C. Morrow, applying for writs of certiorari and habeas corpus from the Criminal District Court, Parish of Orleans, No. 256-382.

Denied.


text:
    STATE of Louisiana, ex rel., Lavada ANTHONY v. Hon. Gordon E. CAUSEY, Judge, 21st Judicial District Court, Div. “B”, Parish of Tangipahoa, Amite, Louisiana.
    No. 83-KH-2354.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Lavada Anthony, applying for writ of certiorari or review, Parish of Tangipa-hoa, 21st Judicial District Court, No. 41867.

Denied.


text:
    STATE ex rel. Gerald A. BAXTER v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2385.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Gerald A. Baxter, applying for writ of habeas corpus, from the First Judicial District Court, Parish of Caddo, No. 114356.

Denied.


text:
    STATE of Louisiana ex rel. Kenneth Lee SIMMONS v. John T. KING, Secretary Dept of Corrections and Charles C. Foti, Criminal Sheriff, Orleans Parish.
    No. 83-KH-2387.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Kenneth Lee Simmons, applying for remedial writ to the Criminal District Court, Parish of Orleans, No. 178-966.

Denied.


text:
    STATE of Louisiana ex rel. James R. THOMAS v. STATE of Louisiana.
    No. 83-KH-2439.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re James R. Thomas, applying for writ of certiorari, to the Nineteenth Judicial District Court, Parish of East Baton Rouge, Nos. 1-78-701, 1-79-379.

Denied.


text:
    Katherine Bridges JETT v. John Alfred JETT, Sr.
    No. 84-C-1174.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Katherine Bridges Jett, applying for writ of review, to the First Circuit Court of Appeal, No. 83-CA-0488, from the Twenty-First Judicial District Court, Parish of Tangipahoa, Nos. 58256-D and 60141, Section “B”.

Prior report: 449 So.2d 557.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Lewis T. GRAHAM, Jr. v. Don HATHAWAY, Sheriff.
    No. 84-KP-1189.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Lewis T. Graham, Jr., applying for writs of certiorari, mandamus, prohibition and review from the First Judicial District Court, • Parish of Caddo, No. 124306-HC, Division “D”.

Denied.

MARCUS and LEMMON, JJ., would grant an evidentiary hearing.


text:
    Don A. INGRAM v. HY-REACH EQUIPMENT, INC., et al.
    No. 84-C-1201.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Don A. Ingram, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CA-0714; 19th Judicial District Court, Parish of E. Baton Rouge, No. 235635.

Prior report: 453 So.2d 578.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    June WELLS, et al. v. STATE of Louisiana et al.
    No. 84-C-1234.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re June Wells, et al, applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 83-CA-0706; 22nd Judicial District Court, Parish of Was-ington, No. 45873, Division A.

Prior report: 450 So.2d 1027.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Frank D. DI LORENZO.
    No. 84-KK-1290.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Frank D. Di Lorenzo, applying for remedial writs to the Fifth Circuit Court of Appeal, No. 84-K-302, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 84-1276.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    In re Walter Edward MAY, Jr. Applying for Adoption.
    No. 84-C-1365.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Gary David Fuqua, applying for writ of certiorari, or review to the Court of Appeal, Second Circuit No. 15859-DAJ, Parish of Jackson, Second Judicial District Court, No. 233AD.

Prior report: 452 So.2d 800.

Denied.


text:
    STATE of Louisiana ex rel. Gary L. McGHEE v. Ross MAGGIO, Warden, La. State Penitentiary.
    No. 84-KP-1377.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Gary L. McGhee, applying for supervisory writs to the Sixteenth Judicial District Court, Parish of St. Martin, No. 67550, Section “B”.

Denied.

DENNIS, J., would grant the writ.


text:
    Joyceleen Loche wife of and Solomon LOCHE v. STANDARD ASSOCIATES MANAGEMENT & CONSULTANTS, INC. and Holland America Insurance Company.
    No. 84-C-1440.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Loche, Joyceleen et vir, applying for writ of certiorari, writ of review to the Court of Appeal, Second Circuit, No. 16256-CA; Parish of Morehouse, 4th Judicial District Court, Div. “A”, No. 81-574.

Prior report: 452 So.2d 300.

Denied.

CALOGERO, DENNIS and LEMMON, JJ., would grant the writ.


text:
    James McCLENDON v. Glen CARRIER.
    No. 84-C-1442.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Carrier, Glen, applying for writ of certiorari, prohibition to the Court of Appeal, First Circuit, No. 83-CA-0970; Parish of Tangipahoa, 21st Judicial District Court, Div. “D”, No. 63239.

Denied.


text:
    David CORNISH v. Dale L. FREEMAN, et al.
    No. 84-C-1443.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Cornish, David, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0651; Parish of Tangipahoa, 21st Judicial District Court, Div. “E”, No. 64085.

Prior report: 451 So.2d 148.

Denied.


text:
    Peggy Sue Walker LINCECUM v. MISSOURI PACIFIC RAILROAD COMPANY, et al.
    No. 84-C-1444.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Missouri Pacific R. & R. Co. et al., applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0635; Parish of Iberville, 18th Judicial District Court, Div. “B”, No. 24791.

Prior report: 452 So.2d 1182.

Denied. Result is correct.


text:
    Linda L. SIMMONS v. James R. SIMMONS.
    No. 84-C-1445.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Simmons, James R., applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 83-758; Parish of Rapides, 9th Judicial District Court, Div. “E”, No. 122837.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    BANK OF JENA v. Freddie Wayne CLARK and William Henry Sanders.
    No. 84-C-1446.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Clark, Freddie Wayne et al., applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 83-787; Parish of LaSalle, 28th Judicial District Court, Div. “ ”, No. 17833.

Prior report: 452 So.2d 428.

Denied.

WATSON, J., would grant the writ.


text:
    Freddie A. COUTEE, et al. v. AMERICAN DRUGGIST INSURANCE COMPANY OF CINCINNATI, et al.
    No. 84-C-1447.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Coutee, Freddie A. et al., Coutee, Rita, American Bankers Ins. Co., applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 83-781; Parish of Rapides, 9th Judicial District Court, Div. “F”, No. 121758.

Prior report: 453 So.2d 314.

Denied.

DIXON, C.J., and DENNIS, J., would grant the writ.


text:
    A.P. MARULLO and Barbara Marullo v. Vito ZUPPARDO, Harrah’s, Robert Ahern and Michael Morgan.
    No. 84-CC-1450.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Zuppardo, Vito et al., Ahern, Robert, Morgan, Michael, Harrah’s, applying for writ of certiorari, writ of review, decli-natory exception to the Court of Appeal, Fourth Circuit, No. C-2339; Parish of Orleans, Civil District Court, Div. “L”, No. 83-10003.

Prior report: 454 So.2d 268.

Denied.


text:
    Stephen G. MARTIN v. GULF SOUTH BEVERAGES, INC., Canada Dry Mid-South. Inc., Lastarmso, Inc., Aluminum Company of America, Inc., a/k/a Alcoa and Zapata, Inc.
    No. 84-C-1452.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Lastarmco, Inc., applying for writ of certiorari to the Court of Appeal, Fifth Circuit, No. 84-CA-27; Parish of Jefferson, 24th Judicial District Court, Div. “F”, No. 256-904.

Denied.


text:
    SUCCESSION OF James R. LAMY.
    No. 84-C-1455.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re English, Edith Lamy, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA-1692; Parish of Orleans, Civil District Court, Div. “I”, No. 8210228.

Prior report: 454 So.2d 290.

Denied.

DIXON, C.J., would grant the writ.


text:
    Mrs. Vivian KINCHEN v. David GILWORTH, Margaret Johnson, and Jim Woods a/k/a Burl Mahl, d/b/a Carousel Construction Company, and Dixie Homestead and Savings Association.
    No. 84-C-1476.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Hinchen, Vivian Mrs., applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1715; Parish of Orleans, Civil District Court, Div. “E”, No. 78-15445.

Prior report: 454 So.2d 1130.

Denied.


text:
    Vero B. PUCCIO v. Mark S. FINCH, et al. Gordon A. SAUSSY v. Mark S. FINCH, et al.
    No. 84-C-1477.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Elevating Boats Inc., applying for writ of review to the Court of Appeal, Fourth Circuit, Nos. CA-1685, CA-1686; Parish of Plaquemines, 25th Judicial District Court, Div. “B”, Nos. 22-758, 22-806, 23-629.

Prior report: 454 So.2d 272.

Denied.


text:
    Deborah Ann Hebert, wife of Donald Edward SMITH v. Donald Edward SMITH.
    No. 84-C-1479.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Hebert, Deborah Ann, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA-1618; Parish of Orleans, Civil District Court, Div. “F”, No. 80-3699.

Prior report: 454 So.2d 1136.

Denied.


text:
    STATE of Louisiana, ex rel. Ronald REYNARD v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2460.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Ronald Reynard, applying for writ of habeas corpus or certiorari, Criminal District Court, No. 275-296, Parish of Orleans.

Denied.


text:
    STATE of Louisiana, ex rel. James R. THOMAS v. STATE of Louisiana.
    No. 83-KH-2474.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re James R. Thomas, applying for writ of certiorari and stay order, Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 1-79-379.

Denied.


text:
    STATE of Louisiana v. Rudolph THOMPSON, Jr.
    No. 83-KH-2542.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Rudolph Thompson, Jr., applying for writ of habeas corpus from the Fourth District Court, No. 37875, Parish of Ouachi-ta.

Denied.


text:
    STATE of Louisiana ex rel., John Lewis FORD v. SECOND JUDICIAL DISTRICT COURT, PARISH OF JACKSON.
    No. 83-KH-2604.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re John Lewis Ford, applying for writ of certiorari, from the Second Judicial District Court, Parish of Jackson, No. 20228.

Denied.


text:
    STATE of Louisiana ex rel., Darryl J. WEDIG v. Hon. Stephen A. DUCZER, Judge, 22nd Judicial District Court, Parish of St. Tammany.
    No. 83-KH-2661.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Darryl J. Wedig, applying for writ of certiorari or review, from the Twenty-second Judicial District Court, Parish of St. Tammany, No. 59396.

Denied.


text:
    STATE of Louisiana ex rel. Francis Marie Trahan NITCHING v. Hon. Warren E. HOOD, Judge, 14th Judicial District Court, Parish of Calcasieu, State of Louisiana, Lake Charles, Louisiana.
    No. 84-KH-0056.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Francis Marie Trahan Nitching, applying for writs of certiorari and review from the Fourteenth Judicial District Court, Criminal Docket No. 12194-79, Parish of Calcasieu.

Denied.


text:
    STATE ex rel. Joseph ALEXANDER, Jr. v. Colonel Bo GARRISON.
    No. 84-KH-0064.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Joseph Alexander, Jr., applying for post conviction relief, from the Sixth Judicial District Court, Parish of Madison, No. 34652.

Denied.


text:
    STATE of Louisiana ex rel. Marcus WARREN v. Charles C. FOTI, Jr., Sheriff.
    No. 84-KH-0103.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Marcus Warren, applying for remedial writs from the Criminal District Court, No. 285-212, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Ulysses LONG v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0123.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Ulysses Long, applying for remedial writ from the Nineteenth Judicial District Court, No. 1-77-2, Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Roy CHENIER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0134.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Roy Chenier, applying for supervisory writs to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 9-75-2079.

Denied.


text:
    STATE of Louisiana ex rel. Linda Faye WASHINGTON v. Hon. Monty W. WYCHE, Judge, 26th Judicial District Court, Parish of Bossier, Benton, Louisiana.
    No. 84-KH-0137.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Linda Faye Washington, applying for writ of certiorari from the Twenty-Sixth Judicial District Court, No. 57198-A, Parish of Bossier.

Denied.


text:
    STATE of Louisiana ex rel. Mario G. VARELA v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0148.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Mario G. Varela, applying for a supervisory writ to the First Judicial District Court, Parish of Caddo, No. 101-315.

Denied.


text:
    STATE of Louisiana ex rel. Abdullah MUHUMMAD a/k/a James Cade a/k/a James Morris v. N. Burl CAIN, Warden, Dixon Correctional Institute.
    No. 84-KH-0149.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Abdullah Muhummad a/k/a James Cade a/k/a James Morris, applying for writ of certiorari, to the Court of Appeal, 3rd Circuit, No. K83-954; Parish of Acadia, 15th Judicial District Court.'

Denied.


text:
    STATE of Louisiana ex rel. Richard N. GLOVER, Sr. v. Charles C. FOTI, Jr., Sheriff.
    No. 84-KH-0193.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Richard N. Glover, Sr., applying for a remedial writ to the Criminal District Court, Parish of Orleans, No. 279-883.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Gilbert C. WILLIAMS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0214.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Gilbert C. Williams, applying for writ of certiorari, prohibition, mandamus, or habeas corpus to the Criminal District Court, Parish of Orleans, No. 275-049.

Denied:


text:
    STATE of Louisiana, ex rel. Johnson WASHINGTON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0258.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Johnson Washington, applying for application for writ of habeas corpus from the Twenty-Ninth Judicial District Court, No. 30762, Division “C”, Parish of St. Charles.

Denied.