text:
    STATE of Louisiana v. Kenneth SMITH.
    No. KA-2302.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    Writ Granted March 22, 1985.

      George Hesni, Dwight Doskey, New Orleans, for defendant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for appel-lee.
    Before GARRISON, BYRNES and LO-BRANO, JJ.
   LOBRANO, Judge.

Defendant, Kenneth Smith, was charged by bill of information with four counts of forgery committed on May 4, 1983, a violation of LSA R.S. 14:72. Defendant was arraigned on August 1, 1983 and pled not guilty to all counts. A judge trial was held on January 27, 1984. Defendant was found guilty as charged on Count one and guilty of attempted forgery on Count two.

On February 10, 1984, the trial judge, after denying defendant’s Motion for a New Trial, changed the verdict as to Count one to attempted forgery, thereby reducing the original verdict.

On March 16, 1984, defendant, pursuant to a multiple bill under LSA R.S. 15:529.1, was sentenced as a second offender to serve six (6) years on each count concurrently at hard labor.

FACTS:

On May 4, 1983, defendant and his co-defendant, Giles McGhee, approached a check cashing booth located in the Woolworth’s department store on Canal Street in New Orleans. John Mothershead, owner and operator of the booth, testified McGhee presented to him for cashing a social security check payable to “Jose Gonzales”. The check was already endorsed “Jose Gonzales”. Because it was the time of the month when many social security checks are stolen, and because McGhee’s appearance did not fit the Hispanic name, “Jose Gonzales”, Mothershead became suspicious. Mothershead asked McGhee for identification. McGhee replied he had none. Defendant, who had opened a check cashing account with Mothershead several days before, vouched for McGhee and told Mothershead that McGhee was Jose Gonzales. Mothershead then asked McGhee to sign the check again, which he did as “Jose Gonzales”. Still suspicious, Mothershead summoned the store security officer who alerted officer Harry Taylor of the New Orleans Police Department.

Taylor escorted defendant and McGhee to the store security office and informed them of their constitutional rights. They responded that they understood these rights. McGhee then voluntarily stated to Taylor that he did not steal the check but that he received it from defendant. Defendant then told McGhee, “Hey man, Shut up. You only sinking us deeper.”

Jose Gonzales testified he did not know either McGhee or defendant and that he did not give anyone permission to cash his check, nor did he endorse same.

McGhee testified he received the check from a Ricky Arceneaux who asked him to cash it for his uncle (Jose Gonzales). He claimed he met defendant by chance at the booth and that defendant never identified him as Jose Gonzales but merely attempted to help him cash the check. He also denied ever having told Officer Taylor that defendant gave him the check.

Defendant testified that he met McGhee by chance in the store and when he realized he was. having difficulty cashing the check, interceded on his behalf. He denied telling Mothershead that McGhee was Jose Gonzales.

From his conviction and sentence, defendant asserts the following assignments of error:

1) The trial court erred in finding the defendant guilty as charged on the first count, when there was insufficient evidence, to show that the defendant was a principal to the forgery of Jose Gonzales’ name.
2) The conviction of both counts violated the double jeopardy clause of the United States Constitution.
3) The trial court erred in adjudicating the defendant a second offender.

ASSIGNMENT OF ERROR 1.

Count One refers to the unlawful making of a forged instrument, a violation of LSA R.S. 14:72.

The standard of review of sufficiency of evidence under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is that the reviewing court must determine that the evidence, viewed in the light most favorable to the prosecution, is sufficient for a rational trier of fact to conclude that the defendant is guilty beyond a reasonable doubt of the crime. Also, when the conviction is based, at least partially, on circumstantial evidence, the rule enunciated in LSA R.S. 15:438 is useful in determining the existence of a reasonable doubt, “because, when the overall evidence, direct and circumstantial, does not exclude a reasonable hypothesis of innocence, there exists a reasonable doubt as to guilt.” State v. Camp, 446 So.2d 1207 (La.1984).

Viewing the evidence in the light most favorable to the prosecution, the following facts were adduced at trial:

1) Defendant was with McGhee at the check cashing booth when McGhee signed the check “Jose Gonzales”;
2) Defendant identified McGhee as Jose Gonzales;
3) McGhee told Officer Taylor defendant gave him the check;
4) Defendant and McGhee knew each other;
5) Defendant told McGhee, “Shut up. You only sinking us deeper” when McGhee began explaining defendant’s involvement.

Even though these facts testified to by Taylor and Mothershead were contradicted by defendant and McGhee, viewing the evidence in the light most favorable to the prosecution, every reasonable hypothesis of innocence was excluded. State v. Wright, 445 So.2d 1198 (La.1984). Accordingly, this evidence is sufficient to support the defendant’s intent to defraud and his conviction as a principal to attempted forgery. We are satisfied that the requirements of Jackson v. Virginia, supra, and State v. Nolan Camp, supra, have been met.

Defendant also argues that at the time McGhee signed Jose Gonzales’ name to the check that signature did not have “legal efficacy” because the check already had been endorsed, thus the second endorsement meant nothing, legally. We disagree with this argument. Defendant misreads La.R.S. 14:72. The statute states that in order to constitute forgery the false making or altering of a signature must occur on “... any writing purporting to have legal efficacy.” It is not the signature which must give legal efficacy, but the writing upon which the altered or forged signature appears must have legal efficacy. Certainly the legislature never intended to make it a criminal act for every person who signs his spouse’s or child’s name to a birthday card, as the birthday card (writing) has no legal efficacy.

ASSIGNMENT OF ERROR 2:

Defendant contends that convicting him on both counts of attempted forgery violated his constitutional right against double jeopardy.

In Louisiana, an accused is not only protected from a second prosecution on the same offense, but also protected from multiple punishment for essentially the same criminal conduct. State v. Hayes, 412 So.2d 1323 (La.1982).

Louisiana courts employ two tests in determining whether a prosecution presents a double jeopardy problem. State v. Vaughn, 431 So.2d 763 (La.1983).

The first, the Blockburger test, enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), provides that when the same conduct constitutes a violation of two distinct statutory provisions, the test to be applied is whether each provision requires proof of an additional fact that the other does not. State v. Knowles, 392 So.2d 651 (La.1980).

The second, the same evidence test enunciated in State v. Steele, 387 So.2d 1175, 1177 (La.1980), provides:

“If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea qf double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial ...
The ‘same evidence’ test is somewhat broader in concept than Blockburger the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.”

Under the Blockburger test, each paragraph of R.S. 14:72 requires proof of an additional fact that the other does not. The first paragraph (the basis for Count 1) requires that the defendant, in some way, falsify or alter a document, with intent to defraud. Paragraph two (the basis for Count 2) requires the issuance or transfer of a forged writing with intent to defraud, although the defendant does not have to be the falsifier. Quite clearly, each paragraph requires the proof of an additional fact that the other does not.

Defendant’s conviction also survives the same evidence test. Acquittal of a defendant on one count of forgery does not necessarily operate as an acquittal on other counts. Whether the facts are the same is not the true test. Rather the court must determine whether acquittal of the defendant on the first count necessarily involves acquittal on the other counts. State v. Didier, 262 La. 364, 263 So.2d 322, 327 (1972).

In State v. Doughty, 379 So.2d 1088, 1091 (La.1980), the Louisiana Supreme Court defined forgery as:

“The false making or altering with the intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy; or (underlined for emphasis) issuing or transferring, with intent to defraud, a forged writing known by the offender to be a forged writing.”

Thus, according to the language in Doughty, supra, the offense may be committed in two alternative manners, either by the actual making of the false writing or by issuing or transferring a false writing known to be false.

Thus, applying the facts of the instant case to the Blockburger and same evi dence tests, defendants convictions are not in derogation of his federal or state constitutional protection against double jeopardy. This assignment of error is without merit.

ASSIGNMENT OF ERROR 3:

Defendant asserts that his prior guilty plea was improperly used to charge him as a multiple offender as he was not adequately informed of his rights as set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1979), and adopted by Louisiana in State ex rel, Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). Defendant contends his Boykinization colloquy shows:

1) confusion over the two prongs of self-incrimination (at the time of the entry of the guilty plea and at trial); and
2) The trial judge “rattled” off the defendant’s rights with such speed that the defendant could not make an intelligent waiver.

The state bears the burden of showing the defendant knowingly and intelligently waived his constitutional rights. State v. Holden, 375 So.2d 1372 (La.1979).

The colloquy of defendant’s prior conviction shows the trial judge asked the defendant if he understood that:

“by pleading guilty, you waive your constitutional right to remain silent now and at the time of trial. You have a right to a jury trial, to appeal, the right to face your accusers from the witness stand, to cross-examine them, and the right to call your own witnesses and testify yourself, if you so wish.” (Emphasis added)

The colloquy indicates the defendant was adequately informed of his right to remain silent both at the time of the plea and at trial. In addition, the Louisiana Supreme Court has recognized that the appellate court may “look beyond a colloquy to an expanded record to determine whether voluntary waiver occurred.” State v. Lawson, 410 So.2d 1101, 1103 (La.1982).

In the instant case, the waiver of rights form which defendant initialed and signed reflects that he was adequately informed of both his right against self-incrimination at the entering of the guilty plea and at trial. This assignment of error is without merit.

ERRORS PATENT:

We have also reviewed the record for errors patent as mandated by La.C.Cr.P. Art. 920(2). We find none.

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

AFFIRMED.

      . LSA R.S. 14:72:
      “Forgery is the false making of altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
      Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery. Whoever commits the crime of forgery shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both.”

      . There is nothing in the record as to what occurred as to Counts three and four.

      . Defendant was originally convicted of forgery on Count One. However, on February 10, 1984, the trial court changed the original verdict to that of the lesser included verdict of guilty of attempted forgery on Count One. Thus, this assignment is examined for sufficiency of evidence to convict the defendant of attempted forgery.

      . La.R.S. 15:438 provides the following rule for circumstantial evidence in Louisiana:
      “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

      . "principal” is defined in LSA-R.S. 14:24 as "All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

      . LSA R.S. 14:27 (attempt)
      “A. Any person who having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would havf actually accomplished his purpose. ...”

      . La.C.Cr.P. Art. 591:
      “No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.”

      . See also State v. Thomas, 454 So.2d 833 (La.App. 4th Cir. June 26, 1984), wherein this court reversed a forgery conviction on Count one but affirmed the conviction of Count two. This case is distinguished from the present in that the defendant in that case did not participate as a "principal” to the forged writing.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Patrick J. KNIGHT v. Spyridon SOILEMISIS, et al.
    No. 83-CA-775.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      W. Keith Hurtt, Jr., Metairie, for Patrick J. Knight, plaintiff-appellant.
    Robert E. Kerrigan, Jr. and Philip D. Lorio, III, Deutsch, Kerrigan & Stiles, New Orleans, for Cumis Ins. Soe., Inc., defendant-appellee.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   BOUTALL, Judge.

This appeal arises from the claim of an injured plaintiff against his automobile insurer for payment under the policy’s uninsured or underinsured motorist coverage. From a summary judgment in favor of the insurance company dismissing plaintiff’s suit, the plaintiff appeals.

Patrick J. Knight was injured in a collision between his automobile and a vehicle driven by Spyridon Soilemisis on November 21, 1980. Knight sued Soilemisis and his insurer, Louisiana Farm Bureau Mutual Insurance Company (“Louisiana Farm") along with his own insurer, Cumis Insurance Society, Inc. (“Cumis”). Prior to trial, on February 4, 1982, Knight released Soi-lemisis and Louisiana Farm after receiving payment of the policy limits. In the release Knight signed he failed to reserve the right to proceed against Cumis, although the wording released only the alleged tort-feasor and his insurer.

Cumis filed a motion for summary judgment on January 20, 1983, on grounds that under the holding of Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982), decided on June 21, 1982, the tortfeasor and the UM carrier are solidary obligors. By releasing Soilemisis and Louisiana Farm without expressly reserving his rights against other debtors in solido, the plaintiff exonerated Cumis Insurance Society, Inc. The motion was granted on March 7, 1983, dismissing the plaintiff’s suit. This appeal followed.

The issue before this court is whether the principle of solidary liability as enunciated in Hoefly v. Government Employees Ins. Co., supra, is applicable to the facts of this case, and payment by one party exonerated the other. The Hoefly case concerned an issue of prescription. There the Court found in favor of/the plaintiff by holding that the two insurers were solidary obligors, so that timely suit against the tortfeasor’s insurer interrupted prescription against the UM carrier and the plaintiff could proceed against the UM carrier even though he had released the tortfeasor.

This court applied the Hoefly rule in the case of Decedue v. Government Employees Insurance Company, 441 So.2d 72 (La.App. 5th Cir.1983), writ granted 446 So.2d 1216 (La.1984), and affirmed dismissal of the plaintiff’s suit on an exception of res judicata where the plaintiff had released the tortfeasor without reserving his rights against the UM insurer. The panel hearing the instant case was divided as to whether it was bound by Decedue to affirm dismissal of Knight’s suit, or whether the matter could be decided on the holding of Roy v. United Services A.A. Casualty Insurance Company, 453 So.2d 564 (La.1984), in which the Supreme Court interpreted the language in the plaintiff’s release as containing an express reservation of rights against other co-debtors in solido.

The question has been resolved by the Court’s decision in the consolidated case of Joseph Carona, Jr. v. State Farm Insurance Company, No. 84-C-0287, Paul Roche v. Cumis Insurance Society, Inc., No. 84-C-0279, Anthony J. Dalmado, Jr. v. Cumis Insurance Society, Inc., No. 84-C-0234, Lois E. Halter, wife of and Claude Cancienne v. Rodrigo M. Saaverda, The Fidelity and Casualty Company of New York and State Farm Insurance Company, No. 82-C-0274, and Mary H. Decedue, wife of/and Charles Decedue v. Government Employees Insurance Company, 458 So.2d 1275 (La. 1984), which reversed the judgments and orders dismissing the plaintiffs’ suits against their UM insurers and remanded the cases to the district courts. The Court said, at page 1278:

“The technical rule of article 2203 serves as a barrier to full recovery by innocent accident victims, and thereby conflicts with the basic object of the UM legislation. It is inevitable, perhaps, that a rule criticized by Baudry-Lacantinerie [sic], Borde, Colmet de Santerre, Dema-lombe, Laurent, and Hue as being inexplicable before the turn of the century should clash hopelessly with social legislation necessitated by the twentieth century automotive age. See 1984 La.Acts, No. 331 Section 1, article 1803, Comment (e)-
“More specifically, article 2203 conflicts with and has been superseded by La.R.S. 1406(D)(4) [La.R.S. 22:1406(D)(4) ], of the UM statute, which provides:
In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement of judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made.... (emphasis added)
“This statutory provision, and Civil Code article 2162, make it clear that when the UM insurer pays part of the damages to which the insured is entitled from a tortfeasor and receives a release from the insured, the insured is nevertheless entitled to exercise his right for the balance of the partially paid claim in preference to the insurer, even though the insurer and the tortfeasor are solidary obligors. See Bond, supra [Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981)]; Southern Farm Bureau Casualty Ins., Co., 406 So.2d 178 (La.1981). These statutory provisions clearly imply that the insured’s right to recover from the UM insurer is afforded similar protection when he first receives payment for part of his damages from the tortfeasor. Any other interpretation would be unreasonable and would cause injuries of innocent, insured motorists to go unremedied, thus frustrating the legislative aim of the UM statute. Since full recovery is the goal of the legislation and because the tortfeasor and the UM carrier are codebtors in soli-do, we infer that a victim merely by his release of the tortfeasor does not forfeit any right against his UM carrier.
“For the foregoing reasons we conclude that when an automobile accident victim settles with his tortfeasor his claim against his UM insurer is not discharged merely because he does not expressly reserve his right against the latter in accordance with Civil Code article 2203....”

In accordance with the Supreme Court holding quoted above, we hold that the release signed by the plaintiff, Patrick J. Knight, releasing the defendants, Spyridon Soilemisis and Louisiana Farm Bureau Mutual Insurance Company, did not operate to exonerate Cumis Insurance Society, Inc. from its liability to Knight under the UM provision of his automobile insurance policy, and that the plaintiff’s suit was erroneously dismissed.

Accordingly, the summary judgment appealed from is reversed, and the case is remanded for further proceedings consistent with this judgment.

REVERSED AND REMANDED.

      . Effective January 1, 1985, article 2203 is abolished and replaced by new article 1803, which provides:
      “Remission of debt by the obligee in favor of one obligor, or a transaction or compromise between the objigee and one obligor, benefits the other solidary obligors in the amount of the portion of that obligor.
      "Surrender to one solidary obligor of the instrument evidencing the obligation gives rise to a presumption that the remission of debt was intended for the benefit of all the solidary obligors.”


text:
    GREAT AMERICAN INSURANCE COMPANY v. ST. JAMES PARISH SHERIFF’S OFFICE.
    No. 84-CA-94.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Anthony J. Nobile, Asst. Dist. Atty., Lutcher, for St. James Parish Sheriff’s Office, defendant-appellant.
    Robert T. Myers, Young & Richaud, New Orleans, for Great American, plaintiff-ap-pellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   BOUTALL, Judge.

This is an appeal from an order to the St. James Parish Sheriff to return twenty-four typewriters seized as evidence in a pending criminal proceeding. The typewriters were the property of Sears, whose insurer, Great American Insurance Company, seeks their return in order to sell them and reduce its losses. The property was seized in December, 1980, but the individual charged with “receiving stolen things” has not been brought to trial. The Sheriff took a sus-pensive appeal from the court order to return the property.

The issue before this court is whether the trial judge acted properly in ordering the typewriters released.

Retention of the typewriters by the Sheriff is based on the “best evidence” rule, stated in LSA-R.S. 436, as follows:

“The best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced.”

The disposition of evidence seized in criminal matters is covered by LSA-.R.S. 15:41 and 15:436.1. R.S. 15:41 B(l), C provides that if the property “is not to be used as evidence or is no longer needed as evidence” and is not declared to be contraband under a statute it shall be released to the owner upon a motion against the clerk of court. LSA-R.S. 15:436.1 provides, in pertinent part, that:

“(A) a photograph of property alleged to be the object of a theft, otherwise admissible, may be admitted as evidence without regard to the availability of the property itself.”

The appellant’s position is that the property cannot be returned because it is to be used in evidence and will be needed in the prosecution of the case. The appellee argues that it should not be deprived of possession of the typewriters, as photographs would be sufficient evidence in a trial of the accused.

The only case cited by the appellant to support his position is State v. Garnier, 261 So.2d 221 (La.1972). The facts are distinguishable from those in our case in that the individual in Garnier who filed the motion for release was a defendant in a gambling case. He claimed ownership of a large amount of currency which had been seized in a raid on his premises in which gambling paraphernalia and persons engaged in gambling had been found. The court denied the release and said that any currency seized on the premises of a gambling operation, wherever found, could be “reasonably regarded as ‘evidence tending to prove the commission of’ the gambling offense ...” State v. Garnier, supra, at 223, and relevance of the currency must be resolved at trial. In the case before us there is no question as to ownership, as the typewriters were identified as part of a lot of 550 typewriters allegedly stolen earlier. The other typewriters had been recovered by the St. James Parish Sheriff’s office and returned to Sears. The twenty-four typewriters in question had been seized under a search warrant from a business premises and were being held as evidence in the prosecution of its owner for receiving stolen things.

The Sheriff argues that photographs are inadequate as a substitute for the property itself. He stated in his brief:

"... The evidence and the affidavits contemplated are subject to challenge by the defendant and the physical bulk of the evidence may be more convincing in a Receiving Stolen Things trial than a mere picture of 24 boxes ...”

We find no merit in this argument.

The courts have approved of the substitution of photographs for the property itself under certain circumstances. In State v. Williams, 309 So.2d 303 (La.1975) the court denied the defendant’s claim that an aluminum screen and a couch should have been introduced into evidence rather than photographs of the items, because there was no showing that producing the actual items would have helped his case. In State v. Dilworth, 358 So.2d 1254 (La.1978), the court held that a photograph of a 31 feet long portion of a wrought iron fence was admissible, in the absence of a showing that the defendant was prejudiced. See also State v. Bennett, 341 So.2d 847 (La.1976), and State v. Bell, 404 So.2d 974 (La.1981), for similar holdings.

As there has been no showing by the Sheriff that the State’s case would be impaired by the substitution of photographs, we hold that the trial judge was correct in ordering the typewriters released in order that the victim might reduce his loss from the theft.

Accordingly, the order appealed from is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Terry SCOTT.
    No. 84-KA-144.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      William C. Credo, III, Asst. Dist. Atty., Research & Appeals, Gretna, for State of La., plaintiff-appellee.
    John H. Craft, Staff Appellate Counsel, 24th Judicial Dist., Indigent Defender Bd., Gretna, for Terry Scott, defendant-appellant.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   BOUTALL, Judge.

Appellant Terry Scott was charged by bill of information with a violation of R.S. 14:62.2, simple burglary of an inhabited dwelling. The jury returned a verdict of guilty of attempted simple burglary of an inhabited dwelling, a lesser included offense of the crime charged. Following a presentence investigation defendant was sentenced to 6 years at hard labor. Scott raised two assignments of error on appeal, both of which we find lack merit.

Scott first contends that the evidence is insufficient to support the verdict under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), adopted by our courts in State v. Byrd, 385 So.2d 248 (La.1980). Scott next contends that the trial judge erred in admitting into evidence photographs offered by the state which the state failed to make known to the defendant during discovery.

FACTS

On October 6, 1982, Annie Walker unlocked her front door, entered her second floor apartment and discovered it had been burglarized. A deputy and a police technician investigated the incident. The technician lifted a partial fingerprint from a bowl which had been moved from its storage place by the burglar. Examination of the doors and windows revealed no evidence of forced entry; all doors and windows were securely locked.

Several days later, Walker discovered a hole in the ceiling of the locker which enclosed her water heater. She also found a baseball cap lodged in the insulation covering the hole. Inspection of the hole revealed it opened into an attic accessible from all the apartments on the second floor of the building. A trap door,' located near the hole in the ceiling, allowed access down into the adjacent apartment of Mary Ann Calvin. Calvin was Terry Scott’s girl friend.

The partial fingerprint lifted from the bowl was matched to one of Terry Scott’s fingers. A warrant was issued and Scott was arrested.

ASSIGNMENT OF ERROR # 1

Appellant now contends the evidence introduced at trial is insufficient to support a verdict of attempted simple burglary of an inhabited dwelling. In order to determine the validity of this assignment we must first examine the evidence introduced at trial. The first piece of evidence introduced by the state was the fingerprint which was matched to one of Terry Scott’s fingers. The defense stipulated that this fingerprint was, in fact, Terry Scott’s. As to the question of how that fingerprint appeared on the bowl, Walker testified she never authorized the defendant to enter her apartment, never lent anything to him, and never had any type of relationship with him other than an occasional exchange of hellos when they met on the street. Defense witnesses were unable to contradict this testimony.

The baseball cap was the next piece of evidence introduced against the defendant. As previously noted, Walker found this cap lodged in the insulation covering a hole in the ceiling of the locker enclosing her water heater. She testified the cap belonged to Scott and that she saw him wearing it several times. Scott’s girl friend, who lived in the apartment next to Walker’s, testified the cap belonged to the defendant but he had given it to her son who later lost it.

Presumably, Scott gained entry into Walker’s apartment through this hole in the ceiling. It was established at trial that this hole was large enough for a person to climb through. It was also established that there was a continuous, open attic area above Walker’s and Calvin’s apartments, large enough for a person to walk about in. Moreover, there was a trap door in the ceiling of Calvin’s apartment which led directly into this attic area.

Thus, given the above, it is clear that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime proved beyond a reasonable doubt. The fingerprint along with the credibility of the victim, would have been sufficient evidence to sustain the conviction. When supported by the facts of accessibility through the attic, the baseball cap, and the locked windows and doors, the evidence is even more convincing. The assignment lacks merit.

ASSIGNMENT OF ERROR # 2

Appellant next assigns as error the introduction into evidence of photographs offered by the state, the existence of which had not been revealed to the defendant during discovery or prior to trial.

The situation comes about as follows. The investigating team preparing the case for trial realized that it had no photographs of the crime scene. Accordingly, the investigator and a technician went to the victim’s apartment and took pictures of the interior of the apartment as well as some outside pictures some eight months after the commission of the crime. In the meantime, the defendant requested extensive discovery along with a bill of particulars, and number 9 of some 12 requests asked for “an enumeration of and access to all of the documents and tangible evidence within the control of the State, which: a) are intended for use at trial; * * * ”

At the time of the request the photographs had not been taken and obviously they were not included in the State’s return. The photographs were shown to the defendant’s attorney only after the trial began and the technician was testifying as to the taking of the photographs. Counsel raised objection to the introduction of the photographs in evidence because of failure to disclose them on discovery. The objection was sustained by the trial court on the basis that the request quoted above was broad enough to include photographs within the provisions of La.C.Cr.P. art. 718, and that there was a continuing duty of disclosure upon the State under the provisions of La.C.Cr.P. art. 729.3. Later in the trial during the testimony of the felony investigator for the District Attorney, the photographs were again offered, and the trial judge permitted the introduction of the photographs under the principles in State v. Phagans, 412 So.2d 580 (La.1982), which he felt to be controlling.

We agree with the rulings of the trial judge. Although the word “photographs” was not specifically included in the discovery request, nevertheless in his consideration of that request it appears that the trial judge considered that all such evidence was included and felt that when the photographs were later taken, the disclosure of the existence of such photographs should have been made. Correspondingly, when the photographs were offered again, it was proven to the judge’s satisfaction that the failure to disclose was not bad faith but occurred simply as a result of a different Assistant District Attorney taking over the case for trial purposes. It was further noted that these photographs do not contain any matters which could cause prejudice to this defendant. Some of them are simply exterior photographs of the premises, some simply illustrate the locks on the windows, and some (which are basically the ones objected to) show a hole in the ceiling of the victim’s closet and some views of the attic showing trap door access to the adjacent apartment.

We consider that the scenes shown in the photographs are merely to depict a visual display of the description afforded by several witnesses of the victim’s premises. The photographs were taken some eight months after the crime occurred and are not offered as direct evidence, but only to visualize and to corroborate the witnesses’ description of the premises and the operation of the locks on the windows. The weight to be assigned to them depends solely upon the credibility of the witnesses and quite frankly we can discern no prejudice which may occur as a result of their introduction.

Additionally, we call attention to the provisions of C.Cr.P. art. 729.5 relating to the sanctions which may be applied by the court for failure to comply with production. That article gives the court discretion to choose a number of sanctions or render such other orders as may be appropriate. Under the facts found by the trial judge and apparent in the record of this case, we conclude that the trial judge acted well within his discretion and we find no error in this assignment.

For the reasons enumerated above, the conviction and sentence are affirmed.

AFFIRMED.


text:
    Laura Celestin CHAMPAGNE individually and on behalf of the minors, Lawrence Champagne, Jr., Monica Champagne and Preston Champagne v. Wilbert WAGUESPACK, Jr., Laura Farms, Inc. and Southern Farm Bureau Casualty Insurance Company.
    Nos. 84-CA-387, 84-CA-388.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      James E. Marchand, Talbot, Sotile, Car-mouche, Marchand & Marcello, Donaldson-ville, for Laura Celestin Champagne, Individually and on Behalf of the Minors, Lawrence Champagne, Jr., Monica Champagne & Preston Champagne, plaintiffs-appellants.
    John J. Hainkel, Jr., Porteous, Hainkel, Johnson & Sarpy, New Orleans, for Wilbert Waguespack, Jr., Laura Farms, Inc. and Southern Farm Bureau Cas. Ins. Co., defendants-appellees.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   BOUTALL, Judge.

This is a worker’s compensation case. From a judgment dismissing a suit for death benefits, the claimant has appealed.

Leonard Celestin was killed in an accident while working on a plantation in Vach-erie on June 6, 1980. The decedent’s father, James Celestin, and his divorced sister, Laura Celestin Champagne, individually and on behalf of her three minor children, filed separate suits on June 5, 1981 seeking worker’s compensation benefits from the employer, Wilbert Waguespack, Jr., and his insurer, Southern Farm Bureau Casualty Insurance Company. The two suits were tried as a consolidated matter and judgment was rendered dismissing Laura Champagne’s suit but finding James Celestin partially dependent on his son, Leonard, and entitled to minimum benefits of $44.00 per week. Laura Champagne has appealed dismissal of her suit.

The issue on appeal is whether or not Laura Champagne and her minor children were dependent upon Leonard Celestin for support and entitled to worker’s compensation benefits.

The applicable statutes for death benefits in the worker’s compensation law are: LSA-R.S. 23:1231, which provides for weekly compensation to legal dependents who are “actually and wholly or partially actually” dependent upon his earnings for support at the time of death; LSA-R.S. 23:1232, which specifies the basis for computing the payment due to the various classes of dependents; and LSA-R.S. 23:1252, which provides that, “the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of death.... ” A claimant other than a spouse or child of the decedent must prove that the deceased employee was actually making contributions at the time of his death, and that the claimant was totally or partially dependent on the contributions. However, the claimant does not have to show that he would have lacked the necessities of life without the support, only that he relied upon it to maintain his accustomed standard of living. Hurks v. Bossier, 367 So.2d 309 (La.1979).

Leonard Celestin (“Leonard”) was unmarried, had no children and had adopted no one. He worked on a plantation in Vacherie and was furnished with a labor house as part of his salary. His elderly father and mother resided with him in the house. The trial judge, in his reasons for judgment, stated that:

“... [P]laintiff, Laura Champagne, has failed to bear her burden of proving dependency. The only evidence on her behalf consisted of self-serving statements that decedent gave her a few dollars on a few occasions. This plaintiff clearly did not prove even partial dependency.”

Testimony was given by James Celestin, Leonard’s father, Laura Champagne, Mary Jackson, and Wilbert Waguespack, Jr., Leonard’s employer. Mr. Waguespack testified that he had seen Laura about the Celestin house but had not ever entered the house and did not know whether she was living there at the time of Leonard’s death. He stated that Lawrence Champagne, Laura’s ex-husband, was also an employee at his plantation, and that he made deductions for child support from Lawrence’s pay, which he forwarded to the welfare office every two weeks. James Celestin stated positively that Laura was not living with him and his wife when Leonard died. Laura had been in the habit of leaving the children with the Celestins for several days at a time, about which her father complained strongly. Occasionally Leonard bought clothes for the children but he did not support them.

Laura testified to the contrary on all points, insisting she had been living with her parents when Leonard died, that he had given her money and bought clothes for the children, and in the past, when she lived in another house, bought groceries for her and the children. Laura’s testimony is vague as to dates of various occurrences; however, she admitted that she had been living with other siblings for about eight months in California and had returned to Louisiana only two months before Leonard died. She stated that Leonard sent her $30.00 twice when she was in California and on the Saturday after her return bought a dress and shoes for her daughter and gave hér $20.00. He also gave her $30.00 from his next pay check. She received no other contributions from Leonard during that year. Mary Jackson’s testimony was that on two occasions she saw Leonard give money to Laura. In the case of Affiliated Foods, Inc. v. Blanchard, 266 So.2d 539 (La.App. 3rd Cir.1972), the court held that occasional contributions of cash were insufficient to prove whole or partial dependency.

The plaintiff argues that where evidence of need and some contributions is present a liberal view is taken on the question of dependency, citing McDermott v. Funel, 258 La. 657, 247 So.2d 567 (1971). Unlike the facts of our case, in McDermott there is uncontradicted testimony that the decedent made regular weekly contributions toward support of the household in which he lived with his two young sisters and mother, and that the mother had medical problems, was in a low-paid domestic job, and frequently was unable to work a full week. The court found that the record clearly showed the mother’s dependency on the regular support of her son. The plaintiff further argues that the trial court should have applied the “common fund” concept, i.e. that Leonard provided support for his father, who passed the support on to the children, who stayed with him three to four days every week in Leonard’s house. Counsel cites Duos v. Gravier & Harper, 185 So. 665 (La.App. 1st Cir.1939). In that case a father and his son each had earned $12.00 per week. The son had given all his earnings to his father, who pooled his and his son’s earnings for the support of the household. The decedent son’s parents were held to be wholly dependent on their son because, even though the father earned an equal amount, the parents were dependent on the son’s entire income to support a household that included the working son and a younger child. Our case is distinguishable on facts, as the Champagne children only occasionally slept and ate in the Celestin house.

The decision in this case depends almost entirely upon a credibility judgment by the trial judge. The record substantiates his finding that Laura Champagne failed to bear her burden of proof that she was dependent upon Leonard Celestin for support at the time of his death, although the decedent had helped her financially on occasions in the past.

Accordingly, for the reasons stated above, the judgment appealed from is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    MARYLAND CASUALTY COMPANY v. Charles M. CARTER and the Estate of Cecile Carter.
    No. 84-CA-84.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Murphy, Simon & Rees, James M. Co-lomb, III, New Orleans, for plaintiff-appellant.
    Henican, James & Cleveland, C. Ellis Henican, New Orleans, for Charles M. Carter, defendant-appellee.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   CHEHARDY, Judge.

This is a subrogation suit to recover sums paid by plaintiff Maryland Casualty Company to its insured Electronic Services, Inc., for fire damage to a building located at 177 Sala Avenue in Westwego, Louisiana.

Named defendants were Charles M. Carter and the estate of Cecile Carter, owners of the adjacent buildings where the fire originated.

Following trial, judgment was rendered dismissing plaintiff’s suit. Plaintiff has appealed.

The questions for our determination are whether or not the court erred (1) in failing to find the fire was caused by the fault of defendants, and (2) in refusing to admit part of the testimony of an arson investigator.

Charles M. Carter inherited the buildings located at 165, 167 and 167V2 Sala Avenue, Westwego, from his late aunt Cecile Carter.

The fire which occurred in the late evening or early morning, hours of July 4, 5, 1977 started in 165 Sala and spread to the adjoining buildings. The fire, or water used in extinguishing it, damaged the property at 177 Sala owned by Electronics Services and insured by plaintiff-appellant Maryland Casualty.

Maryland paid its insured $8,988.30 for the damages (less a $100 deductible) and thereby became subrogated to the rights of its insured to the extent of its payment.

Plaintiff alleges the fire was caused by the decrepit delapidated, ramshackle condition of defendant’s buildings, or alternatively by vagrants who gained access to the abandoned buildings.

Defendants’ properties are actually three buildings which give the appearance of being one building; 165 Sala was an apartment building. Behind that building was a shed attached to the back of the building which contained old air conditioners and mattresses. The shed was fenced and locked. This building had been empty and boarded up, but vandals had on occasion broken into the building. An alarm was installed and whenever the door was found open it was boarded up again.

The building at 167 and 167 ¥2 Sala contained the Rockhouse Bar and Grill downstairs and efficiency apartments upstairs usually rented to factory workers in the Westwego area. When it came time to renew the license for the bar the city refused the permit in January 1977 because of the condition of the building.

Mr. Carter, the owner, who lived in New York, came to Louisiana to assist his tenant Mr. Gilyard in getting the permit renewed to reopen his business.

Carter conferred with the Fire Chief and his assistant and they inspected the premises together, following which Carter received a report from the Chief about January 29, 1977.

In accordance with this report Carter engaged Ernest Green, a contractor, to make the necessary repairs. There were no complaints about 165 Sala, which was not used by the bar, and the defects to be corrected were at the 167, I67V2 Sala property.

At that time Sterling Bazile and Eddie Paine were both living at 167V2 Sala. They cut the grass and kept the property clean. This was important because defendant had no insurance on the buildings.

Green performed the repairs in accordance with the list and Gilyard also helped with the repairs. During the period several persons were authorized to be on the property: Bazile, Paine, Gilyard, Green and Sam Reine, a realtor who looked after Carter’s properties in the area.

Carter returned to Louisiana on two other occasions prior to the July fire to examine his property and check on repairs. The work was almost finished and had progressed sufficiently so that the utilities had been applied for.

On the afternoon of the fire, Bazile had gone to a ballgame with a nephew and some friends and returned about 6 p.m., left to have a few beers with friends at a bar, and returned for the night about 11 p.m. He was sleeping in the upstairs bedroom toward the front of the bar and burned to death in the fire. There was a suggestion of foul play because the physical evidence indicated he might have been a victim of a robbery, or involved in a fight, since he was known to have money on his person when he left the bar. He had blood coming from his mouth when found dead by his nephew and the fireman.

There were no eyewitnesses and the only evidence as to the origin of the fire was the testimony of Delaune Ordogne, an arson investigator with the State Fire Marshal’s office, and Joseph Barnes, a resident of the Sala Street area who pleaded guilty to simple arson in connection with the fire.

Ordogne stated that taking into consideration the fire burn pattern he determined the fire originated in the rear of the apartment on the left hand side of the bar. He was unable to retrieve any flammables from the area, but thought the fire was incendiary in origin.

Plaintiff then called upon Barnes to testify. Barnes admitted pleading guilty to arson but refused to admit he entered the building and fell asleep while smoking.

Plaintiff requested permission to question Barnes as a hostile witness, although acknowledging he was not surprised. The court also refused to listen to testimony of Ordogne tending to impeach Barnes.

The testimony of Mr. Ordogne was then proffered. Ordogne testified he administered stress test evaluations to Barnes who stated he accidentally started the fire when he fell asleep with a cigarette.

Appellant asserts the trial court improperly refused to admit this portion of the testimony. However assuming arguendo that the testimony should have been admitted, we do not see how a different result would have necessarily been reached by the trial court.

The question before the court was clearly whether plaintiff had established that the fire and ' resulting damages were caused by the fault of the defendants.

We are cited to the case of Mistretta v. Fiorella, 269 So.2d 589 (La.App. 4th Cir.1972), as being analagous here.

In Mistretta:• the owner of a vacant building was found liable to the owner of a neighboring building because the fire originated in the vacant building owned by defendant.

A local ordinance in that case required that vacant buildings be secured and evidence showed vagrants and neighborhood children had been entering the building through broken windows for six months.

In the instant case the Sala Street properties were not abandoned. Bazile was living in a portion of the property, and repairs were being made and various authorized persons were checking the property to be certain it was secured. When it was discovered the property had been broken into, it was boarded up, and Carter purchased a burglar alarm from Electronic Services, Inc., located at 177 Sala Street, which was subsequently damaged by the fire.

Not only do we find there is no evidence of negligence on the part of defendants, it appears from the record that everything possible was being done by defendants to repair the property to resume business.

Based upon the entire record we find the judgment of the trial court consistent with the evidence. There is no manifest error here.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Berry SMITH Jr.
    No. 84-KA-154.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty. Twenty-Ninth Judicial Dist., Harry R. Morgan, and Gregory C. Champagne, Asst. Dist. Attys., Hahnville, for appellee.
    Richard J. Holmes, La Place, for appellant.
    Before CHEHARDY, GAUDIN and GRISBAUM, JJ.
   CHEHARDY, Judge.

Berry Smith Jr. was convicted by a jury of three counts of violation of LSA-R.S. 14:64 (armed robbery) for a robbery that occurred on February 17, 1982 at a Kart-N-Karry convenience store in St. Charles Parish, Louisiana. The jury verdict was accompanied by the jury’s recommendation for leniency in sentencing.

The district court subsequently sentenced Smith to ten years’ imprisonment in the custody of the Department of Corrections, without benefit of parole, probation or suspension of sentence. The matter comes before this court as an out-of-time appeal granted by the district court pursuant to Smith’s application for post-conviction relief.

FACTS

At about 7 p.m. on February 17, 1982 two men entered a Kart-N-Karry convenience store at 12009 River Road in Destre-han. One of them was wearing a green army jacket. They walked to the cooler at the rear of the store and selected two beers. One of the men also picked up a pack of chewing gum; both then returned to the front of the store, ostensibly to pay for the items. When they reached the cashier’s desk, the man in the army jacket requested a bottle of Jack Daniels whiskey. The cashier, Eleanure Scheidel, turned to the shelves behind her to obtain the liquor. Because Ms. Scheidel could not reach the top shelf, she called the manager, Darleen Cooper, for assistance. Ms. Cooper, who was eating at a small table close to the register, took the bottle down, gave it to Ms. Scheidel and returned to her supper. Ms. Scheidel turned, placed the bottle on the counter and rang up the purchases on the register. As she was bagging the merchandise, the man in the army jacket displayed a gun to her and demanded the money from the register.

At the sight of the weapon, Ms. Scheidel became so nervous she could not open the cash drawer. Ms. Cooper, seeing her difficulty with the register but unaware a robbery was in process, rose from her table to assist her. Although one of the men told her not to move, she walked to the register and opened the cash drawer. At that point she noticed the gun and returned to her seat.

The other man (later identified as the defendant, Berry Smith Jr.) grabbed the money from the drawer and both men fled the store. They drove off in a white 1963/1964 Chevrolet that had been backed into a parking place in front of the store.

A third employee, Gwendolyn Ladner, testified she was behind the counter pricing candy about 5 to 10 feet from the main register. She had her back turned to Ms. Scheidel. Asked to explain exactly when she first became aware of a problem in the store, she stated,

“Well, I had my back to her pricing what I was pricing, and they told me when I finished pricing it, to put it on the side of the register, and when I finished pricing it I was to put it on the side of the register. And she put her hand against my stomach and she told me, she said, ‘They’re holding us up.’ And I just stepped back, and I stayed right there until it was all over.”

Soon after the robbery, Deputy Walsdorf of the St. Charles Parish Sheriff’s Office arrived at the store. He took a description of the perpetrators and the getaway car and broadcast the information not only to St. Charles Parish authorities but also to law enforcement agencies in the surrounding areas.

As State Trooper Edgar Clay was receiving the broadcast, he noticed the wanted vehicle heading east on Louisiana Highway 48 (Jefferson Highway). He started pursuit and radioed ahead for assistance. Just west of Pollock Street in Kenner, the suspects abandoned the car and fled on foot. Police canvassed the neighborhood but did not find the suspects.

Detective James Grimaldi of the St. Charles Parish Sheriff’s Office investigated the robbery. After interviewing the victims and witnesses at the Kart-N-Karry, he examined the abandoned car. In it he found a pistol, two cans of beer, a bottle of Jack Daniels whiskey, some currency and a green army jacket. He also discovered several documents in the car linking it to Berry Smith Jr.

On the following day Detective Grimaldi corroborated Smith’s ownership of the vehicle and obtained a driver’s-license description of Smith that matched that of one of the suspects. As he was preparing an affidavit for an arrest warrant Grimaldi learned that Smith had turned himself in to Kenner authorities. Accordingly Grimaldi proceeded to Kenner and questioned Smith about the robbery.

Although Smith implicated himself in the robbery, he denied any foreknowledge of his companion’s intention. He stated his companion had aimed the gun at him when ordering the cashier to open the register. At trial, Smith testified he took the money from the cash drawer because he was afraid of his companion.

Smith was tried on September 8, 1982. (A co-defendant had been charged in the same bill of information, but apparently his case was severed from Smith’s prior to trial.) During the jury’s deliberations, the jury foreman presented the following question to the court: “Can we recommend a verdict of leniency after a verdict for each account [sic]?”

Pursuant to LSA-C.Cr.P. art. 808, the judge responded to the query in open court:

“All right. Ladies and gentlemen, the court is going to give you an oral instruction with respect to this. As a jury, you are the judge of the law and the facts on the question of guilt or innocence. However, with respect to the imposition of the penalty, that is a function of the court. The court will tell you this that, yes, you can make a recommendation of leniency if this is what your desire is. However, that is not legally binding upon the court as such. Certainly, the court would take into consideration valid recommendations. There are certain articles that allow for concurrent sentences where you have offenses arising out of the same act, even though you have more than one count of a particular offense. By concurrent sentences, that means sentences that run together.
“I hope that has answered your question. The answer is this: that you are the trier of fact, the sole triers of the facts and the law with respect to guilt or innocence but this court will impose sentence. Any recommendation you make, it will be considered but not binding, legally binding upon the court.”

Following the instruction, the jury returned a verdict of “Guilty with leniency” on each count. At sentencing, the judge gave Smith 10 years’ imprisonment without benefit of parole, probation or suspension of sentence.

ASSIGNMENT OF ERROR

In his brief to the court defendant asserts,

“In so instructing the Jury the Judge gave a clear implication that he would more seriously consider the Jury’s request. * * * [Considering the Jury’s strong desire for leniency, this sentence must be interpreted as unjust and illegal and should consequently be vacated and corrected in accordance with the Jury’s decision.”

The apparent thrust of this argument is that the trial court erred in imposing any sentence longer than the statutory minimum.

R.S. 14:64 defines armed robbery. Its penalty provision states,

“B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.”

Any qualification of or addition to a verdict of guilty, beyond a specification of the offense as to which the verdict is found, is without effect upon the finding. LSA-C.Cr.P. art. 817. A recommendation of mercy is not considered as a qualification of the verdict, but is regarded only as surplusage. State v. Welch, 448 So.2d 705 (La.App. 1 Cir.1984). See also State v. Doucet, 147 So. 500 (La.1933). Thus, the jury’s request for leniency was not binding on the court.

Accordingly, we will examine the sentence to determine whether it is per se excessive or otherwise illegal.

The record establishes that Smith is a young first offender, married and the father of two small children. Until two or three weeks before the robbery, he was employed and supporting his family. Although he offered a justification defense, the jury obviously concluded he was a willing participant in the armed robbery.

In compliance with LSA-C.Cr.P. art. 894.1, the trial judge articulated reasons for the sentence imposed, taking into account both the aggravating and mitigating circumstances of the case. He observed that armed robbery is “one of the most serious offenses that could be committed.” Such a fact is a proper sentencing consideration. See State v. Douglas, 389 So.2d 1263 (La.1980). In mitigation, the judge conceded, the defendant had no criminal history. He indicated he was aware that Smith has a wife and two young children. He also noted that Smith carried no weapon during the robbery.

The trial judge need not articulate every aggravating and mitigating circumstance listed in Article 894.1 if the record reflects that he adequately considered the guidelines in particularizing the sentence to the defendant. State v. Davis, 448 So.2d 645 (La.1984). Even absent compliance with Article 894.1, it is unnecessary to remand for resentencing if the sentence is not apparently severe in relation to the particular offender or the offense actually committed. See State v. Davis, supra.

The minimum sentence under R.S. 14:64 is five years and the maximum is 99, all without benefit of parole, probation or suspension of sentence. The ten-year sentence imposed is much closer to the statutory minimum than to the maximum. It is apparent that the single sentence imposed on the defendant for the three convictions was intended to be ten years for each count, served concurrently.

The record establishes that the sentence was neither imposed without proper reflection nor was it so “apparently severe” as to require further justification.

The trial judge told the jury he would consider any recommendation of leniency they gave. It clearly was his intent to show leniency. He stated in the sentencing hearing,

“Because you are youthful, because you have a wife, because you have two young children, I am giving you this ten years which I consider a break. You will still be a young man at the time you get out of prison.
“Accordingly, I hope that you will go to prison, that you will earn the good time that you can earn in prison, and that when you come out you will have learned your lesson and you will be a good citizen.”

What constitutes an excessive sentence is a relative matter. A sentence such as the one before us, approximately one-tenth of the maximum prescribed for the crime, could be considered lenient.

The record shows no abuse of the trial judge’s wide discretion in sentencing. Further, the sentence imposed does not conflict with the judge’s assurances to the jury that he would consider their recommendation of leniency.

PATENT ERROR

Despite the fact that Smith was convicted of three counts of armed robbery, the trial judge imposed only a single sentence of ten years at hard labor. Technically this constitutes an invalid sentence, or at least a defective one. Accordingly, it is an error patent on the face of the record and we are required to address the issue. LSA-C.Cr.P. art. 920.

Although the trial judge apparently intended to impose three concurrent ten-year sentences, he failed to articulate that intent in pronouncing sentence. Consequently the minute entry reflects only the single sentence.

Sentences for crimes arising from a single course of conduct should be concurrent rather than consecutive unless the offender poses an unusual risk to the public. State v. Scherer, 437 So.2d 276 (La.1983).

Berry Smith Jr. is neither a habitual nor a dangerous criminal. Thus consecutive senténces would not be appropriate. There is nothing to indicate the single sentence imposed on him was intended to be other than ten years for each count, served concurrently.

We dealt with a similar situation recently in State v. Barousse, 442 So.2d 1220 (La.App. 5 Cir.1983). The defendant had pleaded guilty to two counts of simple crime against nature but was given a single sentence of three years’ imprisonment. We noted that the single sentence appeared to be error but declined to remand the case for resentencing or clarification.

“ * * * Because the single sentence imposed, three years, is considerably less than the statutory maximum that could have been imposed for one count alone, we find the judge’s omission to mention the two counts did not affect the substantive rights of the defendant. * * * ” 442 So.2d at 1222.

The same rationale applies to the sentence now before us. Because the sentences for each count would more appropriately be concurrent rather than consecutive, and ten years is a reasonable sentence under the circumstances, the single ten-year sentence does not affect Smith’s substantive rights. Accordingly, we shall not remand for resentencing.

For the foregoing reasons, the sentence on appeal is affirmed.

AFFIRMED.


author: BOWES, Judge.

text:
    STATE of Louisiana v. Harold DiMAGGIO.
    No. 84-KA-79.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., for State of Louisiana.
    Harry J. Morel, Jr., Dist. Atty., Don Al-merico, Gregory C. Champagne, Asst. Dist. Attys., Twenty-Ninth Judicial District Court, Hahnville, Ralph L. Barnett, Gretna, for defendant-appellant.
    Before CHEHARDY, BOWES and GAU-DIN, JJ.
   BOWES, Judge.

So far as we can determine, this is a case of first impression in the state courts of Louisiana interpreting the very recent U.S. Supreme Court decision, United States v. Leon, _ U.S. _, 104 S.Ct. 3405, 82 L.Ed.2d 677, 1984.

On January 20, 1983, appellant, Harold DiMaggio, was charged by a bill of information with the theft of materials from the Waterford 3 Nuclear Power Generating Facility, having a value of more than $100.00, but less than $500.00.

A motion to suppress the evidence was heard on November 29, 1983, and was denied by the court, after hearing evidence and arguments presented by both parties.

Following the court’s denial, a plea agreement was reached whereby the defendant would plead guilty, under LSA C.Cr.P. art. 894, to a reduced charge of misdemeanor theft of less than $100.00. The plea was made with the defendant reserving his right to appeal the adverse ruling on the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

The appellant was sentenced to a six month suspended sentence and fined $250.00. He was also ordered to make restitution.

Appellant now brings this appeal on the grounds that the search warrant used to obtain evidence in this case is allegedly invalid. We affirm the district court’s ruling.

Appellant argues that the warrant issued for the search of defendant’s home was invalid for the following reasons: (1) It did not contain a sufficient recitation of such underlying circumstances as required to support a finding of probable cause; and (2) the application failed the two-pronged test to determine the reliability of both the informer and the information set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and as applied in Louisiana cases.

A reading of the warrant reveals that the affiant, a Jefferson Parish detective, stated he had received his original information from a St. Charles Parish officer, whom he knew was chief deputy and commander of the Criminal Investigation Division, who had been conducting an investigation into a systematic theft of steel from the construction site at the Louisiana Power and Light Waterford 3 plant; that this steel had then been used to construct two or possibly three boats, one of which could be located at the defendant’s residence, along with a steel mailbox stand, also fabricated from the stolen material. This information was corroborated only to the extent that the affiant, for purposes of verification, personally observed at the defendant’s residence a steel mailbox, a rust-colored boat on blocks and a large welding machine in the fenced yard. The defense notes that the affidavit does not contain any mention of the circumstances of these systematic thefts of steel, how it was that suspicion was directed towards the defendant, or how the stolen steel could be linked to the steel used in the boat and the mailbox. Because State v. Feeback, 414 So.2d 1229 (La.1982), and State v. Flood, 301 So.2d 637 (La.1974), limit the reviewing court to the four corners of the search warrant to seek probable cause, the defense avers that the motion to suppress should have been granted.

The State argues that to determine probable cause for a search warrant the evidence must be viewed from a common sense and realistic approach [State v. Weinberg, 364 So.2d 964 (La.1978)] and that the standard for probable cause for a warrant is much less than for proof beyond a reasonable doubt [State v. Ogden, 391 So.2d 434 (La.1980)]. It is further maintained by the State that since the original informant was a named experienced law enforcement official (chief deputy and commander of his division), and his information was further corroborated by the affiant, another experienced police officer, the Aguilar/Spinelli test was met (although this test was not identified as such by the State). In conclusion, the prosecution submits that the trial court was correct in its ruling since the court held at the hearing on the motion that “a magistrate, a magistrate in Jefferson, upon reading this affidavit and upon using his common sense certainly could find the underlying circumstances in this affidavit for the issuance of this search warrant.” The trial judge then went on to explain the facts and circumstances upon which he based his decision.

The test to determine probable cause in a search warrant was recently redefined in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), wherein the court chose to alter the stringent two-pronged test established by Aguilar and Spinelli and to substitute in its place a more flexible approach — analysis of the “totality of the circumstances.” See also State v. Manso, 449 So.2d 480 (La.1984). The court found that the two-pronged test was too rigid since “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Supra, 103 S.Ct. at 2328.

The court noted that:
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed. Jones v. United States, supra, 362 U.S. at 271, 80 S.Ct. at 736. [362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)].” Supra, 103 S.Ct. at 2332.

The court cautioned that there were certain limits, however, beyond which an issuing magistrate could not venture. A wholly conclusionary statement by the affiant fails to meet even the more fluid test set forth in the decision. A sworn statement to the effect that the affiant “has cause to suspect and does believe that” [see Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159] or that he had “received reliable information from a credible person and believe[s]” [see Aguilar, supra ] that certain evidence or contraband is located in a particular place does not constitute a sufficient basis from which a magistrate could find probable cause. Either wording is a prime example of a “bare bones” affidavit.

It was further noted by the court that although the rigid test of Aguilar/Spinelli had been supplanted, the two elements of this test are still viable considerations which are applicable within the totality of the circumstances analysis. A deficiency in one element may, however, be compensated by a strong showing in the other. But the court further explained that there must be an independent corroboration of the information received by the officers seeking the warrant.

It would appear in the instant ease that although the St. Charles Parish police officer may have outlined his case to the affiant, against the defendant, in great detail, all of this information was not included in the affidavit; also not included was any statement, other than that he was an employee on the construction site, to tie the defendant with the thefts from Louisiana Power and Light. The affidavit stated that steel had been stolen from the site and that various objects made of steel were located at the defendant’s residence, but no con-nexity between the two was actually stated by the affiant. Further, the investigating officer apparently limited his personal investigation to a visual check of the defendant’s residence where he was able to observe the described mailbox and one of the boats. The affidavit does not contain any further corroboration or independent investigation.

Accordingly, we find that even employing a common sense approach, and using the “totality of the circumstances” test adopted in Gates, supra, the issuing magistrate did not have a substantial basis from which to conclude that probable cause for the warrant existed.

However, very recent analysis of the applicability of the exclusionary rule to situations similar to the present case was set forth by the United States Supreme Court in United States v. Leon, supra, where the issue before the court was ...

[W]hether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.

Thp court stated that in deciding this issue there must be a balance between 1) the protection of the Fourth Amendment right to privacy and 2) the deterrence of official misconduct. It further stated that criminal defendants should be tried on the basis of all of the evidence which would have a bearing on the truth of the matter.

The court explained that the exclusionary rule is a judicially-created remedy designed to safeguard Fourth Amendment rights and is not a personal constitutional right. Once the wrong condemned by the amendment has occurred, the invasion of privacy cannot be cured. The question to be decided, therefore, is not if there has been an invasion of privacy, but, rather, if the deterrent effect of the exclusionary rule would be enhanced by the exclusion of the evidence in such a case. In order to determine if evidence should be excluded, the court in the hearing on a motion to suppress should make a twofold inquiry: (1) Was there a 4th Amendment violation and (2) should it (the court) apply penal sanctions, i.e., exclude the evidence seized?

The court concluded that, because the exclusionary rule was adopted as a measure of curtailing police misconduct, and not as a punishment for errors on the part of issuing magistrates and judges, “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial cost of exclusion.” (104 S.Ct. p. 3421) Therefore, the exclusionary rule .can be modified so that evidence obtained by officers acting in reasonable reliance on a search warrant signed by a detached and neutral magistrate, but ultimately found to be unsupported by probable cause, may be used in the prosecution’s case in chief.

Although deference should be accorded the issuing magistrate, three inquiries must be made: (1) was the affidavit upon which the warrant was based knowingly or recklessly false; (2) was the magistrate truly neutral and detached, or merely a “rubber stamp” for the local law enforcement agency; and (3) did the magistrate properly apply the totality of the circumstances analysis (as per Illinois v. Gates, supra) to the warrant application and check the form employed for appropriateness to the situation. A failure of any of these factors would result in an invalid warrant. The evidence obtained therefrom, however, need not be necessarily excluded. The purpose of the exclusionary rule is to deter police misconduct. Therefore, the application of the exclusionary rule should continue where there has been a substantial and deliberate violation of Fourth Amendment rights such as in inquiries (1) and (2) above.

The court found that to exclude evidence because of a magistrate’s error is better corrected by his being put on notice by a reviewing court that the warrant is invalid. An extreme sanction, such as exclusion of relevant evidence for a magistrate’s error, would be overkill. Unless it is found that the police had acted with such a lack of good faith that they could not have reasonably relied on the magistrate’s determination of probable cause, the evidence will be admitted.

Several examples of lack of good faith on the part of the affiant are noted by the court: misleading of magistrate as to circumstances of the case or deliberate falsehood; complete abandonment of issuing magistrate of his judicial role to the extent that a reasonably well-trained officer could not rely on the warrant; misplaced reliance on an affidavit totally lacking probable cause or any other “bare bones” affidavit turned over to another officer, ignorant of the situation, to serve; and, finally, a facially and technically deficient warrant, lacking, for example, the particular place to be searched or thing to be seized.

In the concluding paragraph of Justice White’s majority opinion in Leon, supra, he states:

In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. [...] The affidavit related the results of an extensive investigation and [...] provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause. Under these circumstances, the officers’ reliance on the magistrate’s determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate.

Although no Fourth Amendment decision marking a “clear break with the past” has been applied retroactively, the Leon decision, citing United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) as authority, noted that the court has not been willing to conclude that new Fourth Amendment principles always are to have only prospective effect. In the Johnson case, supra, 102 S.Ct. at 2594, the court held that, subject to certain stated exceptions, “a decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.”

We find the case before us strikingly similar to Leon, supra, which also came before the court following a ruling on a motion to suppress. In the case at bar, there is not even a hint or suggestion that the magistrate was anything other than neutral or detached. He simply improperly applied the totality of the circumstances analysis in a close judgment call. Certainly, the affidavit in question was neither knowingly nor recklessly false as it contained many truths already verified. The affiant, a Jefferson Parish detective of long experience, of which this experienced magistrate no doubt had knowledge, had obtained his initial information from a seasoned fellow law enforcement officer, albeit from a different parish, who had done extensive investigation. He simply failed either to do enough investigation on his own or to include enough of the information supplied to him by his brother officer in the warrant application. We find, as did the U.S. Supreme Court, that “[indiscriminate application of the exclusionary rule, ..., may well ‘generate] disrespect for the law and the administration of justice’ ” (Leon, supra, 104 S.Ct. at p. 3413), as, indeed, it appears to this court to have already done in past years.

Accordingly, under the facts and circumstances of this case, and the refreshing new views of the United States Supreme Court announced in Leon, we are of the opinion that the officers’ reliance on the magistrate’s determination of probable cause was objectively reasonable and application of the extreme sanction of exclusion is inappropriate. The State would be permitted to use the seized evidence in their case in chief.

Therefore, for the reasons assigned, we find that the ruling of the district court denying the motion to suppress was correct and we affirm the defendant’s plea of guilty and the sentence of the trial court.

AFFIRMED.


text:
    Darryl L. BROWN v. EBASCO SERVICES, INC., Tompkins-Beckwith, Inc., Louis Joseph, Hillary Jones, ABC Insurance Company, XYZ Insurance Company and Louisiana Power and Light Co.
    No. 84-CA-133.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      Joseph W. Thomas and Ammon L. Miller, Jr., New Orleans, for plaintiff-appellant.
    Esmond Phelps, II and John T. Costo, Phelps, Dunbar, Marks, Claverie & Sims, Paul B. Deal, Lemle, Kelleher, Kohlmeyer, Hunley, Moss & Erilot, New Orleans, for defendants-appellees.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Plaintiff Darryl L. Brown instituted the present lawsuit against EBASCO Services, Inc., Tompkins-Beckwith, Inc., Louisiana Power and Light Co., and their respective insurers, as well as against two individuals, Louis Joseph and Hillary Jones. Plaintiff attempted to set forth a cause of action against the defendants for damages resulting from an injury suffered by him during his employment as an apprentice welder on the construction of the nuclear power plant in Taft, Louisiana. Tompkins-Beckwith, plaintiff’s immediate employer, filed an exception of no cause of action, alleging that plaintiff’s sole cause of action is under workmen’s compensation law. EBASCO and Louisiana Power and Light filed exceptions of no cause of action and prescription.

The trial judge set the exception filed by Tompkins-Beckwith for trial. There was evidently some confusion as to which exception was to be heard, inasmuch as the judgment of the trial court dated June 28, 1983 dismissed EBAS CO’S exception, which had never been set for trial. Counsel for Tompkins-Beckwith moved the court to reconsider its judgment, and the matter was set to be re-heard. It appears from the final judgment, erroneously dated October 29, 1983, that the Tompkins-Beckwith exception was finally reconsidered on November 29, 1983. In the interim, EBASCO and Louisiana Power and Light filed a motion for summary judgment, also heard on November 29th. At these trials, the court maintained the Tompkins-Beckwith exception of no cause of action, giving plaintiff 30 days within which to amend his petition; and summary judgment was granted in favor of Louisiana Power and Light and EBASCO. (Those latter defendants apparently have abandoned their earlier exceptions since they were not heard nor set for hearing.) It is from these judgments dismissing plaintiff’s suit that this appeal has been perfected.

Louisiana Power and Light contracted with EBASCO to design and construct the Waterford 3 power plant. EBASCO, the general contractor, contracted with Tompkins-Beckwith (Brown’s immediate employer) to perform pipefitting and other work on the construction site. The accident occurred as plaintiff was using a grinder, when the grinding blade flew off and struck Brown in the face, causing injury to his face and eyes. In his petition, the plaintiff alleged in pertinent part:

4
. The said grinding wheel flew off and/or disintegrated because of the negligence of defendants, Louis Joseph and Hillary Jones, in rigging the grinding machine with a blade which they knew was improper and otherwise not intended to be used with the grinding wheel.
5
The complained acts by defendants, Louis Joseph and Hillary Jones, were foreseeable and therefore was intended to cause harm and/or serious injury to plaintiff.
6
Petitioner’s injuries resulted directly from the negligence of their employer, Tompkins-Beckwith, Inc., in failing to provide petitioner with a reasonably safe place to work and proper tools to work with, a non-delegable duty owed to petitioner by defendant, Tompkins-Beckwith.
7
Defendant, EBASCO Services, Inc., owed petitioner the non-delegable duty of providing and making certain that he was provided with a reasonably safe place to work and the proper tools to work with, and by failing to do so, they are liable to petitioner for the damages sued upon herein.
9
Louisiana Power and Light Company also owed the non-delegable duty of providing petitioner with and making certain that he was provided with a reasonably safe place to work and proper tools to work with; and in failing to do so they are liable to petitioner for the injuries sued upon herein.
10
As a result of the negligence of the herein named defendants, their agents and employees, and through no fault of petitioner’s, petitioner suffered severe personal injury, mental pain and suffering and the loss of sight in his left eye.

Defendants argue that the petition alleges only negligence, not an intentional tort, and that they are therefore immune by reason of the compensation law, R.S. 23:1032. Plaintiff avers that paragraph 4 of his petition, quoted hereinabove, alleges intent sufficient to defeat an exception of no cause of action. We disagree with plaintiff.

The landmark case of Bazley v. Tortorich, 397 So.2d 475 (La.1981) interprets an intentional act under 23:1032 as follows:

The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.

Thus the exclusive remedy rule is inapplicable to intentional torts or offenses. Bazley, supra. There have been numerous attempts by district and appellate courts to apply Bazley. This court has recently held in the case of Mize v. Beker, 436 So.2d 1333 (La.App. 5th Cir.1983), writs denied 440 So.2d 761:

This much, however, seems certain: For an injured worker to pursue an R.S. 23:1032 tort claim, he must precisely allege acts or omissions that call for almost the same degree of proof as that required in a criminal proceeding. Otherwise, the petition language falls short, as it does in the instant case.

In affirming the district court which granted summary judgment in favor of the defendant employer, the court continued:

Should Mize prove all of his allegations, he would likely establish negligence but not that any defendant wanted appellant hurt or that any defendant knew that there was almost no chance of anything but an accident occurring.

Similarly, the Second Circuit in Reagan v. Olinkraft, Inc., 408 So.2d 937 (La.App. 2nd Cir.1981), on affirming a judgment sustaining an exception of no cause of action, stated:

Even if plaintiff proved all of the allegations of the petition, she would still be limited to workers’ compensation benefits by R.S. 23:1032 since the allegations are insufficient to be an intentional tort even if proved. Thus, the exception of no cause of action was correctly maintained.

Plaintiff cites Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984), in which the Supreme Court found that an allegation by the plaintiff that the employer’s officers knew to a substantial certainty that their acts in violation of safety regulations would cause an explosion which injured the plaintiff, was sufficient to defeat an exception of no cause of action. In that case, the court found La.C.C.P. art. 856 to be controlling, that intent may be raised by a general allegation. We do not take Mayer to stand for the proposition that a cause of action which is clearly one in negligence can be transformed into an intentional tort merely by use of the magic words like “intent” or “intentional.”

In the present case, the plaintiff specifically states that the injury complained of was the direct result of the negligence of his co-employee and employers, that defendants are culpable because of their failure to provide a safe place to work and proper tools, and that these duties are non-delegable. In short, plaintiff has stated a cause of action in negligence, not in intentional tort. He cannot claim that certain acts, because they had foreseeable consequences, were therefore “intended to cause harm.” To do so obliterates a major distinction between intentional torts and negligence.

We hold, therefore, that the mere mention of the words “intent” or “intentional” is insufficient to state an intentional act under R.S. 23:1032, when all of the allegations clearly demonstrate only a cause in negligence, for purposes of maintaining an exception of no cause of action. As did the court in Reagan, we find that even if plaintiff proved all the allegations of his petition, he would still be limited to benefits in compensation as to his employers since the allegations are insufficient to be an intentional tort even if proved. Consequently, we affirm the judgment of the trial court maintaining Tompkins-Beckwith’s exception of no cause of action.

We have no difficulty in concluding that EBASCO is the statutory employer of plaintiff. Plaintiff has apparently conceded this self-evident fact and limits his appeal to allege that it was error to find Louisiana Power and Light was also immune under R.S. 23:1032 and 1061. Indeed, there is nothing in the record to contradict the statement in the affidavit of James M. Brooks, an EBASCO construction manager, that EBASCO is in the trade, business and occupation of providing major engineering and construction services for utility companies, including design and construction of major power facilities.

Brooks’ affidavit also states that EBAS-CO entered into a contract with Louisiana Power and Light for engineering, construction and related services at Waterford 3; that EBASCO’s general responsibilities included project management services, construction management, and home office engineering; and that EBASCO contracted with Tompkins-Beckwith to provide labor and materials for pipework and related services. By all definitions, EBASCO meets the requirements of a “principal” under R.S. 23:1032 and 1061.

Further, we find that L.P. & L. is also the statutory employer of plaintiff. Our Supreme Court, in Lewis v. Exxon, 441 So.2d 192 (La.1983), explained in some detail the type of work contemplated by R.S. 23:1032 and 23:1061:

Courts must look to the facts of each individual case to determine whether a particular activity is within the scope of a principal’s trade, business or occupation. Generally, in order for a work or project to be within a principal’s trade, business or occupation, it must be routine or customary, Benson v. Seagraves, 436 So.2d 525, 529 (La.1983); Reeves v. Louisiana & Arkansas Railway Co., 282 So.2d 503, 507-08 (La.1973), or some other type of activity which is necessary for the principal’s day-to-day operations. Put another way, the works contemplated by the statute are those activities which are an actual part of the nature and purpose of the principal’s enterprise.

The affidavit of R.S. Leddick, a vice-president of L.P. & L., was offered by that party in conjunction with the motion for summary judgment. That affidavit stated, as is emphasized by the defendants, that Louisiana Power and Light is authorized by its Articles of Incorporation to construct and build (among other things) “all kinds of plants and systems for the manufacture ... transmission ... or disposition of electricity ... including any and all kinds of works, power plants, structures or substations in anywise connected with or pertaining to the production or generation of electricity.”

It is apparent to this Court that the construction of the subject power plant is part and parcel of L.P. & L.’s enterprise, and necessary for its day-to-day operations.

L.P. & L. is a public utility mandated to provide service to its customers. It cannot refuse to provide such services by virtue of it’s nature as a public utility. In order to fulfill its obligations for the manufacture and transmission of electricity, it is necessary that power plants be created, operated, and maintained. It is clearly not only a matter of L.P. & L.’s authority to construct such plants, but as we see it, it is also its duty to do so. In other words, the construction and operation of power plants is indivisible from the nature and purpose of L.P. & L.’s business, that is the supply of electrical power to the public.

We find support for this position in the cases of Gray v. L.P. & L. Co., 247 So.2d 137 (La.App. 4th Cir.1971); and Klohn v. L.P. & L. Co., 394 So.2d 636 (La.App. 1st Cir.1981), in which the same entity before us today was found to be a statutory employer of the respective'plaintiffs in similar factual circumstances.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed in all respects.

Costs of this appeal are taxed as follows: because plaintiff perfected this appeal in forma pauperis, EBASCO, Tompkins-Beck-with, and Louisiana Power and Light Co. will each bear their virile share of costs.

AFFIRMED.

      . Bazley discusses the concepts of “intentional” acts as opposed to “voluntary” ones.