text:
    STATE of Louisiana, Plaintiff-Appellant, v. Donald HENRY, Defendant-Appellee.
    No. 15888-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      John S. Stephens, Coushatta, for appel-lee.
    William R. Jones, Dist. Atty., Coushatta, for appellant.
    Before HALL, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

The State of Louisiana appeals a ruling which granted defendant’s motion for a change of venue. For the reasons hereinafter stated, we vacate the ruling and remand with instructions for further proceedings consistent with this opinion.

CONTEXT FACTS

Donald Henry was initially arrested on February 9,1983 in Red River Parish, Louisiana, and charged with possession of marijuana with intent to distribute in violation of La.R.S. 40:966(A). Thereafter, a preliminary examination was heard on May 12, 1983. On or about that same date, the defendant was arrested on two other drug related charges by the Louisiana State Police. After hearing the preliminary examination, the trial court found probable cause to hold the defendant over for trial. During the preliminary examination, without objection from either the state or the defense, a reporter and cameraman from Channel 3, a television station located in Shreveport, Louisiana, were allowed to film portions of the preliminary examination. Portions of the tapes obtained during the filming were shown on the 6:00 and 10:00 p.m. news programs on that date. It was stipulated at the hearing on the motion for the change of venue that the coverage of Channel 3 includes all of Red River Parish. The only other instances of media publicity concerning the defendant were two articles which appeared in the “Coushatta Citizen”, the local weekly paper, on February 17, 1983, and May 19, 1983, respectively, and reported the arrests of the defendant.

At the hearing on the motion, the defendant called eleven witnesses. Each of these witnesses testified that there had been widespread discussion of the defendant and his charges within the area and that a large proportion of those persons with whom the subject of the defendant had been discussed had fixed opinions as to the guilt of the defendant. It was the opinion of these witnesses that the defendant could not obtain a fair trial in Red River Parish. Of these witnesses, nine knew the defendant, some of whom were or had been his friends and two did not know the defendant but had heard of him. Three of these witnesses had a fixed opinion that the defendant was guilty; three believed him to be innocent; and five, while having an opinion, believed that they could be fair and impartial jurors.

The state called eight witnesses, seven of whom did not know the defendant and one of whom knew the defendant from a business transaction which occurred some eight or ten years previously. Each of these witnesses testified that he or she could be fair and impartial jurors, even though some had limited knowledge about the defendant’s ease.

TRIAL COURT’S RULING

After hearing all of the evidence, the trial court viewed the videotapes and in written reasons stated:

* * * The Court has closely viewed the testimony of the various witnesses and has viewed the television broadcasts and newspaper articles introduced herein. There was testimony on behalf of many witnesses that there exists certain prejudice towards the defendant, such that the witnesses had already formed an opinion towards the guilt of the defendant. Others testified that they knew nothing about the case. With regard to those who had formed an opinion, it appears some were hard and fast with their opinion and some more flexible.
In viewing the television broadcast, it appeared that some individual or individuals were concerned that the prosecution of the case was somewhat unusual and implied that the defendant was being given special consideration.
Before this Court ever had an opportunity to review the evidence adduced, a phone call was received by a relative of this judge from a person who identified herself as one of the witnesses at the hearing of this motion and urged that the motion to change venue be denied. The next morning, and even before this judge could review the jurisprudence and render a ruling, and before consulting any other judge of any other district, it was revealed that at least one individual believed a decision had already been made to transfer this matter, and that all arrangements had already been made, in favor of the defendant. This type of frivolous, untrue pronouncements only jeopardize the criminal justice system and retard the progress of a criminal prosecution, further increase the costs, and do not serve the ends of justice. . It is with this background that the Court finds itself. This Court must take into consideration the interests of the state in the prosecution of this case, along with the view that the people of the parish are entitled to be free from false rumors and misguided accusations surrounding such a case of this magnitude. This Court will not allow the frivolous and unfounded statements of a few [to] cost (sic) an undue reflection on the integrity of our criminal justice system. It is this consideration that the Court can not disregard, even though not technically a part of the evidence, that tips the scales in favor of a transfer of the case to another jurisdiction. It is the desire of this Court that every prosecution be viewed as an unbiased, fair and impartial quest for the truth. Transfer of this case can only serve the intesest (sic) of justice. [Bracketed material added.]

ASSIGNMENTS OF ERROR

The state contends that the trial court erred:

(1) by not dismissing the motion for a change of venue since the motion was not filed in accordance with Code of Criminal Procedure Article 521;
(2) in granting the motion for change of venue and moving the prosecution to the 8th Judicial District Court, Winn Parish, Louisiana; and
(3) in concluding that there was such prejudice in the public mind that the defendant could not receive a fair and impartial trial in Red River Parish.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment of error, the state argues that the motion for change of venue should have been dismissed because it was not timely filed.

La.C.Cr.P. Art. 521 which deals with pretrial motions in general provides:

Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

The specific article which pertains to motions for change of venue is La.C.Cr.P; Art. 621 which provides:

A motion for a change of venue may be filed by either the state or the defendant. It shall be filed in accordance with Article 521; or thereafter, in the discretion of the court, any time before the first witness is sworn at the trial of the merits. The motion shall be in writing, sworn to by mover or his counsel, and shall contain:
(1) Allegations of fact upon which the motion is based; and
(2) A statement that the motion is not made for the purpose of delay, but to obtain a fair and impartial trial.
A contradictory hearing shall be held upon the motion.

Construing these two articles together, we conclude that a motion for change of venue may be filed of right within the time frame provided by La.C.Cr.P. Art. 521 and thereafter under the pertinent provisions of La.C.Cr.P. Art. 621 may be allowed filed by the trial court in the exercise of its discretion at any time prior to the swearing of the first witness at trial. This motion was filed prior to the swearing of the first witness at trial. As in all other matters which are addressed to the trial court’s discretion, the exercise of that discretion will not be disturbed on appeal absent a finding of an abuse of that discretion. The record does not support such a finding in this instance.

Accordingly, this assignment of error is without merit.

ASSIGNMENTS OP ERROR NOS. 2 AND 3

The state next argues that the trial court was in error in granting the change of venue.

The grounds for a change of venue are provided in La.C.Cr.P. Art. 622:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of -witnesses at the trial.

A number of factors must be considered in determining whether or not a change of venue is appropriate. As stated in State v. Bell, 315 So.2d 307 (La.1975):

Some relevant factors’ in determining whether to change venue are (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. See, generally, Annotation 33 A.L.R.3d 17 (1970). [Footnote omitted.]

Other factors relevant to this inquiry include the degree to which the publicity has circulated in areas to which venue could be changed, the care exercised and the ease encountered in the selection of the jury, the familiarity with the publicity complained of and the resultant effect (if any) upon the prospective jurors, and the peremptory challenges and challenges for cause exercised by the defendant in jury selection. State v. Berry, 329 So.2d 728 (La.1976). See also, Annotation 33 A.L.R.3d 17 (1970).

The burden is upon the defendant to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. State v. de la Beckwith, 344 So.2d 360 (La.1977). This burden requires a showing of more than mere knowledge by the public of the facts surrounding the offense. State v. Sheppard, 350 So.2d 615 (La.1977). The defendant is entitled to a change of venue if he can show, even though it would be possible to select a jury whose members were not subject to a challenge for cause, that there were influences in the community which would affect the answers of jurors on the voir dire, or the testimony of the witnesses at trial, or that, for any other reason, a fair and impartial trial could not be obtained in the parish. State v. Bell, supra. More simply stated, defendant’s burden is to show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. State v. Vaccaro, 411 So.2d 415 (La.1982).

Although a trial judge possesses a broad range of discretion in this area, the reviewing court is required to make an independent evaluation of the circumstances to determine whether the defendant can receive a fair trial in the parish, unfettered by outside influences. State v. Rodrigue, 409 So.2d 556 (La.1982). Our independent review of the record reveals a divergence of opinion among the witnesses as to whether or not each individually could render a fair and impartial verdict. While the witnesses called on behalf of the defendant stated that it was their opinion that the defendant could not obtain a fair trial in Red River Parish, five of the eleven thought that they could render a fair and impartial verdict after hearing the evidence. All of the witnesses called on behalf of the state were of the opinion that the defendant could obtain a fair trial.

The entirety of the media publicity complained of occurred in or prior to May, 1983. Trial in this case cannot be held until at least some point after January, 1984. The newspaper articles are simply a factual account of the defendant’s arrests and in and of themselves do not warrant a change of venue. State v. Giovanni, 409 So.2d 593 (La.1982). The television broadcasts are somewhat more troublesome; however, absent proof of a widespread viewing and/or influence caused within the parish, these two isolated showings are not of such an aggravated nature as to warrant a change of venue. Furthermore, not only has there been no proof that the state conspired or participated in the dissemination of this particular publicity but the television cameras were allowed in the courtroom during the preliminary examination without objection from the defendant.

Additionally, there are no facts borne out by the record indicating that this is a particularly severe and notorious offense. While we do not dispute the seriousness of the crime charged, there is no proof that the crime itself is of such an extraordinary nature as to render that factor alone controlling of a decision to change the venue.

The crux of the evidence adduced in support of defendant’s motion is that a number of his friends and acquaintances have heard widespread discussion in an area of the parish in which the defendant resides and operates a business and have arrived at the conclusion that the defendant cannot obtain a fair trial in Red River Parish. However, it is significant that when questioned closely on cross examination about the details of the crimes with which the defendant has been charged that none of the witnesses was aware of any facts regarding the cases other than that marijuana or drugs were involved.

Applying these facts to the principles enunciated in the jurisprudence concerning such motions, we conclude that the trial judge abused his discretion in ordering a change of venue. We are particularly compelled to arrive at this conclusion when we consider carefully the written reasons for the ruling of the trial court. There was a limited amount of evidence presented on behalf of the defendant at the hearing. Our interpretation of the trial court's reasons leads us to find that the evidence presented at the hearing did not form the basis for its ultimate decision to grant the motion. It is obvious that the trial court was ultimately swayed by two rather vaguely explained incidents that occurred outside of the record subsequent to the hearing and which seemed to concern the propriety of the court’s action rather than any grounds which have been set forth as a basis for a change of venue under the Code of Criminal Procedure or the jurisprudence. First of all,'because these considerations are outside of the record, they cannot form the basis for a change of venue because they are not based on evidence presented at the hearing or at any other stage of the proceedings. See State v. Williams, 397 So.2d 1287 (La.1981). Furthermore, it appears that the overriding consideration in the trial court’s mind was the protection of the public from false and misguided representations and the protection of the integrity of the judicial system. While these are commendable considerations on the part of a judge in the conduct of his judicial function, they are not the controlling considerations in a determination of whether a defendant is entitled to a change of venue. The controlling consideration properly is whether prejudice, influence or other factors are such that they will affect the answers of the jury on voir dire and the testimony of tne witnesses in such a manner that the defendant is unable to obtain a fair and impartial trial. In reality, we are of the opinion that should a trial court allow what are described as two “frivolous and unfounded statements” occurring outside of the record to mandate a change of venue the resulting effect of such a ruling would be to in fact allow such isolated statements to “cast an undue reflection on the integrity of the judicial system” rather than to protect the integrity of the judicial system from such irresponsible actions.

Nevertheless, we are cognizant of the fact that the defendant’s fundamental constitutional guarantee of an impartial jury and a fair trial should be staunchly protected. Accordingly, in the event that we have misjudged the situation in our review of the limited facts available to us in this record or in the event of further publicity or occurrences which result in adverse publicity to the defendant prior to trial, we simply vacate the ruling of the trial court and remand with instructions to the trial court to defer ruling thereon until after the voir dire of prospective jurors in case difficulty is encountered in obtaining an unbiased jury. See State v. Goodson, 412 So.2d 1077 (La.1982); State v. Rodrigue, supra. The voir dire of the prospective jurors should be conducted in accord with the standard proposed by the American Bar Association’s Standards Relating to Fair Trial and Free Press § 8-3.5 (1980) and the procedures set forth in State v. Goodson, supra.

RULING VACATED; CASE REMANDED WITH INSTRUCTIONS.

      . The authority for such an appeal is found in La.C.Cr.P. Arts. 627 and 912(B)(5) which provide respectively:
      If a change of venue is granted to the defendant over the objection of the state, or if the court denies an application by the state for a change of venue, the state shall have the right to appeal from the ruling, within the legal delays for making a motion for an appeal, before a trial on the merits. Prior to sentence the defendant may not appeal from a ruling changing or refusing to change the venue.
      B. The state cannot appeal from a verdict of acquittal. Adverse judgments or rulings from which the state may appeal include, but are not limited to, judgments or rulings on:
      (5) A motion to change the venue


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Dennis Keith MARX, Appellant.
    No. 15906-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    1. Criminal Law «=339.7(3)

      Hunter & Scott by Louis G. Scott, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Michael D. Brown, Asst. Dist. Atty., Monroe, for appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

The defendant, Dennis Marx, was charged by bill of information with simple burglary in violation of La.R.S. 14:62. He was found guilty of the charged offense by a six member jury and was sentenced to seven years at hard labor. On appeal defendant relies on two assignments of error for reversal of his conviction and sentence.

FACTS

At around noon on October 23, 1982 Arnold Thompson and Ronnie McManus were working on a piece of machinery in front of a grocery store owned by Thompson. While they were so engaged a maroon Chevrolet Nova, occupied by only the driver, pulled into the store’s parking lot and parked beside Thompson’s pickup truck. The pickup was parked some 20-25 feet from where Thompson and McManus were working. Both men noticed that the piece which fits around the headlight was missing from the driver’s side of the Nova.

A few minutes after the Nova parked McManus looked up and saw its driver opening the door on Thompson’s pickup. McManus yelled and the intruder looked towards him. The intruder then grabbed a shotgun and rifle from inside the pickup and jumped back into the Nova. Both Thompson and McManus rushed toward the Nova. McManus got to within 10-15 feet from the Nova and Thompson got within 2-3 feet. Before speeding off the driver looked squarely at Thompson. As the Nova was leaving Thompson and McManus noticed it had toilet paper wrapped around the license plate. Thompson gave chase in his pickup but abandoned the chase in a few minutes and returned to the store.

McManus immediately called the Ouachi-ta Parish Sheriff’s Department and two deputies were dispatched to the store. One of the deputies was Lucky Horne. McMa-nus and Thompson gave a description of the intruder and his car to the deputies.

A few days later Deputy Horne spotted defendant driving a maroon Nova on which there was missing a piece that fits around the headlight on the driver’s side. Defendant fit the description of the burglar supplied by McManus and Thompson. Horne followed defendant into the parking lot of an army surplus store where defendant stopped. Horne decided to question defendant and read him his Miranda rights. Horne obtained permission from defendant to take pictures of his person and his car and took the pictures at the army surplus store.

Horne took the pictures of the car by Thompson’s store for identification. Thompson identified the car as being similar to the one driven by the burglar. McManus was not in the store on that occasion and Horne later showed him the pictures of the car. McManus also stated the car was similar to the one used by the burglar.

Approximately ten days after the burglary Horne had Thompson and McManus come to the sheriff’s department for a photographic lineup. Seven photographs were randomly laid on a table for them to view. Each pictured a white male in the 25-30 age range with similar facial characteristics. One was a picture of the defendant. The only noteworthy difference in the photos is that defendant’s was taken outside on a parking lot while the others were taken inside a building. Thompson and McManus were brought into the room and viewed the photos at the same time. A deputy asked them if one was a photo of the burglar. They both indicated yes. The deputy then asked them to point out which one. Thompson pointed out defendant’s photo before McManus picked one. McMa-nus subsequently picked the same photo.

Prior to trial defendant moved to suppress the photographic identifications of the car and his person by both McManus and Thompson. After a hearing on the motion the trial court granted the motion to suppress the identifications of the car and the identification of defendant’s person by McManus. The motion was denied as to Thompson’s identification of defendant’s person.

Defendant was tried on May 4 and 5, 1983. At the trial, both McManus and Thompson positively identified defendant as the burglar.

Assignment of Error No. 1

Defendant contends that the photographic identification of his person by Thompson should have been suppressed as being suggestive.

We do not consider the question of whether the trial court erred in not suppressing the identification. The portions of the record designated by defendant for appeal do not show whether Thompson’s photo identification was admitted into evidence. Defendant has not shown that he was prejudiced by the trial court’s failure to suppress the identification. Cf. State v. Governor, 331 So.2d 443 (La.1976). We will, however, consider the question of whether the photographic identification was suggestive since that question has bearing on the issue of whether Thompson’s in-court identification of defendant was tainted.

An identification by lineup is considered to be suggestive if the pictures or persons used in the lineup display the defendant so singularly that the witness’ attention is unduly focused upon the defendant. See State v. Guillot, 353 So.2d 1005 (La.1977); State v. Clark, 437 So.2d 879 (La.App. 2d Cir.1983).

All of the photos used in the lineup, except defendant’s, were taken inside. Defendant’s was taken outside in the parking lot of the army surplus store. A few days before he viewed the lineup, Thompson was shown pictures of defendant’s car at least once. Those pictures were also taken in the parking lot of the surplus store. Although Thompson testified he drew no inference from the background in defendant’s picture, it is possible he connected that picture with the picture of the car since they were taken at the same location. The officer should have used a photo of defendant in the lineup that was not taken at the same location as the car and a photo taken inside as were the pictures of the other men included within the lineup. A finding that the photo identification was suggestive does not mean that the identification was inadmissible or that the trial court erred in failing to suppress it. Even if an identification procedure is suggestive, the identification is admissible if the totality of the circumstances demonstrate that the identification was reliable. State v. Davis, 385 So.2d 193 (La.1980).

Assignment of Error No. 2

Defendant contends the in-court identifications by Thompson and McManus were erroneously admitted into evidence because of the taint of the suggestive photo identifications.

It is well settled that a tainted pretrial identification does not render an in-court identification inadmissible if the in-court identification is reliable and has an independent basis. State v. Passman, 345 So.2d 874 (La.1977); State v. Davis, 385 So.2d 193 (La.1980); State v. Johnson, 389 So.2d 1318 (La.1980); State v. Frisco, 411 So.2d 37 (La.1982); State v. Winn, 412 So.2d 1337 (La.1982). Cf. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

It is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, supra; State v. Clark, supra.

A five factor test is generally used for determining when an identification is reliable and independent of a primary taint. The factors are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, supra; Manson v. Brathwaite, supra; State v. Guillot, supra; State v. Davis, supra; State v. Clark, supra.

An application of these factors to the facts of the instant case reveals the following:

1. The opportunity to view: The burglary occurred during daylight. Approximately 10-15 minutes passed between the time defendant pulled into the grocery and the time he left. Both McManus and Thompson viewed defendant intermittently during this time and defendant looked squarely into the face of each man at least once. Thompson got to within 2-3 feet of defendant and McManus got to within 10-15 feet.

2. The degree of attention: Both witnesses had their attention riveted to defendant from the time McManus saw him attempting to gain entry into the pickup.

3. The accuracy of the description: Both witnesses gave accurate descriptions. Deputy Horne had no trouble in recognizing defendant as a suspect from the descriptions.

4. The level of certainty: Both witnesses positively identified defendant at trial.

5. The time between the crime and the confrontation: Approximately 6½ months elapsed between the crime and the trial.

Weighing the above factors, we find that Thompson’s and McManus’ in-court identifications were reliable and independent from any suggestiveness in the photographic identifications. There is no substantial likelihood that they misidentified defendant.

The conviction and sentence are AFFIRMED.

      . At trial defendant withdrew his motion to suppress the photos of the car.

      . The trial judge felt that the identification of defendant’s person by McManus was unduly suggestive since he had seen Thompson select a photo before he selected one. We agree with the trial court and believe that it is an unwise practice to have two witnesses view a photo lineup at the same time. Such a practice opens the entire identification process to question.

      . The only portions of the trial transcript defendant designated for appeal was the testimony of Thompson and McManus. The photo identification by Thompson was not mentioned during his testimony. Neither the defendant's nor the state’s brief mentions whether Thompson's identification was admitted at another time.

      . The United States Supreme Court approved an identification as reliable where there was a 7 month interval between the crime and identification. Neil v. Biggers, supra.


text:
    STATE of Louisiana, Appellee, v. Louis WHITE, Appellant.
    No. 15688-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Writ Denied May 25, 1984.

      Indigent Defender Office by Timothy R. Fischer, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Carey T. Schimpf and Catherine M. Estopi-nal, Asst. Dist. Attys., Shreveport, for ap-pellee.
    Before MARVIN and JASPER E. JONES, JJ., and CULPEPPER, J. Pro Tern.
   JASPER E. JONES, Judge.

The defendant, Louis White, was indicted on one count of aggravated kidnapping in violation of La.R.S. 14:44 and on three counts of aggravated rape in violation of La.R.S. 14:42. He was found guilty on all four counts by a unanimous twelve member jury and was sentenced to four consecutive life sentences. Defendant appeals his convictions and sentences relying on one assignment of error.

FACTS

On June 26, 1982 the victim was abducted by a lone gunman from a shopping center parking lot in Shreveport at approximately 2:45 p.m. The assailant forced the victim into his car and drove her to a rural part of Caddo Parish where he raped her three times. He returned the victim to the parking lot from where he abducted her at approximately 4:45 p.m. and released her.

The victim reported the crimes to the Caddo Parish Sheriffs Department and Shreveport Police. She gave the investigating officers a detailed description of her assailant, his ear, his clothing and the gun he was carrying. The following day the defendant was arrested by sheriffs deputies while driving his car in the general area where the rapes occurred. The defendant and the car he was driving fit the victim’s descriptions. Defendant was taken to the parish jail and his car was impounded. Later the same day Deputy Sam Stubblefield went to the victim’s home and showed her a photographic lineup. Prior to showing her the lineup Stubblefield told her a suspect was in custody. The lineup was composed of six slightly out of focus black and white photos of persons matching defendant’s general description. Defendant’s photo was placed in the number four position in the lineup. The victim was unable to make a positive identification but indicated that two of the men pictured resembled her assailant. She viewed the lineup less than 5 minutes.

The following day, June 28, 1982, the victim viewed a live lineup at the Shreveport Police Department. The lineup was conducted by Detective Steve Prater of the SPD. Prater was unaware that Stubble-field had shown the victim a photo lineup on the previous day. Defendant was placed in a lineup with five other men who. fit his general description and was allowed to select his position in the lineup. He chose position number four. Upon viewing the lineup the victim positively identified defendant as her assailant.

Prior to trial defendant moved to suppress various evidence including the live lineup identification and the photo lineup wherein no positive identification was made. The hearing on the motion was held November 10, 16 and 17, 1982. The victim testified at the hearing on November 17. Defendant waived his right to be present in court when the victim testified and was allowed to remain in jail. The victim did not identify him at the hearing. The motion was denied as to both lineups.

The case was tried January 17-21, 1983. The victim testified at the morning and afternoon sessions on January 20. She positively identified defendant as her assailant at the trial.

After the trial defendant’s attorney learned that a police officer violated the sequestration order at the hearing on the motion to suppress. The officer told the victim that defendant had altered his appearance since the live lineup. The violation occurred on the first day of the hearing, November 10,1982. Defendant moved for a new trial based on the violation. The motion was denied.

The issues raised by defendant’s appeal are:

1. Whether the live and photo lineups were suggestive;

2. If they were suggestive, whether the victim’s in-court identification was admissible; and

3. What effect, if any, the police officer’s comments during the motion to suppress had on the victim’s in-court identification.

ISSUE # 1

Defendant contends the lineups were suggestive for three reasons: (1) the victim was told there was a suspect in custody before viewing the photo lineup; (2) defendant occupied the number four position in both lineups; and (3) defendant was the only person who appeared in both lineups.

The argument that the photo identification was suggestive because the victim was informed before viewing it that there was a suspect in custody lacks merit. It is generally assumed that if one is asked to view a lineup, there is a suspect in the lineup. State v. Stewart, 389 So.2d 1321 (La.1980); State v. Wright, 410 So.2d 1092 (La.1982).

A lineup is considered to be suggestive if the pictures or persons used in the lineup display the defendant so singularly that the witness’ attention is unduly focused upon the defendant. See State v. Guillot, 353 So.2d 1005 (La.1977); State v. Clark, 437 So.2d 879 (La.App. 2d Cir.1983).

Defendant’s argument that the live lineup was suggestive because he occupied the same position in that lineup as he did in the photo lineup, also lacks merit. Although defendant occupied the number four position in each lineup, the lineups were displayed differently and the number four position was in a different place in each lineup. In the photo lineup the six pictures were pasted inside a file folder in three rows of two across. Defendant’s photo was the photo on the right in the second row. In the live lineup the suspects were arranged in a single line of six across. Defendant was the fourth person from the left. More important, the victim testified that at the live lineup she was concentrating solely on trying to identify her assailant. She was not thinking about the photo lineup and identified defendant solely from her memory of him from the crime.

The argument that the live lineup was suggestive because defendant was the only person displayed in both it and the photo lineup is answered by the supreme court decision in State v. Neslo, 433 So.2d 73 (La.1983). There the court stated, “Since only the defendant appeared in both the photographic and the physical lineups, there is the possibility of suggestion; that the witnesses might have remembered the defendant from the photograph and not from the night of the crime.” 433 So.2d at 78. The court then held that this fact did not make the lineups unduly suggestive since the witnesses testified that they did not remember the defendant from the pictures and they identified him from the crime.

As was pointed out above, the victim in the instant case testified that she was not thinking about the photos at the time she viewed the live lineup. She based her identification of defendant solely upon her memory of him from the crime. She viewed him in person at the time of the crimes for over two hours, whereas she only viewed the photographic lineup for less than five minutes. These circumstances fully justify her statement that the identification was made solely on the basis of her memory of the defendant at the time of the crimes and not upon the photographic lineup. The live lineup was not unduly suggestive.

ISSUE # 2

Even if we had found that the victim’s pretrial identifications were the result of undue suggestion, that finding would not necessarily require a determination that the trial court erred in admitting her in-court identification. In our recent case of State v. Marx, 446 So.2d 1313 (La.App. 2d Cir.1984) we addressed the issue of whether a witness’ in-court identification was properly admitted when there were allegedly suggestive pretrial identifications. There we resolved the issue by the following analysis:

It is well settled that a tainted pretrial identification does not render an in-court identification inadmissible if the in-court identification is reliable and has an independent basis. State v. Passman, 345 So.2d 874 (La.1977); State v. Davis, 385 So.2d 193 (La.1980); State v. Johnson, 389 So.2d 1318 (La.1980); State v. Frisco, 411 So.2d 37 (La.1982); State v. Winn, 412 So.2d 1337 (La.1982). Cf. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
It is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, supra; State v. Clark, supra.
A five factor test is generally used for determining when an identification is reliable and independent of a primary taint. The factors are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, supra; Manson v. Brathwaite, supra; State v. Guillot, supra; State v. Davis, supra; State v. Clark, supra.

We applied the five factors to the facts in Marx and found that the witnesses’ in-court identifications were admissible. An application of the factors to the facts of the instant ease reveals the following:

1. The opportunity to view: The crimes occurred during daylight hours on a bright and sunny day. The victim was with defendant for approximately 2 hours. During most of the ordeal she was within 2-3 feet of defendant. Defendant did not wear a mask or attempt to disguise his face.

2. The degree of attention: The victim had her attention riveted to defendant from the moment he abducted her. She testified that she was planning on reporting him to the police from that moment and took pains to study him as closely as possible in order to give a good description to the investigating officers.

3. The accuracy of the description: The victim gave an extremely accurate description to the investigating officers.

4. The level of certainty: The victim positively identified defendant at trial.

5. The time between the crime and the confrontation: Approximately 672-7 months elapsed between the crime and the trial.5

Weighing the above factors, we find that the victim’s in-court identification was reliable and there was no substantial likelihood that she misidentified defendant. The trial court did not err in admitting her in-court identification.

ISSUE # 3

Defendant argues the victim’s in-court identification was inadmissible because of the police officer’s violation of the sequestration order at the hearing on the motion to suppress. Defendant has pointed to no authority supporting the proposition that a witness’ testimony must be excluded at trial because of a violation of a sequestration order at a prior hearing.

The court may order the witnesses excluded from the courtroom or from where they can see or hear the proceedings and order them to refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel; the court may modify its order in the interest of justice. La.C.Cr.P. 764; State v, Sonnier, 402 So.2d 650 (La.1981).

The purpose of a sequestration order is to insure that a witness will testify as to his own knowledge of the case without being influenced by testimony of other witnesses and to strengthen the role of cross-examination in developing the facts. State v. Sonnier, supra; State v. Kimble, 407 So.2d 693 (La.1981). However, not every violation of a sequestration order must result in the exclusion of a witness’ testimony. That decision is within the sound discretion of the trial judge. State v. Ardoin, 340 So.2d 1362 (La.1976); State v. Batts, 324 So.2d 415 (La.1975). Where there is no showing that the witness’ testimony was tainted by the violation of the sequestration order, the failure of the trial court to preclude the witness from testifying is not error. See State v. Edsall, 385 So.2d 207 (La.1980); State v. Parker, 421 So.2d 834 (La.1982).

Defendant has not shown that the victim’s in-court identification was tainted by the violation of the sequestration order. The violation occurred on November 10, 1982. The victim testified at trial on January 20, 1983. The victim first identified defendant at trial during the morning session on January 20. She testified at the hearing on the motion for a new trial that she did not recall what the officer said in violation of the sequestration order until after she was placed on the stand during the afternoon session. The officer’s statement to the victim that the defendant had shaved off his facial hair and put a gray streak in his hair did not contribute to the victim’s in-court identification of the defendant.

For the reasons discussed the defendant’s sole assignment of error is without merit.

Defendant's convictions and sentences are AFFIRMED.

      . In his assignments of error filed with the trial court defendant alleged six errors. His brief contained only one assignment of error and defense counsel did not argue before this court. Assignments of error neither briefed nor argued are deemed abandoned and are not considered. State v. Buxton, 416 So.2d 71 (La.1982); State v. Rowe, 416 So.2d 87 (La.1982).

      . After the defendant was identified at the live lineup a search warrant for his car was ob-tamed. The police found the clothes and gun described by the victim in the car.

      . Defendant had shaved off his beard and dyed a gray streak .in his hair.

      . Defendant’s sole assignment of error is:
      The trial court erred in denying defendant’s motion to suppress a witness’ in-court identification which was based on a suggestive identification process which contributed to a substantial likelihood of misidentification.

        Defendant’s brief does not raise the issues of whether the trial court erred in: (1) denying the motion to suppress; or (2) denying the motion for a new trial.

      . We point out that at the time Prater set up the live lineup he was unaware that the victim had already viewed a photo lineup. He allowed defendant to pick his own place in the lineup. Any possible suggestiveness in the fact that defendant was in the same number position did not come about as a result of a conscious police effort.

      . In State v. Marx, supra, we approved an in-court identification occurring 6½ months after the crime. In Neil v. Biggers, supra, the United States Supreme Court approved an identification where there was a 7 month interval between the crime and the identification.


author: HALL, Judge. SEXTON, Judge,

text:
    John ROSS, Jr., Plaintiff-Appellant, v. Joyce K. LEWIS, et al., Defendants-Appellees.
    No. 15994-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Simmons, Nelson & Dunn by Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant.
    McLeod, Swearingen, Verlander & Dollar by Richard A. Bailly, Monroe, for defendants-appellees.
    Before HALL, FRED W. JONES, JR. and SEXTON, JJ.
   HALL, Judge.

In this personal injury action, the plaintiff appeals from a trial court judgment rejecting his demands for damages resulting from the explosion of a car battery. We reverse and render judgment in favor of the plaintiff.

On August 25, 1980, defendant Joyce K. Lewis’s automobile wouldn’t start when she attempted to leave a residence where she had been visiting. She asked Gene Williams, also a visitor at the residence, to help her crank the car. She informed Williams that, on prior occasions when the car wouldn’t start, she had been able to start the car after tightening the battery cables and/or tapping on the battery to firmly seat the cables on the posts. The appellee asked Williams to try tapping on the battery before resorting to jumper cables. Williams tapped the battery a couple of times but the car would not start.

The plaintiff, John Ross, Jr., was observing these events from his uncle’s porch. Joyce K. Lewis had been visiting at the uncle’s residence immediately prior to the accident. Plaintiff, in response to Lewis’s request for aid, walked over to the car to see if he could assist in starting it. As plaintiff approached, Williams tapped the battery several times. Just as the plaintiff reached the front of the car and started to lean under the hood to ask what was wrong, the battery exploded.

The top of the battery struck the plaintiff in the face and knocked him backward some 12 to 15 feet. Battery acid splashed into the plaintiff's face and eyes. However, the injuries received by the plaintiff were minimal, consisting of some slight facial abrasions and very minor damage to plaintiff’s eyes which quickly and totally healed.

On August 25, 1981, the plaintiff filed suit seeking recovery for his injuries and medical expenses from the defendant and her automobile liability insurer. Gene Williams was not made a defendant in this suit. After trial on the merits, judgment was rendered rejecting plaintiff’s demands and dismissing his claim at his costs. This appeal followed.

In the trial court and on appeal, the plaintiff seeks recovery on the bases of both strict liability under LSA-C.C. Art. 2317 and the defendant’s negligence. The trial court found Article 2317 strict liability inapplicable to this situation because no defect was proven. Furthermore, the trial court stated that, assuming the theory of strict liability was applicable, the accident was caused solely by the fault of a third party, Gene Williams, sufficient to constitute a defense against an Article 2317 cause of action. Additionally, the trial court ruled the accident was caused solely by Williams’s actions and that the defendant, Joyce K. Lewis, was not negligent.

Article 2317 Strict Liability

On appeal, the plaintiff contends the trial court erred in failing to hold Lewis strictly liable in accordance with LSA-C.C. Art. 2317 for the injuries caused by a defective thing, the battery, in her custody. We agree.

In order to establish liability and the entitlement to recovery under Article 2317, the plaintiff must prove: (1) the thing had a vice or defect; (2) the thing was in the defendant’s custody; and (3) the injury or damage was caused by the vice or defect. Upon proof of these elements, the burden shifts to the defendant to prove the damage was caused by victim fault, third-party fault, or an irresistible force. Loescher v. Parr, 324 So.2d 441 (La.1975). See also Kasperski v. Patterson Services, Inc., 371 So.2d 1254 (La.App. 3d Cir.1979). However, the plaintiff can be aided in carrying the burden of proving defectiveness by the showing of an. unusual occurrence resulting in his injury, Marquez v. City Stores Co., 371 So.2d 810 (La.1979); Williams v. Hempen, 396 So.2d 999 (La.App. 3d Cir.1981); Vicknair v. T.L. James Co., Inc., 375 So.2d 960 (La.App. 4th Cir.1979). This case furnishes an example of such an occurrence.

A thing is defective under Article 2317 if it presents an unreasonable risk of harm to others in its normal or ordinary use. Loescher v. Parr, supra; Benoit v. Ryan Chevrolet, 428 So.2d 489 (La.App. 2d Cir.1982) and authorities cited therein.

The trial court found the battery was not dangerous in the manner in which it was used. However, the court also found that the tapping on the battery by Williams was not an abuse of the battery. The court specifically noted that Williams’s actions were in the nature of a minor adjustment of the battery and were performed by tapping on the battery with a wrench as opposed to striking a more forceful blow “with a hammer or some other foreign object.” All indications in the record are that Williams was tapping on the battery posts and cables, as opposed to the battery casing itself, in an attempt to ensure proper contact between the posts and cables prior to the explosion.

The tapping of battery posts and cables in order to firmly seat the cables on the posts and to achieve good contact, as was done in this case, is a routine, ordinary, and normal procedure commonly employed in attempting to start an uncooperative vehicle, without the disastrous results which occurred here. The trial court specifically found this procedure was carried out in a reasonable manner in this instance. Nevertheless, the battery exploded and the most plausible explanation for the explosion is that the battery was defective.

Assuming the explosion resulted from Williams tapping on the posts and cables, since those actions were carried out in a reasonable, nonabusive manner, the defendants are not relieved of liability. The battery failed to function properly when its posts and cables were subjected to certain “tapping” adjustments designed to ensure a proper seating of the battery cables on the battery posts. The inability of the battery to withstand the type of contact it could be expected to routinely encounter renders the thing defective. See Robertson v. Gulf South Beverage, Inc., 421 So.2d 877 (La.1982).

The trial court correctly found the battery to be in the defendant’s custody. Williams’s actions were initiated by the defendant’s request for aid and the tapping adjustments were suggested by the defendant and performed under her direction. She retained the right of direction and control over the battery and was the only person involved who was in a position to draw some type of benefit from the defective thing. Loescher v. Parr, supra. The record indicates that Williams and the plaintiff attempted to aid the defendant as an act of friendship with no thought or promise of remuneration. The record amply supports the trial court’s determination that the defective battery was in the defendant’s custody at the time of the accident.

It is unquestioned that the battery’s explosion injured the plaintiff.

The defendants’ possible defenses to liability in this case, victim fault and third-party fault, can be readily dispensed with. Williams’s tapping actions were routine in nature and reasonably effected. Therefore, they cannot be said to constitute the fault of a third party sufficient to bar recovery. Nor can it be said that the plaintiff assumed the risk or was contributorily negligent in this case by walking up to the ear and starting to lean under the hood where he was aware that Williams’s routine and reasonable actions were in progress. Consequently, no act constituting victim fault was committed. Lacking any viable defense, the defendants must be held liable.

Quantum

The evidence establishes that the following medical expenses were incurred by the plaintiff as a result of the accident:

(1) Emergency medical treatment at Union General Hospital located in Farmerville, Louisiana. $72.00
(2) Medication prescribed by treating physician. 13.82
(3) Follow-up examination by treating physician . 10,00
TOTAL. $95.82

The plaintiffs claim for medical expenses resulting from treatment for a loss of hearing are denied because the expert testimony of the doctor who treated .plaintiff for this ailment establishes that the damage to plaintiff’s hearing did not result from the explosion of the battery. The plaintiff’s claim for transportation costs to and from the hospital and the offices of the various physicians plaintiff consulted is denied because plaintiff presented no evidence such costs were actually incurred.

The evidence relative to plaintiff’s claim for lost wages can be summarized as follows. The plaintiff testified that, by his calculations, he had lost $467.52 in wages from his full-time job with the Opportunities Industrialization Center of Ouachita and $112 in wages from his part-time employment with the Ouachita Mosquito Abatement District. No documentary evidence corroborative of his testimony was introduced. The plaintiff further testified that he missed approximately two weeks of work with each employer because his eyes remained irritated and very sensitive to the bright, summer sunlight. According to plaintiff’s calculations, he lost 96 hours of employment from his full-time job and 32 hours of employment from his part-time job during this approximately two-week period.

However, Dr. Patterson, the physician who treated the plaintiff in the emergency room and examined him the day following the explosion, testified that the slight damage to plaintiffs eyes was rapidly healing and that plaintiff’s condition should have returned to normal within approximately one week after the accident. He further testified that the plaintiff failed to keep an appointment for a follow-up examination scheduled for eight days after the accident. Additionally, while the plaintiff did consult an ophtalmologist 10 days after the explosion of the battery, plaintiff’s vision complaint was determined to be unrelated to the damage his eyes suffered during the explosion of Lewis’s battery.

Given these facts, we find the record does not support an award for two weeks lost wages in accordance with plaintiff’s calculations. Rather, an award of approximately one-half the amounts plaintiff calculated is more appropriate since the evidence establishes that, more likely than not, the plaintiff had fully recovered from the injuries sustained in this accident within approximately one week following its occurrence. In his petition, the plaintiff claimed lost wages closely in accord with this determination in the amount of $328.72. Accordingly, there will be judgment in favor of plaintiff for that amount.

The plaintiff is quite fortunate in that he sustained no permanent disfigurement or vision impairment as a result of the accident. The facial abrasions plaintiff received were slight and the injury to plaintiff’s eyes quickly and totally healed. As previously noted, the loss of hearing which the plaintiff identified as his major complaint at trial did not result from the battery’s explosion.

The plaintiff was temporarily blinded by the accident for a period of several hours. Dr. Patterson testified that, when he examined the plaintiff in the emergency room shortly after the accident, the plaintiff was in a great deal of pain and distress about his eyes and face. He stated the plaintiff suffered a marked anxiety reaction to his injuries. Furthermore, the record indicates that the plaintiff’s eyes were irritated and caused him discomfort for approximately one week after the injury was received.

In light of the circumstances, a general damage award of $2,000 in plaintiff’s favor as compensation for the pain, suffering, and inconvenience he experienced as a result of this accident is warranted and will be made.

Decree

The trial court’s judgment dismissing plaintiff’s demands at his costs is hereby reversed and set aside. Judgment is hereby rendered in favor of the plaintiff, John Ross, Jr., against the defendants, Joyce K. Lewis and Commercial Union Insurance Company, in solido, in the amount of $2,424.54, plus legal interest thereon from the date of judicial demand until paid, and together with all costs of these proceedings including the cost of appeal.

Reversed and rendered.

SEXTON, J., concurs and assigns written reasons.

SEXTON, Judge,

concurring.

This ease highlights the wisdom of Professor Malone’s analysis of the flaws in the concept of strict liability as enunciated by Loescher v. Parr, 324 So.2d 441 (La.1975). See Malone, Ruminations on Liability for the Acts of Things, 42 La.L.Rev. 979.

Common sense tells me that there is something wrong with a concept that renders liability to a defendant situated such as the owner and operator of this car. If she is like most persons, she probably has no knowledge of why it is the battery is able to provide power to start the car. Likewise, she undoubtedly has no idea what visual clues, if any, a dangerously defective battery presents. Furthermore, unless her knowledge of matters of this type exceeds that of this author, this is the first occasion that she knew it was remotely possible for a reluctant battery to explode without extremely violent treatment.

However, I must reluctantly agree that the circumstances of this cause fit the requirements of Loescher — i.e., harm caused by a defective thing in the custody of the defendant. Furthermore, the defense did not show victim fault, irresistible force or third-party fault.

If Loescher has enduring viability — and I agree with Professor Malone that it should not — then the definition of “defective” should mean a “vice” exposing another to an “unreasonable risk,” as suggested in Loescher at one point. Malone, supra, at p. 982. The liability of the defendant would be “based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others.” Loescher, supra, at p. 446 (Emphasis ours). Thus, if I must apply Loescher, then I would like to do so only when there is some failure to reasonably guard against a nonapparent defect, which defect poses a certain degree of risk of injury. Of course, such a definition has a tenor of negligence about it, and might not be an expansion of Article 2315.

Just as Professor Malone, I am “perplexed” — but I am mandated to agree that Loescher and its progeny require this result.


author: CULPEPPER, Judge Pro Tern.

text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, INC., Plaintiff-Appellant, v. Pugh T. HUCKABAY, Jr. & his wife, Julie Roquin Huckabay, Defendant-Appellee.
    No. 16000-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Writ Denied May 11, 1984.

      Horton & Jones by Donald G. Horton, Natchitoches, for defendant-appellee.
    Gahagan & Gahagan by Russell E. Gaha-gan, Coushatta, for plaintiff-appellant.
    Before MARVIN and JASPER E. JONES, JJ., and CULPEPPER, J. Pro Tem-pore.
   CULPEPPER, Judge Pro Tern.

This case is consolidated for trial and appeal with No. 16,001-CA entitled “Central Louisiana Electric Company, Inc. versus James M. Herring and his wife, Paula Vetter Herring”, 446 So.2d 1333, in which a separate judgment is being rendered by us this date. These are expropriation cases filed by Central Louisiana Electric Company against two separate land owners, James M. Herring who owns a 240 acre tract of land and Pugh T. Huckabay, Jr. who owns a 480 acre tract adjacent to the Herring property. Plaintiff sued to expropriate a servitude 85 feet wide across the farmlands of the defendants for the purpose of constructing and maintaining electric transmission lines. The trial judge rendered judgment granting the servitudes sought conditioned upon payment to the defendant Huckabay of the total sum of $205,898 plus an attorney’s fee of $8,750 and the payment to Herring of the sum of $252,615 plus an attorney’s fee of $3,750. Eighteen days after the rendition of this judgment the plaintiff paid the specified sums by deposits in the registry of the court. The plaintiff appealed both cases. Both defendants have answered the respective appeals seeking eighteen days legal interest, awards for the value of the servi-tudes taken and increases in the awards for attorneys’ fees to 25% of the awards.

The substantial issues on appeal are:

1. Did the trial court err in awarding both diminution in value of the remainder of the farmlands affected and additional farming expenses for periods up to ten years because aerial spraying will be prevented by the new transmission lines?
2. Did the trial court err in failing to make specific awards for the values of the servitudes taken, and if so what are these values?
3. What are the severance damages to the remainders of defendants’ properties?
4. Are defendants entitled to legal interest on the amounts awarded for the eighteen days between the time the judgments were rendered and the time the awards were paid by deposit in the court?
5. Are defendants entitled to increases in the awards for attorneys’ fees?

GENERAL FACTS

The two tracts of farmland in question are alluvial soil located in the Red River valley and are suitable for growing either cotton or soybeans. At the time of this judgment of expropriation in July of 1983, most of the affected property was planted in cotton. The farms are shown on maps and aerial photographs filed in evidence. The 480 acres owned by Huckabay lies generally north and east of the 240 acres owned by Herring, and the two tracts are separated by Honey Bayou. The new servitude runs generally east and west and crosses portions of both farms. Huckabay claims damages to only 63 acres of his land. Herring claims damages to 220 acres.

There is a previously existing electrical transmission line immediately north of the new 85 foot wide servitude. On the affected property of Huckabay the existing line is supported by three H-frame poles averaging about 60 feet in height, and there is a sag in the line to within 27 feet of the ground between each existing pole. The new transmission lines will be supported on the Huckabay property by one new steel pole 134 feet high. This pole will have four guide wires extending approximately 50 to 70 feet from the base of the structure.

On the Herring property, there are presently six existing poles averaging about 60 feet in height. The minimum sag of the lines between these poles is also about 27 feet from the ground. The new lines will be supported on the Herring property by three steel towers averaging about 115 feet in height.

The trial judge found the farmland affected has a market value of $2,000 per acre, the highest estimate given by defendants’ experts. Plaintiff’s experts estimated the market value of the lands affected at $1,500 per acre. The trial judge did not make a specific award for the value of the servitudes taken on either tract. He awarded severance damages of 50%, $1,000 per acre for 63.4 acres of Huckabay land and $500 per acre for 240 acres of Herring land. In addition, the trial court awarded to Huckabay the sum of $142,498 representing the additional expenses for periods up to ten years which the court estimated would be required by Mr. Huckabay because he can no longer use aerial spraying and will have to buy and use ground level equipment. As to the Herring property, the trial court awarded $132,615 for additional farming expense over the next ten years. Thus the awards to the two defendants were as follows:

HUCKABAY:

1. Severance damage to 63.4 acres at $1,000 per acre $ 63,400
2. Additional farming expenses for up to ten years 142,498
TOTAL ' $205,898

HERRING:

1. Severance damage to 240 acres at $500 per acre $120,000
2. Additional farming expenses 132,615
TOTAL $252,615

In addition to the above awards, the district court awarded to each defendant the sum of $3,750 as attorney’s fees.

SEVERANCE DAMAGES AND ADDITIONAL FARMING EXPENSES

The principal dispute in these cases concerns the award by the trial court of both diminution in value to the remaining affected properties and in addition the increased farming expenses over periods up to ten years which will be required because of the difficulty or impossibility of future aerial spraying. Plaintiff and several other electric utility companies which have filed ami-cus curiae briefs contend this is a duplication of awards which exceeds the requirement of LSA — Louisiana Constitution of 1974, Article 1, § 4 that “the owner shall be compensated to the full extent of his loss.”

The trial judge cited State, Department of Highways v. Westport Development Co., Inc., 332 So.2d 918 (La.App. 2d Cir.1976) as authority for the rule that the land owner is entitled to “such damages as were proven with some mathematical certainty based on the evidence.” Using this rule, the trial judge reasoned that defendants had proved by their expert witnesses that because of the inability to use aerial spraying the defendants will in the future have additional expenses in controlling the grasses, weeds and insects around the new towers and in purchasing new tractor pulled spraying equipment for use in spraying any crops grown under the power lines or on the remaining affected tracts. Much testimony was introduced into the record by defendants’ experts to show all of these costs. The trial judge accepted some of these expenses as proved but rejected others as being too speculative.

The plaintiff and the amicus curiae briefs argue that in effect the trial judge has used the “cost to cure” approach, which is improper in the present case. Plaintiff contends the applicable rule in the present case is that stated in State, Department of Highways v. Mason, 254 La. 1035, 229 So.2d 89 (1969), in which our Supreme Court said:

* * * If such an approach [cost to cure] has relevance to the measure of damages, it should only be employed to demonstrate a diminution in market value resulting from the partial taking, for we find no sound basis in this Court’s jurisprudence for the application of this method of assessing severance damages, save in a most unique situation (which is not present here) like that appearing in State Department of Highways v. Ouachita Parish School Board, 162 So.2d 397 (cert. denied). See also Nichols on Eminent Domain, 3rd Ed., Vol. 4, Sec. 12.32, pages 217-238, which indicates that this approach may be used in special instances wherein the ascertainment of market value of the facility is not possible. 229 So.2d at p. 93 [Bracketed material added.]

The plaintiff argues with merit that there is nothing unique about the present case which requires the use of the “cost to cure” approach. The use of “cost to cure” in the present case results in Huckabay receiving $3,268 per acre for his 63 affected acres, this being more than the $2,000 per acre value of the land found by the trial judge. The award of $1,148 per acre to Herring for his 220 acres affected is more than half the value of his entire farm. The market value of the land can be readily established by the testimony of the expert witnesses for the plaintiff, who fix the value at $1,500 per acre, and the expert witnesses for the defendants who place the highest estimate at $2,000 per acre. Under the above quoted rule from the Mason case, plaintiff contends that the only rele-vanee of the evidence as to increased cost of farming operations is to show any diminution in market value resulting from the partial taking.

We agree with plaintiffs analysis. This is not a unique case requiring the award of “cost to cure” damages or any other special damages over and above diminution in market value to a remainder. Thus, we conclude that the awards to both Huckabay and Herring for additional farming expenses for the next ten years are improper, and the judgments appealed must be amended respectively to delete these awards.

VALUE OF SERVITUDES TAKEN

The next issue is the value of the servitudes taken. The trial judge made no specific awards for this. We conclude the evidence is sufficient to show this value and that it should be awarded specifically.

Plaintiffs expert real estate appraisers, Thomas B. Dupree, Jr. and James A. Young, used comparable sales to fix the market value of the land at $1,500 per acre. They estimated the value of the servitude at 75% of market value, with a 25% residual use of the property to the owner. Using these estimates, Huckabay would receive $4,433 for the servitude taken on 3.94 acres of his land, and Herring would receive $7,110 for the servitude taken on 6.32 acres of his land.

Defendants’ expert, Dr. Melvin Stephens, estimated the market value of the land at $1,800 to $2,00 per acre. As stated above, the trial judge used the higher of these two figures.

We find no manifest error by the trial judge in fixing market value at $2,000 per acre. The only evidence in the record as to the value of the servitude per acre as a percentage of the market value of the land, is the estimate of plaintiffs witnesses, Du-pree and Young, that the value of the servitude is 75% of the market value of the land. This results in a value of $1,500 per acre for the servitudes taken. We will award to Huckabay for the 3.94 acres of his land encumbered by the servitude the sum of $5,910, and to Herring for the 6.32 acres of his land encumbered by the servitude the sum of $9,480.

SEVERANCE DAMAGES TO REMAINDERS

The next issue is the severance damages caused by the taking of the servitudes to the remainders of the affected properties. As stated above, the trial judge found the market value of the land will be diminished because of the inability to use aerial spraying. The evidence is in conflict as to whether aerial spraying will be prevented by the new electric transmission lines supported by towers averaging 115 feet in height, and running parallel to the existing lines which are supported by H-frames and average about 60 feet in height. Plaintiff introduced the testimony of several witnesses that planes can fly under the existing lines, which sag to within 27 feet of the ground, and can easily fly under the new lines which will be higher. From this testimony, plaintiff argues that aerial spraying will be possible.

Defendants’ witnesses testified that in the past the planes did not fly beneath the existing lines, but instead flew over them at a height which was still sufficiently low for effective spraying of insecticides and other chemicals. The defense witnesses testified persuasively that planes could not and never have flown beneath the existing lines, that the new towers with their four supporting guy wires will make it more hazardous to fly beneath the new wires, and that if the planes fly above the new lines additional amounts of chemicals will be required to be effective.

From the evidence as a whole, we conclude, as did the trial judge, that planes cannot safely fly beneath the existing wires, and that the height of the new lines will substantially diminish the effectiveness of aerial spraying by planes flying over them. Thus the market value of the remaining affected lands will be substantially diminished by the construction of the new electric transmission lines.

The next question is the amount of severance damages to be awarded to each of the land owners. We will first consider the Huckabay land. At the outset, we note that Huckabay claims severance damages to 63.4 acres of his land. However, the maps and aerial photographs filed in evidence show that a portion of the south of this 63.4 acres is located in woods, and that actually only 61.3 acres is cultivated land which would be adversely affected by the inability to use aerial spraying. As the aerial photographs show, the new transmission lines will cross in an east-west direction approximately through the center of Huckabay’s 61.3 acres. Any use of aerial spraying on this tract in a north-south direction will be almost impossible because of the existing and the new electric transmission lines. Moreover, any aerial spraying in an east-west direction will be almost impossible because of the high trees located along the east and west sides of the 61.3 acres. We agree with the trial judge that Huckabay’s remaining land will be diminished in value by 50%. Accordingly, we will award to Huckabay severance damages in the sum of $1,000 per acre for the 61.3 acres of his cultivated land which is affected, resulting in an award to Hucka-bay of severance damages in the sum of $61,300.

Now turning to Herring, the problem of severance damages to the remainder is more complex. The Herring tract of 240 acres is approximately triangular in shape, with the point of the triangle to the south and the northern base of the triangle bounded by Honey Bayou, which separates Herring from Huckabay. The transmission lines run through the northern portion of the Herring property in an east-west direction and are only about 500 feet south of Honey Bayou. There are trees approximately 100 feet high along Honey Bayou, and the new towers are an average of 115 feet in height. Thus, Mr. Herring and his witnesses testified that it would be virtually impossible to use aerial spraying on the 500 foot wide strip of land between the new transmission lines and Honey Bayou. This is clearly shown by the aerial photographs filed in evidence. Planes could effectively spray by flying over the existing line, but the new line will be too high for effective spray by planes flying over it.

As to the approximately 140 acres of Herring land which lies south of the power lines and comes to a point at the south, Herring’s witnesses testified that although it would be possible to spray this portion by flying in an east-west direction, it would take a great deal of turning and short passes and would make it very difficult to spray.

Unlike the Huckabay tract of 61.3 acres as to which the trial judge held, and we affirm, that the severance damages are 50% of market value, the Herring property was found by the trial judge to be diminished in value by $500 per acre for the entire affected tract. We note that the trial judge awarded $500 per acre severance damages to 240 acres of Herring property, but actually Mr. Herring is claiming severance damages to only 220 acres. This is his testimony and is stated in his appellate brief. The diminution in value of $500 per acre is based on the testimony of the defendant’s witnesses, Dr. Melvin Stephens and Mr. Jess Lloyd, Jr., who discussed all of the problems that the new towers and transmission lines will cause for aerial spraying to the entire Herring property. Instead of fixing the severance damages at 50% for the narrow strip of Herring property between the new power line and Honey Bayou and using a lower percentage for the Herring property south of the transmission lines, these experts express the opinion that the Herring property overall will be diminished in value by $500 per acre. Except for the testimony of plaintiff’s witnesses that planes can fly underneath the existing line, there is no evidence by the plaintiff to contradict the estimate that the Herring property as a whole will be diminished .in value by $500 per acre. We find no manifest error by the trial judge in using this figure of $500 per acre, but we do note that Herring only claims severance damages to 220 acres, rather than the figure of 240 acres used by the trial judge.

Thus, we conclude that Herring is entitled to severance damages of $500 per acre on 220 acres, a total of $110,000.

LEGAL INTEREST

The next issue concerns the claim by defendants in their answers to the appeal for legal interest at the rate of 12% for a period of eighteen days between the date the judgment was signed and the date the plaintiff deposited the payment in the court. Defendants contend it was a money judgment which bears interest from the day it was signed. The plaintiff contends it was not a money judgment, but instead was a judgment granting to plaintiff the servitudes as of the time payment was deposited.

A reading of the judgments shows that plaintiffs contention is correct. We conclude defendants are not entitled to the interest claimed for eighteen days.

ATTORNEYS’ FEES

As stated above, the trial judge awarded $3,750 to each land owner as attorneys’ fees. The same attorney represented both land owners. Thus, the attorney received $7,500 for his work in these cases which were consolidated for trial and appeal, because of the similarity of issues and evidence.

Jurisprudence has established the rule that the trial judge has much discretion as to the award of attorney’s fees. We find no manifest error by the trial judge as to his awards in these cases.

DECREE

For the reasons assigned, the judgment appealed in the present case is amended to reduce the sum which Pugh T. Huckabay, Jr. and his wife, Julie Rocquin Huckabay, are entitled to be paid to the sum of $70,-960, of which $5,910 represents the value of the servitude taken, $61,300 represents severance damages to the remainder and, $3,750 represents attorney’s fees. Otherwise, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants.

AFFIRMED AS AMENDED.


text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, INC., Plaintiff-Appellant, v. James M. HERRING and his wife, Paula Vetter Herring, Defendant-Appellee.
    No. 16001-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Writ Denied May 11, 1984.
    Gahagan & Gahagan by Russell E. Gaha-gan, Natchitoches, for plaintiff-appellant.
    Horton & Jones by Donald G. Horton, Coushatta, for defendant-appellee.
    Before MARVIN and JASPER E. JONES, JJ., and CULPEPPER, J. Pro Tem-pore.
   CULPEPPER, Judge Pro Tern.

For the reasons assigned in the companion case No. 16,000-CA, entitled “Central Louisiana Electric Company, Inc. v. Pugh T. Huckabay, Jr. and his wife, Julie Rocquin Huckabay”, 446 So.2d 1327, in which a separate opinion is being rendered by us this date, the judgment appealed in the present case is amended to reduce the sum to be paid to James M. Herring and his wife, Paula Vetter Herring, to the sum of $123,230, of which $9,480 represents the value of the servitude taken and $110,000 represents severance damages to the remainder and $3,750 represents attorney’s fees. Otherwise, the judgment appealed herein is affirmed. All costs of this appeal are assessed against the defendants.

AFFIRMED AS AMENDED.


author: MARVIN, Judge. CULPEPPER, Judge,

text:
    UNION NATIONAL BANK, Plaintiff-Appellee, v. Michael D. GOINES, Defendant-Appellee, Thomas & Parker Auto Sales, Inc., Intervenor-Appellant.
    No. 16025-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Dissenting Opinion March 2, 1984.
    Rehearing Denied March 28, 1984.
    Writ Denied May 25, 1984.
    Robert A. Jahnke, Shreveport, for inter-venor-appellant.
    Lunn, Irion, Switzer, Johnson & Salley, by Frank M. Walker, Jr. and Michael S. Hubley, Shreveport, for plaintiff-appellee.
    Lee & Bartage, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and CULPEP-PER, JJ.
   MARVIN, Judge.

From a judgment in favor of a Kansas bank against a former Kansas resident, Goines, ordering a foreclosure of a Kansas lien on a Ford automobile that Goines had sold to a Shreveport used car dealer, the dealer appeals.

The Ford was originally titled in Kansas to Slothower, a Kansas resident, on June 17, 1981. About a year later, Slothower sold the Ford and assigned, on the reverse of his title, that title to a Wichita Mercury dealer. That dealer sold the Ford the next day to Goines, and assigned the Slothower title to him. That title on the reverse side shows the cancellation of a lien from Slo-thower to Ford Motor Credit Corporation and the entry of a new lien from Goines to Union National Bank, the plaintiff in this action.

Armed with the Slothower title and with a notarial release of the Union Bank lien that is noted on the reverse of that title, Goines drove the Ford to Shreveport where, on October 12, 1982, he sold the Ford to the Shreveport dealer for some cash and another automobile. The Shreveport dealer sold the car to a Lufkin, Texas, dealer. On November 9, 1982, the Ford was sold to a Texas resident who obtained a Texas title on the Ford in her name. The Union Bank learned of the whereabouts of the Ford in January 1988 and revealed to all concerned that the notarial release of the bank’s lien, upon which the Shreveport dealer and subsequent purchasers relied, was a forgery. The Ford, then by reverse route, was delivered back to the Shreveport dealer where it was sequestered by the bank on February 22, 1983. After the Ford was seized, the Shreveport dealer intervened in the action.

The Texas title was “suspended” by Texas authorities and this contest is solely between the Kansas bank and the Shreveport dealer. The defendant Goines’ whereabouts are unknown. After the Ford was sequestered but before trial, the bank obtained from the Kansas authorities a “Repo” (repossession) title in its name. The only certificates of title issued on the Ford were first the Kansas title to Slothower, secondly the Texas title which was later suspended, and thirdly the Kansas repossession title to the bank.

The Shreveport dealer purchased the Ford and relied upon the Slothower title that was assigned to Goines and upon the notarial, but forged, release of the bank’s lien that was noted on the reverse of the Slothower title. The trial court observed, and correctly so in our opinion, that at no point during the transaction did the Shreveport dealer rely upon the actual registry of title to Goines, or the absence of the registry of the bank' lien, in the State of Kansas. The dealer argued there and argues here that the lien was not validly recorded in the State of Kansas and is therefore ineffective here. It has been said that Louisiana will not recognize a foreign security interest unless it is valid and properly recorded in the state where executed. General Motors Acceptance Corporation v. Nuss, 195 La. 209, 196 So. 323 (1940); Figuero v. Figuero, 303 So.2d 801 (La.App. 3d Cir.1974); Scott Truck and Tractor Company v. Daniels, 401 So.2d 590 (La.App. 3d Cir.1981).

In the abstract, the principle of law above recognized is not incorrect, but was correctly found inapplicable here, and the dealer’s argument must fail.

The bank’s action against Goines is founded upon the Goines chattel mortgage on the Ford and upon the Slothower certificate of title which shows notation of that mortgage. The dealer’s claim to the Ford or to the proceeds from its sale depends solely upon the assignment of the Slothower title to Goines and not upon a certificate of title from the State of Kansas to Goines. Neither Goines nor the dealer had a certificate of title in his or its name. The only title other than the Slothower title at issue here is the repossession title which is in the name of the bank.

The dealer can have no greater rights than Goines had when he assigned the Slo-thower title to the dealer. If the contest is determined on the Slothower title, the bank’s lien is noted on that title. The validity of the bank’s chattel mortgage on the Ford was proved. The existence of the debt secured by that mortgage was proved. The forged release does not avail the dealer. The absence of a validly recorded lien would perhaps have availed the dealer had it shown that it had a certificate of title either in Goines’ name or in its name on which the bank’s lien was not noted. If this contest is determined on the repossession title, the only other title at issue here, that certificate of title shows the bank as owner of the car. In that situation, it would be incumbent upon the Shreveport dealer to show a superior certificate of title.

If this contest must be decided on whether the bank’s lien was “perfected” in Kansas, the Shreveport dealer must also fail. A lien may be perfected in Kansas by the actual recordation or by the mailing to the recording office of a Notice of Security Interest (NOSI) signed by the owner and the creditor. See 28 Kan.Law Rev. 315 (1980). While the papers certified by the Kansas recording office and introduced into these proceedings do not contain a certified copy of the NOSI, the witness for the bank introduced the bank’s copy of the NOSI. That witness testified that NOSI's are routinely mailed by the bank to the recording office and that the bank would not have been able to obtain the repossession title in its name without the NOSI having been received by the recording office. We are not otherwise enlightened as to Kansas law.

We find that the bank made out a prima facie case that its lien was perfected in Kansas, although perhaps not by the best evidence. The dealer does not contend that the trial court erred in ruling on the admissibility of the bank’s evidence, but attacks the quality of that evidence. The testimony from the bank officer that the bank could not obtain a repo title in Kansas without proof of the NOSI being on file was elicited on cross-examination. Considering the totality of the evidence, the bank has shown that it had a lien on, or title to, the Ford, and the dealer has introduced nothing superior to that showing.

For the reasons assigned by the trial court and here summarized and supplemented, and at appellant’s cost, the judgment is AFFIRMED.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge,

dissenting.

In my view, the Bank’s failure to record its chattel mortgage in compliance with Kansas law leaves it without protection as against the subsequent purchaser in good faith who relied on the apparently valid, but actually forged, release of the Bank’s lien. To hold otherwise, as the majority has done, .ignores our established rule that Louisiana courts will not recognize a foreign chattel mortgage unless it is valid and properly recorded in the state where executed. See the cases cited in the majority opinion.

Clearly, the Bank has the burden of proving the laws of Kansas upon which it relies regarding registration of liens on motor vehicles, and also that it has complied with these laws. Louisiana jurisprudence has established the rule that although LSA-C. C.P. Art. 1391 provides that a Louisiana court may take judicial notice of the laws of other states, our courts are not required to and ordinarily will not take notice of the law of another state in the absence of a showing by the party urging the applicability of such law of what that law is. Johnson v. Nationwide Life Insurance Co., 388 So.2d 464 (La.App. 2d Cir.1980) and the cases cited therein. The only evidence introduced by the Bank at the trial to prove the law of Kansas and compliance therewith was the testimony of Sharon K. Selen-ka, the Bank’s recovery officer, and certain forms which she identified. Ms. Selenka had no personal knowledge of the Goines chattel mortgage or the recordation thereof, but she testified as to the Bank’s records of this loan and as to the procedure used by the Bank to obtain and perfect under Kansas law a lien on an automobile. She stated that where, as in this ease, there is an existing title in the name of the previous owner, the automobile dealer completes the assignment of title to the purchaser and shows the Bank as lien holder. The Bank then gets the title and it prepares three copies of a Notice of Security Interest (NOSI) showing the Bank as lien holder and has the owner sign all three copies. The Bank then sends the title and two copies of the NOSI to the Division of Vehicles in Topeka, Kansas. The Division of Vehicles keeps one copy of the NOSI and returns the other to the Bank showing the title number as evidence of the perfection of the lien. The Division of Vehicles sends the title to the owner. Her testimony is not clear as to whether a new title is issued in the name of the new owner, or whether the old title is sent back to the new owner. Of course, in the present case, a new title was not issued. The title which Goines had in his possession when he went to Louisiana was the old title in the name of Slothower.

Ms. Selenka identified, and the Bank filed in evidence, the copy of the NOSI which the Bank retained. She admitted that the Bank never received from the Division of Vehicles a copy of the NOSI showing that it had been recorded.

As the majority opinion states, Slothower came to Shreveport, Louisiana in October of 1982 with the Vehicle, the Slothower title showing on the reverse side an assignment of ownership to him and the chattel mortgage in favor of the Kansas bank, and he also had the release of the Bank’s lien in notarial form, but it later developed that this release was a forgery. Relying on the showing that Goines had the vehicle, the title and the release of the Bank’s lien, the intervenor purchased the vehicle from Goines as a trade-in on another vehicle. Intervenor sold the automobile in question to City Motor Company of Lufkin, Texas, which in turn sold it to B & B Motor Company, which sold it to one Sylvia For-sythe of Lufkin, Texas. Sylvia Forsythe obtained in her name a Texas title dated November 9, 1982. Neither the Texas Motor Vehicle Division nor any of these subsequent purchasers from intervenor questioned the validity of the title or the release of the Bank’s lien furnished by Goines.

During January of 1983 the recovery officer of Union National Bank located the vehicle in Lufkin, Texas and discovered that Sylvia Forsythe had a Texas title which did not show the Bank’s lien. The Bank notified the Texas Motor Vehicle Division that it claimed a lien and that division notified Forsythe of the Bank’s claim and suspended Forsythe’s title. Forsythe took the vehicle back to B & B, who in turn sent it back to City Motors, who sent it back to intervenor. The intervenor had to refund to City Motor Company the price of $5200 for which it had sold the vehicle to City Motor.

The Bank filed the present suit in Caddo Parish, Louisiana on February 22, 1983, claiming a lien under its Kansas chattel mortgage and obtained a writ of sequestration to the sheriff of Caddo Parish to seize and hold the vehicle pending outcome of this litigation.

In March of 1983, the Bank filed with the Division of Vehicles in Kansas an application for a “Repossession Title”, which application includes a “Repossession Affidavit” by the Bank stating that it had a lien on the vehicle, that the chattel mortgage was in default, and that the Bank had “repossessed” the vehicle “according to law” and had complied with all of the requirements of the uniform commercial code as adopted in Kansas, and that the Bank desired that a repossession title issue in its name. Pursuant to this application, a repossession title dated March 30, 1983 was issued to the Bank.

At the trial the Bank filed in evidence Plaintiff’s Exhibit-8, which is a certificate from the chief of titles and registration of the state of Kansas, dated May 5, 1983 stating that attached to this certificate are copies of all records on file in his office regarding the vehicle in question. Attached to this certificate is a copy of the repossession title issued to the Bank in 1983, a copy of the application for repossession title filed by the Bank on May 21, 1983, and a copy of the certificate of title which was issued to Slothower in 1981 showing on the reverse side thereof the assignment by Slothower to King Lincoln Mercury in Kansas and the assignment by King Lincoln Mercury to Goines with a lien to Union National Bank. However, as counsel for the intervenor points out in his brief, the copy of the Slothower title attached to the certificate is a copy of that title which the Bank obtained from the state of Texas and attached to its application for a repossession title in Kansas in 1983. It is also highly significant that P-8 does not include a copy of the NOSI which Ms. Selenka testified should have been mailed to the Kansas Division of Vehicles showing the Bank’s July 15, 1982 chattel mortgage.

On cross examination, counsel for the intervenor questioned Ms. Selenka closely as to why the chief of registration in Kansas did not include with his certificate a copy of the Bank’s 1982 NOSI. Ms. Selen-ka could not explain this discrepancy. When asked how she knew that the Kansas Division of Vehicles had received the NOSI, Ms. Selenka could only say that she did not think the division would have issued to the Bank a repossession title in 1983 unless they had a copy of the NOSI on file. This assumption by Ms. Selenka is not supported by any other evidence nor by any statute, regulation or case on Kansas law brought to our attention. From a mere reading of the Bank’s application for a repossession title it would appear that the purpose of this procedure is to permit the holder of a lien or a conditional sales contract to file an application stating that the contract is in default, that they have repossessed the vehicle according to law, that they cannot locate the debtor to secure either the title or a release and that therefore they are entitled to a repossession title. In any event, there is absolutely no showing by evidence or by any law of Kansas that the Division of Vehicles would not have issued a repossession title unless they had a NOSI on file. In his appellate brief, counsel for the intervenor makes a persuasive argument that if the Division of Vehicles of the state of Kansas actually did have on file the NOSI in question, certainly this banking institution in Kansas would have been able to obtain a copy of it.

The majority opinion states:

A lien may be perfected in Kansas by the actual recordation or by the mailing to the recording office of a Notice of Security Interest (NOSI) signed by the owner and the creditor. See 28 Kansas Law Review, 315 (1980).

As I understand it, this statement implies that a lien can be perfected in Kansas either by “actual recordation” on the certificate of title or by mailing the NOSI to the Division of Vehicles. I find no support for this statement. A reading of Ms. Selenka’s testimony shows clearly that she thought perfection of the Bank’s lien required that the NOSI be sent to the Division of Vehicles in Topeka, Kansas. She went to great lengths to try to prove that the NOSI was recorded, but I think she failed, for the reasons set out above. A Kansas Law Review article was cited and a copy supplied in a supplemental brief filed in the appellate court. This article comments on the decision in Lentz v. Bank of Independence (In re Kerr), 598 F.2d 1206 (10th Cir.1979). That comment and the decision in Kerr indicate that previous to 1975 there was no Kansas statute 'providing for the recordation by the lien holder of a NOSI, which' left the lien holder at the mercy of the title holder who may or may not record his title showing the lien. However, in 1975 the Kansas statute was amended to provide that the lien holder could perfect his lien by recording a NOSI. The Kerr case holds:

When the law provides a simple and inexpensive way to protect the lien the creditor should be required to use it, if the creditor desires protection against failure of the debtor to register the car in Kansas.

The author of the law review comment states that “after Kerr, a lender must either send a NOSI to the Division of Motor Vehicles or rely on the borrower in order to acquire a perfected security interest in the motor vehicle.” Of course, in the present case, there is absolutely no evidence that the borrower, Goines, secured from the Division of Motor Vehicles a title showing the Bank’s lien and, as I have concluded above, there is also no evidence that the Bank perfected its lien by recording a NOSI.

Actually, we are only speculating as to the laws of Kansas. The burden of proof was clearly on the Bank to prove these laws and any doubt must be construed against the Bank which is relying on them.

I conclude that the Bank has failed to prove its lien under the laws of Kansas. Moreover, I think the evidence shows that the intervenor purchased the vehicle in good faith for a valid consideration and has title. The Bank’s argument that the inter-venor should have noticed the release of its lien was a forgery is not discussed by the majority. I conclude this argument clearly has no merit. Not only the intervenor but three subsequent purchasers of the vehicle and the Division of Vehicles of the state of Texas accepted this release without question.

The intervenor took only a devolutive appeal. The record before us shows that after judgment was rendered in favor of the Bank in the district court th*e vehicle in question was sold at a judicial sale and the Bank bought it on a bid of $2840. Although I find that the intervenor owned the automobile free of any lien by the Bank, jurisprudence has established the rule that the validity of a judicial sale made in execution of a judgment cannot be affected by subsequent reversal of the judgment on a devolutive appeal. State v. Mutual Inv. Co., Inc., 214 La. 356, 37 So.2d 817 (1948). Thus, the sale cannot be annulled and the intervenor cannot be declared the owner of the automobile. However, intervenor has prayed in the alternative for judgment against the Bank and Goines in solido in the sum of $5200, this being the trade-in value allowed by intervenor to Goines for the automobile in question, and also being the sum which intervenor had to refund to City Motors. Intervenor is entitled to the alternative demand for these damages for the wrongful issuance of the writ of sequestration and the subsequent seizure and sale of the automobile.

For the reasons assigned, I respectfully dissent.