text:
    STATE of Louisiana v. Curtis WILLIAMS.
    No. 84-KA-123.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      Harry J. Morel, Dist. Atty., Gregory C. Champagne, Asst. Dist. Atty., Twenty-ninth Judicial District Court, Hahnville, for plaintiff-appellee.
    Ralph E. Tyson, Edselle K. Cunningham, Baton Rouge, for defendant-appellant.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   KLIEBERT, Judge.

On January 19, 1984, the defendant, Curtis Williams, Sr., was charged by grand jury indictment with one count of first degree murder (R.S. 14:30) in connection with the deaths of Kenneth Norman and Cathleen Harrell. The district attorney subsequently amended the indictment to charge two counts of first degree murder. After preliminary motions, which included two motions to suppress, were filed and disposed of, the case was tried before a jury of twelve people on October 11-14, 1983. At the conclusion of the trial, the twelve member jury unanimously found the defendant guilty of both counts of first degree murder. After the sentencing phase of the trial, and acting upon the jury’s recommendation, the trial judge sentenced the defendant to life imprisonment without the benefit of parole, probation, or suspension of sentence. It is from this conviction and sentence that the defendant appeals. After a careful review of the record we vacate in part, affirm in part and remand the case to the trial court.

FACTS

On December 26, 1982, the defendant and both victims left Baton Rouge, Louisiana in the defendant’s pick-up truck. Sometime between 8:00 a.m. and 9:00 a.m. on the same day, Deputy Sheriff W.L. Kin-chen, of the Livingston Parish Sheriff’s Office, stopped the defendant’s truck as it was traveling eastbound on Interstate Highway 10 in St. Charles Parish, because it was weaving in and out of the traffic lanes of the interstate. Deputy Kinchen spoke briefly to the driver of the truck (the defendant) and noticed the male and female passengers in the truck.

Although he believed the driver of the truck was too intoxicated to continue driving, Deputy Kinchen did not arrest the defendant because he was in the process of transporting a person to a hospital in an emergency situation. After instructing the defendant to discontinue driving, the officer returned to his patrol car, notified local police of the truck’s location, and proceeded on to his destination.

At approximately 9:15 a.m., Trooper Mark Básele of the Louisiana State Police received reports that two persons were apparently sleeping on the shoulder of I — 10. Trooper Básele proceeded to the scene where he discovered the victims, apparently shot to death, lying face down along the railing located in the emergency lane next to the eastbound lanes of Interstate 10 in St. Charles Parish. The male victim was identified as Kenneth Norman and the female victim was later identified as Cathleen Harrell.

Detective Sam Zinna of the St. Charles Parish Sheriffs Office was assigned to investigate the deaths. Detective Zinna drove to Baton Rouge to inform Harrell’s family of her death. Statements by her family revealed that Harrell and Norman had left Baton Rouge that morning in a truck driven by Curtis Williams, Sr., the defendant. Detective Zinna obtained descriptions of Williams and his truck.

On December 27, 1982, Deputy Kinchen learned of the discovery of the bodies and contacted the St. Charles Parish Sheriffs Office. Deputy Kinchen described the truck and driver whom he had stopped on December 26, 1982. As a result of this, on December 28, 1982, Detective Zinna drove to Livingston Parish and showed a photo lineup, containing five photographs, to Deputy Kinchen. Deputy Kinchen identified Curtis Williams, Sr. as the driver of the truck which he had stopped on the interstate highway two days before.

Detective Zinna thereafter secured a warrant for the arrest of Curtis Williams, Sr. in connection with the deaths of Norman and Harrell. On December 31, 1982, Williams was discovered at the Big Six Motel in Port Allen, Louisiana and was arrested without incident by the Port Allen Police Department.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues the trial court’s denial of the defendant’s motion to suppress an in-culpatory statement and physical evidence obtained as a result of the statement was error which was compounded when on trial the court allowed the physical evidence to be introduced without the introduction of the statement.

After his arrest, the defendant was taken to the Port Allen jail. Initially, the defendant signed a rights form indicating he did not wish to make a statement without the presence of an attorney. Approximately one hour later, as Detective Zinna was explaining to the defendant’s girlfriend (Catherine Tucker) the nature of the charges filed against the defendant, the defendant began to make a statement which Detective Zinna believed might be incriminating, hence, he stopped him and again advised the defendant of his rights. At this time, the defendant initialed another rights form, waiving his rights to an attorney, and then made an oral statement which Detective Zinna transcribed. The transcription, which was initialed by the defendant and initialed for identification by Catherine Tucker and the defendant’s son, Curtis Williams, Jr., was as follows:

“Seen Cathleen about 5:30 or 6:00 a.m., Sunday morning. Was talking to Cathleen and another black male subject at Cathleen’s residence when deciding to go to N.O. Left to go to N.O. While driving, the subject stated that he wanted to take his truck. The subject ask me to stop, so that he could P. When being stopped, he and the subject started fighting because the subject wanted to take his truck. While fighting, went back to his truck and got the gun from the cen-' ter console. Shot both subjects who were outside the truck. Stated that Cathleen was involved in the fight. Shot Cathleen three times. Shot the other subject twice. Does not know the other subject. After the shooting went to Ken-ner to see his cousin Coreen Cooper. Told Coreen what he did. Left Kenner shortly after seeing Coreen and came back to Baton Rouge. Rented room at Motel Six in Port Allen. Acknowledged that gun turned in by his son was the weapon used in the murder. Has not been at work since the shooting.”

Following a pre-trial hearing the court denied the defendant’s motion to suppress the statement. Nevertheless, at the trial the state made no attempt to introduce the statement into evidence. Now, the defendant contends that his gun and photographs of his truck which were introduced into evidence should not have been allowed as evidence because they were the fruits of an illégally obtained statement. Thus, the assignment of error raises two issues: (1) Was the statement taken from the defendant legally taken, and (2), if not, were the truck and gun “fruits from the forbidden tree”?

An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges or conversation with the police. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). When an accused asserts his right to counsel, the police must “scrupulously honor” the invocation of the right and the interrogation must cease. State v. Thucos, 390 So.2d 1281 (La.1980); State v. Manning, 380 So.2d 46 (La.1980). In State v. Foley, 448 So.2d 731 (La.App. 5th Cir.1984), at page 735, while paraphrasing other cases we said:

“The question of whether an accused’s rights are “scrupulously honored” depends on the totality of the circumstances involved in the particular facts of each case. Factors to be considered are the time lapse between the request for counsel and the subsequent interrogation, whether Miranda warnings were given between each separate interrogation, whether waiver of right forms were signed and whether pressures were asserted on the accused by the police between the time he invoked his right to counsel and the subsequent interrogation. State v. Shea, 421 So.2d 200 (La.1982); State v. McCarty, 421 So.2d 213 (La.1982).

In the present case the defendant was advised of his rights and indicated he knew them. While Williams could not read he could and did first sign a rights form indicating he did not wish to make a statement without the presence of an attorney, and a little over an hour later he initialed a rights form waiving his right to have an attorney present.

According to the testimony of Detective Zinna, he made no attempts to initiate further conversation with Williams after the first rights form had been executed. On the other hand, Williams testified that after he executed the first rights form Detective Zinna remained in the room with him and “asked him about twice” for a statement. The defendant further testified that “After Catherine come in, then I decided, I — Well, I didn’t know what would happen after I get down this way because I ain’t never been down this way. So, I decided, well, I might as well go on and tell him what happened.” Williams further testified that Zinna did not threaten him or induce him in any way to sign the waiver form.

It is well established that nothing in Miranda prevents an accused party from changing his mind and giving a statement after he has previously declined to do so, so long as the statement is voluntary and intelligently made. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Knowles, 444 So.2d 611 (La.1984).

We find that the totality of the circumstances supports the trial judge’s conclusion that Detective Zinna did not initiate further interrogation with the defendant after Williams refused to give a statement and that the statement was voluntarily and knowingly made.

Although there is some conflict as to how the police came into possession of the defendant’s gun, we also find that the defendant’s gun and photographs of his truck were not obtained as a result of the statement made by the defendant but were independently obtained by the police.

Detective Zinna testified at the motion to suppress and at the trial that the defendant’s son, Curtis Williams, Jr., voluntarily turned the gun (a .38 caliber revolver which was determined by ballistics tests to have been the same gun which fired the bullets into both victims) over to him. All agree Williams Sr. called Catherine Tucker and instructed her to get Williams Jr. to bring in the gun. The important question is whether the call was made before or after the statement was given. The defendant Williams’ testimony did not contradict the testimony of the detective on this question. Rather, Williams, using a series of “I think”, “I believe” and “I don’t remember” neither agreed nor disagreed with the detective.

Further, the detective's testimony on the motion to suppress clearly indicates the gun was given to him prior to the defendant making the statement. His testimony is further corroborated by the statement itself which refers to the fact that the defendant acknowledged the gun turned in by his son was the weapon used in the murders. This supports the conclusion that the weapon had already been turned in at the time the statement was made.

The pictures of the truck were taken after the truck was taken from the motel to the police garage. On the motion to suppress, Detective Zinna testified that before the defendant gave the inculpatory statement he had consented to have his truck towed to the police garage and his son, Curtis Williams, Jr., accompanied a police officer to the motel where the defendant had been arrested to bring the truck in. No testimony contradicts or refutes this explanation as to how and when the truck was obtained.

The defense contends the tow permit signed by Williams was inculpatory in nature and completed after he had invoked a right to counsel; therefore, the truck was obtained by means of an illegally obtained statement. Even if that were the case, it appears the truck was of such a nature and in such a location as to be “inevitably discovered” by the police and therefore exempt from the exclusionary rules provisions. Nix v. Williams, — U.S. -, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

We therefore conclude that the gun and photographs of the defendant’s truck were legally obtained independently of the defendant’s statement and properly admitted into evidence; the gun because it was voluntarily surrendered before the statement was made, and the truck for the same reasons, plus the fact its discovery was inevitable.

ASSIGNMENT OF ERROK NO. 2

In his second assignment of error, the defendant contends the trial court committed reversible error when, during trial, the court overruled defense objections to the admissibility of the “protocols” of the autopsy (which included a diagram of a female body and notations indicating bullet entry and exit wounds).

The assistant coroner, Dr. Richard Tracy, an expert in the field of pathology, testified that he performed the autopsy on both of the victims. According to Dr. Tracy’s testimony, the questioned autopsy protocols were typewritten transcripts of the autopsy findings as dictated by him. The “autopsy protocol” on Cathleen Harrell refers to an accompanying diagram showing the reconstructed courses of presumed paths of bullets found in the victim. This diagram was also prepared by Dr. Tracy. The trial judge admitted the protocols and diagrams over counsel for defendant’s objection.

At the trial and here, the state contends the protocols were in fact “autopsy reports” and as such admissible in evidence under C.Cr.P. Article 105. The defendant contends the autopsy protocols should have been excluded as hearsay evidence because they were not a coroner’s report or a proces verbal of a coroner’s report, hence, it did not fall within the exception to the hearsay rule. Code of Criminal Procedure Article 105 and the jurisprudence formed thereunder established an exception to the hearsay rule. A coroner’s report and proces verbal are admissible into evidence in criminal proceedings as evidence of death and the cause thereof, but not of any other fact. Louisiana Code of Criminal Procedure Article 105; State v. Kelly, 375 So.2d 1344 (La.1979); State v. Monroe, 345 So.2d 1185 (La.1977). The report and proces verbal may be introduced into evidence and testified to by the coroner or one of his assistants even if they had not actually performed the autopsy on the victim. State v. Kelly, supra; State v. Berry, 324 So.2d 822 (La.1976); State v. Holmes, 258 La. 221, 245 So. 707 (1971).

The defense further contends that although considered as a coroner’s report and hence admissible under Code of Criminal Procedure Article 105, the protocols were improperly used to bolster the state’s theory of how the victims were shot as support for the state’s contention the shootings were murder and not justifiable homicide, rather than to prove merely the fact and proof of death as contemplated by Article 105. The latter contention is unfounded. Dr. Tracy used the assistant district attorney as a model when he gave his oral testimony as to the positions of the victims when shot, the paths of the bullets through the victims’ bodies, and the entry and exit wounds found on the bodies of the victims. No reference was made to the protocols during the course of establishing how the victims were shot.

Although Code of Criminal Procedure Article 105 and the jurisprudence formed thereunder establishes an exception to the hearsay rule, it is not, however, the only basis or method for the introduction of the coroner’s report or a proces verbal of an autopsy. Where, as here, the particular doctor who made the report is the one testifying the proof and cause of death can be established by any competent evidence. Since the protocols and diagram were made by Dr. Tracy and merely corroborated his court-given testimony, it was not error to admit them in evidence.

ASSIGNMENT OF ERROR NO. 3

In the third assignment of error, the defendant urges reversible error because the trial court denied the defendant’s motion for a mistrial based upon the in-court identification of the defendant made by Deputy Kinchen. In substance, according to the defendant, the jury was unable to judge Deputy Kinchen’s credibility because the jury was not shown the photographic lineup which Deputy Kinchen had been shown to identify the defendant as the person who was driving the truck which he had stopped on the day of the shooting.

Shortly after the victims’ bodies were discovered and Detective Kinchen had called the St. Charles Parish Sheriff’s Office to convey his knowledge of the incidents he was aware of, he was shown a photo lineup from which he identified the defendant as the driver of the truck he had stopped two days before at the place the victims’ bodies were found. The defendant filed a motion to suppress the photographs used in the photo lineup on the grounds the lineup was overly and hence impermissibly suggestive. The motion also sought to suppress any eye-witness testimony of Deputy Kinchen on the grounds such testimony was tainted by the use of the improperly suggestive photo lineup. The motion was denied by the court.

At the trial, Deputy Kinchen positively identified the defendant as the driver of the truck he had stopped on December 26,1982 and admitted his identification was based upon the pre-trial photographic lineup which he had viewed. Since the state did not introduce the pictures which were used in the photo lineup, the defendant filed a motion for a mistrial and now contends the trial judge committed reversible error when it denied the motion because the jury was denied the opportunity to assess the credibility of Deputy Kinchen.

Each side has the right to impeach the testimony and credibility of every witness sworn on behalf of the other side. LSA-R.S. 15:486. In this case, defense counsel had full opportunity to cross-examine Deputy Kinchen in order to attack Deputy Kin-chen’s credibility and his testimony relating to the in-court and out-of-court identification of the defendant. Once Deputy Kin-chen testified as to his identification of the defendant, it was for the jury to determine the weight to be given to his identification of the defendant. State v. Sterling, 205 La. 879, 18 So.2d 327 (1944). The state had no duty to introduce the photo lineup in evidence.

Additionally, we note this case is not one where identification of the accused is a contested issue. The defense asserted in its opening arguments that the defendant killed the victims in self-defense. Two other witnesses testified that they saw both victims leave Baton Rouge with the defendant in the defendant’s truck on the morning of the same date that the victims were killed. The defendant himself testified that he shot the victims. Therefore, we find no error in the denial of the defendant’s motion for mistrial.

ASSIGNMENT OF ERROR NO. 4

In the fourth assignment of error, the defendant contends the trial court erred when it denied the defendant’s motion for post-judgment verdict of acquittal and his motion for a new trial.

By this assignment, the defendant contends the state’s evidence was insufficient to establish the homicides were not committed in self-defense.

LSA-R.S. 14:20, in pertinent part, reads as follows:

“A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger....

Once the issue of self-defense is raised by the defendant, the state has the entire and affirmative burden of proving beyond a reasonable doubt that the homicide was not perpetrated in self-defense, or in a purely circumstantial case, the state has the burden of proving to the exclusion of every reasonable hypothesis that homicide was not committed in self-defense. LSA-R.S. 15:438; State v. Patterson, 295 So.2d 792 (La.1974); State v. Brown, 414 So.2d 726 (La.1982); State v. Savoy, 418 So.2d 547 (La.1982); State v. Stevenson, 447 So.2d 1125 (La.App. 1st Cir.1984).

Here the jury has already decided the state has met that burden. Hence, our inquiry is limited to the questions of whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the evidence excluded every reasonable hypothesis the homicides were not committed in self-defense and thus support a finding the defendant was, beyond a reasonable doubt, guilty of murder.. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Moody, 393 So.2d 1212 (La.1981).

According to the defendant’s version, when he and Kenneth Norman were urinating on the side of the interstate, he heard one of the victims say “Let’s get him.” He further testified that the victims then grabbed him in an effort to throw him over the railing into the water located below the elevated portion of the highway. When he got away from the victims, he ran around the back of his truck to the driver’s side, retrieved his .38 caliber revolver from the inside of his truck under an arm rest in the seat, continued to run around the front of the truck towards the railing along the highway, and then turned around and started shooting at the victims as they were running towards him.

Under his version, although he knew both victims were unarmed, he did not verbally warn the victims to stop their advance towards him, nor did he fire any warning shots prior to shooting the victims. He also testified he did not believe the victims saw him get the gun and did not know why he didn’t continue1 running down the highway rather than shooting the victims.

After the shooting, the defendant got in his truck and fled the scene. He went to his cousin’s house in Kenner, Louisiana and said to her “they tried to use me, they tried to use me.” He then left Kenner and went to Baton Rouge, Louisiana, and shortly thereafter went to Port Allen where he checked into a motel room. The defendant was later arrested at the motel in Port Allen on December 31, 1982 (five days after the shooting).

The autopsies proved that the victims had been shot to death. Ballistics tests proved that the fatal shots were fired by a gun purchased by the defendant. Dr. Tracy, the assistant coroner who performed the autopsies, testified that Kenneth Norman had sustained four wounds from two bullets. According to his testimony, one bullet entered through the back of Norman’s left hand and re-entered his right leg and the other bullet—the fatal shot—entered the outer aspect of the right arm and passed through his chest. Dr. Tracy testified that Cathleen Harrell sustained nine wounds of entry and exit caused by at least three bullets. One bullet—the fatal shot— entered the right side of her chest under her arm. Another bullet entered the left side of her back in the region of the kidney and existed in front, about mid-abdomen.

In considering a self-defense claim, it is necessary to consider whether the defendant had a reasonable belief he was in imminent danger of losing his life or receiving great bodily harm and whether the killing was necessary, under the circumstances, to save the defendant from that danger. State v. Bailey, 261 La. 831, 261 So.2d 583, 584 (1972). Although there is no unqualified duty to retreat, the possibility of escape is a factor in determining whether or not a defendant had the reasonable belief that deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982). State v. Freeman, 447 So.2d 1145 (La.App. 3rd Cir.1984). The defendant’s flight is another factor to be considered in weighing the probabilities for or against the defendant’s guilt. State v. Burge, 359 So.2d 616 (La.1978).

In the case at bar, assuming the defendant’s testimony to be truthful, the defendant was able to struggle free from the initial confrontation which he testified took place between himself and the victims. The defendant then went to his truck and, instead of driving away at that point (the defendant testified that he had left the key in the ignition of the truck while he and Norman were urinating along the highway), the defendant armed himself with a loaded gun and proceeded to further retreat. He then turned around and, without firing any warning shots or giving any verbal warnings, unloaded all five bullets in his revolver into the unarmed victims. Although the defendant testified that he shot the victims as they were running towards him, Dr. Tracy’s testimony proved that the victims were hit by the bullets from their sides and that one bullet entered the back of Cathleen Harrell.

After a careful consideration of all of the state’s evidence we conclude any reasonable trier of fact could have concluded that the state has carried its burden that the homicides were not in self-defense.

ERROR PATENT

The defendant was charged by bill of indictment with two counts of first degree murder. Although the form of indictment, i.e., first degree murder of Kenneth Norman and first degree murder of Cathleen Harrell was, under the provisions of Article 465 of Code of Civil Procedure, sufficient indictments, the evidence before us is not sufficient to support a conviction of two counts of first degree murder. Under the evidence presented to the jury in this case, the only provision of R.S. 14:30 which could be used to support a conviction of first degree murder is Part 3 of that statute which applies when the offender had a specific intent to kill or inflict great bodily harm upon more than one person. Here Williams’ intent to kill Norman was used to enhance the killing of Harrell to first degree murder. Then Williams’ intent to kill Harrell was used to enhance the killing of Norman to first degree murder. Thus, Williams was convicted and sentenced on both first degree murder indictments.

In State v. Steele, 387 So.2d 1175 (La.1980), the supreme court at page 1177 said:

“If the evidence required to support a finding of guilty of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one
s£ sfc sjc ⅝ ⅞: *
“the central idea being that one should not be punished (or put in jeopardy) twice for the same cause of conduct.”

On this premise in State v. Cotten, 438 So.2d 1156 (La.App. 1st Cir.1983) a conviction of first degree murder was held to preclude an indictment for attempted armed robbery arising from the same event. The theory for the doctrine is that since the defendant has already been punished for the felony as that was a major element of a felony murder conviction, he cannot be tried for the felony itself. See State v. Stewart, 400 So.2d 633 (La.1981).

CONCLUSION

Under the evidence presented here, the double jeopardy doctrine prohibits a conviction of Williams on two counts of first degree murder because the only first degree murder he can be convicted of under R.S. 14:30(3) requires the showing of an intent to kill more than one person. Accordingly, we vacate the defendant’s conviction of the first degree murder of Cathleen Harrel, but let stand the conviction and sentence of Williams to the first degree murder of Kenneth Norman and, pursuant to the holding in State v. Thomas, 427 So.2d 428 (La.1982), remand the case to the trial court to correct any entry on conviction of Williams on count two, i.e., first degree murder of Cathleen Harrell.

VACATED IN PART; AFFIRMED IN PART; AND REMANDED.

      . Although there was some discussion that the initials placed on the second rights form were different from the initials on the first form, there is no dispute as to the accuracy of the transcribed statement. Further, the defendant, Catherine Tucker and Curtis Williams, Jr. all initialed each page of the transcription.


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    STATE of Louisiana In the Interest of Clifford BELLOW.
    Nos. 84-CA-265 to 84-CA-268.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      Madeline Jasmine, Asst. Dist. Atty., Ed-gard, for appellee.
    Barry J. Landry, Becnel, Landry & Bec-nel, La Place, for appellant.
    Before BOUTALL, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

On October 24, 1983, Clifford Bellow, a fifteen year old minor, was petitioned as a delinquent minor pursuant to LSA-R.S. 13:1570 on the following charges allegedly committed in the Parish of St. John the Baptist:

(1) On or about August 27,1983, in violation of LSA-R.S. 14:62, he committed simple burglary of a 1980 Dodge Van belonging to Tim Remondet, Docket No. 84-CA-265 (J2170);
(2) On or about August 31, 1983, in violation of LSA-R.S. 14:67, he committed theft of an air compressor and battery jumper cable belonging to Grant Shields, Docket No. 84-CA-266 (J2180);
(3) On or about August 31,1983, in violation of LSA-R.S. 14:67, he committed theft of a Coleman deluxe air compressor belonging to Kevin Guidry, Docket No. 84-CA-267 (J2182);
(4)On or about October 24, 1983, in violation of LSA-R.S. 14:63, he intentionally trespassed upon the East St. John High School campus without the permission of the authorities, Docket No. 84-CA-268 (J2185).

On October 24, 1983, the juvenile denied the charges. An adjudication hearing was scheduled and ultimately held on February 23, 1984.

At the conclusion of the hearing the trial judge found the juvenile guilty on all four counts and accordingly declared he was in need of care, control and supervision and therefore would be turned over to the St. John Parish Sheriffs Office for transfer to the Department of Corrections for incarceration in the juvenile center in Baker, Louisiana for a period of no less than eighteen (18) months. The declaration was not reduced to a written judgment.

Thereafter, on the date indicated, he signed the following commitment which was filed in the record on March 15, 1984:

COMMITMENT
WHEREAS, Clifford R. Bellow, a juvenile, born October 15, 1967, is adjudged by the Juvenile Court for the Parish of St. John the Baptist, in a proceeding entitled: State of Louisiana, in the Interest of the Minor Clifford Bellow, Number J-2170, 2180-85, on the Docket of said Court, to be a proper person to be committed to Louisiana Training Institute and is hereby committed on the-day of _, nineteen hundred and eighty-four, to the custody of the said Louisiana Training Institute, for a period ■ not to exceed eighteen (18) months as a ward of the Juvenile Court for the Parish of St. John the Baptist, Louisiana, subject to the control of the superintendent, Director or Board of Managers of said Institution as provided by law.
THUS DONE, SIGNED AND SEALED at Edgard, St. John the Baptist Parish, Louisiana, this 29th day of February, in the year of our Lord, one thousand nine hundred and eighty-four.
/s/ Thomas J. Malik THOMAS J. MALIK, JUDGE Parish of St. John the Baptist Juvenile Court

A motion for appeal was filed on March 23, 1984 and was granted by order dated March 26, 1984.

On appeal, the juvenile’s counsel urges the following assignment of error:

“The trial court committed error in failing to specify into the record the factual basis and other considerations taken into account by the Judge in imposing the sentence. Also, the sentence imposed was excessive in these circumstances considering the juvenile’s age, 15 years old, and the lack of any proof by the State of any prior criminal record.”

As pointed out by his counsel, even though Clifford Bellow is a juvenile he has the same constitutional rights against excessive and/or cruel punishment as an adult. Further, in order to protect those rights, the Code of Juvenile Procedure prescribes particular procedures which must be adhered to in first adjudicating a minor as a delinquent and then assessing the restrictions to be imposed on the juvenile.

Upon completion of the adjudication hearing here, the juvenile court, in accordance with Code of Juvenile Procedure Article 76, immediately declared the evidence warranted the requested adjudication. However, subsequently, without the benefit of a predispositional report (discretionary under CJP Article 78) or a disposition hearing, the court made a disposition in the case.

A disposition hearing is mandatorily required by Code of Juvenile Procedure Article 80 which provides:

“Prior to entering a judgment of disposition, the court shall conduct a disposition hearing.
The disposition hearing may be conducted immediately after the adjudication and shall be conducted within thirty (30) days after the adjudication. Such period may be extended for good cause.” (Emphasis supplied).

The purpose of the disposition hearing is to give the juvenile and/or the state an opportunity to present any predisposition reports, any reports of mental evaluation, and all other evidence (including that which would not have been admissible at the adjudication hearing) which relates to the proper disposition to be made of the juvenile. C.J.P. Articles 81 and 82.

Following the disposition hearing, the court is required to impose the least restrictive disposition consistent with (1) the circumstances of the case, (2) the needs of the child, and (3) the best interest of society. C.J.P. Article 86. Upon reaching its decision as to the proper disposition, under the provisions of C.J.P. Article 87, the court is required to “enter into the record a written judgment of disposition” containing the specifics enumerated in Part A of the article and in the case of a delinquency proceeding (as is the case here) the judgment of disposition “.... shall specify the offensefs] for which the child has been adjudicated a delinquent.” (Emphasis supplied).

Counsel for the juvenile urges the applicability of Code of Criminal Procedure Article 894.1 and the jurisprudence formed thereunder to juvenile matters. However, as may be noted from the following cases in the First and Third Circuits, this view has been rejected.

In State in Interest of Winstead, 385 So.2d 311, (1st Cir.1980) and in State in Interest of Brown, 385 So.2d 382 (1st Cir. 1980) our brethren in the First Circuit held that in the disposition of a juvenile matter, the trial court is not required to follow Code of Criminal Procedure Article 894.1 rather than the general disposition guide lines set forth in Code of Juvenile Procedure Article 86. Likewise, the Third Circuit in State in Interest of George, 430 So.2d 289 (3rd Cir.1983) specifically rejected the contention of the appellant that the sentencing guidelines of Louisiana Code of Civil Procedure Article 894.1 are applicable to juvenile cases, and hence agreed with the previous rulings of the First Circuit. But the Third Circuit also recognized the critical need of an appellate court for an articulation of the factors considered by the trial court in arriving at a particular disposition.

In order for us to determine whether the lower court applied the “least restrictive” mandate of C.J.P. Article 86, there must be some record for us to review. Although the trial judge is not required to give reasons, it does not mean the record can be silent. The record must contain some factual basis for appellate review if the right of appeal granted by C.J.P. Article 98 is to be effectively implemented. Here, in the absence of predisposition reports and the required disposition hearing, we are powerless to evaluate the disposition in the light of the guidelines imposed by C.J.P. Articles 83 and 86.

It is clear from the record here that the trial judge imposed the most restrictive disposition available, i.e., incarceration, and did so without a dispositional hearing or a dispositional report. Accordingly, it is difficult to ascertain from the record whether the disposition is appropriate and based upon a consideration of the needs of the child as well as the protection of society. While the trial transcript reflects the juvenile’s criminal propensities, we note that incidents for which he was adjudicated occurred over a relatively short time span. The record gives no indication whether the juvenile’s behavior problem is one of long duration which has been unaffected by previous attempts at less restrictive dispositions or whether, until the occurrence of the charged offenses, he had no previous problems. Although the trial court’s failure to articulate the reasons for imposing a particular disposition under the guidelines of C.J.P. Articles 83 and 86 is not error, his disposition must be evaluated in the light of the statutory guidelines provided for by .these articles.

The effective implementation of the right of appeal granted by C.J.P. Article 98 necessitates a review of the factual basis and reasons for the disposition. Accordingly, we set aside the disposition and remand the case to the trial judge with instructions to conduct a predisposition hearing as required by C.J.P. Article 80 and to permit the introduction of any predisposition investigation reports or any reports of mental evaluations and all other evidence (even though not admissible at the adjudication hearing) submitted by the state or the juvenile relating to the proper disposition in the case and thereafter to enter into the record a written judgment of disposition in the form required by C.J.P. Article 87.

SET ASIDE IN PART AND REMANDED.

      . At the conclusion of the testimony the court ruled on the burglary charge: "With respect to J2170, alleged violation of R.S. 14:67, it is the finding of the Court that the defendant is guilty.” Section 67 is theft. The petition was for violation of Section 62, simple burglary of a van. The record seems to support a conclusion that 67 is a typographic error rather than a finding of guilty of theft. Because no issue is raised here and because we remand for the proper disposition we do not address the effect of this on the disposition.


author: DUFRESNE, Judge.

text:
    STATE of Louisiana v. Robert L. DILL.
    No. 84-KA-147.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      John M. Mamoulides, Dist. Atty., Dorothy Pendergast, Asst. Dist. Atty., Parish of Jefferson, Gretna, for plaintiff-appellee.
    John H. Craft, I.D.B., Gretna, for defendant-appellant.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

The defendant, Robert L. Dill, was charged with first degree murder. After he was arraigned and entered a plea of not guilty; the State amended the indictment to second degree murder R.S. 14:30.1. He was again arraigned and again entered a plea of not guilty. Extensive discovery was requested by the defense and satisfied by the State. The defendant waived his right to a trial by jury and trial was held. He was found guilty of manslaughter and sentenced to five years in the custody of the Department of Corrections. From this conviction and sentence he now appeals.

FACTS

After work on January 23, 1981, Andrew Lauchlan and Terry Greenwood went to Lauchlan’s house for a few beers. After a time the two men left and Greenwood accompanied Lauchlan to a friend’s house. They remained there a while and departed late in the evening with Lauchlan driving his 1976 Ford pickup truck. Greenwood asked Lauchlan to give him a ride to the Miki Lounge to see someone about money owed to him. Lauchlan complied with the request and the two men arrived at the lounge a little before midnight. Lauchlan was having trouble with his truck and because Greenwood had indicated that he wasn’t going to stay in the lounge any length of time, Lauchlan stayed outside in the truck. Several minutes later Greenwood exited the bar carrying two beers. Lauchlan told him that the truck wasn’t running, apparently because of a low battery, and Greenwood said he would try to get a “jump” from another car in the parking lot.

While Lauchlan watched, Greenwood approached a car about fifteen feet away and engaged in conversation with the three occupants. From what he overheard, one of the passengers offered to assist Greenwood for $5.00. The conversation became more heated and Lauchlan stepped out of his truck to observe the situation more closely. As Greenwood walked toward the driver’s door of the car, Lauchlan saw the driver simultaneously open the door and reach down between the front seats. As the driver exited the car, he pointed an object at Greenwood. Almost instantaneously Lauchlan heard a gun shot and saw Greenwood fall to the ground. He ran to the body of his friend and exclaimed to the driver of the car, “You shot him”. The driver hurriedly reentered his car and began to back out of the parking lot. As he did so, Lauchlan reached out, straightened the bent license plate on the car, and memorized the license number. This he later gave to the investigating officer along with a description of the vehicle. Following the shooting, he left his friend momentarily to call an ambulance.

The Jefferson Parish Sheriffs Office was notified of the shooting at approximately 12:08 a.m., on the morning of January 24th. Deputy Tureaud arrived at the scene several minutes later. The victim, Terry Greenwood was removed to West Jefferson General Hospital where he was pronounced dead on arrival from a gunshot wound to the head. Tureaud broadcast a description of the wanted vehicle and the Homicide Division was notified.

Detective Steve Buras began his investigation at 12:45 a.m. on the 24th of January. At 4:22 a.m. Dill’s car was located at Rose’s Lounge, apparently abandoned. Detective Buras proceeded to that location to examine the vehicle. He found both an empty gun holster and an empty knife sheath inside the car. After interviewing Andrew Lauchlan and Jerry Meadows, Detective Buras secured an arrest warrant for Robert Dill on January 27, 1981. He was arrested in late October or early November of 1981 in Miami, Florida.

On appeal, the defendant thru counsel makes the following assignments of error:

1. The evidence presented by the state was not sufficient to justify a verdict of guilty of manslaughter.
2. The state failed to meet its burden of proving beyond a reasonable doubt that defendant did not kill the victim in self-defense.
3. Also assigned as error, are any and all errors patent on the face of the record.

ASSIGNMENT OF ERROR NO. 1 & NO. 2

Because of their similarity, these two assignments are consolidated for our review.

The thrust of the defense argument is that the state failed to offer sufficient evidence to support the verdict of manslaughter rendered by the trial judge. More specifically, the defense contends the state failed to negate the defense assertion that the homicide was committed in self defense.

“A claim of insufficient evidence is judged by whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Brown, 414 So.2d 726 (La.1982); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).” State v. Freeman, 447 So.2d 1145, 1158 (La.App. 3rd Cir.1984).

The defendant was convicted of manslaughter, in violation of R.S. 14:31. Manslaughter, as relevant to the instant prosecution is defined as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; ....

The defendant has urged that the homicide was justified under the theory of self-defense.

La.R.S. 14:20 at the time of the offense was committed stated:

A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or
(2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believe that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business while committing or attempting to commit a burglary of such dwelling or business. The homicide shall be justifiable even though the person does not retreat from the encounter.

“A defendant in a homicide prosecution who asserts that he acted in self defense does not have the burden of proof on that issue because the state bears the burden of establishing beyond a reasonable doubt that the homicide was not perpetrated in self defense. State v. Patterson, 295 So.2d 792 (La.1974); State v. Collins, 306 So.2d 662 (La.1975). “State v. Brown, 414 So.2d 726, 728 (La.1982). See also State v. Howard, 443 So.2d 632 (La.App. 3rd Cir.1983) writs denied 444 So.2d 1215 (La.1984); State v. Freeman, 447 So.2d 1145 (La.App. 3rd Cir.1984) writs denied 449 So.2d 1356 (La.1984).

To meet its burden of proof, the state offered the testimony of two witnesses, Andrew Lauchlan, the companion of the victim at the time of the shooting, and Detective Steve Buras, the investigating homicide officer from the Jefferson Parish Sheriffs Office. Lauchlan testified that the victim was unarmed at the time of his encounter with the defendant and made no overt offensive gesture toward Dill to provoke the shooting. Although he stated that just prior to the shooting he heard raised voices, he was unable to recognize any of the words said by either party. He offered that the victim usually carried a pocket knife while working, but was unarmed on the night of his death. He stated that Greenwood’s pocket knife was found the day after his death in the van of a friend, and given to his mother on the day of the funeral. Detective Buras testified as to the progress of the investigation from his arrival on the scene to the issuance of the arrest warrant for Mr. Dill several days later. He additionally identified an empty knife sheath and an empty gun holster found in the defendant’s apparently abandoned automobile shortly after the shooting.

The defense offered several witnesses to establish that the homicide was justifiable. Eugene Kirk, a mutual friend of both the victim and the defendant, admitted that after the shooting he found a pocket knife and some coins under the victim’s leg and took them. He confessed that when the police asked about a knife, he denied taking it and later threw it away. On cross-examination he testified that the knife resembled one owned by Jerry Meadows, a passenger in the defendant’s car at the time of the shooting.

Ross McCord, a friend of Dill’s testified that he observed the incident from the parking lot between the Happy Landing Bar and the Miki Lounge. He indicated he heard a lot of shouting and “bad words ” and noticed a man near the ear make a lunge toward the car window with a knife and then he heard a shot. On cross-examination he acknowledged that he said nothing to the police regarding the incident. He stated that he only knew the defendant was accused of the shooting when they met in the Correctional Center several months prior to trial. It was coincidentally noted by the state that Dill and McCord were represented by the same defense counsel. Jerry Meadows, a passenger in Dill’s vehicle testified that the victim came at the defendant with a knife.

The prosecutor, on cross-examination, accused Meadows of placing his knife beside the victim’s body. Meadows denied the accusation vehemently and denied also ever having lent his knife to a Eugene Kirk. He admitted to a problem with alcohol, but clearly remembered that the victim was armed with a knife immediately prior to the shooting.

The defendant testified in his own behalf. He stated that following a verbal exchange, the victim lunged at him through the open car window armed with a knife. In reaction to the victim’s aggression, he reached between the seats of the car and emerged with a gun that a friend had given him to clean. He fired at Greenwood from within the car noting; “[i]ts a wonder I didn’t hit the car instead of the man. I stood just as good a chance of hitting the car with the exception that his head was partially down....” He admitted fleeing the scene of the homicide but stated he was in shock. He told of his attempts to find out if a warrant had been issued for him before leaving town, but admitted that he didn’t return from Florida even after he found that a murder warrant was outstanding.

The law is well established that “[w]hen there is conflicting testimony as to a factual matter, the question of credibility of witnesses is within the discretion of the trier of fact.” See State v. Jacobs, 435 So.2d 1014, 1019 (La.App. 1st Cir.1983); State v. Klar, 400 So.2d 610 (La.1981).

On appeal, the function of a reviewing court is not to reassess the credibility determinations of the fact finder but only to determine if the evidence offered was sufficient to support the conviction as required by Jackson v. Virginia, supra. See State v. Richardson, 425 So.2d 1228 (La.1983); State v. Lee, 445 So.2d 54 (La.App. 4th Cir.1984); State v. Jacobs, supra.

The state offers that the verdict rendered by the trial judge reflects a credibility evaluation not to be usurped on appeal. The following is excerpted from the state’s brief:

“Even when reading the cold pages of the record in this case the defense witnesses come across as unworthy of belief. Certainly the determination of the trial judge who saw and heard these witnesses should be controlling on the issue of credibility before this court.”

But if, as the state argues, the defendant shot the unarmed victim having the specific intent to do so, without passion or provocation, the offense committed was second degree murder.

It is clear from the verdict that the trial judge did not entirely reject the testimony of the defense witnesses; for while he did not find the homicide justifiable under the theory of self-defense he also did not find the defendant entirely culpable so as to be guilty of murder.

It appears obvious that there is only a tenuous distinction between a homicide which is manslaughter and one which is justifiable.

In LaFave, Scott, “Handbook on Criminal Law”, Section 77, p. 583, the editors note:

A modern tendency, not yet far advanced, is to add other extenuating circumstances in the category of voluntary manslaughter, so as to include such intentional homicides as those committed in an “imperfect” right of self-defense or defense of others, or of crime-prevention, or of the defenses of coercion or necessity, in which the killing, though not justifiable, is not bad enough to be murder.

And explains: •

“Imperfect” Right of Self-Defense
In order for a killer to have a “perfect” defense of self-defense to homicide, (1) he must be free from fault in bringing on the difficulty with his adversary; and (2) he must reasonably believe (though he need not correctly believe) both (a) that his adversary will, unless forcibly prevented, immediately inflict upon him a fatal or serious bodily injury, and (b) that he must use deadly force upon the adversary to prevent him from inflicting such an injury. If one who is not the aggressor kills his adversary with these two actual and reasonable beliefs in his mind, his homicide is justified, and he is guilty of no crime — not murder, not manslaughter, but no crime, [footnote omitted]
What if a defendant who did not initiate the difficulty honestly but unreasonably believes either that he is in danger of the injury or that killing is the only way to prevent it; or, even though he reasonably believes these things, he was at fault in bringing about the difficulty? He cannot have the defense of self-defense, for that requires both freedom from fault in the inception of the difficulty and the entertainment of beliefs which are reasonable. But is murder the only alternative? Or should the matter fall into the category of manslaughter, consisting of those homicides which lie in between murder and no crime. Some cases so hold, whether the reason for the “imperfection” of the defense is the defendant’s own fault in bringing on the difficulty [footnote omitted] or the reasonableness of the honest but erroneous beliefs which he entertains, [footnote omitted]

The theory that a verdict of manslaughter (in some cases) reflects a finding by the trier of fact that the accused had only an “imperfect right of self-defense” has not been formally accepted in Louisiana, but jurisprudence exists which suggests its use to some degree.

Initially, in State v. Peterson, 290 So.2d 307 (La.1974) the Louisiana Supreme Court observed the existence of provocation or “heat of blood” in a murder prosecution was in the nature of a defense rather than an element of the offense of manslaughter. The following is excerpted from that opinion:

All of the elements of the two crimes, murder and manslaughter, are identical; there exists only one difference. That is, the statutory definition of manslaughter provides that the killing, which would be murder under 14:30(1), be “committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” If passion reduces a homicide requiring the same scienter, specific intent, from murder to a less serious crime, manslaughter, then lack of passion, may realistically be seen as the additional element which elevates a manslaughter to murder. The presence of passion, however, is in the nature of a defense and, for this reason, the additional “element” of lack of passion need not be proven by the state in a murder-prosecution. Therefore, the the presence of passion is not an additional element of the crime of manslaughter;' rather, it is a factor which exhibits a degree of culpability less than that present when the homicide is committed without passion caused by provocation, [emphasis added]

The designation of passion or provocation as a mitigatory factor or defense to a prosecution for a murder remains viable. See State v. Temple, 394 So.2d 259 (La.1981); State v. Freeman, 447 So.2d 1145 (La.App. 3rd Cir.1984).

In State v. Bryan, 398 So.2d 1019 (La.1980), the court alluded to the relationship between the defense of justification and the existence of provocation.

In Bryan, supra, the defense sought to establish that the victim, a police officer, had used unreasonable force to effect an arrest. In order to repel the alleged unprovoked beating by the officer, the defendant had armed himself with a nearby weapon and shot the officer. Remanding the case for an evidentiary hearing on the motion for new trial the court observed by footnote:

[E]ven if the evidence of the allegedly unprovoked and unprivileged assaultive behavior was not sufficient to establish justification, it was relevant for the purpose of presenting to the jury the theory that defendant was guilty only of manslaughter, by showing that the killing was committed in a “heat of passion” provoked by Taylor’s misconduct. See R.S. 14:31(1). See also State v. McAllister, 366 So.2d 1340 (La.1978) and State v. Peterson, 290 So.2d 307 (La.1974), discussing “heat of passion” and “provocation” as mitigating elements in the “nature of a defense”.

Bryan, supra at 1021, n. 2. See also State v. Jackson, 419 So.2d 425, 430 n. 4 (La.1981).

The cases appear to establish the interrelationship noted by Professor LaFave between the offenses of murder and manslaughter and the “defenses” of provocation (the “imperfect” defense, mitigating criminal culpability) and justification (the “perfect” defense negating criminal culpability).

When the verdict of the trial judge is viewed in the light of the above cases and the explanation of Professor LaFave, the rationale for the verdict becomes clear and the sufficiency question is more easily addressed.

The evidence submitted by the state, viewed in the light most favorable to the prosecution, establishes that the defendant shot the victim with the specific intent to kill him or at the very least inflict great bodily harm on him.

R.S. 15:445 provides in pertinent part:

“[Tjhough intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

It is clear from the testimony that as the victim approached the car during the argument the defendant armed himself with a loaded gun and got out of the car to meet the victim’s advance. While Dill testified that he never left the front seat and could have just as easily shot the interior of the car as Greenwood, at least one witness stated that he was outside of the car at the time of the shooting, giving him a clear shot at the victim from only a short distance away (3-5 feet). Without warning the victim in any way of the escalation of the argument, he shot the victim in the face and fled the scene without rendering assistance. The location of the wound, the forehead above the right eye, would appear to indicate that it was inflicted with the intent to kill.

But in order to prove the homicide murder, the state was also required to negate the assertion that the homicide was justifiable; committed in self-defense.

As noted previously R.S. 14:20, (as in effect at the time of the offense) provided in pertinent part:

“A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; .

Thus the determination of the defendant’s culpability by the trier of fact focuses on a two fold inquiry:

1. From the facts presented could the defendant reasonably have believed his life to be in imminent danger and

2. Was deadly force necessary to prevent the danger.

The state offered the testimony of Andrew Lauchlan to establish that the victim was unarmed at the time of his encounter with the defendant. But as noted by the Supreme Court in State v. Jackson, supra, “[tjhis [lack of a weapon on the victim’s body] was, of course, not disposi-tive of the issue of self defense, since it is the reasonableness of apprehension, and not the actuality of danger, which determines the question of self defense under R.S. 14:20.” Supra, at 430, n. 3.

There is no question that the two men were engaged in a heated argument at the time of the shooting. The victim approached the car during the encounter to continue the altercation. From the relative sizes of the two men it appears that Dill (5'4", 145 lbs.) would have received the worst end in a fight, even if the victim (6'0", 200 lbs.) had been unarmed. Accordingly, his apprehension of receiving great bodily harm could be deemed reasonable.

However, it does not appear that the use of deadly force was justified.

In State v. Collins, 306 So.2d 662, 663 (La.1975) the court indicated that it was a question for the trier of fact “to determine whether it was reasonably necessary for the defendant to kill in order to save himself.”

Citing Collins, supra, a panel of the Third Circuit observed in State v. Howard, 443 So.2d 632 (La.App. 3rd Cir.1983) writ denied 444 So.2d 1215 (La.1984), that “[a]lthough there is no unqualified duty to retreat, the possibility of escape is a recognized factor in determining whether or not a defendant had the reasonable belief that deadly force was necessary to avoid the danger, [footnote omitted]”

In the present case, it would appear that the trier of fact could readily conclude that the defendant possessed' the ability to retreat or withdraw from the impending conflict. He was in an automobile. It was possible to have driven off or at the very least, rolled up the window to prevent any attack by the victim. Rather, the testimony reflected that he got out of the car to meet the victim’s advance.

It was likewise evident that deadly force was not mandated by the situation. By the defendant’s own admission he issued no warning to the victim. Nor, apparently when firing at a close range did he aim for a less vital area than the head.

Since an examination of the testimony reflects that the use of deadly force was not warranted by the situation, even assuming the victim was armed with what was described as a “pocket knife”, the state fulfilled its burden of proof of negating the justification defense, and accordingly, proved second degree murder; “the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm; _” See R.S. 14:30.1. But all the witnesses who observed the shooting testified that the victim and the defendant were engaged in a verbal dispute immediately prior to the shooting. The presence of the mitigatory factors of provocation plus passion reduce the culpability of the defendant and accordingly, the verdict of manslaughter was appropriate under the circumstances.

Accordingly, we find no merit in these assignments of error.

ASSIGNMENT OF ERROR NO. 3

La.C.Cr.P. art. 920 provides:

“The following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and

(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

Our review of the case does not reveal any error on the face of the record. This assignment has no merit.

DEFENDANT’S PRO SE ASSIGNMENTS OF ERROR

The defendant appearing pro se has filed a supplemental brief presenting three additional assignments of error for our review.

1. Conviction obtained by the unconstitutional failure of prosecutor to disclose to the defendant evidence favorable to the defendant.

2. Defendant omitted a No. 2.

3. Denial of appeal and assistance of counsel on appeal.

4. Ineffective assistance of counsel created not only possibility of prejudice but that it worked to his actual and substantial disadvantage.

SUPPLEMENTAL ASSIGNMENT NO. 1

The record reveals that in the state’s answers to the Bill of Particulars, it did not have any exculpatory evidence or evidence favorable to the defendant.

In response to a subpoena issued to the sheriff’s office, a hearing was held to determine if two statements allegedly referenced in the District Attorney’s file were in the possession of the Sheriff’s office and were exculpatory in nature. The officer in charge testified no statements were contained in the case record.

The state likewise stated that they had no exculpatory statements in their files.

In an “Amended Request and Motion for Discovery, Disclosure and Inspection” the defense again tried to obtain copies of certain statements made by a Jim Luckett and a Jerry Meadows.

The trial court set the matter for a hearing and denied the motion.

As noted in State v. Vaccaro, 411 So.2d 415, 419 (La.1982). “[i]t is well settled that the state may not suppress evidence that is favorable to the defendant and material to guilt or punishment when that evidence has been requested by [the] defendant. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, supra, [373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ]; State v. Scott, 400 So.2d 627 (La.1981); State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977).”

However, it does not appear from the record that the defendant established the existence of any written statements from Luckett, Kirk or Lauchlan. The testimony was to the contrary despite the fact that the defense was given ample opportunity prior to the trial of the case to traverse the prosecutor’s assertion that no statements were contained in his case file. Further, two of the witnesses whose statements were requested testified at trial and were not examined concerning any previous statements. The investigating homicide officer, Steve Buras, who allegedly took the statements, also testified at the trial and was not questioned about them.

Nor did the defense establish that the alleged statements were exculpatory in nature so as to make the verdict unreliable because of their nondisclosure.

In the absence of such a showing, this assignment lacks merit.

SUPPLEMENTAL ASSIGNMENT OF ERROR NO. 3 & NO. 4

These remaining two assignments address the issue of the competence of defendant’s trial and appellate counsel. The law is well settled and established that such a claim is more properly raised by writ of habeas corpus at which time there can be an evidentiary hearing on the matter.

While the Supreme Court has addressed the issue on direct appeal in several cases, it appears to have done so only where “the record discloses [the] evidence needed to decide the issue”, noting that such a procedure was “in the interest of judicial economy— ” See State v. Ratcliff, 416 So.2d 528, 530 (La.1982). See also State v. Seiss, 428 So.2d 444 (La.1983).

In the present case, as in Seiss, supra, the defendant had filed an application for a writ of habeas corpus in the trial court raising among other issues, the “[d]enial of [an] appeal and [the] assistance of counsel on appeal.” He noted in argument that his retained counsel failed to appeal the trial court’s verdict and argued also that the “[ineffective assistance of counsel created not only [the] possibility of prejudice, but that it worked to his actual and substantial disadvantage.”

In support of the assertion, Dill offered specific examples of “counsel(s) acts of omissions” which he alleged were to his detriment. The trial judge, without hearing, denied the defendant’s writ application noting “[t]he defendant’s appeal is pending in the Louisiana 5th [Fifth] Circuit Court of Appeal. Therefore, this court must refuse to entertain the defendant’s application for post-conviction relief on the authority of La.C.Cr.P. art. 924.1.”

The test for evaluating the competence of trial counsel was most recently articulated by the United States Supreme Court in Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The court held:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

In evaluating the performance of counsel, the “inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Supra, at 104 S.Ct. 2065.

In making the determination of whether the specified errors resulted in an unreliable verdict, the inquiry must be directed to whether “there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra at 104 S.Ct. 2068.

The following are asserted by the defendant as the errors of counsel which substantially prejudiced him:

1. Failure of trial counsel to move for an appeal.

2. Failure of counsel to cross-examine the state’s witnesses regarding the contents of statements possibly given to police officers following the shooting.

3. Failure of appointed appellate counsel, Joseph Montgomery, to expedite the lodging of the appeal.

4. Failure of the trial counsel to call the coroner to the stand for testimony concerning the intoxication of the victim at the time of the offense.

5. Failure of counsel to locate and subpoena for trial an additional defense witness, Calvin Erkskine.

6. Failure of trial counsel to argue the insufficiency of the state’s evidence.

7. Failure of appellate counsel, Joseph Montgomery, to respond to the defendant’s correspondence concerning the status of his appeal.

It would appear clear that an attorney must advise his client of his appellate rights, State v. Simmons, 390 So.2d 504 (La.1980). The failure of appointed counsel to take an appeal, where such is requested by the defendant, is ineffectiveness, per se. See Flanagan v. Henderson, 496 F.2d 1274 (5th Cir.1974).

Further in Flanagan, the court also observed that the standard used in judging the minimal competence of retained counsel is similar to that of appointed counsel.

To rectify such a failure on the part of counsel, the court, upon a finding that the right of appeal was not waived, is obliged to grant an out of time appeal. This action has already occurred in this case. The competency of the defendant’s current appellate counsel has not been challenged. Accordingly, the errors asserted regarding the incompetency of previous counsel, as related to the appeal, are of little merit.

Using the standard announced in Strickland, supra, our review does not disclose that the trial errors complained of by the defendant so adversely affected the verdict as to render the proceedings unreliable.

These supplemental assignments are without merit.

CONCLUSION

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

AFFIRMED.


text:
    George HEBERT, Individually and on Behalf of His Minor Son, Roger Hebert, and Ada Hebert v. FIRST AMERICAN INSURANCE CO., Rosalie Signorelli, Mary Duncan and Their Insurer, State Farm Mutual Automobile Insurance Company, et al. Joseph PALMISANO, Jr., Individually and on Behalf of His Minor Son, David A. Palmisano v. Rosalie SIGNORELLI, Mary Duncan Childress and Donald Robert Childress, and Their Insurer, State Farm Mutual Insurance Company, et al.
    Nos. 83-CA-756, 83-CA-757.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Writ Denied Feb. 4, 1985.

      Joseph S. Russo, Jefferson, for plaintiffs-appellees.
    Jerald L. Album, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for defendant-appellant.
    Before GAUDIN, GRISBAUM, and MARCEL, JJ.
   CLEVELAND J. MARCEL, Sr., Judge Pro Tem.

This appeal arises from a judgment rendered in favor of plaintiff, Roger Hebert, for accident coverage under a student and teachers’ insurance policy issued by defendant, Pan American Life Insurance Company (Pan American).

Roger Hebert was involved in an accident on February 27, 1980, when the motorcycle on which he was a passenger collided with an automobile. He was a minor at the time. As a result of the collision, he sustained various injuries and subsequently suit was filed on his behalf against various defendants. By the time of trial on February 28, 1983, plaintiff had attained his majority and was duly substituted as the named plaintiff. On the day of trial, all defendants involved compromised and settled with plaintiff with the exception of Pan American. At that time, the case was submitted on memorandum with the sole issue to be resolved being interpretation of the policy exclusion and excess coverage clauses. In a judgment rendered June 30, 1983, the trial court found defendant liable for the excess medical expenses in the amount of Seven Thousand Eight Hundred Twenty-Six Dollars and Seventeen Cents ($7,826.17) with legal interest from date of judicial demand and costs.

Consequently, defendant Pan American perfected this appeal and, in response, plaintiff Roger Hebert appealed the amount of the award.

Appellant, Pan American, specifies the following as error:

that (1) the trial court erred in its interpretation of appellant’s exclusion for non-coverage of an insured whose injury is caused by riding on a two or three wheeled motor vehicle; and that

(2) the trial court erred in its improper narrow interpretation of excess coverage under a second exclusion in the student accident health policy of insurance.

Appellee, Roger Hebert, on the other hand, raises the question of whether the trial court erred only to the extent it did not award appellee the full face value of the policy.

On the first issue, Pan American asserts that the trial court erred in finding that the motorcycle exclusion clause did not operate to exclude coverage under these facts. We, however, agree with the trial court that the exclusion does not apply in this case.

The exclusion clause provides as follows:

“No payment of any kind shall be made for injury, death or any other loss caused, wholly or partly, directly or indirectly by:
Paragraph No. 10. Operating or riding in any kind of aircraft or descent or alighting therefrom, except as a fare paying passenger on a regularly scheduled flight of a commercial airline; operating or riding in or on a two or three wheel motor vehicle or descent or alighting therefrom; .... ” (Emphasis added)

As appellant aptly notes, Louisiana jurisprudence mandates the courts to give legal effect to insurance policy provisions in accordance with the true intent of the parties and such intent must be determined in the light of the policy provisions particularly when they are clear and unambiguous and do not lead to absurd consequences. Jennings v. Louisiana & Southern Life Insurance Company, 280 So.2d 297 (La.App. 1st Cir.1973). Any doubt, however, in interpretation must be construed in favor of coverage for the insured. Lombard v. Manchester Life Insurance Company, 406 So.2d 742 (La.App. 4th Cir.1981) writ denied 1982; Benton Casing Service, Inc. v. Avemco Insurance Company, 379 So.2d 225 (La.1979); O’Donovan v. Bankers Life and Casualty Company, 305 So.2d 643 (La.App. 3d Cir.1974). Furthermore, the policy language should be read broadly in favor of coverage. Applying this rule, the Louisiana Supreme Court has held that the provisions of a policy providing “loss to an automobile caused by theft of the entire automobile” included all contents as well. Insurance Company of North America v. Solari Parking, Inc., et al., 370 So.2d 503 (La.1979). In a case involving an exclusion clause using the words “caused while on duty as a soldier,” the court held the exclusion not applicable where the hazardous occupation was not the cause of death. Schroeder v. Amalgamated Association of Street and Electric Railway Employees of America, 153 La. 27, 95 So. 389 (1922). See also Edwards v. Life & Casualty Ins. Co. of Tennessee, 210 La. 1024, 29 So.2d 50 (1946). Conversely, exclusions in an insurance policy should be upheld when clear and unmistakable. Paret v. Louisiana Health Service & Indemnity Company, 366 So.2d 634 (La.App. 3d Cir.1978), writs refused 1979.

While the insurance company has a right to limit its liability, the limitation on coverage must be clear and express in order to inform the insured he must take special measures to obtain protection. Aetna Insurance Company v. Emmons, 348 So.2d 1267 (La.App. 4th Cir.1977). In so determining, those words are to be understood in their common and usual significance without attending so much to grammatical rules as to general and popular use. Harmon v. Lumbermen’s Mutual Casualty Company, 247 La. 263, 170 So.2d 646 (1965).

The dictionary defines “cause” as “(1) a person, thing, fact or condition that brings about an effect or that produces or calls forth a resultant action or state.... ” Webster’s Third New International Dictionary (1976).

The facts herein show that Roger Hebert was a passenger on a two-wheel motorcycle at the time of the accident. The parties stipulated that the accident was not a result of a defect in the motorcycle. Appellant, however, asserts that the exclusionary provision is designed to prevent recovery for injuries of any kind sustained as a result of riding on a vehicle of this nature. The trial court, determined that as the accident was not “caused” by either the “operation” or by “riding on” the motorcycle, the exclusion clause did not apply. We agree. Whatever Pan American may have intended in the exclusion, we are of the opinion that the common usage of the words “caused by” requires that the injury have a causal connection to the plaintiffs status as a passenger. As the cause of the injury herein was by the fault of the third party, the plaintiff is entitled to coverage, as found by the trial court.

Appellant alternatively argues that if the exclusion applies, plaintiff still cannot recover as the coverage is excess to all monies collected from whatever source for whatever reason. The trial court agreed that the coverage created an excess liability, but restricted the excess to “other medical and hospitalization policies which resulted in payments received by plaintiffs for medical and hospital expenses.”

Appellee, on the other hand, argues primarily that an increase in the award to the maximum limits under the policy is mandated because the provision is illegal under LSA-R.S. 22:663 and/or because appellant suffered other damages for which he is entitled to collect. We need not address the allegation of other damages since the record is devoid of evidence in that regard. We further conclude that LSA-R.S. 22:663 is inapplicable and that the terms of the policy expressly provide that the insurance becomes excess over and above any and all other insurance collected.

LSA-R.S. 22:663 mandates that no group policy of accident, health or hospitalization insurance shall be issued which excludes or reduces the payment of benefits on the behalf of an insured by reason of the fact that benefits have been paid under any other individually underwritten contract or plan. However, LSA-R.S. 22:215(A) provides:

“Group health and accident insurance is any policy of health and accident insurance covering more than one person, except family group, blanket and franchise policies hereinafter specifically provided for, which shall conform to the following requirements: ...
(3) Blanket, health and accident insurance is any policy covering special groups or persons as enumerated in one of the following paragraphs (a) through (f); •••
(c) Under a policy issued to a college, school, or other institution of learning or to the head or principal thereof, who or which shall be deemed as the policyholder, covering students or teachers.” (Emphasis added)

Accordingly, student insurance is not a group policy for which its excess provisions would be in conflict with LSA-R.S. 22:663.

As to the language of the policy, the excess clause reads as follows:

“TRAVEL BY MOTOR VEHICLE AND ACCIDENTS INVOLVING MOTOR VEHICLES
Payment for any loss sustained by an insured hereunder by reason of an accident involving a motor vehicle or motor vehicles (whether such insured be the motor vehicle operator, a passenger in said motor vehicle or a pedestrian involved in such accident) shall be made only to the extent said loss exceeds any and all other insurance collectible as a result of said accident. Such compensation shall include all payments collectible by the Insured, or in the Insured’s behalf, on other insurance hospital or surgi-' cal plan, or third party liability. All benefits shall be paid in accordance with the policy terms and the provisions up to its maximum limit; however, this paragraph shall not abridge the right of the insured to any accidental-dismemberment benefit.” (Emphasis added)

In this case, plaintiff settled with various parties or insurers for a total recovery of approximately Twenty-Eight Thousand Dollars ($28,000). Five Thousand Five Hundred Ninety-Nine Dollars and Twenty-One Cents ($5,599.21) was recovered specifically from other medical insurance. The stipulated medical expenses totalled Thirteen Thousand, Four Hundred Twenty-Five Dollars and Thirty-Eight Cents ($13,425.38). Consequently, appellee is not entitled to relief since the excess clause does not become operative under these facts.

Accordingly, after a review of the law and the evidence, the judgment of the trial court is hereby reversed. Costs of this appeal are to be apportioned between the parties.

REVERSED.

      . Similarly, a suit was filed on behalf of David Palmisano, a minor and driver of the motorcycle against various defendants, which suit was consolidated with the Hebert action. However, that action does not form part of this appeal.


text:
    MELBOURNE BROTHERS CONSTRUCTION COMPANY v. GNOTS-RESERVE, INC. and Mid-Stream Transfer, Inc.
    No. 83-CA-816.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      Darryl J. Foster, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for plaintiff-appellant.
    John Poitevent, Poitevent & Acomb, Stanley McDermott, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendant-appellee.
    Before KLIEBERT, GAUDIN, and MARCEL, JJ.
   CLEVELAND J. MARCEL, SR., Judge Pro Tern.

This appeal by plaintiff, Melbourne Brothers Construction Company (Melbourne), results from a judgment dismissing plaintiff’s suit for property damages filed against defendants, Gnots-Reserve, Inc. (Gnots-Reserve) and Mid-Stream Transfer, Inc. (Mid-Stream).

Plaintiff, Melbourne, a subcontractor to Williams Brothers Construction Company, was hired to erect the structural steel above the piers and related cable work on the Luling-Destrehan bridge project in St. Charles Parish. In order to accomplish this task, Melbourne had to have scaffolding under the bridge at certain periods during the project.

Defendant Mid-Stream was the owner of the barge Gemini, a floating grain elevator lacking independent power. On two separate occasions, April 2, 1982 and April 12, 1982, while the bridge was under construction, plaintiff alleges that the superstructure of the Gemini contacted and damaged their scaffolding attached to the underside of the Luling-Destrehan bridge. On each occasion, the Gemini was in tow of three tugboats owned and/or operated by defendant Gnots-Reserve.

Plaintiff instituted the action in state court on December 21, 1982, under the savings to suitor’s clause, 28 U.S.C. § 1333. Following trial on the merits, on September 27, 1983, the court rendered judgment in defendants’ favor, dismissing plaintiff’s suit. Plaintiff thereupon perfected an appeal of that judgment alleging as error:

that (1) the trial court erred in holding plaintiff failed to provide appropriate notices concerning its scaffolding; that

(2) the trial court erred in admitting hearsay evidence concerning guaranteed clearances; that

(3) the trial court erred, under applicable admiralty principles, in failing to find defendants negligent in the operation of the tow which negligence was the cause of plaintiff’s damage; and that

(4) the trial court erred in barring all recovery by plaintiff by failing to invoke admiralty law’s comparative negligence doctrine.

At the outset, it should be noted that this case involves two separate incidents in which the M/V Gemini struck and damaged plaintiff’s property. The trial court found that plaintiff was not entitled to relief because plaintiff failed to warn those traversing the river of the placement of the scaffolding which was necessitated by the ongoing construction of the bridge. The placement of scaffolding, in turn, reduced the clearance under the bridge in those specific areas. The trial court found, in addition, that the second accident on April 12, 1982 was plaintiffs fault in that a safety net connected to the scaffold was improperly loaded with equipment and material, causing it to sag several feet below the scaffold which reduced the clearance even further.

In regard to the notice question, appellant concedes that there is a duty upon those who obstruct navigable waterways to warn the users of the activity. Appellant asserts, however, that they provided the necessary information to the Coast Guard who apparently failed to include the information in the local Notice to Mariners, a publication relied upon by users of the river to indicate obstructions and other information pertinent to the operation of vessels on navigable waterways. That failure, appellant claims, cannot be attributed to them as they did all that was required. Further, appellant asserts that even if the notice was inadequate, the lack of notice was not a contributing cause of the accidents.

The evidence presented by appellant consisted solely of the testimony by Mr. T.L. Woodard, Erection Manager for Melbourne, whose responsibility extended to all steel erection work done by the company, including the Luling-Destrehan bridge. His office and base of operations was in Ohio, but he travelled to this area two or three times a month to check on the progress of the job. He testified the Lul-ing-Destrehan job required Melbourne to erect all the structural steel above the piers and the cables to complete the Luling-Des-trehan bridge. He was not present at the scene of either accident, but received reports from the Luling office of the collisions, and subsequently received reports of the repair costs, etc. He did not supervise nor did he actually see the damages claimed to the structure on either occasion. He did testify that six diagrams of the construction phases were sent to the Coast Guard indicating two locations of the bolt scaffolding, which were to be attached to the underside of the bridge spans located on either side of the river as the construction of the spans progressed toward the middle of the river. Clearances on the diagrams were clearly marked including the area beneath the location of the scaffolding. He admitted, however, that he was not the actual person responsible for either the preparation of the diagrams or for sending those documents to the Coast Guard; but that it was the responsibility of the engineer, Mr. Gordon Tumbleson. Mr. Tumbleson, at time of trial, was deceased. Mr. Woodard further testified that he did not personally speak with anyone from either defendant’s offices regarding the clearances. The superintendent in charge of the site, at time of trial, was no longer employed by Melbourne, and was not brought as a witness nor were any other witnesses presented by appellant.

Appellees, on the other hand, presented testimony indicating that the river pilots relied upon the Notice to Mariners publication to inform them of necessary information regarding vessel operations on the river. The documents introduced were from February to September, 1982. While several mention the Luling-Destrehan bridge construction, no warning notice of the scaffolding creating an obstruction and reducing clearance appears until the September issue. In February, however, prior to the accidents, a warning was issued related to the falling of a bolt scaffolding into the river and was subsequently noted again after salvage operations failed to retrieve the entire structure. Appellee’s witnesses also testified that prior to both accidents, they telephoned Melbourne’s office and received a clearance report from a Mr. Hanson with no mention of the scaffolds or their placement. In appellant’s second assignment of error, he complains that the testimony regarding Mr. Hanson is inadmissible as hearsay. Mr. Hanson, according to appellant, was the state representative on the job and not an employee.

As to the hearsay objection, we do not agree with appellant's contention as a review of the testimony reveals that the testimony presented by Mr. Dan Wise, Vice-President of Gnots-Reserve, was not elicited for the truth of the matter asserted, i.e., the actual clearance, but for the proposition that appellee acted reasonably in attempting to discover from Melbourne whether the Gemini could move under the bridge without difficulty on both occasions.

Based on the foregoing evidence, we find that the trial judge was not clearly wrong in determining that appellant failed to provide adequate notice. In the absence of such, this court is precluded from disturbing those findings under both the state and federal jurisprudence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Rule 52(a) Federal Rules of Civil Procedure, 28 U.S.C.A.; George W. Bennett Bryson & Company, Ltd. v. Norton Lilly & Company, Inc., 502 F.2d 1045, 1975 AMC 1732 (5th Cir.1974). However, that finding does not automatically preclude appellant’s recovery under applicable admiralty principles.

Appellant, in its third and fourth specifications of error, complains that the trial judge erred in failing to find defendant solely at fault or mutually at fault in applying the comparative negligence doctrine applicable in admiralty actions.

In this regard, appellant argues the well established admiralty rule that there is a presumption of fault or negligence on the part of a moving vessel which strikes a fixed object. As stated in Brown & Root Marine Operators, Inc. v. Zapata Offshore Company, 377 F.2d 724 (5th Cir.1967):

“When a moving vessel collides with an anchored vessel or a fixed object, there is a presumption the moving vessel is at fault. (Citations omitted). The presumption suffices to make a prima facie case of negligence against the moving vessel.”

However, a tow lacking independent motive power which is under the sole control and management of a towing vessel is not responsible for damages occasioned by the navigation of the towing vessel. Sturgis v. Boyer, 24 How. (65 U.S.) 110, 16 L.Ed. 591 (1861), Walker v. Tug Diane, 350 F.Supp. 1388, 1389 (D.V.I.1972).

In a flotilla arrangement (tug and tow) in which the tug is in sole control, the tug is presumably at fault in a collision with a stationary object. Ryan Walsh Stevedoring Company, Inc. v. James Marine Service, Inc. et al, 557 F.Supp. 457 (E.D.La.1983); Bunge Corporation v. M/V Furness Bridge, 558 F.2d 790 (5th Cir.1977). As stated in Gilmore and Black, The Law of Admiralty, (2d Ed 1975) § 7-14 at page 516:

“(t)he unity of tug and tow is not carried to the point of imposing liability upon the flotilla as a whole for faults in navigation. Instead, the courts have worked out a concept of ‘dominant mind’, the upshot of which is that only that vessel is liable whose people are actually in control of the operation....”
See Alter Co. v. M/V Miss Sue, 536 F.Supp. 313, 314 (E.D.La.1982).

Appellant’s allegations of negligence against defendant, Mid-Stream, the owner of the towed vessel, the Gemini, is first predicated on an alleged duty upon personnel aboard the tow (the Gemini) to observe and warn the tug of hazardous conditions. However, the facts clearly show that the tug was in sole control of the flotilla, and the mere presence of personnel aboard the tow is inconsequential under the jurisprudence. Sturgis v. Boyer, supra; Walker v. Tug Diane, supra. As stated by the court in Walker, at page 1389, “the crew of the two were not expected to participate in the navigation of the vessel and were not guilty of any negligence or omission of duty by refraining from such participation.”

Secondly, appellant argues that Mid-Stream was obliged, “to ascertain that its vessel could clear the scaffolding under the bridge.” We agree with Mid-Stream that the contention is erroneous, as both Gnots-Reserve and Mid-Stream were intimately aware of the barge’s height by experience with the vessel as well as by the fact that Gnots-Reserve, in fact, obtained an accurate measurement of the barge’s height, which was reported in various brochures and other publications. The facts further show that Gnots-Reserve attempted to ascertain potential clearance hazards from Melbourne. Finally, the contention is irrelevant factually if we accept appellant’s allegation, which is supported by the evidence, that the barge could safely have been towed beneath the uncompleted sections of the bridge without striking the scaffolding. Consequently, in our opinion, the trial court did not err in dismissing Mid-Stream under the jurisprudence and the facts.

As far as Gnots-Reserve is concerned, the applicable legal principles must be analyzed under the facts of each separate accident. As stated earlier, the moving vessel is presumed at fault when it strikes a fixed object. Brown & Root Marine Operators, Inc. v. Zapata Off-shore Company, supra. The presumption is, of course, rebuttable. Appellee asserts, however, the proposition that the right to navigate is paramount to the right to maintain bridges over waterbodies, and that bridges are obstructions to navigation. St. Louis-San Francisco Railway Company v. Motor Vessel D. Mark, 1965 AMC 2105, 243 F.Supp. 689 (S.D.Alabama 1965); Shell Petroleum Co. v. Peschken, 184 F.Supp. 950 (D.N.J.1960), reversed on other grounds, 1961 AMC 1755, 290 F.2d 685, cert. denied, 368 U.S. 90, 82 S.Ct. 172, 7 L.Ed.2d 96, 1961 AMC 2703; 33 U.S.C.A. § 494. However, the vessel is still subject to the “rules of the road” as found in 33 U.S.C. § 2001 et seq. 33 U.S.C. § 2005 states:

“Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.”

As stated in Penn Central Company v. Buckley & Co., 293 F.Supp. 653 (N.J.1968), at page 659:

“In exercising their right of navigation the defendants, of course, are required to exercise reasonable care, to avoid damaging the lawful installations of the plaintiff.”

Finally, under the law, pilots are deemed to be knowledgeable about currents and sets. Bouchard Transportation Co., Inc. v. Tug Gillen Brothers, 389 F.Supp. 77 (S.D.N.Y.1975). In citing from a United States Supreme Court case, Atlee v. the NW. Union Packet Company, 88 U.S. (21 Wall.) 389, 22 L.Ed. 619 (1875), the court noted in Petition of M/V Elaine Jones, 480 F.2d 11 (5th Cir.1973) at page 20:

“The pilot of a river steamer ... is selected for his personal knowledge of the topography through which he steers his vessel ... He must know where the navigable channel is.... He must also be familiar with all dangers that are permanently located in the course of the river_ To do this he must be constantly informed of changes in the current of the river, of sandbars newly made, of logs or snags, or other objects newly presented against which his vessel might be injured.”

On the day of the first accident, the evidence shows that the collision occurred in daylight with no adverse weather conditions. Appellee, Gnots-Reserve, presented no evidence that the scaffold, which all parties agreed was struck and damaged, was not visible to the pilot in time to avoid collision, nor did they present any other evidence to show the accident was unavoidable. However, that testimony established that there were current entanglements at the bridge at all times which would cause the vessel to be pushed toward the east bank prior to going through the bridge and which would push the vessel to the west bank as the bridge was passed. In the absence of rebuttable evidence, the presumption applies in this type of factual situation; and, consequently, we find that while the first collision on April 2,1982 was in part caused by appellant’s failure to provide proper notice, the majority of the fault lies with appellee in not maintaining a proper lookout. The second accident, on the other hand, is another matter.

The accident on April 12, 1982 happened again on a clear day with no adverse weather conditions existing. Gnots-Re-serve admits in brief that they knew the scaffolding existed on that day. The testimony regarding this accident, however, revealed first that the scaffold structure, contrary to appellant’s assertion, was not struck. The eyewitnesses stated that the superstructure “hung up” on a safety netting and possibly a cable sagging several feet below the scaffold bottom. The witnesses testified that the safety net was apparently being utilized to store equipment and material and that the weight of those items caused the sagging. Mr. Woodard, appellant’s witness, agreed that such action would be improper as the calculations for clearances were based on the vertical feet from the bottom of the scaffolding. Thus, the equipment reduced the clearance further. The pilot testified that the net became visible at 75 feet, and that the flotilla could not be maneuvered to avoid striking the net within that distance. All parties agree that the Gemini would have cleared the bridge and the scaffold but for the sagging safety net.

Thus, we conclude that appellee presented sufficient evidence to rebut the presumption of liability by showing that appellant’s own actions caused the alleged damages. Consequently, the trial court was not clearly wrong in dismissing appellant’s claim for damages occurring on April 12, 1982.

Anticipating a finding in their favor, in whole or in part, appellant urges the court to address the issue of comparative fault and the consequential apportionment of damages. As appellant correctly states, under the Supreme Court’s rule of apportioned damages as set out in United States v. Reliable Transfer Company, 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), the court must apportion the award based upon each party’s percentage of fault in admiralty collision actions. As noted earlier, we have found that as to the first accident on April 2, 1982 only, appellant Melbourne is entitled to some recovery as both appellant and appellee, Gnots-Reserve, contributed to the damages. Thus, we hereby reverse this portion of the trial court judgment and assess 75 percent of the fault to defendant, Gnots-Reserve, and 25 percent to appellant, Melbourne, for the April 2, 1982 collision.

In this regard, appellant produced sufficient evidence to support its claim in the amount of Four Thousand, Four Hundred Thirty-Eight Dollars and Fifty-Eight Cents ($4,438.58). Calculating the apportionment herein stated, this entitles appellant to recovery in the amount of Three Thousand, Three Hundred Twenty-Eight Dollars and Ninety-Three Cents ($3,328.93).

Accordingly, as to that portion of the trial court judgment herein reversed:

It is hereby Ordered and Decreed that there be judgment in favor of plaintiff, Melbourne Brothers Construction Company, and against defendant, Gnots-Reserve, Inc., for the amount of Three Thousand, Three Hundred Twenty-Eight Dollars and Ninety-Three Cents ($3,328.93), plus legal interest from date of judicial demand. All costs in this matter are to be divided equally between plaintiff, Melbourne Brothers Construction Company, and defendant, Gnots-Reserve, Inc.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.