text:
    James Allan ROESCH a/k/a Michael Phillips, Appellant, v. STATE of Florida, Appellee.
    No. 83-2479.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.
   GRIMES, Acting Chief Judge.

This is an appeal from an order denying in part appellant’s rule 3.850 motion to correct his sentence.

In his motion appellant alleges that after he pled guilty to a charge of grand theft, the court placed him on probation for eighteen months with the special condition that he reside in the county jail for 171 days. He further alleges that he was arrested on January 6, 1982, on probation violation charges and was incarcerated until January 30, 1982, at which time the trial court entered an order extending his probation for eighteen months. On April 12, 1982, appellant was arrested on new criminal charges and his probation was temporarily revoked. Appellant was held in jail until July 28, 1982, when his probation was permanently revoked and he was sentenced to a term of five years imprisonment with credit for 144 days jail time. Pursuant to a previous rule 3.850 motion, the court “corrected” appellant’s sentence to reflect credit for 147 days of jail time.

Appellant now contends that the trial court erred by not giving him credit for time served in county jail as a condition of probation and by failing to calculate his total time of incarceration during his probation period. Appellant alleges that he was entitled to 301 days of jail credit. The trial court in its order on the instant motion gave the appellant an additional seventeen days credit, stating that from the record it appeared appellant was entitled to a total of 164 days credit.

Florida law requires that a court must give a defendant credit for any jail time served as a condition of probation. State v. Jones, 327 So.2d 18 (Fla.1976); Sims v. State, 369 So.2d 431 (Fla. 2d DCA 1979). Hence, if appellant’s allegations are true, he is entitled to credit for at least 171 days spent in jail (time served) as a condition of his probation. Appellant is also entitled to all time served on warrants charging violation of probation, Calhoun v. State, 403 So.2d 1082 (Fla. 1st DCA 1981), though he is not entitled to duplication of any credit he may have been given against other sentences. Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974). Since we cannot tell how the sentencing court arrived at its conclusion to allow only 164 days of credit time, we reverse and remand for further consideration of this issue. In determining the proper credit time, the trial court should specify the exact dates of appellant’s incarceration in order to provide an adequate record should further review be requested.

RYDER and SCHOONOVER, JJ., concur.

      . Since appellant avers that he had already been incarcerated 171 days at the time he was sentenced, it appears that the trial court was sen-fencing appellant to time served as a condition of his probation.


source: Caselaw Access Project

author: SMITH, RUPERT, Associate Judge.

license: Public Domain

text:
    Margaret WITTOCK and Richard Wittock, Appellants, v. Martha RAMPONI, Appellee.
    No. 82-1698.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.
    Reed S. Tolber, Fort Lauderdale, for appellants.
    Welcom H. Watson, Jr., and John A. Watson, of Watson, Hubert & Clark, Fort Lauderdale, for appellee.
   SMITH, RUPERT, Associate Judge.

Appellants, in reliance upon faulty legal advice, failed to file any pleadings in response to appellee’s complaint to quiet title in the trial court. A default was entered; and the trial court refused to set it aside and then entered a judgment. We reverse and remand.

The facts reflect that Margaret Wittock’s parents, John E. Erickson and Susanne Erickson, conveyed property to Susanne Erickson and Martha Ramponi as joint tenants with right of survivorship. Subsequently, Susanne Erickson joined by her husband, John E. Erickson, conveyed her interest in the jointly held property to her husband and herself. Both Susanne and John E. Erickson died and Ramponi filed the quiet title action to foreclose the appellants’ (beneficiaries of the Ericksons) interest in the land.

The law is clear that the creation of a joint tenancy with a right of survivor-ship can be terminated by the conveyance of an interest of any joint tenant to a stranger. The joint tenancy between Susanne Erickson and Martha Ramponi was terminated upon Susanne Erickson’s conveyance of her interest in the tenancy to herself and her husband, John E. Erickson, a stranger. See Harelik v. Teshoney, 337 So.2d 828 (Fla. 1st DCA 1976), cert. denied, 341 So.2d 1082 (Fla.1976). Also, see Kozacik v. Kozacik, 157 Fla. 597, 26 So.2d 659 (Fla.1946). At that point, the Ericksons became tenants in common with Ramponi. Accordingly, relief cannot be awarded where the pleadings and exhibits upon which appellee seeks relief clearly establish she is not entitled to same as a matter of law. On remand, appellee should be given the opportunity to amend her pleadings should there be additional facts she wishes to call to the attention of the trial court.

BERANEK and GLICKSTEIN, JJ., concur.


author: WESSEL, JOHN D„ Associate Judge.

text:
    SUNRISE LAKES CONDOMINIUM APARTMENTS, PHASE III, INC. 3, Appellant, v. Louis HECHTMAN, et ux., Appellees. Louis HECHTMAN, et al., Appellants, v. SUNRISE LAKES CONDOMINIUM APARTMENTS, PHASE 3, INC., Appellee.
    Nos. 82-2102, 82-2114.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.
    J. Philip Landsman and George I. Platt of Schwartz & Nash, P.A., Fort Lauder-dale, for Sunrise Lakes Condominium Apartments.
    Ivor Massey, Jr. and Marc J. Kleiman of Massey & Kleiman, Fort Lauderdale, for Louis Hechtman, et ux.
   WESSEL, JOHN D„ Associate Judge.

Appellant, Sunrise Lakes Condominium Apartments, Phase III, Inc. 3, seeks reversal of an adverse summary final judgment allowing the appellees, Louis Hechtman and his wife, to maintain during their occupancy a washer and dryer in their condominium unit. Appellees cross appealed the trial court’s denial of an award of costs and attorney fees.

Appellant sought by complaint a mandatory injunction against the appellee unit-owners to remove a laundry washing machine and dryer from their unit installed in violation of the Declaration of Condominium. Appellees’ answer failed to raise the affirmative defenses of estoppel and waiver. Nonetheless, the trial court concluded that the appellant was estopped from requiring the removal of the washing machine and dryer. Estoppel must be specifically pled or it is considered waived. W.T. Rawleigh Co. v. Langford, 112 Fla. 487, 150 So. 592 (1933); Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979).

Appellant further maintains that it was error for the trial court to deny its motion for summary final judgment. The trial court found that because both sides moved for summary judgment, there must not be any disputed issues of fact. Unfortunately, this is not the case. Disputed issues of fact may arise notwithstanding each side claiming entitlement to summary judgment. Daniel Laurent, Inc. v. Coral Television Corp., 431 So.2d 1047 (Fla. 3d DCA 1983). It is clear that numerous issues of disputed fact remain which would preclude summary final judgment for either side.

REVERSED and REMANDED.

ANSTEAD, C.J., and HURLEY, J., concur.


author: BLANCHE, Justice. DENNIS, Justice, WATSON, Justice. BLANCHE, Justice

text:
    Kathleen AUSTEN v. Wallace SHERWOOD, Cavalier Insurance Company, Mississippi Press Register, Inc. and Liberty Mutual Insurance Company.
    No. 83-C-0655.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    On Rehearing Feb. 27, 1984.
    Rehearing Denied March 23, 1984.
    Perrin C. Butler, Perrin Butler, Ltd., Leonard J. Cline, Metairie, for applicant.
    Thomas M. Nosewicz, Madeleine Fischer, Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, David M. Cambre, Dillon & Cambre, New Orleans, for respondents.
   BLANCHE, Justice.

Plaintiff Kathleen Austen filed suit against Wallace Sherwood and his automobile liability insurer, Cavalier Insurance Co., to recover damages she sustained when Sherwood rammed into the rear of her automobile as she waited at a traffic light on the Westbank Expressway in Jefferson Parish. After deposing Sherwood, the plaintiff joined as defendants Sherwood’s employer, the Mississippi Press Register, and its liability insurer, Liberty Mutual Insurance Co., urging that the Register was liable for her injuries under the doctrine of respondeat superior because the accident occurred while Sherwood was acting in the course and scope of his employment.

The trial court rendered judgment for the plaintiff against all defendants for $116,059.39. The judgment was later amended as to Cavalier and Sherwood, limiting their liability to the $10,000 limit of Sherwood’s automobile liability insurance policy. The trial court cast the Register and Liberty Mutual in judgment for the remainder, ruling that the accident had occurred while Sherwood had been acting in the course and scope of his employment. The court of appeal reversed, ruling that Sherwood had been “clearly on his own time” when the accident occurred. 425 So.2d 818 (La.App.1982).

In our opinion, Sherwood’s activities at the time of the accident were not so closely connected in time, place, and causation with his duties as an employee of the newspaper that the Register and Liberty Mutual should be liable for the plaintiff’s damages. Accordingly, we affirm.

Wallace Sherwood had been employed by the Mississippi Press Register out of Pas-cagoula, Mississippi since 1964. His primary job had been that of an “Advertising Accounts Executive,” although he had also served as the “Arts Editor” due to his undergraduate background in the theatre. As the Arts Editor, Sherwood wrote a column for the paper entitled “Footlights and Frescoes”, in which he reviewed movies, plays, concerts and other artistic functions over the Gulf-coast area of Louisiana, Mississippi and Alabama. Pursuant to his position as an advertising executive, Sherwood received a monthly automobile allowance.

On April 11, 1978, the date of the accident, Sherwood worked his regular job at the Register in Pascagoula until 5:00 p.m. He then left for New Orleans in order to attend the Louis Armstrong Concert at the Jazz and Heritage Festival. Our review of the record shows that Sherwood had written a column on the Festival before April ll. He attended the Festival at the behest of Ann Zimmerman, publicity director for the Festival, who had supplied a press pass for the event.

On the date of the accident, Sherwood charged $9.90 worth of gasoline to his line of credit supplied by the paper. He attended the concert with a friend who lived in New Orleans and consumed several beers while covering the event. After the concert, Sherwood expressed some concern as to whether he should try to drive back to Pascagoula, and his friend suggested that the wiser course might be for Sherwood to spend the night with him in New Orleans, then drive back early in the morning. Sherwood accepted the offer, and the accident occurred while the two were on their way to the friend’s house.

The Register has urged that Sherwood was paid only as an advertising executive and was not paid specifically for writing the column. Moreover, asserts the Register, Sherwood attended the concert for his own benefit and enjoyment and, at any rate, his diversion to the house of a friend removed him from the course and scope of his employment were we to nevertheless find that he had attended the Festival pursuant to his employment with the Register. In our view, the evidence preponderates in favor of the conclusion that Sherwood’s attendance at the concert was for his own benefit and enjoyment and that it in no way benefited his employer, nor was it related to the service of his employer. Accordingly, we need not consider whether Sherwood’s diversion to the house of a friend removed him from the course and scope of his employment or whether Sherwood’s activities fell within the “going and coming” or “specific errand” rules.

Sherwood testified at trial that he had worked his regular job in advertising on the date of the accident during his regular hours from 8:30 a.m. until 5:30 p.m. He testified further that no one from the Register had requested or ordered that he attend the Festival that evening; in fact, Sherwood repeatedly acknowledged that he had attended the concert that evening for his own enjoyment because Ann Zimmerman was “nice enough to ask me.” Although Sherwood did have some latitude in events he covered in his column “Footlights and Frescoes,” he had written a piece on the Festival before he attended the concert on the date of the accident. At trial, Sherwood testified repeatedly that he had attended the Festival that night strictly because he “wanted to,” and we do not find mere speculation that Sherwood’s attendance at the concert might have supplied fodder for some future column sufficient to support a legal conclusion that Sherwood was acting for his employer by driving to New Orleans from Pascagoula in order to attend the cultural event. There is simply not enough evidence in the record to place Sherwood’s activities in attending the Festival on the date in question within the course and scope of his employment with the Register.

DECREE

For the foregoing reasons, the judgment of the court of appeal is affirmed.

LEMMON, J., dissents.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority’s decision is based on the factual finding that Wally Sherwood was not acting within the scope of his employment when he was involved in an accident which occurred following his attendance at the Louis Armstrong concert, one of a series of entertainment events comprising the New Orleans Jazz and Heritage Festival. Contrary to the majority opinion that there was insufficient evidence to place Sherwood’s activities within the course and scope of his newspaper employment, examination of the record convinces me that the trial judge did not fall into manifest error in so holding.

Sherwood testified at trial that although he was paid only as an advertising account executive he was additionally considered as arts editor of the Mississippi Press Register. Deposition testimony of newspaper management personnel supported the fact that Sherwood was regarded by the paper as its arts editor.

Sherwood testified that his column “helped the paper” and deposed that at its inception the column was meant to benefit the paper’s advertisers. The paper’s business manager, Floyd Davis, deposed that the column was started to meet subscribers’ desires for the entertainment news. Ralph Williams, the paper’s advertising manager, testified by deposition that management believed that the column “could add readership to the newspaper.”

Both Davis and Williams remarked that Sherwood was assigned the column because he handled the advertising for the paper’s entertainment accounts. Thus, there was a connection between his paid position and the column. Advertisers whose products were “plugged” in Sherwood’s column were undoubtedly more susceptible to his advertising sales pitch. Sherwood testified by deposition that while he did not receive remuneration per se for writing the column, he took the job in order to view plays, movies and other forms of entertainment at little or no cost, he called it a “dividend” of the job. In sum, the paper perceived an entertainment column as beneficial to the paper because it supported advertisers and potentially attracted subscribers; Sherwood saw the column as a means to free entertainment.

The majority decided that Sherwood was on a personal, rather than business mission when the accident occurred because he had attended another event on the Jazz Festival program the week before and had written a column pertaining to his first visit prior to his trip to the Armstrong concert. According to my brethren, Sherwood was asked to attend the concert as a “friend” of Anna Zimmerman, Jazzfest publicity director, and only returned to the festival for his personal enjoyment. This conclusion is contradicted by Sherwood’s deposition testimony of November 25, 1980. At that time Sherwood stated that he had not met Zimmerman personally before the night she gave him a press pass to the concert. He recounted Zimmerman’s invitation to return to the festival as, “[w]hy don’t you come back next weekend and review the Louis Armstrong concert.” (emphasis added) Clearly the publicity director and Sherwood were not friends and her invitation was extended to him as a reporter. Despite the presence of the completed column relating to one aspect of the festival, Sherwood may have written a second column following the second event had the accident not disrupted his trip. He may even have drawn on his concert experience to prepare a story the following year at Festival time. Significantly, Sherwood deposed that he attended the concert partly for work and partly for his own pleasure. While this deposition statement is inconsistent with his trial testimony, it is consistent with his prior statements that he undertook to write the column to gain complimentary entry to various entertainment functions. In other words, he wrote the column because he personally enjoyed free entertainment. This personal enjoyment does not alter the fact that the column was assigned to Sherwood by his employer who reaped the benefits of its publication.

Notably, the tenor of Sherwood’s testimony changed in other respects between his 1979 and 1980 depositions and the 1981 trial. At trial the witness said that his attendance at the concert for solely personal reasons was evidenced by his failure to take notes — his usual practice when he covered an event. This directly contradicted his deposition testimony of March 13, 1979 when he stated that his habit was not to take notes, but to work from a program of the performance.

Sherwood’s statements prior to trial generally indicated that he had business partly in mind when he attended the Armstrong concert, while his trial testimony minimized his business intent and stressed his personal motivations. Where there is a conflict in testimony, reasonable evaluations of credibility and inferences of fact should not be disturbed on appeal even if the reviewing court believes that its own evaluations are as reasonable as those formed below. Aleman v. Lionel F. Favret Co. Inc., 349 So.2d 262 (La.1977); Canter v. Koehring, 283 So.2d 716 (La.1973). In the present case the trial judge was in the best position to evaluate Sherwood’s conflicting statements and credibility. The trier’s finding of fact that Sherwood’s activity was within the realm of employment duties was reasonable in view of the record and should not have been disturbed on appeal.

The newspaper and its insurer argued that even if Sherwood were actually acting as an employee of the newspaper it would still not be liable for Ms. Austen’s injuries since Sherwood was indi'sputedly on his way from the concert to his overnight New Orleans destination, hence on his personal rather than business time.

Louisiana courts have developed rules to determine whether an employer is vicariously liable for torts committed when an employee is en route to or coming from his job, i.e., if the worker were merely going to or returning from work the employer has not been held responsible for the employee’s tort, whereas liability has been imposed for acts committed by employees while on “special errands.” However, the more logical and flexible approach to the problem is not whether these technical rules apply, but instead whether the employee is still acting within the scope and course of his employment. An employee’s conduct falls within the scope of employment if it is connected in time, place and causation to his employment duties to the extent that a risk of harm is fairly attributable to the employer’s business, and if the employee’s conduct was not motivated by purely personal considerations entirely extraneous to the employee’s interests when the tort was committed. LeBrane v. Lewis, 292 So.2d 216 (La.1974). In Miller v. Keating, 349 So.2d 265 (La.1977) this court noted that in order to cast the employer the employee’s “conduct must be shown to be employment rooted, but not necessarily exclusively so.” Id. at 269. Further, the tort must be “reasonably incidental to the performance of the employee’s official duties, but “[bjeyond these considerations there are no magical requirements.” Id.

The record reflects that Sherwood was invited to attend a phase of the Jazz Festival for business reasons. He had previously attended events in New Orleans and Mobile in order to prepare his column. It is reasonable that attendance at a nighttime concert would entail an overnight stay in New Orleans. Under these facts his ride to overnight accommodations was reasonably incidental to his business-related trip, substantially employment rooted, and definitely not a mere “frolic” motivated by purely personal considerations entirely extraneous to his employer’s interests.

ON REHEARING

WATSON, Justice.

In this suit arising out of an automobile accident, the issue is whether Wallace Sherwood was in the course and scope of his employment with the Mississippi Press Register when he negligently injured plaintiff. The original opinion erroneously decided the issue adversely to plaintiff.

FACTS

Wallace Sherwood drove his car into the rear of Kathleen Austen’s automobile as she waited at a traffic light on the West-bank Expressway in Jefferson Parish. Plaintiff Austen sued: Sherwood; his insurer, Cavalier Insurance Company; his employer, the Mississippi Press Register; and its liability insurer, Liberty Mutual Insurance Company.

The trial court gave plaintiff a judgment against all defendants for $116,059.39, limiting the liability of Sherwood and Cavalier to the $10,000 limits of Sherwood’s automobile liability insurance policy. The court of appeal reyersed, ruling that Sherwood had been “clearly on his own time” when the accident occurred. 425 So.2d 818 at 820 (La.App. 5 Cir.1983). A writ was granted to review the judgment of the court of appeal. 431 So.2d 2 (La., 1983). After that judgment was affirmed, a rehearing was granted.

Wallace Sherwood had been employed by the Mississippi Press Register in Pascagou-la, Mississippi, since 1964. His primary job was “[advertising account executive” (Exhibit D-2, p. 6) and he handled all of the “entertainment type accounts”. (Exhibit P-3, p. 36) He also served as the arts editor and wrote a daily column entitled “Footlights and Frescoes” which reviewed movies, plays, concerts and other cultural activities in the Gulf Coast area. Sherwood’s function as arts editor was interrelated with his advertising duties. The advertising manager, Ralph E. Williams, said that the newspaper benefited from the column. The business manager of the paper, Floyd Davis, admitted that the column was regarded as “a good selling point”. (Exhibit D-2, p. 35) Because of his extremely short stature, Sherwood could not use a company car but received a gasoline allowance of ten dollars a week. If he had been of average height, he would have had the use of a company car, because “everybody else on company business drives a company car.” (Exhibit P-6, p. 31)

On April 11, 1978, the day of the accident, Sherwood worked at the Register in Pascagoula until 5:00 P.M. before leaving to attend a Louis Armstrong concert at the Jazz and Heritage Festival in New Orleans. Sherwood had written a column about the festival the preceding week, which mentioned that he planned to return for the Armstrong concert. His column of April 12, 1978, stated that he had been present for “A Tribute to Louis Armstrong”. (Exhibit D-l) He attended both for “information” and “entertainment”. (Exhibit P-5, p. 26)

Before leaving Pascagoula, Sherwood charged $9.90 worth of gasoline to the Mississippi Press Register. He attended the concert on a press card with a New Orleans friend and consumed three beers. After the concert, Sherwood decided to stay the night with his friend and return to Pascagoula early the next morning. The accident occurred enroute to the friend’s house. As a result of the accident, Sherwood did not review the concert in his column.

CONCLUSION

LSA-C.C. art. 2320 provides in pertinent part that:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

Sherwood was performing a function for which he was employed. During the trip to New Orleans, Sherwood was acting within the scope of his employment as arts editor at the Mississippi Press Register. Compare Maas v. Harvey, 200 La. 736, 8 So.2d 683 (1942). The fact that gathering information for the column was not his primary employment duty is immaterial. Sherwood’s business trip was not completed at the time of the accident. The decision to avoid a late night return to Pascagoula cannot be characterized as a deviation from his business purpose. It was undoubtedly motivated by safety considerations.

Although Sherwood was operating his own automobile at the time of the accident, this was only because his small size made company cars unavailable to him. The Mississippi Press Register paid for the gasoline used for the trip and the newspaper clearly benefited from the journey. Sherwood’s business and personal pursuits were intermingled. While he attended the concert for entertainment, he was simultaneously obtaining information which furthered his employer’s business interests.

Wallace Sherwood’s trip was primarily “employment-rooted”. LeBrane v. Lewis, 292 So.2d 216 at 218 (La., 1974). When an employee’s tortious conduct is closely related to his employment duties, the employer is liable for resulting damages. LeBrane v. Lewis, supra; Miller v. Keating, 349 So.2d 265 (La., 1977).

The trial court concluded that:

“Mr. Sherwood attended the concert in his capacity as arts editor of the Mississippi Press Register. His superiors approved of and encouraged Mr. Sherwood’s travels in this regard. The newspaper directly benefited from Mr. Sherwood’s column which, in turn, was made more appealing to the readers by Mr. Sherwood’s personal attendance at the functions and events about which he wrote. Although Mr. Sherwood attended the concert partly for personal enjoyment, this fact does not mean that his attendance was not in the course and scope of his employment. There is no prohibition against an employee deriving personal enjoyment from his work.” (Tr., pp. 260-261)

The decision of the trial court that Wallace Sherwood was acting within the course and scope of his employment with the Mississippi Press Register at the time of this accident is supported by the evidence and is not clearly wrong. The court of appeal erred in substituting its interpretation of the facts for that of the trial court.

For the foregoing reasons, the original opinion of this court is recalled; the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated.

REVERSED.

MARCUS, J., dissents, adhering to the opinion on original hearing.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

The court of appeal specifically found that Sherwood was clearly on his own time which in no way benefited his employer nor was it related to the service of his employer. This writer on original hearing reviewed the evidence and came to the same conclusion. Adhering to reasons assigned on original hearing, I respectfully dissent.

      . Sherwood received the small gasoline allowance ($10 per week) in lieu of a company car. Because of his dwarfism, Sherwood was limited to automobile travel in his own specially-equipped vehicle. Other advertising executives had the use of company cars. It is uncontro-verted that the stipend to Sherwood was in no way related to his activities as the "Arts Editor.”

      . The article appeared the day after the accident, April 12. No further articles were written about the concert after Sherwood returned to Pascagoula.

      . Apparently, Sherwood had attended the Festival the weekend before the accident and was invited back by Zimmerman as a "friend.”

      . The court of appeal opinion held that Sherwood’s attendance at the concert was for his personal enjoyment and not pursuant to his employment with the Register. 425 So.2d at 819-20. However, the court also remarked, in dictum, that even if Sherwood had attended the concert in the course of his employment, his diversion to the house of a friend removed him from the scope of his employment because “[t]he negligent acts of an employee on his way to or from work are not generally imputable to an employer,” citing Boudreaux v. Yancey, 319 So.2d 806 (La.App. 1st Cir.1975). Id. The plaintiff has argued extensively in brief that the “coming and going” rule should not apply and suggests that Sherwood was on a "specific errand" for the Register, an exception to the “coming and going” rule. As noted supra and discussed infra, we find such a discussion unnecessary since, in our view, Sherwood’s trip to New Orleans and attendance at the Festival was purely personal and wholly without the course and scope of his employment.

      . The column was not printed on Mondays, and the paper did not have a Saturday edition. The column was cancelled to prevent the paper from being "incriminated” in this case. (Exhibit P-5, p. 17)

      . The point is significant that Sherwood gained admission to the Festival on a press card; at an unsuspecting time he represented himself to be on newspaper business and his credentials were accepted by a disinterested third party.


author: MARCUS, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. Frederick A. OSSEY.
    No. 83-KK-1318.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Feb. 9, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoul-ides, Dist. Atty., William C. Credo, III, William Hall, Asst. Dist. Attys., for plaintiff-respondent.
    Richard Thompson, New Orleans, Joseph J. Tosh, Gretna, for defendant-relator.
   MARCUS, Justice.

Frederick A. Ossey was charged by bill of information with possession with intent to distribute Pentazocine (Talwin) in violation of La.R.S. 40:967(A). Prior to trial, defendant filed a motion to suppress physical evidence. After a hearing, the trial judge denied the motion to suppress. The court of appeal denied defendant’s application for writs. Upon defendant’s application to this court, we granted a writ and ordered the case remanded to the court of appeal for briefing, argument and opinion in light of Florida v. Royer, — U.S. -, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), and United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). On remand, the court of appeal again denied defendant’s application for writs, finding that the trial judge correctly denied the motion to suppress. Upon defendant’s application, we granted certiorari to review the correctness of that ruling.

Defendant contends the trial judge erred in denying his motion to suppress drugs seized pursuant to a warrantless search of his luggage at New Orleans International Airport. He argues that he was being detained illegally and that he did not consent to the search; therefore, the evidence obtained as a result of this illegal search is inadmissible.

Evidence adduced at the suppression hearing reveals that defendant arrived at New Orleans International Airport on January 17, 1983 aboard Delta Airlines Flight # 1164 from Los Angeles, California. Upon deplaning, he aroused the attention of Agents Whitehead and Hurley of the Jefferson Parish Sheriff’s Office. These officers were plain clothes narcotics agents who had been assigned to the airport for the past five years and two years, respectively. Their main function was to detect and apprehend drug couriers primarily by the use of a set of characteristics normally displayed by these persons, called the “drug courier profile.” According to Agents Whitehead and Hurley, they became suspicious of defendant soon after he deplaned because his actions were consistent with two elements of the drug courier profile: he arrived from Los Angeles, a source city for the transportation of drugs into New Orleans; and, defendant slowly walked down the concourse, occasionally stopping to look over his shoulder. Agent Hurley described defendant’s actions as follows: “when he got off the aircraft he appeared to act in what I would consider a nervous manner. He was looking around, he was hesitant ... to walk down the concourse towards the baggage area.... [He was l]ooking around, checking to see if someone was looking for him or he was being observed by anybody.” The agents then placed defendant under surveillance and followed him down the concourse. Agent Whitehead testified that defendant stopped several times to look over his shoulder and that, upon reaching the escalator, he looked around again before proceeding downstairs to the baggage claim area.

Defendant retrieved one small blue leather bag from the baggage claim conveyer belt. Agent Whitehead testified that a relatively small amount of luggage for a long distance trip is another characteristic of the drug courier profile. Therefore, according to Agent Whitehead, once he' saw the size of the bag claimed by defendant, “it just strengthened my convictions that he was possibly transporting narcotics.”

While Agent Whitehead was observing defendant inside the baggage claim area, Agent Hurley waited just outside of the exit doors. As defendant left the building carrying the small blue bag, Agent Hurley approached him, displayed his police identification and asked defendant if he would speak to him. According to Agent Hurley, defendant responded by saying, “Sure.” He was asked for identification and a plane ticket. Defendant produced a current California driver’s license in the name of Frederick A. Ossey and a Delta Airlines ticket in the name of James Gibbens. Agent Whitehead arrived, displayed his police identification, and looked at the license and ticket. He noticed the different names and that the ticket was a one-way ticket purchased with cash. Agent Whitehead testified that traveling under an alias and purchasing a one-way ticket with cash are two more characteristics of the drug courier profile.

Defendant was asked by Agent Whitehead about the different names. After hesitating defendant responded that Gib-bens was a cousin who had purchased the ticket for him. Agent Whitehead then advised defendant that they were conducting a narcotics investigation and that they believed that he was transporting narcotics. After informing defendant that he could refuse the request, Agent Whitehead asked him if he would allow them to search his luggage. Defendant responded by asking to see a search warrant. According to Agent Whitehead, he informed defendant that they did not have a search warrant, but if he would accompany them to their airport office, then he would prepare one. They proceeded upstairs to the agents’ third floor office with Agent Hurley carrying defendant’s bag.

Upon arriving at the office, Agent Hurley began to type out a request for a search warrant when defendant said that “he didn’t have any drugs in the bag. You can go ahead and look.” Agent Whitehead prepared a written consent form, read it to defendant and then gave it to him to sign. According to Agent Whitehead, defendant appeared to sign the form. It was not until after the search that the agents discovered that defendant did not in fact sign the consent form. Noticing that defendant’s bag was locked, Agent Hurley located the key to the bag among the items that he had previously removed from defendant’s pockets. According to Agent Hurley, the agents checked defendant’s pockets for their own protection because they were concerned that he might have a weapon. The agents opened the bag, discovered 6500 sets of T’s and Blues, and placed defendant under arrest.

Defendant’s narrative is different in several respects from the events as described by the agents. He testified that he did not hesitantly or nervously walk down the concourse and that as he tried to leave the airport, two officers stopped him. After refusing to allow the officers to search his bag without a search warrant, they told him that they could get a warrant and then said, “Let’s go.” Once upstairs in the agents’ office, Agent Hurley filled out a search warrant and Agent Whitehead prepared a consent to search form. Defendant refused to sign the consent form and denied that he pretended to do so. According to defendant, after he refused to consent to the search, Agent Hurley became exasperated and opened the bag anyway.

The trial judge accepted the testimony of the agents, finding that defendant’s statements were “self-serving.” According to the judge, the initial encounter was a permissible Terry-type investigatory stop. Further, the judge found that defendant was not “placed under arrest or otherwise detained” when asked to accompany the agents to their office; he went along “voluntarily, that is he appeared to cooperate in order to convince the officers of his innocence.” Finally, the judge found that the consent to search was given “freely and voluntarily.” Therefore, since defendant was not illegally detained when he consented to the search, the motion to suppress was denied.

The validity of an airport search on facts very similar to those in the instant case has been addressed recently by the U.S. Supreme Court in Florida v. Royer, supra, and United States v. Mendenhall, supra. In Mendenhall, two DEA agents observed Mendenhall at Detroit Metropolitan Airport. After observing Mendenhall’s conduct, the agents determined that her behavior fit the drug courier profile in several respects: (1) Mendenhall arrived on a flight from Los Angeles, a source city for the transportation of drugs into Detroit; (2) she was the last person to leave the plane, appeared very nervous, and scanned the area; (3) she proceeded past the baggage area without claiming any luggage; and (4) she changed airlines for her flight out of Detroit. The agents approached Menden-hall, identified themselves as federal agents, and asked to see her identification and airline ticket. This revealed that Men-denhall was traveling under an alias. She became visibly more nervous when the agents identified themselves as federal narcotics agents.

After returning the ticket and driver's license, the agents asked her if she would accompany them to the airport DEA office for further questioning. She did so, although the record does not indicate a verbal response to the request. At the office the agents asked her if she would consent to a search. She responded, “Go ahead.” A small package of heroin was found in the search.

The opinion initially focused on whether a seizure had occurred. It stated that a person is “ ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The Court concluded that no seizure in fact occurred. Next, agreeing with the findings of fact of the trial judge, the Court found that Mendenhall accompanied the agents to the office voluntarily in a spirit of apparent cooperation and that she freely and voluntarily consented to the search. Since Men-denhall was not being illegally detained when she consented to the search, the resulting seizure of the drugs was permissible.

In Royer, unlike Mendenhall, the Court held that the drugs should have been suppressed. Because Royer’s appearance, mannerisms, luggage and actions fit the drug courier profile, he was placed under surveillance by two Dade County plain clothes detectives. After he had purchased a one way ticket to New York and checked his two suitcases, the two detectives approached him, identified themselves as policemen, and asked if Royer had a moment to speak with them; he said “Yes.” Upon request, Royer produced a driver’s license in the name of Royer and an airline ticket in the name of Holt. Royer explained that a friend had made the reservations for him. The detectives informed him that they were conducting a narcotics investigation and suspected him of transporting drugs. Roy-er was now visibly nervous.

While still retaining Royer’s ticket and license, the detectives asked him to accompany them to a room off of the concourse. Royer said nothing in response but went with them as he had been asked to do. Without Royer’s consent, one of the detectives retrieved Royer’s luggage, which bore the name Holt, from the airline and brought it to the room. When asked if he would consent to a search of his luggage, Royer produced a key and unlocked one of the suitcases. Marijuana was found in both bags and Royer was then placed under arrest.

The Court determined that the initial encounter in which the detectives asked for and examined Royer’s license and ticket was a permissible consensual encounter. But Royer was “seized” for fourth amendment purposes when the officers told him that he was suspected of transporting drugs, retained his ticket and license and asked him to accompany them to another room. Adopting the objective standard from Mendenhall, these circumstances amounted to a “show of official authority such that 'a reasonable person would have believed he was not free to leave.’ ” Next, the Court found that even though a seizure occurred, there existed reasonable, articula-ble suspicion to justify a Terry -type temporary detention. The circumstances that led to this finding were that (1) Royer was traveling under an alias; (2) he paid cash for a one-way ticket; (3) the two bags checked to New York bore a fictitious name and no address; and (4) Royer’s “appearance and conduct in general.” Finally, the Court held that the limits of a permissible temporary detention had been exceeded at the time Royer consented to the search. According to the Court, “what had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room.... As a practical matter, Royer was under arrest.”

In the instant case, the two crucial issues are whether defendant was being illegally detained at the time of his consent to the search and whether he freely and voluntarily consented to the search. The initial encounter between defendant and Agent Hurley just outside of the baggage claim area exit doors was not a “seizure” for fourth amendment purposes. The purpose of the fourth amendment is not to eliminate all contact between the police and the citizenry. As long as a reasonable person would feel free to disregard the encounter and walk away, there has been no “seizure.” Florida v. Royer, supra; State v. Belton, 441 So.2d 1195 (La.1983). Defendant was approached in a public area by a person dressed in plain clothes who asked defendant if the agent could speak to him; his response was, “Sure.” The mere fact that the agent displayed his police identification did not convert this otherwise consensual affair into a “seizure.”

Defendant did not become “seized” within the meaning of the fourth amendment until Agent Whitehead informed defendant that they were conducting a narcotics investigation and that they believed he was transporting drugs. By this time, defendant had been confronted by two agents, both of whom identified themselves as narcotics agents; he had been dispossessed of his driver’s license and plane ticket; he had been questioned about the name discrepancy; and, most importantly, he was told that he was the focus of an investigation. Taken together, these circumstances “amount to a show of official authority such that a ‘reasonable person would have believed he was not free to leave.’ ” Florida v. Royer, supra (quoting United States v. Mendenhall, supra).

However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.Code Crim.P. art. 215.1, as well as by both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, supra. We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Belton, supra.

When the “seizure” occurred, there existed sufficient articulable facts to justify a Tbrry-type stop based on a reasonable belief that defendant was transporting drugs. The agents knew that defendant arrived from a source city for the transportation of drugs into New Orleans; he was visibly nervous, occasionally stopping to look over his shoulder; he claimed a relatively small piece of luggage compared to the length of his flight; he was traveling under an alias; and, he purchased a one-way ticket with cash. Since these were adequate grounds for a reasonable belief that defendant was carrying drugs, the “seizure” was a permissible Terry -type investigatory detention.

The agents’ conduct during this “seizure” did not exceed the scope of a lawful Terry stop. First, Agent Whitehead requested defendant’s consent to a war-rantless search of his bag; defendant refused. Next, Agent Whitehead asked him to accompany them to their office; defendant agreed. The trial judge found that defendant voluntarily accompanied the agents in a spirit of apparent cooperation. Since defendant was not being illegally detained at this time, whether consent to accompany the agents was in fact voluntary is to be determined by a review of the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances of each case. The factual determinations of the trial judge are entitled to great weight on appellate review. State v. Edwards, 434 So.2d 395 (La.1983); State v. Bourgeois, 388 So.2d 359 (La.1980). Upon a review of the surrounding circumstances, we cannot say that the trial judge’s finding of voluntariness was in error. The request to accompany the agents was made in a public place by agents dressed in plain clothes. There was no threat, show of force, or physical touching. The agent’s statement to defendant was phrased in the form of a request instead of a demand. Finally, the request was not so overbearingly coercive to defendant as to render his consent involuntarily; he had already refused to allow a search of his bag, thereby demonstrating his knowledge of and ability to exercise his right to decline the agent’s requests. Therefore, since defendant voluntarily accompanied the agents, he was not being illegally detained when he consented to the search in the agents’ office,

The sole remaining issue is whether defendant freely and voluntarily consented to the search. One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was given freely and voluntarily. Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances surrounding each case. The factual determinations of the trial judge are entitled to great weight on appellate review. State v. Edwards, supra; State v. Smith, 433 So.2d 688 (La.1983); State v. Bourgeois, supra. The trial judge found that defendant freely and voluntarily consented to the search. Defendant told the agents to open his bag. This statement was made by defendant on his own initiative and without provocation. We find the trial judge did not err in finding this oral consent was given freely and voluntarily. Therefore, the consent search was permissible. Hence, the trial judge correctly denied the motion to suppress the drugs seized pursuant to the search of defendant’s bag.

DECREE

For the reasons assigned, the ruling of the trial judge denying the motion to suppress is affirmed and the case is remanded to the district court for further proceedings.

CALOGERO, J., dissents.

DIXON, C.J., and DENNIS, J., dissent with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

On January 17, 1983 Ossey arrived in New Orleans on a nonstop flight from Los Angeles. After deplaning he walked slowly through the concourse, occasionally stopping to look over- his shoulder. He proceeded toward the baggage claim area, pausing to look around again before going down the escalator. In the baggage claim area, he retrieved a canvas luggage piece with a shoulder strap which was approximately two and one-half by two feet deep.

As Ossey attempted to exit the terminal, two undercover narcotics agents of the Jefferson Parish Sheriff’s Department, Officers Whitehead and Hurley, approached him. They had observed Ossey virtually from the time he got off the plane. In addition to the above (with which Ossey agrees), they testified that he appeared nervous (with which Ossey does not agree). According to the officers’ testimony, such behavior from a passenger who arrives from a “source city” (such as Los Angeles) is consistent with a “drug courier profile” developed by the Drug Enforcement Agency. In particular, they pointed to the following factors as being those which cumulatively aroused their suspicion: where he was coming from; the nervousness in looking around; and the small size of his bag after such a long flight. No confidential informant had tipped them, and the above facts are the only ones which the. officers cited as justifying their decision to approach the defendant at this point.

Both Ossey and the officers agree that the officers identified themselves and asked him if he would mind answering some questions. He agreed and, in response to their request, produced his California driver’s license and his airplane ticket. The ticket was in the name of James Gibbens who Ossey claimed was his cousin who had made the reservations.

Because traveling under an alias is also a characteristic set out in the profile, the officers then informed Ossey that they were conducting a narcotics investigation and that they felt Ossey was transporting narcotics. Whitehead testified that he asked Ossey for permission to search him and his bag and also informed him that he did not have to consent if he did not want to. Ossey denies that he was told the latter. Both agree, however, that Ossey’s response was to ask if they had a search warrant. They told him they did not but they would get one if he would come with them to their office. Everyone also agrees that Hurley grabbed Ossey’s bag and carried it to the office on the third floor of the airport. Ossey was not formally put under arrest or advised of his rights at this time.

Whitehead testified that he believed that Ossey was free to leave at any time and that he voluntarily accompanied the officers to their office. He does not indicate any facts on which to base those beliefs. Ossey, to the contrary testified that he did not feel free to leave and that he was never so informed. He also testified that the officers, in response to his asking if they had a search warrant, simply said, “No, but we can get one. Let’s go.” In response to a question by the court as to why he did not feel free to leave, Ossey replied, “Well you have two police officers standing in front of you and one grabbing your bag and saying let’s go. How do you feel like you’re free to go?”

When they arrived at the office, Ossey was searched and told to empty his pockets. Among the contents was a luggage key. This search was justified by Hurley on self-protection grounds despite the fact that Ossey had been under continual observation by the officers from the time he got off the plane (where he could not have had a weapon) and despite his not yet being under arrest. According to the officers, Hurley then began to type out a warrant application whereupon Ossey asked what they were doing. Whitehead replied that they were getting a search warrant. Os-sey then said, according to the officers, to go ahead and open the bag. Whitehead then testified that he prepared a written consent form and explained its provisions to Ossey. He handed it to him to sign, and both officers testified that Ossey appeared to them to have signed it. They opened the bag with the key and found 6500 sets of “T’s” and “blues.” The consent form, however, was not in fact signed, and, after the drugs were found, the officers testified that Ossey refused to sign it and requested a lawyer. Whitehead admitted that failing to make sure the form was signed was an oversight on his part and explained that he was perhaps “over anxious.” Whitehead is an officer with twelve years experience, the last ten as a narcotics agent; Hurley has eight years experience, six as a narcotics agent.

Ossey, on the other hand, described the events in the room somewhat differently. He claimed that after he was searched Whitehead made a call at the end of which he told Hurley that it would take two to three hours to get a warrant. Hurley then began to type, and Whitehead presented Ossey with a consent form. Ossey claimed he asked what it was, and, when told, stated again that he wanted to see a search warrant. At that point, according to Os-sey, Hurley said, “Oh, fuck it,” and opened the bag. Ossey denied having pretended to sign the form.

Once the drugs were found, the officers finally placed Ossey under formal arrest and advised him of his Miranda rights. Ossey denied that he was informed of his Miranda rights until he appeared before the magistrate court.

The trial court viewed the case as a credibility decision. The judge took note of the self-serving nature of Ossey’s testimony, and he stated that the officers had no motive to tell falsehoods. In effect, he chose their version of events. He then found the initial stop to have been based on articulable suspicion of criminal activity and therefore justified by the holding of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He also found that Ossey accompanied the officers voluntarily and that he freely and voluntarily consented to the search. Finally, he found that the officers were in good faith and that “the purpose of the exclusionary rule is not served when the officers believe in good faith that they are performing a lawful search” (that is, they believed that Ossey had signed the form).

The court of appeal stated that Florida v. Royer, supra, did not overrule United States v. Mendenhall, supra, but rather served to clarify the application of the holding in Mendenhall that “ ‘[a]s long as the person to whom the questions are put, remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.’ ” State v. Ossey, 435 So.2d 1039 at 1041 (La.App.1983).

After noting the trial court’s findings as to credibility, however, the appellate court went on to hold that searches and seizures related to the drug trade should not be subject to the same scrutiny as in other areas. Accordingly, it denied the writ, agreeing with the trial court’s finding that Ossey’s consent was freely and voluntarily given and that he was not unconstitutionally detained prior to his consent.

For the purposes of this dissent, the trial judge’s findings based on the credibility of the witnesses are accepted, and the issue becomes whether the courts below erred in applying the law to the officers’ version of the events.

The facts in United States v. Mendenhall, supra (a plurality opinion written by Justice Stewart, joined by Justice Rehnquist, and concurred in by the Chief Justice and Justices Powell and Blackmun), appear at first blush to be similar. Mendenhall was initially stopped by narcotics agents in Detroit after arriving from Los Angeles. She was the last to leave the plane, carried a small luggage piece, nervously scanned the area, and retrieved no luggage from the claim area. She then went to a ticket agent and got a boarding pass for a flight to Pittsburgh. The agents approached her as she walked through the concourse and identified themselves. Like Ossey, she was traveling under an alias. She became visibly more nervous during the stop.

The officers then returned her ticket and her license and asked if she would accompany them to their office for further questions. Though the record did not reveal what was said, she did accompany the officers to their office. There she was asked to consent to a search of her luggage and person. She said, “Go ahead.” Two bags of heroin were found in her undergarments. The result, of the plurality decision was that the evidence was admissible.

Justices Stewart and Rehnquist viewed the events as entirely consensual. Adopting a totality of the circumstances test, they concluded:

“... a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, supra 446 U.S. at 554, 100 S.Ct. at 1877.

The subjective intentions and beliefs of the officers are irrelevant. Id. at 554 n. 6, 100 S.Ct. 1877 n. 6.

The three concurring justices, on the other hand, felt that there had been a seizure but that there was reasonable suspicion to warrant it. They felt there was no illegal detention when she consented to the search. Id. at 560, 100 S.Ct. at 1880. The four dissenting justices argued that reasonable grounds for suspecting Mendenhall did not exist; hence, her detention was illegal. Id. at 566-77, 100 S.Ct. at 1883-89. See also Florida v. Royer, supra 103 S.Ct. at 1327 n. 9.

Prior to Mendenhall, this court’s jurisprudence tended to be in keeping with the views of the dissenters in Mendenhall. This court fairly consistently, if not unanimously, rejected the proposition that actions of a suspect compatible with the drug courier profile alone were a sufficiently objective basis to justify a stop under the Terry v. Ohio “articulable suspicion” rule. See State v. Washington, 364 So.2d 958 (La.1978); State v. Matthews, 366 So.2d 1348 (La.1978); State v. Brown, 370 So.2d 547 (La.1979) (evidence seized, however, was held admissible due to an informant’s tip in addition to the profile); State v. Shy, 373 So.2d 145 (La.1979) (evidence, however, held admissible due to free and voluntary consent to search); State v. Key, 375 So.2d 1354 (La.1979).

Subsequent to Mendenhall, drug profile cases considered by this court have involved only stops which were based on other factors in addition to the drug profile. E.g., State v. Salazar, 389 So.2d 1295 (La.1980) (tip from police in Miami in addition to the profile); State v. Coleman, 412 So.2d 532 (La.1982) (facts showed probable cause to arrest and there was consent to the search). In State v. Watson, 416 So.2d 919 (La.1982), this court, citing Menden-hall, held that a suspect who met a known drug dealer at the airport and who otherwise met the profile was properly stopped by police. She was held to have consented to the search prior to accompanying the officers to their office. The evidence was held admissible.

Mendenhall and the relevant Louisiana cases must now, however, be read in light of Florida v. Royer, supra. In this case Royer was spotted by agents in Miami prior to checking two pieces of luggage for a flight to New York. His behavior was consistent with several characteristics of the drug courier profile. The agents approached him, identified themselves, and asked for his identification. They discovered that he was traveling under an alias. They did not return his license and ticket, and they asked him to accompany them to their office. Royer did so. One agent, without Royer’s consent, retrieved his checked luggage from the airline. In the office they asked if Royer would consent to a search. Royer opened one case while the other had to be forced open because Royer did not know the combination. Marijuana was found in both. The result of the court’s decision in this case was that the evidence was suppressed.

Justice White, joined by Justices Marshall, Powell and Stevens, wrote the plurality opinion in which Justice Brennan concurred in the result. Justice Blackmun dissented as did Justice Rehnquist, joined by the Chief Justice and Justice O’Connor. The plurality opinion held, after attempting to review and put into order the jurisprudence, that Royer was effectively seized for Fourth Amendment purposes when the officers retained his license and ticket and asked him to accompany the officers to their office. Florida v. Royer, supra, 103 S.Ct. at 1326 (citing United States v. Mendenhall, supra 446 U.S. at 554, 100 S.Ct. at 1877). It also held that the facts observed by the officers, including the use of the alias, justified their temporary detention of him and his luggage “while they attempted to verify or dispel their suspicions in a manner that did not exceed the limits of an investigative detention.” Id. The opinion also recognized that a voluntary consent at this point would have been possible; however, by the time the search actually took place, the “detention to which he was subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity.” Id. As characterized by the Court: what “had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions.” Id. 103 S.Ct. at 1327. In finding an unnecessary intrusion, the Court emphasized the officers’ retention of the ticket and license, their failure to inform Royer that he was free to go, and their moving him from a public place to an interrogation room. Id. at 1328-29. The plurality recognized, finally, that there is no “... litmus paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigatory stop. Even in the discrete category of airport encounters, there will be endless variations in the facts and circumstances ...” Id. at 1329.

The case before this court is obviously one of the endless variations, one which lies somewhere between Mendenhall and Roy-er. In light of these cases, the crucial factors in such a case today appear to be whether an unreasonable seizure takes place after the suspect consents to speak with the officers and, interrelatedly, whether the police exceed the scope of the limited intrusion without a valid consent from the suspect. Recapping the facts of this case in light of Mendenhall and Royer, I would find as follows:

(1)The police have a right to speak to anyone; yet, no one is required to answer. Florida v. Royer, supra at 1324; Dunaway v. New York, 442 U.S. 200, 210 n. 12, 99 S.Ct. 2248, 2255 n. 12, 60 L.Ed.2d 824 (1979); Terry v. Ohio, supra 392 U.S. at 32-33, 88 S.Ct. at 1885-1886 (Harlan, J. concurring); State v. Brown, supra at 555 (Dixon, J. concurring). Although the officers approached Ossey at the exit, nothing indicates that Ossey’s initial consent to speak with them was coerced. At this point, the incident was entirely consensual. United States v. Mendenhall, supra 446 U.S. at 555, 100 S.Ct. at 1877.

(2) Just as a person may consent to speak. with police officers, he may also consent to a search after being initially approached. Florida v. Royer, supra 103 S.Ct. at 1326; United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 828-29, 46 L.Ed.2d 598 (1976). See also State v. Watson, supra 416 So.2d at 920. Here, the officers testified that they asked for such consent and told Ossey that he did not have to consent if he did not wish to. Ossey’s response, undisputed by the officers, was to ask them if they had a search warrant, saying, in effect, that he would not permit a search without a warrant. Since the officers did not have a search warrant, they were obliged at that point to break off the investigatory stop. The limits of a permissible, nonintrusive Terry-stop had been reached.

(3) The officers, however, did not do so. They persisted in seeking to confirm their suspicions. They told Ossey they would get a warrant if he would accompany them to their office. They do not indicate in their testimony what Ossey said, but it is significant that one of the officers grabbed Ossey’s bag. It is not necessary to believe Ossey’s testimony that they said “Let’s go,” while grabbing his bag, to conclude, as a matter of law, that these circumstances amounted to a “show of official authority such that a reasonable person would have believed he was not free to leave.” Florida v. Royer, supra 103 S.Ct. at 1326; United States v. Mendenhall, supra 446 U.S. at 554, 100 S.Ct. at 1877. What the officers claim they would have done if Ossey had attempted to leave at this point is irrelevant in making this determination. United States v. Mendenhall, supra at 554 n. 6, 100 S.Ct. at 1877 n. 6. The officers confronted Ossey just as he was leaving the airport. After he answered some questions, they identified themselves as narcotics agents, and told him they suspected him of transporting narcotics. When he refused to consent to a warrantless search, they grabbed his bag and said they would get one if he came along. Although the officers testified that they told Ossey, before he refused, that he did not have to consent to a search, neither testified that they told Ossey at this point that he did not have to accompany them or that he was free to go. Whitehead indicated he believed that Ossey came along voluntarily; Ossey said he went along without saying anything because he did not think he was free to leave. It is at this point that the majority and the courts below fall into error. As a matter of law, Ossey, like Royer, was justified in believing he was not free to leave at this point, and, as a practical matter, Ossey, like Royer, was probably under arrest at that point. Florida v. Royer, supra 103 S.Ct. at 1327, 1330 (Powell, J. specially concurring).

(4) Even if Ossey was not under arrest when the three of them headed for the office, the arrest-like nature of his detention became quite clear when they arrived at the office. There is no evidence in the record that Ossey threatened the officers in any way. Moreover, the officers had continually observed Ossey since deplaning, knew that he could not have had a weapon on the plane, and knew that he had not gotten one in the interim. Nevertheless, when they arrived at the office, allegedly due to their concern for their own self-protection, the officers patted Ossey down and had him empty his pockets. As a result, they discovered the key to his bag. Ossey was clearly under arrest by this time.

(5) Once these events had occurred, the bounds of a permissible, limited intrusion had been overstepped. As a matter of law, any consent given by Ossey ought to be held to be impermissibly tainted by his illegal detention. Florida v. Royer, supra 103 S.Ct. at 1326, 1329; Dunaway v. New York, supra 442 U.S. at 218-19, 99 S.Ct. at 2259-60; State v. Saia, 302 So.2d 869 (La.1974). Ossey, unlike the defendant in State v. Watson, supra at 920, did not consent to the search in a public concourse, but only after he had been illegally detained without probable cause. As was the case in Royer, “[wjhat had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions.” Florida v. Royer, supra 103 S.Ct. at 1327. Accordingly, the evidence seized as a result of his illegal detention and illegal search (which yielded the key) should have been suppressed.

      . 433 So.2d 171 (La.1983).

      . 435 So.2d 1039 (La.App. 5th Cir.1983).

      . 436 So.2d 1167 (La.1983).

      . One of the surrounding circumstances remains unresolved. It is unclear when defendant’s ticket and license were returned to him. It is significant that defendant did not testify that the agents kept these items when they asked him to accompany them. Even if the agents had possession of the ticket and license When the request was made, this would not affect the finding of voluntariness. Due to the appropriate weight entitled to the trial judge’s finding of fact and our independent review of the totality of circumstances, we still could not say that the trial judge’s finding of voluntariness was in error.
      An additional surrounding circumstance, the fact that Agent Hurley carried defendant’s bag to the office, is of no moment. This does not affect the voluntariness of defendant’s consent to go with the agents. Moreover, it should be noted that since the agents reasonably believed the bag contained narcotics they could have briefly detained the luggage to investigate the circumstances that aroused the suspicion by means that are properly limited in scope, such as an exposure to a narcotics detection dog. See United States v. Place, — U.S. -, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

      . This is the point at which this case differs factually from Florida v. Royer, supra. Royer implicitly found that the accused did not voluntarily accompany the Dade County detectives to the room off of the concourse. The issue then became whether, within the scope of a temporary detention, the detectives could compel Roy-er to follow them and to be subjected to interrogation in a small private room. The Court held that this exceeded the bounds of a permissible stop. Whereas, in the instant case, defendant voluntarily went with the agents. Therefore, due to the different factual findings on voluntar-iness, the holding in Royer is inapposite. This case is more closely analogous to United States v. Mendenhall, supra, in which the Court found that Mendenhall voluntarily accompanied the agents to an airport office.

      . An oral consent to search is sufficient; a written consent is not required. Cf. State v. West, 408 So.2d 1114 (La.1982); State v. Turnbull, 377 So.2d 72 (La.1979) (written waiver form not required for a valid waiver of Miranda rights). Therefore, defendant’s ruse whereby he pretended to sign the consent form did not affect the validity of his prior oral consent.

      . The method by which the agents obtained the key used to unlock defendant’s bag is unclear. However, even assuming that the key was unlawfully obtained, the drugs would not be suppressible. The alleged illegal seizure of the key did not affect the validity of defendant’s consent to the search. It only facilitated the opening of the bag. Hence, the search of the bag pursuant to defendant’s valid consent was not sufficiently affected by the alleged illegal seizure of the key to justify suppression of the evidence.

      . Airport encounters do, of course, represent descriptively a "discrete category” of search and seizure cases. Nevertheless, there is no reason to conclude that drug related searches in airports should not be subjected to the same scrutiny as in other areas, although Justice Powell appears to think so. United States v. Mendenhall, supra 446 U.S. at 561-62, 100 S.Ct. at 1880-81 (Powell, J. concurring); Florida v. Royer, supra 103 S.Ct. at 1329-30 (Powell, J. concurring). Accordingly, the views of the Fifth Circuit Court of Appeal on this subject which are expressed at 435 So.2d 1041 (La.App.1983) should be rejected. The Fourth Amendment protects "people, not places.” United States v. Mendenhall, supra 446 U.S. at 550, 100 S.Ct. at 1875 (citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967)).

      . In spite of a similarly barren record as to what was specifically said when the officers in Mendenhall asked her to accompany them to their office for further questions, the federal district court in that case specifically found that Mendenhall accompanied the officers "voluntarily in a spirit of apparent cooperation” and cited Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968). See United States v. Mendenhall, supra 446 U.S. at 557, 100 S.Ct. at 1879. The plurality opinion affirmed only after finding nothing in the record which would indicate otherwise. Id. at 557-58, 100 S.Ct. at 1878-79. In this case, however, as in Royer, the record, viewed objectively in light of all the circumstances, does indicate otherwise. The confrontation occurred at the exit to the airport, and the trip to the office occurred after Ossey had refused to consent to a search and after his bag had been grabbed from beside his feet by an officer.

      . As in Royer, it is significant that the officers did not formally arrest Ossey until the drugs were found. Florida v. Royer, supra 103 S.Ct. at 1329. It was not until then that they had probable cause to arrest. The trial court’s finding that the consent to search in the interrogation room was voluntary would render the evidence admissible only if there was probable cause to be holding him there in the first place, or if he had voluntarily accompanied the officers to their office. There was no probable cause, and his going to the office was not voluntary. The issue of Ossey’s ruse in purporting to sign the consent form and the officers’ subsequent good faith is therefore irrelevant, given the illegal nature of Ossey's detention.


author: LEMMON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. James Harold CLARK.
    No. 82-KA-2026.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Feb. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman L. Lawson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    J. Michael Small, Kathrine Williamson, Alexandria, Thomas K. Brocato, Gravel, Robertson & Brady, Alexandria, for defendant-appellant.
   LEMMON, Justice.

Defendant was convicted of negligent homicide arising from an alcohol-related traffic fatality and sentenced to five years imprisonment at hard labor. The principal issues on appeal relate to (1) the failure of the trial court to grant a mistrial after a trooper testified to an inculpatory statement made by defendant at the accident scene, (2) the admission of the results of blood alcohol tests, (3) the trial court’s instructions on the presumption of intoxication, the relationship between violation of a statute and criminal negligence, and the meaning of the term “reasonable doubt”, and (4) the excessiveness of the sentence.

Facts

The midday collision occurred at the “T” intersection of two rural highways. Defendant’s car failed to stop for a stop sign and struck a motor home. The impact pushed the motor home into the opposing lane of traffic, where it collided with a pickup truck, resulting in the death of the truck driver.

The defense was that defendant was not driving his car at the time of . the collision, but had switched places after impact with the other occupant, Mark Fruge. While defendant was found behind the wheel of his car after the collision, Fruge had been seen driving the ear earlier.

On the evening before the accident, defendant and Fruge, along with several other young people, drank and socialized at a camp until the early morning hours. Fruge and defendant decided to go hunting and left in a borrowed white Chevrolet. With Fruge driving, they hunted along the road for a while. Not having much luck, they decided to buy a bottle of whiskey and return to the camp.

Fruge, who was unfamiliar with the area, asked defendant for directions to the camp. According to Fruge, defendant took over the driving and headed north on Highway 476. Before reaching the “T” intersection, they passed an automobile driven by Kenneth Plum.

Plum testified that the white Chevrolet almost ran him off the road. He stated that Fruge was hanging out of the passenger window, waving his arms wildly and screaming. Plum pursued the Chevrolet in' an effort to get the license number, but when the white Chevrolet bumped into the rear end of another vehicle and forced it off the road, Plum stopped to check on the occupants. He then set out again in pursuit of the Chevrolet.

Plum arrived at the intersection almost immediately after the accident had occurred. He saw Fruge in the passenger seat of the Chevrolet and saw defendant with his face down over the steering wheel. Both young men appeared to be cut and injured. Plum was then called to aid in extricating the victim from her truck, but rescuers quickly discovered that she had no pulse and was not breathing. Plum then turned his attention back to the Chevrolet as he heard defendant yell, “Man, what a wild ride we have had”. Several people approached the Chevrolet, but then halted when the two young men got out and began to unload the shotguns they had previously used to shoot at birds.

Fruge was boisterous and obviously intoxicated. He walked over to the dead woman in the pickup truck and began to holler at her to wake up, drunkenly telling her that she should not be sleeping. Fruge then yelled back at defendant, “Hey, Jim, you really screwed up this time”.

Within a few minutes of the wreck, a state trooper arrived. After a brief preliminary inquiry, he approached defendant and Fruge near the white Chevrolet. In response to the trooper’s inquiry, defendant stated that he.“guessed” he was driving, but disclaimed any memory of the preceding events.

Both defendant and Fruge were taken to a nearby hospital for emergency treatment. The officer advised defendant of his constitutional rights and of the consequences of a refusal to submit to a chemical test. However, the officer did not have a “rights form” available for defendant to sign. Defendant did sign a consent to have blood extracted for testing, but he was otherwise uncooperative, refusing to identify himself or his parents and refusing medical attention. The emergency room physician described defendant as hostile, combative, obscene, and very intoxicated.

Defendant was later taken to police headquarters for a PEI test. After being advised of his right to refuse and of the consequences of refusal, defendant refused to sign the forms, but agreed to take the test. The PEI indicated a blood alcohol content of 0.29 percent.

The blood extracted at the hospital showed a blood alcohol content of 0.34 percent. In testifying concerning the difference in the results, a crime laboratory technician explained that the natural dissipation of the alcohol in the blood during the lapse of more than an hour between the drawing of the blood and the subsequent PEI test would account for the difference in the level of blood alcohol.

At trial two other witnesses, in addition to Fruge and Plum, testified that defendant was the driver of the car and that Fruge was the passenger at the time of the collision. (One witness was the motorist who was run off the road just before the accident; the other witness was stopped at the intersection when the accident occurred.) The defense called only one witness, who testified that Fruge was driving when he saw the car at about 11:30 a.m. Other evidence established that the accident occurred shortly after noon.

Inculpatory Statement

When the state was presenting its casein-chief, the prosecutor asked the investigating trooper what he did after his preliminary investigation at the scene of the accident. The trooper responded that he approached. defendant and Fruge and asked “who was driving”, to which defendant responded that he “guessed” he was.

After the officer’s expansive response to the prosecutor’s question, defendant moved for a mistrial. Conceding that he had received a “768 notice” informing him that the state would prove “inculpatory” statements made by defendant at the wreck scene, defense counsel argued he was never apprised that the state would produce evidence of this equivocal admission that the defendant was driving.

We need not decide in this case whether this is the sort of statement to an officer in response to “interrogation” which must be disclosed in substance pursuant to La.C.Cr.P. Art. 716. Failure to make full disclosure does not always require a mistrial. The court has the discretion to consider the facts presented and to decide which course the interest of justice requires. For example, granting a recess to enable a defendant to prepare to meet the newly-revealed evidence may be more appropriate.

Defense counsel did not request additional time to prepare to counter the equivocal admission. Rather, skillfully arguing at the close of the evidence that Fruge designed his accusatory comment (“Hey, Jim, you really ....”) to make defendant think that he was driving, counsel contended that defendant did not remember anything about the wreck and that the equivocal statement merely acknowledged what Fruge had told him just moments before the inquiry.

We conclude that the defense was not so prejudiced by the failure of the prosecution to disclose fully the contents of defendant’s statement to the state trooper that a mistrial was required. See State v. Ray, 423 So.2d 1116 (La.1982). Compare State v. Mitchell, 412 So.2d 1042 (La.1982), and State v. Meshell, 392 So.2d 433 (La.1980), in which failure to make timely disclosure was found to be reversibly prejudicial.

Admissibility of Evidence of Blood Alcohol Tests

Defendant challenges the admissibility of the blood alcohol tests on the basis of the trooper’s failure to have him “sign á standard form” advising him of his rights. La. R.S. 32:661 C. He does not contest the fact that the officer adequately apprised him of his rights, but only that the purportedly required “form” was not “signed”.

Although the statute does refer to having a person “sign” a “form” and further provides that compliance with the statutory requisites is necessary for admissibility of the test results, we believe that there was substantial compliance in this case with the statutory scheme. Both the trooper and a physician testified that defendant voluntarily consented to the withdrawal of blood for testing. Defendant signed a “consent form”, and he was orally advised (according to the officer) of the rights and consequences included in the “rights form” (which was unavailable and therefore not “signed”). In addition, defendant was subsequently provided with a “rights form” in conjunction with the PEI test that was administered later. The test was conducted (pursuant to the requirements of the statute and the regulatory agency) on blood drawn by a physician with a specially approved Department of Public Safety blood collection kit. Under these circumstances, we conclude that the absence of a signed “rights form” does not require application of the exclusionary provision of the statute.

Defendant also challenges the admissibility of the tests on the basis that he was too intoxicated to have “intelligently consented”. The test for consent is whether the defendant acted voluntarily without coercion. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The state need not establish an “intelligent waiver” of the statutory right to refuse the test, but need only show that he acted voluntarily. The trial court’s findings in such matters are entitled to great weight and will not be overturned when supported by the record. Here, the testimony of the emergency room physician and the trooper were adequate to support the trial court’s finding that defendant voluntarily agreed to the chemical tests.

The record also supports a finding that defendant was observed by the emergency medical technicians who transported him to the hospital and by the officer who administered the PEI for a period of in excess of 20 minutes, as required by the rules promulgated for the administration of the PEI test by the Department of Public Safety. The regulation does not require constant observation by one individual for the 20-minute period preceding testing, but only that the person be subjected to “general observation ... whereby the subject shall not have ingested alcohol, alcoholic beverages, regurgitated, vomited, or taken anything by mouth”. Rule 4, Regulations of Louisiana Department of Public Safety, relative to Breath and Alcohol Analysis Methods and Techniques, Volume 6, No. 11, p. 660 (Nov. 1980). Also, the form introduced by the state in connection with the offering of the PEI test results reflects that a 20-minute period had elapsed during which defendant took nothing by mouth.

Jury Instructions — Presumption of Intoxication

Defendant complains that the trial court informed the jury of the “presumption of intoxication” and of their perogative to consider the violation of a statute as “presumptive evidence” of criminal negligence. He contends that such “piggybacking” of the two “presumptions” violates his right to require the state to prove criminal negligence beyond a reasonable doubt. See State v. Williams, 375 So.2d 931 (La.1979).

This court in Williams held that the state cannot utilize the mandatory presumption of La.R.S. 32:661 in a negligent homicide prosecution under La.R.S. 14:32, reasoning:

“In pragmatic result, this might have the effect of relieving the state of its constitutional burden of proving that the defendant driver was negligent at all, a necessary element of the crime which the state is required to prove beyond a reasonable doubt before subjecting the driver to the possibility of penitentiary imprisonment.
“In view of the serious constitutional issues thereby presented, the trial court was properly concerned with constitutionally prejudicial effect which might arise from the introduction of the PEI test in connection with the linking or piggybacking in a negligent homicide prosecution of the presumptions provided by La.R.S. 32:662 and 14:32.
“In the present instance, the presumption of intoxication while driving provided by La.R.S. 32:662 is a mandatory presumption, as defined by Ulster [County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777] — the trier of fact must find that the accused was driving while intoxicated, unless he comes forth with exculpatory evidence*believed by the trier, a virtually impossible burden as our jurisprudence notes.
“The practical effect of the mandatory presumption of being involved in a fatal vehicle accident as an intoxicated driver is to presume the criminal negligence and consequently the guilt of the defendant driver, when considered in connection with the other applicable presumption provided by La.R.S. 14:32 of criminal negligence arising from proven violation of a statute (even though we have held the latter to be merely permissive.)” 375 So.2d at 935. (Footnotes omitted.)

The trial court in the present case did refer to the presumption of intoxication in a negligent homicide case. However, the instruction, when viewed in its entirety, did not create the “linking” problem with which the court was concerned in Williams (which was decided in a pretrial context). Here, the trial judge gave a very strong instruction on the meaning of criminal negligence which clearly emphasized the jury’s obligation not to convict merely on a simple finding of a statutory violation and a fatal accident. The judge said:

“Criminal negligence is an essential ingredient of the crime of Negligent Homicide. Criminal negligence is defined in Revised Statutes 14:12 as follows:
“ ‘Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.’
“To put it in another way, the term criminal negligence means gross negligence or recklessness such as to amount to a reckless disregard for one’s own safety or the safety of others and a willful indifference to the consequences liable to follow. Criminal negligence means something more than mere carelessness, mistake, error of judgment or omission of duty. It means a degree of negligence more serious or aggravated than would ordinarily give rise to civil liability. It is more than the mere omission to do something which a reasonable and prudent man would do under the circumstances surrounding each particular case. Criminal negligence is such gross negligence or recklessness as might cause a reasonable and prudent man to expect that injury or damage to the person, property or rights of others might result from his negligent act. It is such gross negligence and recklessness as might exist if he willfully does an act when he knows it is likely or probable that injury or damage may result from the doing of the act. However, it is not necessary that there be an intent or will concurring in the negligence or omission which causes death, because if the act was intentional and with the purpose of causing death or great bodily harm, then the offense would be murder or manslaughter instead of negligent homicide.
“The Statute defining the crime of negligent homicide as stated above provides that ‘the violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.’
“However, a finding that Defendant actually violated the statute or ordinance is only presumptive evidence. The fact that a person may have violated a statute or ordinance is not alone sufficient to warrant a finding of criminal negligence, but you may consider such violation as presumptive evidence along with the other facts of the case to determine whether Defendant’s conduct was of such a nature as to constitute that degree of carelessness and recklessness which would constitute criminal negligence.
“LSA-R.S. 32:662 provides:
“ ‘That when a chemical test is made of a person’s blood or breath, and at the time of the taking of the breath test or blood sample test, there was .10 grams percent of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages.’
“There is neither specific nor general criminal intent involved in negligent homicide. It is necessary for the State to prove beyond a reasonable doubt that the accused did that which he ought not to have done in a grossly negligent or reckless manner in such disregard of the interest of the deceased that the conduct of the accused amounted to a gross deviation from the standard of care expected to be maintained by a reasonably careful man under similar circumstances.” (Emphasis supplied.)

Thus, the jurors were clearly apprised of their right to consider the statutory violation, along with all of the other facts, as evidence of criminal negligence, but were further instructed not to convict unless convinced beyond a reasonable doubt that the evidence satisfied the described standard of “gross recklessness”. See State v. Hammontree, 363 So.2d 1364 (La.1978); Hammontree v. Phelps, 605 F.2d 1371 (5th Cir.1979).

Of extreme significance in this particular case is the fact that there was no real dispute that criminal (as opposed to “ordinary”) negligence was involved. See State v. Jones, 298 So.2d 774 (La.1974). The only contested factual issue was the identity of the driver. In this context, we cannot say that the trial court’s instruction misled the jurors in determining the guilt of the accused. We therefore conclude that defendant was not prejudiced because the court’s instruction created the dangers of the “piggybacking” of the two “presumptions” expressed in Williams. See State v. Daranda, 388 So.2d 759 (La.1980) and State v. Green, 418 So.2d 609 (La.1982), in which this court affirmed negligent homicide convictions, although jurors were instructed concerning the presumption of intoxication. Jury Instructions — Definition of Reasonable Doubt

Defendant contends that the trial court erred in defining reasonable doubt. The trial court, in defining “reasonable doubt”, stated:

“It is such a doubt as a reasonable man could seriously have. It is a serious, sensible doubt such as one could give a reason for.”

Defense counsel objected, contending that the instruction equated the concept with a “serious doubt”.

Defining “reasonable doubt” is difficult and is not required by La.C.Cr.P. Art. 804. Nevertheless, this court has approved various efforts to define the concept and has only disapproved when, as in State v. McDaniel, 410 So.2d 754 (La.1982), the court was concerned that the definition could mislead the jury into applying an incorrect standard.

In the present case, we conclude that the term “serious doubt”, in the context of the overall instruction, did not mislead the jurors into believing that they should apply a standard requiring a “greater degree of uncertainty” than is required for a “reasonable doubt”.

Sentence Review

The trial court imposed the maximum sentence. Although this court has stated that maximum sentences should normally be reserved for the “worst offenders” and the “worst cases”, the record in this case justifies the most severe sentence authorized by law.

The degree of intoxication was extreme, and defendant’s reckless behavior actually endangered the lives of many other people as he careened along the highway at an excessive speed and without regard to traffic control devices. Significantly, his record of alcohol-related traffic infractions began when he was a young teenager. Less than two years before the fatal wreck, defendant’s driver’s license was suspended for traffic infractions. He had previously failed to respond affirmatively to court-ordered participation in substance abuse programs. As the trial judge noted in imposing sentence, defendant has no dependents and no excuse for his conduct, and he surely should have contemplated that his conduct could cause severe injury. Despite defendant’s youth, his prior history of drinking and driving, his wanton disregard for the probable consequences of his reckless driving, and the magnitude of the harm (the death of an innocent motorist) caused by his drunken driving in this case justify a maximum sentence.

Accordingly, the conviction and sentence are affirmed.

DIXON, C.J., concurs.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., dissents with reasons.

CALOGERO, Justice,

concurring.

I read the majority opinion as stating that, at best for the defendant, harmless error occurred in this case when the trial judge, in his instruction, piggybacked the presumption of intoxication [La.R.S. 32:662] and the presumption that the violation of a statute is evidence of criminal negligence [La.R.S. 14:32]. This determination prompts me to concur rather than to dissent. However, I strongly disagree with the majority’s assertion that the judge’s “instruction when viewed in its entirety did not create the ‘linking’ problem with which the court was concerned in Williams. ..”

The trial judge told the jury essentially that when a chemical test shows that there is over .10 grams percent of alcohol in a person’s blood that person is presumed to be intoxicated. He also instructed the jury that driving while intoxicated is a statutory violation, and that violation of a statute is presumptive evidence of criminal negligence, an essential element of the crime of negligent homicide. The consequence of linking these two presumptions is that test results indicative of intoxication without more will support a negligent homicide verdict, and as we said in State v. Williams, 375 So.2d 931 at 933, 934 (La. 1979), “this might have the effect of relieving the state of its constitutional burden of proving that the defendant driver was negligent at all, a necessary element of the crime which the state is required to prove beyond a reasonable doubt before subjecting the driver to the possibility of penitentiary imprisonment.”

      . La.R.S. 32:661 C provides:
      “When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first inform the person of the consequences of a refusal. In addition, the law enforcement officer shall have the person sign a standard form advising such person of his constitutional rights; the law enforcement officer shall have the person sign a separate form advising such person of the consequences of his refusal to submit to a chemical test, provided however that a single combination of the two forms may be used. If the person is unable or unwilling to sign the form, the law enforcement officer shall certify that such person was informed of his constitutional rights and was unable or unwilling to sign said form. If the above procedure is not complied with, the results of the test or any reference to it is inadmissible into evidence in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages.” (Emphasis supplied.)

      . The recommended instruction on reasonable doubt in the Louisiana Trial Judges’ Benchbook (La.Judicial College 1980) is:
      "While the state must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based on reason and common sense and is present when, after you have carefully considered all the evidence, you cannot say you are firmly convinced of the truth of the charge.”

      . He did not base his objection on the failure to read the statute charging the jury to give defendant the benefit of a reasonable doubt arising from the evidence or the lack of evidence. La. C.Cr.P. Art. 804. Therefore, he cannot urge this ground on appeal. La.C.Cr.P. Art. 841; State v. Sims, 426 So.2d 148 (La.1983). Compare State v. Mack, 403 So.2d 8 (La.1981).

      . In McDaniel, this court held that use of the term "great uncertainty” in defining reasonable doubt when “viewed in the context of the whole charge ... overstated] the degree of uncertainty required for a reasonable doubt”. 410 So.2d at 756.