author: LANIER, Judge.

text:
    AETNA FINANCE COMPANY OF BATON ROUGE v. Sidney A. PERKINS and Patsy Perkins.
    No. 83 CA 0357.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Stephen R. Wilson, Keogh & Keogh, Baton Rouge, for plaintiff.
    Carolyn F. Lahr, Fayard, Morrison & Kuhn, Denham Springs, for defendants.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This matter commenced as a suit by the Aetna Finance Company of Baton Rouge (Aetna) against Sidney Perkins and Patsy Perkins on two promissory notes alleging a balance due of $2,959.48 and for the return of an overpayment by Aetna on one of the notes of $1,038.58. The Perkinses filed an answer and a reconventional demand contending that Aetna violated the disclosure requirements of the Truth in Lending Law (15 U.S.C.A. § 1601, et seq.) and failed to credit them with unearned interest when suit was filed in violation of the Louisiana Consumer Credit Law (La.R.S. 9:3510, et seq.). The Perkinses prayed that the main demand be dismissed and that they be awarded a civil penalty on the reconven-tional demand of $1,000 with legal interest thereon from date of judicial demand until paid and an attorney fee of $2,500. The district court (without assigning reasons) granted judgment in favor of the Perkinses on the main demand and dismissed Aetna’s suit. The district court granted judgment in favor of the Perkinses against Aetna on the reconventional demand for the following amounts:

(1) $2,815.74, representing twice the amount of the finance charge on one of the promissory notes as provided by the Truth in Lending Law;
(2) $1,407.87, representing the loan finance charge on one of the notes pursuant to the authority of the Louisiana Consumer Credit Law; and
(3) $2,500.00, representing a reasonable attorney fee.

The district court cast Aetna for the costs, but did not award interest on any portion of the award. This suspensive appeal followed. The Perkinses have not appealed or answered the appeal.

FACTS

On March 13, 1980, Sidney and Patsy Perkins went to Aetna’s office and applied for a $500 loan to pay for an anticipated hospital bill. In their application for this credit, they listed the following obligations:

(1) First National Bank of Denham Springs - $ 357.08
(2) VISA - 400.00
(3) Master Charge - 400.00
(4) Aetna on account number 36020-fi - 1,561.41
(5) Aetna on account number 50118-0 - 103.51
TOTAL $2,822.00

Hopson P. Williams, the manager of the Aetna office at that time, advised the Per-kinses that he would approve the loan if they agreed to consolidate their bank and Aetna obligations with the new loan into one note. The Perkinses agreed to this proposal.

The Perkinses returned to the Aetna office on March 14, 1983, to execute the loan documents. When they arrived at the Aet-na office, they were advised that there were mistakes on some of the documents and they had to be redone. The Perkinses ultimately signed two separate notes. The first (large note) was for an amount financed of $2,624.13 with a finance charge of $1,407.87 for a total of $4,032 to be paid in 36 monthly payments of $112 each commencing on April 14, 1980. The second note (small note) was to finance an accident insurance policy. The amount financed on the small note was $100, the finance charge was $12.92 and it was to be paid in 12 monthly payments of $9.41 each commencing on April 14, 1980. The Perkinses were to receive $490.01 from the large note. However, Aetna gave them a check for $1,528.59, which sum represented the payoff of $1,038.58 on Aetna account number 36020-6 and the balance due the Perkinses of $490.01. Mrs. Perkins testified at the trial that at the time of the loan closing, Williams told her that the extra money was to pay the VISA and Master Charge accounts. Apparently, Aetna sent a check to the First National Bank of Denham Springs to pay off that obligation. Aetna also apparently cancelled their account number 36020-6 with a rebated balance due of $1,038.58 and account number 59118-0 with a rebated balance due of $94.40. The Perkinses took the check for $1,528.59 and deposited it in their checking account.

On the night of March 14, 1983, Williams called Mrs. Perkins and advised her that the sum of $1,038.58 was paid to them by mistake and was an overpayment Oil the note and should have been applied to the cancellation of account number 36020-6. He demanded that this amount be returned to Aetna in cash. Williams contacted the Perkinses on several occasions after this date to resolve the dispute, however, the Perkinses did not return the money nor did they make any payment on either note. This suit was filed on May 27, 1980.

DISCLOSURE VIOLATIONS

Aetna does not contest the applicability of the Truth in Lending Law to the loan transactions with the Perkinses. Incorporated in the Aetna promissory notes is a form for making the disclosures required by the Truth in Lending Law. The large note shows that the amount financed is $2,624.13 and that the finance charge is $1,407.87. The amount financed is $1,980.07 for money paid to the Perkinses or on their behalf and $644.06 in insurance charges and official fees. The original document shows in handwriting that the following sums were paid to the Perkinses or on their behalf:

(1) $1,038.58 — the balance due on Aetna account number 36020-6;
(2) $490.01 — paid to the Perkinses;
(3) $94.40 — the balance due on Aetna account number 59118-0; and
(4) $357.08 — the balance due at the First National Bank of Denham Springs.

This original note also shows in handwriting that the loan is secured by a chattel mortgage on all of the household goods belonging to the Perkinses, but the mortgaged chattels are not individually listed or described. This original note is signed by Sidney and Patsy Perkins as makers and is witnessed by Hopson P. Williams and Estella Robinson.

Both the Truth in Lending Law and the Truth in Lending Regulations promulgated by the Board of Governors of the Federal Reserve System (12 C.F.R. § 226.1, et seq.) require a creditor to disclose to the customer the amount of credit of which the customer will have the actual use or which will be paid to him or for his account or- to another person on his behalf. 15 U.S.C.A. § 1639(a)(1); 12 C.F.R. § 226.8(d)(1). They also require that the creditor disclose a description of any security interest held or acquired by him in connection with the extension of credit with a clear identification of the property to which the security interest relates. 15 U.S.C.A. § 1639(a)(8); 12 C.F.R. § 226.8(b)(5). The Truth in Lending Regulations also require that when the disclosures are made the creditor shall furnish the customer with a duplicate of the instrument or a statement by which the required disclosures are made and on which the creditor is identified. 12 C.F.R. § 226.-8(a).

Sidney Perkins testified that he was given a duplicate of what he signed before he left the Aetna office on March 14, 1980, and it was filed in evidence. Hopson P. Williams did not discuss the terms of the loan agreement with the Perkinses either before or after they signed. Perkins asked Williams to explain the figures on the document, but he did not. Patsy Perkins testified that she was also given a duplicate of what she signed, and it was filed in evidence. Williams did not discuss the terms of the loan with them. No handwritten matters (the amounts paid to the Perkinses or on their behalf and the chattel mortgage) were on the original document when the Perkinses signed it. Williams told her that they were being given an extra $1,000 to pay the Master Charge and VISA accounts. Mrs. Perkins subsequently used the money for that purpose. She did not know why her signature appeared on the original and not on the duplicate.

There are obvious discrepancies between the original note and disclosure statement and the duplicates which were given to Sidney and Patsy Perkins. The duplicates are not filled in to show the money paid to the borrowers or on their behalf and do not show that a chattel mortgage was given on all of the household goods of the borrowers. The duplicate copies also have type written numbers in the area marked disbursement of amount financed which do not appear on the face of the original. The signatures of Patsy Perkins and Estella Robinson are not on the duplicates.

The only witness called by Aetna at the trial was Tom Greinstaff, who was the Aetna office manager at the time of the trial. He testified that the usual procedure of Aetna was to put all pertinent information on the note and disclosure and then give a copy to the borrower. He did not know what Williams did when the loans were signed because he was not present. He testified that Williams was no longer with Aetna but that Estella Robinson was still an employee of the company. Grein-staff speculated on cross-examination by counsel for the Perkinses that they got copies of the voided transaction but admitted that he did not really know what happened because he was not present.

Although the trial judge did not give reasons for judgment, it is apparent from his ruling that he accepted the testimony of the Perkinses. After considering this testimony and examining the original and duplicates of the note and disclosure forms, we find that Aetna failed to comply with the disclosure requirements of the Truth in Lending Law and Regulations because it failed to properly disclose or place on the duplicate copies the money paid to the borrowers or on their behalf and the chattel mortgage on all of the borrowers’ household goods. Ingram v. Reliable Finance Company, Inc., 410 So.2d 768 (La. App. 3rd Cir.1981); Reliable Credit Service, Inc. v. Bernard, 339 So.2d 952 (La. App. 4th Cir.1976), writs denied, 341 So.2d 1129 (La.1977) and 342 So.2d 215 (La. 1977). Cf. Baker Bank and Trust Company v. Matthews, 401 So.2d 1246 (La.App. 1st Cir. 1981). Because Aetna did not make the proper disclosures or. place the disclosures on the borrowers’ duplicate copies, the Per-kinses are entitled to the statutory penalties provided by the Truth in Lending Law.

The Perkinses did not introduce evidence at the trial to show that there were disclosure violations attributable to the execution of the small note and have not contended such in their appellate brief. The note agreement shows that the amount borrowed was $100, the finance charge was $12.92, the annual percentage interest was 23.01'/' and that the note was to be paid in 12 monthly installments of $9.41 each commencing on April 14, 1980. This note is signed by Hopson P. Williams on behalf of Aetna and by Sidney Perkins. Patsy Perkins did not sign this note. It was permissible under the provisions of the Truth in Lending Law in force at the time of the execution of this note to incorporate the disclosure information in the note signed by the borrower. 15 U.S.C.A. § 1639(b). The Perkinses have failed to prove that there were disclosure violations with reference to this note. The district court judgment indicates that this portion of the relief requested by the Perkinses was not granted. That portion of the district court judgment has not been contested by appeal or answer to the appeal.

DISCLOSURE VIOLATION PENALTIES

When a borrower proves that there has been a failure to comply with the disclosure requirements of the Truth in Lending Law and Regulations, he is entitled to civil penalties in accordance with the pertinent portion of 15 U.S.C.A. § 1640(a) as follows:

(a) Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part or part D or E of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of the failure; (2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, or (ii) in the case of an individual action relating to a consumer lease under part E of this subchapter, 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000; or
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.

(Emphasis added).

The Perkinses did not allege or prove actual damage as a result of Aetna’s failure to disclose. The district judge granted an award of $2,815.74, representing twice the finance charge of $1,407.87 pursuant to 15 U.S.C.A. § 1640(a)(2)(A)(i). This award is excessive because the statute limits such awards to not more than $1,000. Baker Bank and Trust Company v. Matthews, 401 So.2d at 1248; Gaines v. Phills, 389 So.2d 445 (La.App. 2nd Cir.1980), writ denied, 395 So.2d 1363 (La.1981). However, a creditor who fails to properly disclose to solidary obligors (such as the Per-kinses in the instant case) is liable for this penalty to each of the solidary obligors. Liberty Loan Corporation v. Stanley, 389 So.2d 1355 (La.App. 3rd Cir.1980). Accordingly, this portion of the award is amended to grant a civil penalty in favor of Sidney Perkins of $1,000 and in favor of Patsy Perkins for the same amount.

Aetna contends that the $2,500 attorney fee awarded by the district court is excessive and should be reduced to $750. It is hornbook law that a district judge has much discretion in fixing an attorney fee and his award will not be modified on appeal absent a showing of an abuse of that discretion. After considering all of the facts and circumstances of this case, we cannot say that the trial judge, abused the much discretion accorded him by law. See, for example, Ingram v. Reliable Finance Company, Inc., 410 So.2d at 771 where the court awarded an attorney fee of $3,500 in a case somewhat factually similar to the instant ease. This portion of the award is affirmed.

FAILURE TO REBATE INTEREST

Aetna contends that the district court committed error when it rendered judgment in favor of the Perkinses for $1,407.87, representing the loan finance charge on the large note. Neither Sidney Perkins nor Patsy Perkins testified about this issue. The only testimony in the record on this issue is that of Tom Grein-staff as follows:

Q Now, when this petition was filed, under this note, the total payoff of which was $4,032, you sued for $2,959.48. Why ⅛ that?
A Excuse me, could you ask that again?
Q The amount asked for in the suit on behalf — on the note that you just identified was $2,959.48. Does this figure reflect the rebate of unearned interest?
A Yes, that’s correct.
I think you testified that he was given a credit for unearned capitalized interest, is that correct? <£>
Yes. C
And that appears in paragraph one of your petition. You state that the defendant owes you $3,998.06, interest is due on $2,959.48, is that correct? G?
Okay, well, I haven’t seen the petition, so I couldn’t tell you that.
Q Do you know how much unearned capitalized interest they were credited with?
A Yeah, according to my records, what was in — when we took the charge, we rebated all the interest.

La.R.S. 9:3529 of the Louisiana Consumer Credit Law requires that if the maturity of a consumer credit transaction is accelerated for any reason and suit is filed the borrower shall be credited with the same rebate as if prepayment in full had been made on the date of filing suit. La.R.S. 9:3528 provides that upon prepayment the extender of credit must refund to the borrower the unearned loan finance charges pursuant to a formula set forth therein. The finance charge on the large note was $1,407.87 and, with the amount paid to the borrowers or on their behalf, resulted in a total amount due of $4,032. After rebate, the amount claimed on this obligation is $2,959.48, which is $335.35 more than the amount financed. The evidence presented by Aetna (although not detailed), which was subject to cross-examination, indicates that the rebated figure is correct. The Perkinses have presented no evidence to the contrary nor have they demonstrated in brief that these calculations are wrong. The judgment of the district court on this portion of the award is clearly wrong and is reversed. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

Apparently, the district court rejected the claim of the Perkinses for rebated interest on the small note. The Perkinses have not contested this portion of the district court judgment by way of appeal or answer to the appeal.

RECOVERY ON CLAIMS BY AETNA

Aetna contends that the district court committed error by failing to grant judgment on its claim on the two promissory notes and for the overpayment.

The Perkinses have not cited in their pleadings or in brief any provision of the Truth in Lending Law or Regulations which would authorize the cancellation of their obligations under the facts of this case. We are unable to find any provision of the Truth in Lending Law or Regulations which would authorize the avoidance of these transactions for failure to properly disclose. Liberty Loan Corporation v. Stanley, 389 So.2d at 1359. (15 U.S.C.A. § 1635 provides for rescission of a consumer credit transaction in which a security interest is acquired on real property used as the residence of the person to whom the credit is extended.)

The Perkinses cannot utilize the provisions of La.R.S. 9:3552 to rescind their obligations because they did not utilize the procedure prescribed therein. Instead, they urge that the transactions should be rescinded because they are unconscionable, as that term is defined in La.R.S. 9:3551 of the Louisiana Consumer Credit Law, citing Community Acceptance Corporation of Denham Springs, Inc. v. Kinchen, 417 So.2d 22 (La.App. 1st Cir. 1982) as authority. La.R.S. 9:3551 provides as follows:

With respect to a consumer credit transaction, if the court as a matter of law finds the agreement or any clause of the agreement to have been unconscionable at any time it was made the court may refuse to enforce the agreement, or it may enforce the remainder of the agreement without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result; provided, however, for the purposes .of this chapter, an agreement, clause, charge or practice expressly permitted by this-chapter or any other law or regulation of this state or of the United States or subdivision of either, or an agreement, clause, charge or practice necessarily implied as being permitted by this chapter or any other law or regulation of this state or the United States or any subdivision of either is not unconscionable.

The term “unconscionable” is defined in La.R.S. 9:3516(30) as follows:

‘Unconscionable’. A contract or clause is unconscionable when at the time the contract is entered into it is so onerous, oppressive or one-sided that a reasonable man would not have freely given his consent to the contract or clause thereof in question; ...

The Perkinses do not allege in their pleadings or in brief that the terms of their loans are in violation of law. The facts in the instant case are distinguishable from those in Community Acceptance Corporation of Denham Springs, Inc. v. Kinchen. In Kinchen, the trial court found as facts that the lender failed to rebate unearned interest, that the borrowers were unsophisticated and uneducated people of extremely limited means, that the borrowers’ manager had knowledge that the vehicle being financed was disabled at the time of the transaction and that the discrepancy between the actual value of the vehicle and the size of the note was so great that it amounted to an exploitation of the borrowers “to such a degree that it borders on fraud”. We have carefully reviewed all of the facts and circumstances in the instant case and do not find that the loan transactions were unconscionable. The judgment of the trial court rejecting Aetna’s demands was clearly wrong and is reversed.

The testimony of Tom Greinstaff shows that the rebated balance due on the large note is $2,959.48 and that the payoff on the small note is $112.92. Aetna is entitled to judgments for these amounts. Aetna is also entitled to legal interest on each of these awards from date of judicial demand until paid. La.C.C. art. 2924.

Aetna also claims that it is entitled to recover $1,038.58 from the Perkinses for an overpayment on the large loan. The credit application executed by the Perkinses on March 13, 1980, showed a balance due on an account with Aetna (number 36020-6) of $1,561.41. The rebated balance on this account was $1,038.58. When the loan transactions were executed, the Perkinses were given a check for $1,528.59 for the $1,038.58 payoff of the prior account and a balance of $490.01 payable to them. The prior account was never paid although the obligation was apparently cancelled. (If the note representing the prior account had not been cancelled, then it could have been sued upon in these proceedings.) The Per-kinses admitted receiving and negotiating the check. Mrs. Perkins testified that she used the extra money to pay off her Master Charge and VISA accounts. Aetna has established by competent evidence its entitlement to recover this amount. Aetna did not pray for interest on this portion of the award and therefore no legal interest thereon shall be granted. La.C.C.P. art. 1921 and official revision comment (a) thereunder.

Aetna claims contractual attorney fees on the two notes of 25'% of the principal and interest due. The large note contains the following provision for a contractual attorney fee:

Borrower(s) agree to pay a reasonable attorneys fee not to exceed 25% of the unpaid balance should this note be referred after default to an attorney not a salaried employee of the lender.

Since Aetna is claiming entitlement to this award, the burden is on it to show that it is entitled to it. There is no evidence in the record to show that the attorney who represented Aetna in these proceedings was not a salaried employee of Aetna. Thus, Aetna has failed to prove its entitlement to this portion of the claim. The small note contains the following provision for an attorney fee:

Buyer agrees to pay reasonable attorney fees not in excess of 25'% of amount due at time referred to attorney.

The testimony of Tom Greinstaff indicates that the payoff on the small note at the time of default was $112.92. Aetna is entitled to an attorney fee of 25'%' of that amount. Aetna, by the terms of the provision, is not entitled to 25% of the legal interest which accrues on this portion of their claim.

DECREE

For the foregoing reasons, the judgment of the trial court is amended , to grant civil penalties of $1,000 each to Sidney Perkins and Patsy Perkins; the statutory penalty attorney fee award of $2,500 is affirmed; that portion of the judgment granting an award for an unrebated finance charge of $1,407.87 is reversed; judgment is granted in favor of Aetna and against Sidney and Patsy Perkins jointly, severally and in soli-do, in the sum of $2,959.48 with legal interest thereon from date of judicial demand until paid; judgment is granted in favor of Aetna and against Sidney Perkins in the sum of $112.92 with legal interest thereon' from date of judicial demand until paid together with an attorney fee of 25'/’ of $112.92; judgment is granted in favor of Aetna and against Sidney Perkins and Patsy Perkins jointly, severally and in solido, in the sum of $1,038.58; and judgment is rendered authorizing the parties, to the extent possible, to offset against each other the respective sums for which they have been cast on the main and reconventional demands (Baker Bank and Trust Company v. Matthews, 401 So.2d at 1252). All costs of this court and the trial court shall be paid one-half by Aetna and one-half by Sidney Perkins and Patsy Perkins. Liberty Loan Corporation v. Stanley, 389 So.2d at 1360.

AFFIRMED IN PART, AMENDED IN PART AND REVERSED IN PART.

      . The suit covering jacket indicates that the name of the plaintiff is Aetna Financial Company of Baton Rouge, but the pleadings, briefs and memoranda indicate the correct name is Aetna Finance Company of Baton Rouge.

      . Attached to Aetna’s petition is a copy of an unsigned chattel mortgage on the Perkinses household chattels dated March 14, 1980. However, the suit docs not request recognition of ibis chattel mortgage and the original document was not filed in evidence.

      . Williams and Robinson were not called as witnesses at the trial.

      . Although both of the Aetna notes had acceleration clauses and Aetna would be entitled to legal interest from the date that the note obligations became due (La.C.C. art. 1938), il only requesied legal ¡merest from dale of judicial demand. La. C.C.P. art. 1921.


source: Caselaw Access Project

author: CARTER, Judge:

license: Public Domain

text:
    STATE of Louisiana v. Jerry SAVOIE.
    No. 83 KA 0598.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied April 23, 1984.

      Stephen E. Caillouet, Thibodaux, Asst. Dist. Atty., for plaintiff, State of La.
    Larry P. Boudreaux, Thibodaux, for defendant, Jerry Savoie.
    Before LOTTINGER, PONDER and CARTER, JJ.
   CARTER, Judge:

Defendant, Jerry Savoie, was charged by grand jury indictment with attempted first degree murder, which charge was amended by the district attorney to attempted second degree murder in violation of LSA-R.S. 14:30.1 and 14:27. Defendant was tried by a twelve-person jury and was found guilty of attempted second degree murder. Defendant was sentenced to 35 years at hard labor, the first five years to be served without probation, parole or suspension of sentence; and, further, as a condition of any future parole or probation, “the defendant is to make restitution to the victim herein in an amount to be determined by the court.” Defendant now appeals his conviction and sentence alleging twelve assignments of error.

FACTS

Defendant owns a bar. While at work on Friday, January 29, 1982, at about 9:00 or 9:30 p.m., a black friend staggered into defendant’s bar. The friend, Charles Duncan, was bleeding and badly beaten up. Duncan told defendant that he had been in a fight at another bar with a Mr. Neil Johnson. Duncan then asked defendant to help him find Johnson. At this point, defendant, Duncan and another friend, Mr. Easton Dennis, decided to look for Johnson at C.J. Friendly’s Lounge where the fight was supposed to have taken place. Defendant armed himself with a gun and gave a .44 magnum shotgun to Easton Dennis. Without defendant’s knowledge, Duncan took defendant’s sawed-off shotgun and hid it in his pant leg. When the three men arrived at Friendly’s Lounge, Dennis remained on guard outside in the parking lot. Duncan entered the lounge alone while defendant waited outside the building for him to return. When Duncan did not return, defendant decided to go inside. When defendant entered the lounge Duncan was standing near Jerry Thomassie, a bar patron, At this point, the gun fell out of Duncan’s pant leg and Duncan fell to the floor. Thomassie then picked up the shotgun, unloaded it, and laid it on the bar. The defendant approached Thomassie, placed his handgun below Thomassie’s left ear, then against his neck, and then shot Thomassie in the face. In the ensuing confusion, defendant was hit from behind with a beer bottle and was shot in the hand.

ASSIGNMENTS OF ERROR

1. The trial court committed reversible error in refusing to grant defendant’s Motion To Recuse the Honorable Wollen J. Falgout, Judge.

2. The trial court committed reversible error in allowing the statement of defendant’s son to be used for impeachment purposes.

3. The trial court committed reversible error in preventing defense counsel from questioning the interrogating police office with respect to relevant evidence on cross examination.

4. The trial court committed reversible error by admitting into evidence a copy of the statement of defendant’s son.

5. The trial court committed reversible error in preventing defendant counsel from questioning an eye witness regarding his previous conviction.

6. Defendant was denied a fair trial when the district attorney, in closing arguments, made statements that were improper and not a fair comment on the evidence, and inflammatory and prejudicial to defendant.

7. Defendant was deprived of a fair trial when the district attorney during closing arguments commented upon the Hinckley case, such comments being inflammatory and prejudicial to defendant.

8. The trial court erred in accepting the verdict of the jury which is contrary to the law and evidence inasmuch as the prosecution failed to prove that the actions of defendant were intentional.

9. The trial court committed reversible error in failing to grant defendant’s motion for new trial.

10. The trial court committed reversible error in failing to grant defendant’s motion for a sentencing hearing.

11. The trial court committed reversible error in accepting a verdict of the jury which is contrary to the law and evidence, considering the testimony and proceedings of the trial as a whole.

12. The sentence received by defendant is excessive and constitutes an abuse of discretion.

Defendant in brief has combined arguments on assignments of error 2 and 4, on assignments of error 6 and 7, on assignments of error 8, 9 and 11, and on assignments of error 10 and 12. We shall do likewise.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court committed reversible error when it denied defendant’s motion to recuse the trial judge. In his motion to recuse, defendant asserts that he and the trial judge had had a prior confrontation at which time defendant had “cussed out” the judge. Another specific ground for the complaint is the trial judge’s comment at a pretrial plea bargaining session. When asked by defendant’s counsel what would happen if defendant were convicted by a jury, the judge replied that defendant would “never see the bayous again.” Defendant contends that the above statement is evidence of the judge’s predetermination of defendant’s guilt.

The key factor in determining a motion for recusal of a trial judge, in the absence of more specific grounds, is whether the trial judge is able to conduct a fair and impartial trial. State v. Patterson, 432 So.2d 1021 (La.App. 1st Cir.1983). The denial of a motion to recuse a trial judge on the grounds that he had taken part in a plea bargain and knew that, under certain circumstances, defendant was willing to plead guilty is not error, where all issues of fact pertaining to guilt or innocence are tried by a jury. State v. Austin, 258 La. 273, 246 So.2d 12 (La.1971).

The record reveals that, at the recu-sal hearing, the trial judge made it clear that he did not hold defendant’s prior pugnacious actions against him. Further, the plea bargain session did not end in a plea bargain agreement; and all comments were made in the context of the discussion and in response to defense counsel’s specific questions. Moreover, our review of the entire trial proceedings convinces us that the trial judge did in fact conduct defendant’s trial in a fair and impartial way. Defendant’s allegations of bias are merely conclusive on his part as the record is replete with evidence to the contrary.

This assignment of error has no merit.

ASSIGNMENTS OF ERROR NOS. 2 and 4

Defendant complains that the trial court erred when it allowed a pre-trial statement made by defendant’s son, Jerry Savoie, Jr., to be used for impeachment purposes and when it allowed a copy of the statement itself to be introduced into evidence.

The party seeking to use the statement must first comply strictly with the requirements of LSA-R.S. 15:493 to avoid surprise and allow the witness to explain the inconsistency. State v. West, 437 So.2d 256 (La.1983). The rationale for such a strict foundation is to obviate surprise and to let the witness either deny or explain the inconsistency. State v. Heard, 408 So.2d 1247 (La.1982).

The record reveals that the state, in laying a foundation for the impeachment of the witness by the use of a prior inconsistent statement, asked the witness if he had made the statement and to describe the circumstances surrounding the taking of the statement. The witness confirmed that he had made the statement and had signed the written statement as taken down by Deputy Authement. Under cross examination, the witness admitted that the contents of the statement were true. We find that the state strictly complied with the requirements of LSA-R.S. 15:493 in laying a proper foundation to impeach the witness.

Defendant further argues that the trial court erred in allowing the state to introduce a copy of the statement.

In State v. Mosely, 360 So.2d 844 (La. 1978), the court stated the following at page 846:

“Proof that the prior inconsistent statement was made can be used for impeachment purposes only, not to show the truth of its content. If a witness distinctly admits having made a prior inconsistent statement, his credibility has been effectively impeached. At this point, the permitted reason for the use of the prior inconsistent statement (impeachment) has been accomplished. Thereafter, proof that the statement was made would not be for impeachment purposes, but rather to show the truth of its content, which is not permissible. Accordingly, if a witness distinctly admits having made a prior inconsistent statement, evidence that the statement was made is inadmissible.” (Citations omitted)

Even though a prior inconsistent statement may be incorrectly admitted into evidence, the error is not necessarily reversible. State v. Heard, supra.

In the case sub judice, the witness admitted to having made the prior inconsistent statements. The trial judge should not have permitted the written statement to be introduced into evidence. However, in view of the strong evidence presented by the state, we are of the opinion that the improper admission of the statement did not contribute in any significant way to the defendant’s conviction.

Defendant further reasons that the witness’s statement should have been excluded for any purpose because it was taken'by police under threats and duress. See State v. Coleman, 390 So.2d 865 (La.1980). There, however, is no substantiation of this charge in the record. Deputy Authement testified that the witness was calm, sober and in good condition at the time he gave the statement. Deputy Authement further testified that neither he nor any other police officer threatened the witness with any criminal charges nor did he insist the witness give the statement at that time.

We find no reversible error in either of the two assignments briefed.

ASSIGNMENT OF ERROR NO. 3

The defense complains that the trial court erred when it limited defense counsel’s questioning of Deputy Authement concerning all statements taken by him on the evening defendant was arrested and Jerry Savoie, Jr. was questioned.

LSA-R.S. 15:275 vests the trial judge with “a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness.” Therefore, a conviction will not be reversed due to the trial judge's control of the examination of a witness unless an abuse of discretion is shown. State v. Chapman, 410 So.2d 689 (La.1981). Nor will a conviction be overturned where defendant does not show that he was prejudiced through a limitation of the cross-examination of a witness. State v. Brown, 432 So.2d 345 (La.App. 1st Cir. 1983).

In the instant case, defendant has neither alleged nor proven prejudice as a result of the trial court’s action. We find no abuse of discretion on the part of the trial court.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the trial judge erred in limiting defense counsel’s questioning on cross-examination of Mr. Lee Domangue. When defense counsel questioned Mr. Domangue as to whether he had served more than eighteen months on a theft conviction, the state objected. The court sustained the state’s objection, to which defendant objected.

The rule allowing cross-examination of a witness as to past convictions must be narrowly rather than broadly construed; the trial court has the duty of restricting an inquiry into the details of a past conviction within reasonable bounds. State v. Oliver, 387 So.2d 1154 (La.1980).

According to the record, the defense counsel elicited testimony from Mr. Domangue concerning a prior conviction sufficient for the purpose of impeaching the credibility of Mr. Domangue as a witness. Any further questioning concerning the conviction was irrelevant and repetitious. We find no error on the part of the trial judge.

There is no merit in this assignment of error.

ASSIGNMENTS OF ERROR NOS. 6 and 7

Defendant complains in closing argument that the prosecutor made statements which were improper, inflammatory and prejudicial to defendant, citing two separate statements. First, during state’s closing argument, the prosecutor referred to defendant as a “mean man — he is a violent man. He is an uncontrollable man and he has very little respect for human life.” Second, during rebuttal on closing argument, the prosecutor compared defendant’s motive to the motive of John Hinckley, the man who shot President Reagan.

The scope of the closing argument is limited to the evidence admitted, the lack of evidence, conclusions of fact drawn therefrom, and the law applicable to the case. LSA-C.Cr.P. art. 774. If oral argument goes beyond these limits, it may fall within the ambit of LSA-C.Cr.P. arts. 770 and 771. When such remarks are made in the presence of the jury, either a mistrial or an admonition may be proper. LSA-C. Cr.P. arts. 770, 771. But, before a verdict would be overturned on the basis of improper arguments, the court must be thoroughly convinced that the comment influenced the jury and contributed to the verdict. State v. Montgomery, 432 So.2d 340 (La.App. 1st Cir. 1983).

The trial judge instructed the jurors thoroughly prior to their retiring to deliberate. Both the trial judge and counsel for the state stressed that the opening and closing arguments were not to be considered as evidence for or against the defendant. The trial judge emphasized the standard to be used in formulating a verdict in a criminal case and included the elements of the responsive crimes in his charge to the jury. We see no evidence in the record that the comments complained of unduly influenced the jury or contributed to the verdict.

There is no merit to these assignments of error.

ASSIGNMENTS OF ERROR NOS. 8, 9 and 11

In alleging these assignments of error, defendant initially contends that the trial court committed reversible error in failing to grant defendant’s motion for a new trial. This assignment of error is made pursuant to LSA-C.Cr.P. art. 851(5). Clearly, where the defendant’s motion for a new trial is based on LSA-C.Cr.P. art. 851(5), the granting or denial of a new trial is not subject to review by the appellate courts. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983).

The defendant further argues that the verdict is contrary to law and evidence inasmuch as the state failed to prove intent and that the verdict is contrary to law and evidence considering the testimony and proceedings as a whole. These assignments are made pursuant to LSA-C.Cr.P. art. 851(1). The court’s review of a trial court’s denial of a motion for new trial based on the assertion that the verdict is contrary to the law and the evidence [LSA-C.Cr.P. art. 851(1) ] is limited to the question of whether the trial judge has properly exercised his wide discretion. State v. Caminita, 411 So.2d 13 (La.1982) cert. denied at 459 U.S. 976, 103 S.Ct. 314, 74 L.Ed.2d 291.

Defendant argues that the state failed to prove specific intent. Specific intent is a state of mind and need not be proved as fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. LSA-R.S. 15:445, State v. Graham, 420 So.2d 1126 (La.1982).

Testimony adduced at trial from the eye witnesses to the crime reveal that defendant was armed when he entered the bar where the instant shooting occurred. Defendant’s companions were also armed. Defendant’s son, the victim and another eye witness testified that defendant pointed his handgun at the victim’s face and neck, pressing closely, then shot the victim in the face. Based on our review of the record, we find no- abuse of discretion on the part of the trial judge in denying defendant’s motion for new trial based on the fact that the verdict is contrary to the law and the evidence.

Moreover, viewing the entire record of evidence received at trial in the light most favorable to the prosecution, we find that any rational trier of fact could find that the state had proved every element of the crime for which defendant was found guilty. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Further, the circumstantial evidence presented at trial excludes every reasonable hypothesis that defendant was innocent of an attempt to kill or inflict great bodily harm on the victim. LSA-R.S. 15:438.

These assignments of error have no merit.

ASSIGNMENTS OF ERROR NOS. 10 and 12

Defendant contends that he received an excessive sentence. Defendant also contends that the trial court committed reversible error when it denied defendant’s motion for.a sentencing hearing, arguing that the defendant should be allowed to present evidence to aid the trial judge in determining a sentence under the guidelines of LSA-C.Cr.P. art. 894.1.

In State v. Bosworth, 360 So.2d 173 (La. 1978), the Louisiana Supreme Court held that a defendant is entitled to access to the presentence investigation report before sentence is imposed where defendant believes prejudicial or materially false information is contained therein. In addition, defendant is entitled to an opportunity to deny or explain prejudicial misinformation otherwise secret to the sentencing judge. However, where defendant is given an opportunity to deny or explain adverse information, no full-scale evidentiary hearing is required at a sentencing hearing.

According to the record before us, the trial judge ordered a presentence investigation report on the defendant. This report was given to defendant’s counsel who in turn allowed defendant access to the report. The trial judge held a hearing to give defendant the opportunity to deny or explain any adverse information or facts contained in defendant’s presentence investigation report. Moreover, defendant and his counsel testified that they were satisfied there were no prejudicial remarks or errors in the report, except one which defendant had previously called the court’s attention to and of which the court was aware. We find that the trial judge rightly denied defendant’s motion for a full-scale evidentiary sentencing hearing.

The penalty provisions of LSA-R.S. 14:30.1 and LSA-R.S. 14:27, attempted second degree murder, provide for a possible maximum penalty of fifty years at hard labor. Defendant herein received a sentence of 35 years at hard labor, the first five years of the sentence to be served without probation, parole or suspension of sentence pursuant to LSA-C.Cr.P. art. 893.-1.

Generally, a sentence is excessive if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Parkerson, 415 So.2d 187 (La. 1982). Prior criminal activity which the court may consider when sentencing defendant is not limited to convictions. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983).

Our examination of the record reveals that the trial judge considered the guidelines of LSA-C.Cr.P. art. 894.1 when sentencing defendant; he also considered factors mitigating against incarceration and recommendations of the probation department together with defendant’s presen-tence investigation report. Considering defendant’s numerous encounters with the law over the last thirty years, together with the fact that evidence adduced at the trial was sufficient to find that a firearm was used in commission of the crime charged, we find that the sentence is not excessive under the circumstances of this case.

There is no merit in assignments of error nos. 10 and 12.

PATENT ERROR

At the sentencing hearing, the trial judge ordered the defendant to pay restitution to the victim if and when the defendant was paroled. LSA-C.Cr.P. art. 895 authorizes restitution as a condition of probation only when the trial judge suspends the execution of sentence. Because there was no suspension of sentence, this portion of defendant’s sentence is illegal, and we vacate that condition of defendant’s sentence ordering restitution.

For the above reasons, the conviction is affirmed. Further, that portion of defendant’s sentence requiring restitution is vacated, and the remainder of the sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE VACATED in part, and AFFIRMED AS VACATED.


author: ALFORD, Judge.

text:
    STATE of Louisiana v. Sammy MILLER.
    No. 83 KA 0756.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied May 4, 1984.

      William M. Quin, Asst. Dist. Atty., Am-ite, for plaintiff-appellee, State of La.
    Harry Widmann, Hammond, for defendant-appellant, Sammy Miller.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Sammy Miller, was charged by grand jury indictment with first degree murder in violation of LSA-R.S. 14:30. This charge was reduced by the district attorney immediately prior to trial to second degree murder in violation of LSA-R.S. 14:30.1. After pleading not guilty, defendant waived trial by jury, was tried by a judge alone and found guilty as charged. Defendant received the mandatory sentence of life imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. He now appeals his conviction and sentence, alleging six assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred when it denied defendant’s motion to suppress the confession.

2. Defendant’s conviction was defective in that the district attorney amended the bill of indictment from first degree murder to second degree murder although a prosecution for second degree murder may only be instituted pursuant to a grand jury indictment.

3. The trial court erred when it permitted the state to amend the bill of indictment on the morning of defendant’s trial thus denying defendant the opportunity to prepare for his defense.

4. The state failed to establish the corpus delicti of felony murder outside of defendant’s statement such that a trier of fact could reasonably conclude beyond a reasonable doubt that the crime charged had in fact occurred.

5. The trial court erred when it convicted defendant of second degree murder when the state failed to prove defendant’s guilt beyond a reasonable doubt.

6. The trial court erred when it admitted into evidence a statement of defendant with regard to his receipt of $170 in cash from the alleged perpetrator of the homicide in question.

Around 6:30 p.m. on July 9, 1979, the body of the victim herein, Leon “Pool” McKnight, was found by his brother and his nephew lying under a pinball machine in the victim’s barroom. The victim had been shot several times; there were blood stains and drops of blood over various areas of the barroom floor leading from behind the bar where drinks were dispensed to the position where the victim’s body was found. The cash register of the barroom was standing open and empty. The doors to the barroom had been padlocked from the outside and had to be cut with a metal cutter in order to open the door. Several days later, the police received an anonymous tip that defendant was in Omaha, Nebraska, planning to leave on a bus the following morning. The police sought and obtained a warrant for defendant’s arrest, flew to Omaha and arrested defendant who waived extradition. Defendant was returned to the local police station, read his rights and jailed.

Four days after his arrest in Omaha, defendant gave a taped statement to Louisiana police concerning the instant crime and also an armed robbery in which he and Floyd Wheat were involved. He admitted gaining entrance to the victim’s barroom after it had closed for the night in the early morning of July 9, 1979, and watching his alleged co-perpetrator of the instant crime, Floyd Wheat, enter the barroom after Mr. McKnight had opened the door to let defendant in. Then, upon hearing shots, defendant immediately left the scene and ran away. He and his wife went to New Orleans, where Floyd Wheat found him the next day and gave him $170 in cash, saying he had “taken care of business”. Defendant then left for Omaha where he was taken into custody by Louisiana police. This trial resulted.

ASSIGNMENT OF ERROR NO. 1:

Defendant contends that his confession should have been suppressed because it was obtained in violation of law, arguing that defendant had been in custody for four days at the time his confession was obtained but had not been brought before a magistrate during that time as required by LSA-C.Cr.P. 230.1, infra. Therefore, because defendant was allowed to languish in jail, unrepresented and uninformed of his rights, the State has not borne the burden of proving that defendant made the confession freely and voluntarily and his confession should have been suppressed.

LSA-C.Cr.P. 230.1 provides:

A. The sheriff having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel. Saturdays, Sundays, and legal holidays shall be excluded in computing the seventy-two hour period referred to herein.
B. At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail.
C. If the arrested person is not brought before a judge in accordance with the provisions of Paragraph A of this Article, he shall be released forthwith.
D. The failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.

The transcript of testimony taken at the hearing on defendant’s motion to suppress the confession reveals that, in searching the records of the police department entries, no evidence was found to show that defendant had been brought before a magistrate within seventy-two hours of his arrest. For this reason, defendant was released from custody at the close of the hearing on the motion to suppress and subpoenaed to appear in court on the day of his trial. However, at the above hearing, defendant did not enter a contemporaneous objection that his confession was inadmissible because it was taken while he was held in custody in violation of LSA-C.Cr.P. 230.1 nor that defendant had been denied access to counsel. See, e.g., State v. Guiden, 399 So.2d 194 (La.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982). Therefore, defendant has waived such objection. LSA-C.Cr.P. 841.

Further, defendant bases his argument on the holding in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), wherein the United States Supreme .Court held that, where an accused was not taken before a committing authority but his confession was secured by detaining him unlawfully and questioning him continuously for five or six hours, and he was denied the substantial benefit of his counsel, his confession was inadmissible and his conviction based on the confession for second degree murder could not be allowed to stand. However, evidence in the record affirms that defendant was arrested pursuant to a valid arrest warrant, therefore, his detention was lawful; there is also evidence that, on the day following defendant’s arrival at the Louisiana jail, he was visited by a member of the Public Defender’s Office, was interviewed and advised of his right to'be represented by counsel. Defendant signed a rights waiver form prior to making his taped, statement, and the taped statement reflects that he was orally advised by the interrogating officers that he had the right to have counsel present or that he could ask for counsel at any time during, the statement. Moreover, defendant was arrested on Friday, September 14, 1979; he made his . taped statement on Tuesday, September 18, 1979. As September 15 was a Saturday and September 16 a Sunday, these days are not counted in determining the passage of seventy-two hours from time of arrest. LSA-C.Cr.P. 230.1, supra. It is obvious that defendant gave his taped statement prior to the expiration of the seventy-two hour requirement and no statutory violation was present.

The evidence before us is sufficient to find that defendant gave his statement freely and voluntarily and that, although defendant was not brought before a magistrate within seventy-two hours of his arrest as required by LSA-C.Cr.P. 230.1, his constitutional rights were fully protected prior to his giving the taped confession. The trial judge was correct in admitting that confession into evidence at trial.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends that his conviction is defective because it is based on a prosecution initiated by the district attorney for a crime chargeable only by an indictment by the grand jury. He argues that reversible error was committed when the district attorney was allowed to amend defendant's indictment by grand jury for first degree to second degree murder, as the district attorney should have been required to resubmit the matter to the grand jury for consideration of the alternative charge.

It is true that under the law applicable to defendant herein, second degree murder is a crime punishable by life impris-

onment and, therefore, is a crime the prosecution of which must be instituted by grand jury indictment. LSA-C.Cr.P. art. 382; State v. Lott, 434 So.2d 1274 (La.App. 1st Cir.1983). However, it is well settled in Louisiana law that district attorneys are empowered to amend indictments to charge lesser offenses and the State may abandon the charge of the greater crime and proceed with the prosecution for the lesser crime and no formal indictment is necessary for that purpose. State v. Stewart, 389 So.2d 1321 (La.1980). Further, it has been held that following the amendment of a grand jury indictment for first degree murder to second degree murder, the defendant could not assert a lack of notice of the crime for which he was charged as amendment of the indictment to the charge of second degree did not alter the notice of the crime charged since all elements of the lesser offense were included within the greater. State v. Davis, 385 So.2d 193 (La.1980).

Defendant herein had notice of his indictment for first degree murder in ample time to prepare a defense at trial. The amendment to second degree murder on the morning of the trial did not deny to defendant the opportunity to prepare an adequate defense under the circumstances of the case before us on appeal.

Defendant further argues that the 1979 amendment to LSA-R.S. 14:30.1 was not effective at the time of the commission of the instant crime, contending that, as the amendment was not published prior to its stated effective date, it was not effective until the date of publication, July 14, 1979, which was five days after the commission of the instant crime. We note that the 1979 amendment to LSA-R.S. 14:30.1 was enacted as Act 74 of the Regular Session of the 1974 Louisiana Legislature and became effective upon signature of the governor; the governor signed Act 74 on June 29, 1979.

LSA-Const. Art. 3, section 19 reads: All laws shall take effect on the sixtieth day after final adjournment of the session in which they were enacted, and shall be published prior thereto in the official journal of the state as provided by law. However, any bill may specify an earlier or later effective date.

All laws must be published before they take effect, which shall occur on the sixtieth day after final adjournment of the session in which they were enacted, unless the legislature specifies an earlier or later effective date. Reichenphader v. Allstate Ins. Co., 418 So.2d 648, 649 (La. 1982). A bill may specify an earlier or later effective date, thus it is possible for a legislative act to be effective prior to its publication. Jones v. State, 336 So.2d 59 (La.App. 1st Cir.1976), writ denied, 336 So.2d 515 (La. 1976). “Promulgation” is the order given to cause a law to be executed and to make it public; it differs from publication, Id.

As Act 74 of 1979 was effective five days prior to the commission of the instant crime, it was not error to try defendant under LSA-R.S. 14:30.1 as amended by Act 74 of Regular Legislature of 1979.

We find no merit to this assignment of error.

ASSIGNMENTS OF ERROR NOS. 5 AND 6:

Defendant contends that his conviction should be reversed because the State failed to prove each and every element of the crime charged, specifically arguing that the State failed to prove the corpus delicti of felony-murder as the commission of armed robbery was never established. Defendant contends that, even with defendant’s statement, the State failed to establish defendant’s guilt beyond a reasonable doubt as all evidence, other than defendant’s statement, is circumstantial and the State failed to exclude every hypothesis of innocence.

LSA-R.S. 14:64 defines armed robbery and provides in pertinent part:

A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Theft is an essential element of both simple and armed robbery. State v. Johnson, 368 So.2d 719 (La.1979). LSA-R.S. 14:67 defines the crime of theft, and provides in pertinent part:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
LSA-R.S. 15:438 provides:
The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

An accused may not be legally convicted on his own uncorroborated confession without proof that the crime has been committed by someone, i.e., without proof of the corpus delicti. State v. Reed, 420 So.2d 950 (La. 1982). The corpus delicti must be proven by evidence which the jury may reasonably accept as establishing that fact beyond a reasonable doubt. State v. Willie, 410 So.2d 1019 (La.1982).

In its answer to defendant’s request for Bill of Particulars, the State declared that its case in chief would prove defendant guilty of killing while engaged in the perpetration of armed robbery or simple robbery. The evidence offered by the State outside of defendant’s confession for the purpose of proving that a robbery had indeed occurred was purely circumstantial; the empty cash drawer standing open in the victim’s barroom at the time the victim’s body was found. No evidence was offered to show that the cash drawer obtained anything of value that was the subject of a theft or armed robbery to substantiate a felony murder charge. Moreover, at trial, one of the investigating officers testified that they did not find any tangible evidence that a robbery had occurred.

Defendant contends in Error No. 6 that the statement in his confession that he received $170 in cash from his alleged co-perpetrator of the crime on the day following the crime should not have been allowed into evidence as its prejudicial effect to defendant outweighed its relevancy. However, we note that the statement was also part of defendant’s confession and is uncorroborated by any further evidence or testimony that the $170 cash was any part of the victim’s property and had been stolen at the time the victim was shot. Also, defendant’s confession consisted of facts relative to a second armed robbery which was entirely irrelevant to the case at hand; and at the instant trial the State offered no evidence to prove that defendant’s receipt of $170 cash was relative to the instant crime.

We find merit in defendant’s contention that the State failed to present sufficient evidence to support the conviction under the standard as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and LSA-R.S. 15:438.

This Court of Appeal is empowered to modify the verdict at trial under the authority of LSA-C.Cr.P. art. 821 E., which provides:

If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.

We find that evidence in the record supports a conviction of manslaughter which is a responsive verdict to second degree murder. Manslaughter is defined at LSA-R.S. 14:31(2)(a), which provides: Manslaughter is:

(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1 or of any intentional misdeamnor directly affecting the person ...

There is sufficient evidence in the record such that a rational trier of fact could find that the State had proved beyond a reasonable doubt the elements of manslaughter; a killing occurred without specific intent to kill after defendant helped his co-perpetrator to force his way into the victim’s barroom in an attempt to commit a felony.

Therefore, defendant’s conviction of second degree murder is modified and set aside and a judgment of conviction for manslaughter is rendered herein. Defendant’s sentence is vacated and the case remanded to the district court for sentencing in accordance with this opinion.

MODIFIED AND REMANDED.

      . LSA-R.S. 14:30.1:
      § 30.1 Second degree murder
      Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though lie has no intent to kill or to inflict great bodily harm.
      Whoever commits the crime of second degree murder shall be punished by lire imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.


text:
    In re E.L. “Bubba” HENRY.
    No. 83 CW 0831.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied April 23, 1984.

      Tom F. Phillips and Fredrick R. Tulley, Baton Rouge, La., for relator E.L. “Bubba” Henry.
    Peter G. Wright, and R. Gray Sexton, Baton Rouge, for respondents, Comm, on Ethics for Public Employees.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This writ is before us on remand from the Louisiana Supreme Court for argument and opinion.

Familiarity with the chronology of events will facilitate an understanding of our resolution of the issues. On January 7, 1982, and on April 1, 1982, newspaper articles appearing in the Baton Rouge Morning Advocate indicated that E.L. “Bubba”-Henry may have violated certain provisions of the Code of Governmental Ethics. After publication of the newspaper articles, the Commission on Ethics for Public Employees resolved to conduct a private investigation to elicit evidence in order to determine whether to conduct a public hearing, in accordance with its authority under the Code of Governmental Ethics, LSA-R.S. 42:1101 et seq. At its February 28, 1983 meeting, the Commission instructed its staff' to continue its investigation at a “closed executive session.” This session was held on March 31, 1983, and a number of witnesses, including Henry, were heard. Henry requested that he and his counsel be allowed to cross-examine the witnesses. This request was denied by the Commission.

After the “closed executive session,” E.L. “Bubba" Henry was charged with violating several sections of the Code of Ethics, and a public hearing was scheduled for July 25, 1983, to further investigate those charges. The specific violations charged are set forth in a letter from the Commission to Henry, dated May 17, 1983, as follows:

'I.
That E.L. ‘Bubba’ Henry violated Section 1111 C(2)(d) of the Code of Governmental Ethics (LSA-R.S. 42:1111 C(2)(d) by receiving a thing of economic value, $120,-000.00, in consideration of services rendered (i.e., the sale of a house and the property on which it is situated, which house and property are located on Cecilia Street, in Jonesboro, Louisiana, on February 13, 1982) to Mr. Hollis Graham, from whom he was prohibited from receiving a ‘gift’ under Section 1115 of the Code of Governmental Ethics (LSA-R.S. 42:1115) (and for whom he is therefore prohibited from performing ‘services’ for compensation) by virtue of the fact that Mr. Hollis Graham, as the owner of 71% of the stock of Lincoln Builders of Ru-sten, Inc., himself had a ‘contractual or other business or financial relationship’ with Mr. Henry’s agency, the Louisiana Division of Administration, and also had ‘interests which may [have been] substantially affected by the performance or nonperformance of [Mr. Henry’s] official duty.’
II.
That E.L. ‘Bubba’ Henry violated Section 1112 B(5) of the Code of Governmental Ethics (LSA-R.S. 42:1112 B(5)) by, on September 19, 1980, approving the Division of Administration’s award of a contract in the amount of $2,471,000.00 on the Northeast Louisiana University Baseball Stadium Project, in which transaction he knew that Mr. Hollis Graham had a substantial economic interest as the 71% owner of Lincoln Builders of Ru-sten, Inc., to whom the contract would be awarded, and at a time at which Mr. Henry was a party to an existing contract with Mr. Graham due to Mr. Graham’s having made a $10,000.00 loan to Mr. Henry is connection with Mr. Henry’s 1979 gubernatorial campaign which, at that time, had not been repaid..
III.
That E.L. ‘Bubba’ Henry violated Section 1112 B(5) of the Code of Governmental Ethics (LSA-R.S. 42:1112B(5)) by participating, as the Commissioner of Administration, in transactions relating to the possible lease of property located at the ‘old’ Chenault Air Force Base in Lake Charles from Mr. Harry Hollins to the State of Louisiana {i.e., the Department of Labor and the Department of Health and Human Resources) at a time at which Mr. Henry was a party to an existing contract with Mr. Hollins by virtue of Mr. Hollins having made a loan of $50,-000.00 to Mr. Henry in connection with Mr. Henry’s 1979 gubernatorial campaign.
IV.
That E.L. ‘Bubba’ Henry violated Section 1116 of the Code of Governmental Ethics (LSA-R.S. 42:1116) by his actions in the events described in III above.”

Henry then applied for supervisory writs to the First Circuit Court of Appeal, alleging the following errors:

1. The Ethics Commission erred in denying applicant a copy of the transcript of the March 31, 1983, “closed executive session” at which testimonial evidence relating to the charges in this matter was heard by the Commission.
2. The Commission erred in denying applicant the right to be present, with his attorney, at the “closed executive session,” the right to cross-examine witnesses, and the right to introduce evidence to explain or rebut evidence presented against him.
3. The Commission erred in permitting the Commission’s staff, which had conducted an investigation, to make ex parte comments and arguments on the law and fact directly to the Commission without affording applicant a copy of all such comments so that he could rebut, explain, or argue against them.
4. The Commission has erred by adopting a procedure wherein the Commissioners themselves sit as a “grand jury,” conduct an investigation in secret, issue charges, and then proceed to act as judge all in the same case.
5. The Commission erred in refusing to turn over to petitioner any information which was “favorable” to applicant within the meaning of Brady v. Maryland, 373 U.S. 83, [83 S.Ct. 1194] 10 L.Ed.2d 215 (1963).

Henry also moved for the issuance of an order staying all proceedings by the Commission against him, pending consideration of the application for supervisory writs, which stay order was granted.

The First Circuit Court of Appeal granted Henry’s writ application finding that the proceedings before the Commission constituted denial of due process. The court ordered that the Commission provide Hen: ry “with a verbatim transcript of, and all documentation considered at, any and all meetings at which primary evidence (as opposed to solely the hearsay results of an investigation) was received, including specifically the meeting of March 31, 1983” and that, within a reasonable time after compliance with the aforementioned order, the Commission “reconduct such meeting(s) to the extent demanded by relator, making available to him for purposes of cross-examination and rebuttal all primary evidence adduced at such meeting(s) and allowing him the opportunity to argue in rebuttal to any arguments proposed in opposition to him, and specifically according him the right to counsel throughout all such proceedings.” In all other respects, the application for writs was denied.

The Louisiana Commission on Ethics for Public Employees applied for Writs of Certiorari and Review to the Louisiana Supreme Court. The Supreme Court granted the Commission’s application, set aside the ruling of the Court of Appeal, and remanded the matter for argument and opinion.

ASSIGNMENTS OF ERROR NOS. 1 & 2

To resolve the issues presented, the following questions of law must be examined:

A. Do the provisions of LSA-R.S. 42:1141(D) violate due process?

This Court recently answered this question in the negative in Com’n on Ethics for Public Employees v. IT Corp., 423 So.2d 695 (La.App. 1st Cir.1982). In that case we held that the procedures and protections afforded an investigated party under LSA-R.S. 42:1141(D) do not deny due process. Therefore, the statute, on its face, does not violate due process under the federal or the Louisiana constitution.

B: Did the procedure used by the Commission in the case sub judice violate due process?

The answer to this question depends on whether the proceeding conducted before the Commission on March 31, 1983, was a private hearing or a private investigation. The distinction is crucial because LSA-R.S. 42:1141(D)(6) affords full due process rights at any hearing and LSA-R.S. 42:1141(D)(13) allows the accused party the right to obtain a transcript of the proceedings of a private hearing. However, the rights of a person who is the subject of an investigation are limited to: (1) the right to counsel, LSA-R.S.. 42:1141(D)(7) and, (2) the right to require the Commission to make an official determination of its findings and to publically disclose such findings, LSA-R.S. 42:1141(D)(11) and (13)(b).

Henry contends that the “closed executive session” which was conducted on March 31, 1983, was a private hearing under LSA-R.S. 42:1141 and that he had a statutory right to participate in the proceeding and to be furnished a copy of the transcript of such proceeding.

The Commission maintains that the “closed executive session” was a private investigation within the meaning of LSA-R.S. 42:1141 and denied Henry the right to participate in the “closed executive session” and the right to a copy of the transcript of the proceedings. The Commission contends that because the proceeding was merely an investigation, Henry did not have a right to participate in the investigation by the Commission and that it is expressly prohibited from disclosing the contents of such investigations.

1. Was the “closed executive session” conducted on March 31, 1983, a private hearing or a private investigation?

In In Re Theriot, 257 So.2d 770 (La.App. 1st Cir.1972), this court clearly set forth the distinction between investigations and hearings. Investigations are “carried out by the Commission personnel” and contemplate hearsay results, while hearings contemplate proceedings held by the Commission to receive “primary evidence, testimonial or otherwise, rather than the hearsay results” of investigations. In Re Theriot, supra.

At the “closed executive session” conducted on March 31, 1983, the Commission heard testimony from Henry and received testimony from other witnesses as well. Because primary evidence was received by the Commission at its session on March 31, 1983, it is clear that the “closed executive session” constituted a hearing. The Commission cannot call this hearing an investigation to avoid affording Henry the due process rights to which he is clearly entitled.

The Commission strenuously argues that hearings are contradictory proceedings and that because the “closed executive session” was not contradictorily held, it was not a hearing. We find no merit in the Commission’s argument. The determination that a proceeding is a hearing is not dependent on whether it is contradictorily held. Furthermore, in the instant case, the only reason the hearing was not contradictory is because the Commission did not permit Henry to participate.

The Commission further argues that the purpose of a proceeding should be determinative of whether the proceeding is a. hearing or an investigation. The Commission contends that because the “closed executive session” was held to further investigate the allegations of misconduct, the proceeding was merely an investigation. We find no merit in this argument. The purpose of a proceeding does not determine its nature. If witnesses are called to testify before the Commission and primary evidence is received, the proceeding is a hearing even if held for investigative purposes. In Re Theriot, supra.

The Commission points to LSA-R.S. 42:1141(D)(2) and the power therein to administer oaths, subpoena witnesses, take evidence and require the production of records as support that they can perform these acts and hear primary evidence in an investigation. We do not interpret the statute that broadly. These acts can be performed by the staff. As a matter of fact, LSA-R.S. 42:1134 provides that “all investigations ... shall be conducted by the staff of the Department of Civil Service, under the authority and direction of-the ethics body.”

If LSA-R.S. 42:1141(D)(2) were to be as broadly construed as urged by the Commission, it would be in conflict with other provisions of the statute, especially LSA-R.S. 42:1141(D)(6), and violative of the due process provisions of the Federal and State Constitutions.

The Commission cannot avoid the ruling of In Re Coppola, 222 So.2d 314 (La.App. 1st Cir.1969), by using the term “investigation” in lieu of what the proceeding is in reality, i.e. a “hearing.” Therefore, any time the Commission “meets” and receives primary evidence, regardless of the stated purposes, due process must be afforded the subject of the proceeding. See In Re Coppola, supra.

' 2. Did the Commission comply with LSA-R.S. 42:1141(D)?

Based upon our finding that the “closed executive session” was a heating, Henry had the right to have legal counsel, to cross-examine witnesses, to call witnesses, and to present evidence in his own behalf. LSA-R.S. 42:1141(D)(6). The Commission, however, did not allow Henry to participate in the hearing and, therefore, violated the procedures outlined in the Code of Governmental Ethics. Additionally, LSA-R.S. 42:1141(D)(13) requires the Commission upon request to furnish Henry with a copy of the transcript of the private hearing, which the Commission has refused to do, violating that provision of the Ethics Code.

In essence, the Commission in the case sub judice partially tried Henry in secret and now claims “an absolute statutory right” to try him again in public. In so doing, not only have the express provisions of the Ethics Code been violated, but Henry has been denied basic fundamental rights of due process of law, viz. the right to confront one’s accusors, the right to be apprised of inculpatory and exculpatory evidence, the right of cross-examination, and the right to be tried openly by a fair and impartial tribunal. There is some merit to Henry’s strenuous contention that such action as has occurred in the instant case is more akin to “star chamber proceedings” than justice.

CONCLUSION

For the above reasons, our order dated September 7, 1983, ife herein reinstated, and, IT IS ORDERED that the Commission on Ethics for Public Employees:

1. Provide Henry with a verbatim transcript of the hearing of March 31, 1983; and

2. Within a reasonable time after compliance with the above order, reconduct such he'aring(s) to the extent demanded by Henry, making available to him for purposes of cross-examination and rebuttal all primary evidence adduced at such hearing(s) and allowing him the opportunity to argue in rebuttal to any arguments proposed in opposition to him, and specifically according him the right to counsel throughout all such proceedings.

In all other respects, the application for writs is denied. The stay order previously issued by this court is continued in effect until this judgment becomes final.

WRIT GRANTED IN PART AND DENIED IN PART.

      . The Commission was the only party to apply for writs to the Supreme Court, therefore, only those portions of the original writ application which were granted arc properly before us.

      . Counsel for the Commission, in his application to the Louisiana Supreme Court, questioned the procedural basis employed by this Court in handling the original writ application. He appears to object to only two judges acting on the writ application and to the ex parte nature of the order, citing Art. V, Sec. 8 A of the Louisiana Constitution and Rule 4-7 of the Uniform Rules — Courts of Appeal.
      Although this issue is not squarely before the Court in the case sub judice, we feel compelled to set forth that under Art! V, Sec. 2 .of the Louisiana Constitution, a single judge, subject to review by the whole court, has authority to issue such an order and even issue an instanter writ where the circumstances and interest of justice require such action. Rule 4-6 of the Uniform Rules — Courts of Appeal.

      . LSA-R.S. 42:1141(D) provides:
      D. Procedure. (1) Any public servant or other person who is to be the, subject of a public or private hearing shall be given written notification of the charges against him and of the time and place such hearing is to be held. Such notification shall not be less than sixty days prior to the date set for the hearing. Upon the request of a public servant or other person charged, the hearing may be held sooner.
      (2) For purposes of an investigation or a hearing, each ethics body may administer oaths and affirmations, subpoena witnesses, compel their attendance, lake evidence, and require the production of any records which the ethics body deems relevant or material to the investigation or hearing. Such attendance of witnesses and the production of any such records may be required at any place designated by the ethics body at no cost to the public servant or other person charged as permitted by the rules of the ethics body.
      Each ethics body shall adopt rules providing for discovery consistent with Chapter 3 of Title III of Book II of the Code of Civil Procedure, to the extent and in the manner appropriate to its proceedings.
      (3) In case of contumacy or refusal to obey a. subpoena issued to any public servant or other person, any district court of this stale within the jurisdiction of which the inquiry is carried on, or within which said public servant or other person is found, resides, or transacts business, upon application by the ethics body shall have jurisdiction to issue to such public servant or other person an order requiring him to appear before the ethics body and to produce evidence, if so ordered, or to give testimony touching on the matter under consideration. Any failure to obey such order of the court may be punished by the court as a contempt thereof.
      (4)(a) If any public employee shall willfully refuse or fail to appear before an ethics body, or any court authorized to conduct any hearing or inquiry pertaining to the provisions of this Chapter, or having appeared shall refuse to testify or answer any question specifically, directly, and narrowly relating to the performance of his official duties on the ground that his testimony or answers would tend to incriminate him, or shall refuse to accept immunity from prosecution on account of any matter about which he may be asked to testify at any such hearing or inquiry, such action shall be grounds for dismissal or forfeiture of his office or position and ii dismissed, he shall not be eligible thereafter for employment by the governmental entity for a period of five years, unless such reemployment is authorized by a majority vote of the membership.
      (b) If any elected official shall willfully refuse or fail to appear before an ethics body, or any court authorized to conduct any hearing or inquiry pertaining to the provisions of this Chapter or having appeared shall refuse to testify or answer any question specifically, directly, and narrowly relating to the performance of his official duties on the ground that his testimony or answers would tend to incriminate him, or shall refuse to accept immunity from prosecution on account of any matter about which he may be asked to testify at such hearing or inquiry, such action shall be grounds for the board to prescribe the penalties provided by R.S. 42:1153(A) against such elected official.
      (5) No disciplinary action shall be taken against a public servant or person by an ethics body unless it is determined by a majority vote of its membership that such public servant or other person has violated a provision of this Chapter within its jurisdiction at a public hearing conducted for that purpose.
      (6) Any public servant or other person who is the subject of any hearing may have legal counsel, cross examine witnesses, call witnesses, and present evidence in his own behalf.
      (7) Any public servant or other person who is the subject of any investigation shall be advised of his right to have an attorney present.
      (8) Any witness other than the person who is the subject of the investigation or hearing may be accompanied by counsel at investigations or hearings, which counsel may advise the witness of his rights, subject to reasonable limitations to prevent obstruction of or interference with the orderly conduct of the investigation or hearing. His counsel may also submit proposed questions to be asked for his client.
      (9) Any witness at any investigation or hearing, subject to rules and regulations promulgated by the ethics body, shall be entitled to a copy of his testimony when the same becomes important and relevant in a criminal proceeding or subsequent investigation or hearing provided that the furnishing of such copy will not prejudice the public safety or security.
      (10) In making any official determination of whether any provision of this Chapter has been violated, the ethics body may only consider testimony given under oath and transcribed verbatim by a reporter.
      (11) If the investigation of an ethics body fails to disclose any substantial evidence to support the charges, the ethics body shall make an official determination of its findings and thereupon close its file on the charges. The public servant or other person charged may require the ethics body to make an official determination of the validity of the charges against him.
      (12) The records of each ethics body prepared or obtained in connection with investigations and private hearings conducted by the ethics body, including all extracts of minutes and resolutions adopted in connection therewith, shall be deemed confidential and privileged, except thal.such records shall be available to each member of the ethics body upon request. Except as provided in this Paragraph and in R.S. 42:1111(E)(2)(c), all records, including the results and conclusions reached in connection with any investigation or hearing, shall be public.
      (13) It shall be a misdemeanor, punishable by a fine of not more than two thousand dollars or imprisonment for not more than one year, or both, for any member of an ethics body, its counsel, other employee, or any other person, to make public the testimony taken at a private investigation or private hearing of the ethics body or to make any public statement or give out any information concerning a private investigation or private hearing of the ethics body without the written request of the public servant or other person investigated. Upon receipt of a written request by the public servant or person charged, the ethics body shall (a) furnish the requestor with a certified copy of the entire proceedings of a private hearing, including a verbatim transcript of all testimony considered at such hearing, and (b) make public the findings of any private investigation or hearing in connection with the charges.
      (14) Repealed by Acts 1980, No. 578, § 1.

        E. The provisions of R.S. 42:4.1 through R.S. 42:10 shall not apply to investigations and hearings conducted by an ethics body. Acts 1979, No. 443, § 1, off. April 1, 1980. Amended by Acts 1980, No. 579, § 1; Acts 1980, No. 580, § 1.

      .Counsel for the Commission argues in brief that this Court rejected identical due process arguments in the IT Corp. case, in which he claims "the Court of Appeal, yielding to the representations contained in the Commission's brief,” permitted the Commission to exclude IT Corp.’s representatives from proceedings wherein the Commission received direct evidence. Counsel expressly attributes the contrary results reached in this case to: (1) a different panel of the court; (2) the abbreviated panel, who ruled on the original application, being unfamiliar with the ruling in the IT Corp. case; or (3) an implied overruling of our previous holding in the IT Corp. case.
      A careful reading of the decision in the IT Corp. case clearly shows that any "hearings” conducted by the Commission were on exceptions filed on behalf of the IT Corporation. Hearings on exceptions arc not hearings, which assist the Commission in determining whether a violation of the Code of Governmental Ethics has occurred, and as such are not subject to the procedures outlined in LSA-R.S. 42:1141(D).

      . In brief, the Commission argues that LSA-R.S. 42:1141(D)(8) allows witnesses to be called at investigations or hearings. That section, however, is not a grant of authority to the Commission, but is an acknowledgment by the legislature that not only do the subjects of investigations or hearings have rights (See 1141(D)(7 & 8), but witnesses at these proceedings arc also entitled to be accompanied by counsel.

      . In brief, the Commission argues that Henry is entitled to only "a copy of his testimony" citing LSA-R.S. 42:1141(D)(9). That section of the Ethics Code, however, clearly applies to witnesses at investigations and hearings and docs not apply to the person who is the subject of the investigation or hearing. When one is the subject of a hearing or investigation, LSA-R.S. 42:1141(D)( 13) delineates his right to a copy of the transcript.

      . The Commission strenuously argues that In Re Theriot is inapplicable to the present case. Counsel for the Commission finds comfort in the fact that in In Re Theriot this Court ruled in favor of the Commission on both the procedural and substantive issues. Despite the fact that Theriot did not have the facts sufficient to prove his allegations, the legal pronouncements of this Court arc no less valid.
      In In Re Theriot, supra, we interpreted LSA-R.S. 42:1121(D)(5), which affords substantially the same rights now found in LSA-R.S. 42:1141(D)(6), to'mean that a subject of any hearing:
      "... has the right to full representation by counsel, to cross examine witnesses against him and.to present evidence on his own behalf at all adversary hearings, public and private. We do not believe that he is entitled to participate in his own investigation or be present at meetings of the Commission at which the results of such an investigation might be revealed. He is entitled to these rights only at adversary hearings, and we do not believe that the meetings of the Commission or investigations carried out by the Commission personnel fall within this category. A hearing contemplates the reception of primary evidence, testimonial or otherwise, rather than the hearsay results of an investigation."

      . The Commission argues that In Re Coppola has been legislatively overruled by LSA-R.S. 42:1141(D)(6). In In Re Coppola this court interpreted the existing provision of LSA-R.S. 42:1121(D)(5) which read as follows:
      "Any slate employee or other person who is the subject of any investigation or hearing, public or private, shall have the right to legal counsel, the right to cross-examine witnesses, and the right to call witnesses and present evidence in his own behalf.” (Emphasis added)

        In contrast, the new provision provides:
      "Any public servant or other person who is the subject of any hearing may have legal counsel, cross examine witnesses, and present evidence in his own behalf.” (Emphasis added)
      Counsel for the Commission aptly points out that, under the old law, full due process rights were afforded to subjects of hearings or investigations, while the new law affords full due process rights only to subjects of hearings. This revision of the law, however, does not overrule In Re Coppola insofar as it applies to hearings.