text:
    STATE of Louisiana v. Robert BAKER.
    Nos. 83 KA 1255, 83 KA 1257.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie Brown, Dist. Atty. by Richard Johnson, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    G. Paul Marx, Lafayette, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendant, Robert Baker, was charged by bill of information filed on March 11, 1982, with ten counts of forgery, in violation of La.R.S. 14:72. Defendant pled not guilty and, after a jury trial, was found guilty as charged on each count. Defendant was subsequently charged and sentenced as a second felony habitual offender under La.R.S. 15:529.1. The court sentenced defendant to be confined at hard labor for ten years on each count, the sentences to be served concurrently with each other but consecutively to a sentence previously imposed and then being served by defendant.

Defendant has appealed, briefing six assignments of error:

1. The court erred in refusing to grant defendant’s motions to quash the bill of information based on the lack of a speedy trial.
2. The court erred in its conduct of a hearing to determine the admissibility of other crimes evidence.
3. The court erred by denying defendant due process of law.
4. The court erred in allowing the admission of other crimes evidence.
5. The court erred in permitting a prosecution witness to testify through a narrative method.
6. The court erred in refusing to admonish the jury with respect to pros-ecutorial statements.

Defendant’s two remaining assignments of error were not briefed and are thereby considered abandoned. Rule 2-12.4, Uniform Rules-Courts of Appeal, State of Louisiana. State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La.1983).

FACTS

During the month of October, 1980, defendant, Robert Baker, forged the name of “Elray Gisclard” to numerous Visa charge card invoices to obtain goods and services from several retail establishments in East Baton Rouge Parish. The forgeries were brought to the attention of Louisiana law enforcement authorities in November of 1980, after defendant made statements to Florida authorities following his arrest in that state for similar offenses involving use of the same credit card.

Defendant was arrested in East Baton Rouge Parish on May 14,1981, and on June 19, 1981, a bill of information was filed charging defendant with one count of unauthorized use of an access card in violation of La.R.S. 14:67.3. That bill of information was dismissed on October 23, 1981. Defendant was rebilled on March 11, 1982, with the instant ten counts of forgery. Trial on these counts commenced on January 25, 1983, and ended on January 26, 1983.

ASSIGNMENTS OF ERROR NOS. 1 and 3

a) Speedy Trial

In his brief, defendant has combined assignments of error one and three, alleging that the trial court erred in denying his motions to quash the bill of information on the grounds that defendant had been denied a speedy trial and that defendant had been denied due process of law based on prosecutorial vindictiveness. The thrust of defendant’s argument focuses on the delay occurring from the time of his initial arrest in May of 1981, until rebilling in March of 1982, on the charges for which he was ultimately tried and convicted.

The right to a speedy trial is a fundamental right guaranteed by both the federal and state constitutions. U.S. Const, amend. VI; La. Const. of 1974, art. 1, sec. 16; State ex rel. Miller v. Craft, 337 So.2d 1191 (La.1976).

The four factors to be considered in determining whether a defendant has been deprived of a speedy trial are: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Dewey, 408 So.2d 1255 (La.1982).

The initial inquiry is into length of delay, and if the length of delay was such as to be presumptively prejudicial, a further inquiry into the other factors is necessary. Whether the length is presumptively prejudicial depends on the peculiar circumstances of each case. State v. Reaves, 376 So.2d 136 (La.1979).

As noted above, defendant was arrested on May 14, 1981, and charged by bill of information on June 19, 1981. That bill was dismissed on October 23, 1981. Defendant alleges that dismissal of the original bill was due to his failure to enter into a plea bargain with the state. This assertion is supported by the record.

Defendant filed a motion for a speedy trial based on La.C.Cr.P. art. 701 on February 22, 1982, at which time he did not face formal charges in East Baton Rouge Parish, although he remained incarcerated. Disposition of that motion does not appear of record although defendant was subsequently rebilled in East Baton Rouge Parish on March 11, 1982, and thereafter remanded to Louisiana State Penitentiary at Angola to begin serving a sentence imposed by the Fifteenth Judicial District Court on March 10, 1982.

The length of delay in this instance is well within the prescriptive periods. The length of delay from billing on the charges for which defendant was tried and convicted to trial was from March 11, 1982 until January 25, 1983. This delay is not presumptively prejudicial. The delay from dismissal of the original charges until rebilling was precipitated by pending charges other than those for which defendant was tried in this case. Consequently, that delay creates no presumptive prejudice.

In any event, analysis of the other factors necessary to finding a denial of a right to a speedy trial does not provide defendant any relief.

Although the record before us is not complete as to the procedural history of each of the forgery charges defendant faced throughout the State of Louisiana during the time in question, it appears that the very existence of several pending prosecutions attributed to much of the delay. There is no indication that the state was in bad faith or deliberately delayed defendant’s prosecution. The numerous forgery counts on which defendant was eventually charged, tried, and convicted would seem to require much investigation to fully develop. Under the circumstances, which included an aborted attempt at plea bargaining negotiations, the reasons for the delay are justifiable.

Additionally, the defendant did not file a motion in court asserting his right to a speedy trial until four months after the original bill of information had been dismissed. By that time, the major portions of the delay had occurred.

Finally, defendant does not allege any actual prejudice other than marital discord and anxiety due to uncertainty. Defendant’s pre-trial incarceration from March 10, 1982, to the time of trial was based on a sentence imposed by the Fifteenth Judicial District Court. The reason for his incarceration from October 30, 1981, to March 10, 1982, is not fully explained by the record but appears to have been based on charges pending in the Fifteenth Judicial District. Moreover, defendant’s ability to adequately prepare his defense was not impaired.

In sum, we do not consider that defendant was deprived of his constitutional right to a speedy trial. Hence, the trial judge did not err in denying defendant’s motions to quash on that basis.

b) Prosecutorial Vindictiveness

Defendant also sought relief on the independent ground of alleged prosecutorial vindictiveness stemming from the prosecutor’s rebilling on more serious counts following defendant’s failure to enter into a plea bargain on the original bill of information.

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Supreme Court for the first time considered an allegation of vindictiveness that arose in a pretrial setting. In that case, the Court held that the due process clause did not prohibit a prosecutor, as in the instant case, from carrying out a threat made during plea negotiations to bring additional charges against an accused who refused to plead guilty to the offense with which he was originally charged. The Court noted that by tolerating and encouraging the negotiating of pleas it had accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forego his constitutional right to stand trial. The Court concluded:

We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of foregoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment. 98 S.Ct. at 669.

Additionally, the validity of a pretrial charging decision must be measured against the broad discretion held by the prosecutor to select the charges against an accused. In State v. Juluke, 374 So.2d 1259 (La.1979), the Court noted that forging of a signature to a credit slip for merchandise, with the intent to defraud, describes conduct which if proved would be criminal under either La.R.S. 14:72 (forgery) or 14:67.3 (unauthorized use of access card). The Court noted that it is within the discretion provided the district attorney by La.R.S. 14:4(1) to charge defendant under the general forgery statute in such a case. Accordingly, a presumption of prosecutorial vindictiveness in this case is not warranted.

Assignments of error numbers one and three lack merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that the trial court erred in its conduct and disposition of a hearing to determine the admissibility of other crimes evidence. It is not disputed that defendant received written notice, some nine months in advance of trial, that the prosecution would seek to introduce evidence of other crimes within the scope of La.R.S. 15:445 and 446. The hearing at issue was conducted before the trial judge on April 20, 1982. Prior to that hearing date, defense counsel had received a transcript of statements made by defendant to Florida law enforcement authorities and a detailed description of evidence in possession of the prosecutor for the Fifteenth Judicial District Court bearing on offenses charged in that district. The only witness presented at the hearing was an assistant district attorney from Lafayette Parish, who summarized the other crimes evidence sought to be introduced at trial.

In State v. Prieur, 277 So.2d 126 (La.1973), the court considered the constitutional problems associated with the admission of evidence of other criminal conduct by the defendant and held that, where such evidence is sought to be admitted, defendant must be given particularized pre-trial notice that such evidence will be introduced, so that he may have an opportunity to defend against it. Further, the trial judge must make a determination, outside the presence of the jury, as to whether the evidence complies with the tests established by our courts for the admissibility of other crimes evidence.

In the present case, the pre-trial notice required by Prieur was given to defendant, and defendant did have an opportunity to present evidence rebutting the admissibility of the evidence of his past criminal conduct. We are satisfied that the testimony of the assistant district attorney, coupled with the transcribed Florida tapes, although hearsay, adequately informed defendant of the nature and factual content of the other crimes evidence. Moreover, the testimony at trial of a Lafayette eyewitness concerning a prior offense conforms substantially to the details of the offenses as described by the assistant district attorney. See, State v. Hatcher, 372 So.2d 1024 (La.1979).

This mode of presentation also afforded the trial judge a sufficient basis from which he could rule on admissibility with respect to the general exclusionary rule of other crimes evidence. Although the trial court’s determination on the issue of admissibility was made piecemeal over a period of several months, the ruling was made outside the presence of the jury, pri- or to introduction at trial of any other crimes evidence. Here, defense counsel generally refers to the timing of the trial court’s rulings without having sought a continuance or alleging specific facts to show prejudice to the defendant. On this bare allegation, we cannot conclude that the trial judge abused his discretion. State v. Lukefahr, 363 So.2d 661 (La.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979).

ASSIGNMENT OF ERROR NO. 4

Defendant alleges that the trial. court erred in allowing the state’s introduction of evidence of his conviction of forgery in the Fifteenth Judicial District, Lafayette Parish, and of inculpatory statements made by defendant to Florida law enforcement authorities.

Evidence of other crimes is inadmissible when the only purpose of the evidence is to show the defendant’s propensity to violate criminal law. However, there are exceptions to the general rule of inadmissibility. Aside from related offenses admissible as part of the res gestae and convictions admissible for impeachment purposes, Louisiana statutes provide for three instances when other crimes evidence is “substantially relevant” so as to qualify as an exception to the general rule of exclusion: acts relevant to show intent, knowledge, or system. La.R.S. 15:445, 446. Admission of another crime committed by the same “system” as the offense charged might also be relevant to show the identity of the defendant as the offender. State v. Kahey, 436 So.2d 475, 487; State v. Talbert, 416 So.2d 97 (La.1982).

The decisions of State v. Moore, 440 So.2d 134 (La.1983), State v. Kahey and State v. Hatcher, set forth guidelines for determining the admissibility of other crimes evidence. First, there must be clear and convincing evidence that the defendant committed the other crimes. Second, the other crimes evidence must be substantially relevant for some other purpose than to show defendant’s general criminal character. Third, the other crimes evidence must tend to prove a material fact genuinely at issue. Fourth, the method of commission of both the charged and uncharged crime must be so distinctly similar that one may logically infer that the same person committed both crimes. Fifth, the probative value of other crimes evidence must outweigh its prejudicial effect. State v. Moore, 440 So.2d at 137.

In the instant case, there was clear and convincing evidence that defendant committed the other crimes. The identity of the perpetrator was genuinely at issue. The thrust of the defense was based on the identity of the individual(s) who had forged the instant charge slips. Defense counsel focused his attack on the generally weak nature of eyewitness identification and on the fallibility of expert handwriting analysis as it relates to identifying authorship. State v. Ledet, 345 So.2d 474 (La.1977). The other crimes evidence had substantial independent relevance for the purpose of identifying the defendant as the perpetrator of the charged crime.

Application of the fourth and fifth steps in the admissibility analysis are closely related and must be made on a case-by-case basis. The greater the degree of similarity of the offenses, the more the evidence enhances the probability that the same person was the perpetrator of each offense and hence the greater the evidence’s probative value. The probative value is to be ultimately weighed against its prejudicial effect. State v. Moore, 440 So.2d at 137.

In this case, the other forgeries had significantly similar salient features which gave them the degree of distinctive similarity necessary to enhance the probability that defendant was the perpetrator of all the offenses. In addition, the trial judge viewed the Baton Rouge offenses as one portion of a larger scheme to use the Gisclard credit card in a variety of locations. The similarities in the method of commission and other circumstances of the crimes are distinctive so that the strong positive identification of the Lafayette eyewitnesses, coupled with the identification by the Florida law enforcement officer, greatly enhanced the identification by the East Baton Rouge eyewitnesses and expert witness presented with respect to the instant charges. The trial judge did not abuse his discretion in finding that the probative value exceeded the prejudicial effect of the admission of the evidence of other crimes. Moreover the trial court lessened the prejudicial effect and guarded against jury misuse of evidence by giving cautionary instructions at closing argument.

Thus, we conclude that the trial judge did not err in admitting the evidence.

ASSIGNMENT OF ERROR NO. 5

Defendant alleges that the trial court erred by permitting the state’s handwriting expert witness to testify through a narrative method.

The trial court is vested with sound discretion with regard to control of examination of a witness, including the use of narrative testimony. La.R.S. 15:275; State v. Peters, 302 So.2d 888 (La.1974), cert. denied, 423 U.S. 878, 96 S.Ct. 151, 46 L.Ed.2d 111 (1975). A ruling thereon will not be disturbed absent a showing of abuse of discretion. State v. Carter, 363 So.2d 893 (La.1978). We find no showing of abuse herein.

Further, defendant failed to comply with the requirements of contemporaneous objection as required by La.C.Cr.P. art. 841. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. Defendant’s assertion that he was unable to object is unfounded.

Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

Defendant alleges that the trial court erred by failing to sufficiently admonish the jury with respect to a statement made during the state’s rebuttal closing argument.

In pertinent part, the prosecutor stated: [Y]ou may come away with and frequently people who serve as jurors do is that attorneys are paid liars.

After defense counsel’s objection, the trial judge did not make a precise ruling but did caution the jury as follows:

I presume that this was said in spirit, not of complete seriousness. And the jury, I hope took it that way.

La.C.Cr.P. art. 774, which defines the scope of closing argument, proscribes as particularly unwanted comments by the prosecutor referring to matters allegedly within his personal knowledge, but not in evidence. However, not every remark of this type will warrant reversal. La.C.Cr.P. art. 921. To the extent that the prosecutor’s knowledge concerning what jurors might perceive as an attorney’s role at trial was without foundation and outside the record, the same was irrelevant and improper argument. But, before a verdict will be overturned on the basis of improper argument, this court must be thoroughly convinced that the jury was influenced by the remarks and that the remarks contributed to the verdict. State v. Carthan, 377 So.2d 308 (La.1979). We find the argument did not prejudice the defendant. Therefore this assignment of error also lacks merit.

Defendant argues an additional allegation of error which appears for the first time in his brief. Since this allegation, if proved, would be error patent on the face of the record under La.C.Cr.P. art. 920, we find it necessary to review this additional allegation.

In substance, defendant alleges that it was error to have sentenced him as a second felony offender under La.R.S. 15:529.1. Defendant contends that the sentence was improper on the record submitted because it was not demonstrated that the five year cleansing period of La.R.S. 15:529.1(C) could be avoided.

Defendant pled nolo contendere in Hamilton County, Ohio, on January 9, 1974, to a charge of receiving stolen goods valued at $1,000.00. He was paroled to Louisiana from prison in Ohio on December 24, 1974, and received a final discharge from parole on February 27, 1976. The instant offenses were committed by defendant on October 7 and 8 of 1980.

Defendant contends that the five year cleansing period should commence from December 24, 1974, rather than February 27, 1976. In State v. Anderson, 349 So.2d 311 (La.1977), the court noted that the statutory intent of the habitual offender law is that a sentence expires when the prisoner is discharged from state custody and supervision. Moreover, La.R.S. 15:574.7(A) provides that each parolee shall remain in the legal custody of the institution from which he was paroled.

This line of analysis was applied in State v. Vincent, 387 So.2d 1097 (La.1980), where the court equated the date of discharge from parole with the expiration of maximum sentence for defendant’s last prior felony conviction. Following these guidelines, we find that the state met its burden of proving that more than five years had not elapsed since the expiration of the maximum sentence for defendant’s last prior felony conviction (February 27, 1976) and the time of commission of the felony for which he was convicted herein (October 7 and 8 of 1980).

The trial judge did not err on that basis in finding defendant to be an habitual offender. This allegation of error, accordingly, is without merit.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . The basis of defendant’s continued incarceration after the formal charges were dismissed in October of 1981 is not definitely revealed by the record; however, he had been formally charged in the Fifteenth Judicial District, Lafayette Parish, with numerous counts of forgery in December of 1980, which charges were still pending during this period. The circumstances under which East Baton Rouge Parish officers took custody of defendant on May 14, 1981, are not revealed by the record. However, the record does reveal that defendant had pled guilty to a similar charge in Ascension Parish on May 13 or 14, 1981.

      . But cf. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 656, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

      . In fact, retained counsel for defendant was the same for both the instant case and the Lafayette Parish prosecution, which was resolved by plea bargain.

      . The only recognized exceptions to this notice requirement are offenses which form part of the res gestae and convictions admissible for impeachment purposes.

      .A rehearing was granted in Hatcher to reconsider the defendant’s assertion that the trial court erred in allowing introduction of other crimes evidence. The rehearing did not disturb procedural considerations addressed in the original opinion.

      . The Lafayette conviction involved defendant’s forging the name of "Elray Gisclard” to various credit purchases during the period which encompassed the time frame involved in this case, using the same VISA account as that used in the instant offenses.
      The statements to Florida authorities admitted possession of a VISA credit account card and use of the name of Elray Gisclard during the period encompassing the time frame involved in this case.
      Furthermore, defense counsel chose to admit the entire statement, which further alluded to criminal conduct in Florida, rather than limiting the admission to those portions which related more directly to commission of the instant offenses.

      . Similarities of the various offenses include use of the same credit card; use of the same name as signatory to each charge slip; similar writing style of the signatures (per expert witness); and close proximity in times of occurrence (October through early November of 1980).

      . Defense counsel declined the opportunity of having cautionary instructions given contemporaneously with the introduction of the evidence.

      . In State v. Jarreau, 444 So.2d 340 (La.App. 1st Cir. 1983), Judge Cole declined to review two assignments not formally raised citing La.C. Cr.P. arts. 844 and 920.

      . La.R.S. 15:529.1(C) provides:
      This Section shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said five year periods.

      . La.C.Cr.P. art. 552(4) provides in pertinent part that “[a] sentence imposed upon a plea of nolo contendere is a conviction and may be considered as a prior conviction and provide a basis for a prosecution or sentencing under laws pertaining to multiple offenses”.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Guy E. GUERIN.
    No. 83 KA 1293.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Joseph Olinde, Atty., Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Guy E. Guerin (defendant) was charged by bill of information with committing the offense of aggravated battery upon Charles R. Lair in violation of La.R.S. 14:34. After trial by jury, defendant was found guilty as charged and was subsequently sentenced to a term of five years in the East Baton Rouge Parish Prison. He was further sentenced pursuant to La.R.S. 14:95.2 to an additional two years in the Parish Prison to be served consecutively with the five-year sentence and to be served without benefit of parole, probation, suspension of sentence, or credit for good time. Defendant appeals his conviction and sentence. He urges eight assignments of error.

Around 4:30 p.m. on July 9, 1982, a shoot out took place between defendant and Lair in a parking lot at the intersection of Government and St. Charles Streets in Baton Rouge, Louisiana, directly across the street from Lair’s office. Lair was shot in the arm, chest, and neck. Defendant was shot in the arm. Officer Mark Pinkley was investigating an accident a block away when he heard three or four shots fired in rapid succession. He turned and saw a man fall to the ground and saw another man leave the scene on a motorcycle. He heard no shots after the rapid-fire shots and said that the two men were facing each other when he first saw them. Dr. Joseph Miceli, an emergency physician at Our Lady of the Lake Hospital, saw defendant in the emergency room about 10:30 that evening. He found a gunshot wound which penetrated the posterior lateral aspect of defendant’s right upper arm. It was his opinion that this was the entrance wound. Defendant contends that when he saw Lair go for his gun he turned and began to run away, but after he was shot in the back of the arm, he turned around and shot Lair. Lair contended that he was shot by defendant before he ever got his gun out of his portfolio and did not remember ever firing his gun. Defendant’s theory is that he acted in self-defense because Lair shot him first and was the aggressor.

ASSIGNMENTS OF ERROR NUMBERS 1, 2 and 3

I. The trial court erred in denying the defendant’s Motion for Continuance, which motion was based on the absence of a material witness.
II. The trial court erred in holding that evidence of an ongoing, extra-marital affair between the alleged victim and the defendant’s wife was irrelevant and/or immaterial.
III. The trial court erred in refusing to allow certain defense witnesses to testify over objections of relevancy and hearsay.

These assignments of error were combined for purpose of argument because they are interrelated. We also deem it expedient to discuss them jointly because our resolution thereof is dispositive of the case. The defense here is self-defense. Defendant’s theory is that Lair was the aggressor and shot defendant first. In advancing that theory, defendant testified that he found in his wife’s purse a receipt from the Holiday Inn on Siegen Lane, dated about a week before the shooting, which had Lair’s name on it. Defendant also testified that on July 8, the day before the shooting, he confronted- Lair with a gun about Lair’s involvement with his wife; that he forced Lair to take a ride with him while they discussed the matter; that Lair would not promise to leave his wife alone; that he went back to Lair’s place of employment the next day on his motorcycle; that he again had his gun with him; that he waited for Lair at the front door of Lair’s office; that Lair came out of the office after work and as they walked across the street to the parking lot Lair told him that what Lair said yesterday still went; that he pleaded with Lair to leave his wife alone because it was “just messing my homé up” and he wanted Lair to leave his wife alone; that Lair hung his head, looked back up and said, “Well, okay, I’ll do that;” that they were standing face to face and he saw Lair coming up with a gun; that he turned to run and took 3 or 4 steps when Lair shot him; that there was another shot and he turned around and shot back; and that he ran over to his motorcycle, started it and drove off.

Lair testified that defendant was waiting for him behind a car when he got off work; that because of his abduction the day before he brought a loaded gun to work with him for protection; that as he approached his car, defendant accosted him, holding a motorcycle helmet in one hand while shielding or hiding a pistol in his other hand; that after some discussion between them, defendant told him that he was going to kill him; that the next thing he knew he felt a sting in the chest and started falling; that he felt another sting in the neck; that he pulled his gun out from a portfolio but did not remember if he fired any shots; that he did not have his gun in his hand when he felt the first sting but was taking it out as he was going down; that he admitted knowing defendant’s wife but denied that he was having an affair with her and specifically denied ever spending the night with her at the Holiday Inn on Siegen Lane.

Defendant attempted to subpoena his estranged wife for trial but was unable to get service upon her. He moved for a continuance which was denied after a hearing. The trial judge ruled that anything she had to say would be irrelevant to the charge of aggravated battery. Defendant wanted to examine her about her relationship with Lair. Anticipating that she might deny any extra-marital involvement with Lair, defendant had also subpoenaed Jean Roan, Neale Anderson and Janice Lee. He hoped to elicit testimony from these three witnesses that his wife had told them that Lair was her man, that they picked roses together, went to the L.S.U. lakes together and had sexual relations in hotels in Baton Rouge, Lafayette and Hammond.

Jean Roan was actually called to the stand, but the trial judge sustained the State’s objection to hearsay. After that ruling the defense did not attempt to put Anderson or Lee on the stand, but they were, according to counsel, present and ready to testify.

An out-of-court statement made by a non-party that is against the declarant’s own interest is generally recognized as an exception to the hearsay rule. See D. Binder, The Hearsay Handbook, Exception 29, 199 (1975) McCormicks Handbook of the Law of Evidence 690 (E. Cleary 2nd ed. 1972), in discussing this exception, states:

To satisfy the instant exception to the hearsay rule in its traditional form, two main requirements must be met: first, the declaration must state facts which are against the pecuniary or proprietary interest of the declarant, or the making of the declaration itself must create evidence which would endanger his pocketbook if the statement were not true; second, the declarant must be unavailable at the time of trial. These two requirements, when satisfied, are believed to furnish respectively the safeguard of special trustworthiness and the requisite of special need for the use of hearsay, which are the traditional justifying elements of most of the exceptions to the hearsay rule.

(Footnotes omitted:)

In Chambers v. Mississippi, 410 U.S. 297, 93 S.Ct. 1038, 1047, 35 L.Ed.2d 297 (1973), the U.S. Supreme Court said:

A number of exceptions have developed over the years to allow admission of hearsay statements made under circumstances that tend to assure reliability and thereby compensate for the absence of the oath and opportunity for cross-examination. Among the most prevalent of these exceptions if the one applicable to declarations against interest — an exception founded on the assumption that a person is unlikely to fabricate a statement against his own interest at the time it is made. (Footnote omitted.)

Federal Rule of Evidence 804(b)(3) defines the declaration against interest statement as follows:

A statement which was at the time of its making so far contrary to the declar-ant’s pecuniary interest, or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Historically, Louisiana has distinguished between declarations against penal interest and declarations against pecuniary or proprietary interest. In State v. Gilmore, 332 So.2d 789 (La.1976), the Supreme Court held that statements against a declarant’s penal interest were admissible as an exception to the hearsay rule.

Gilmore seems to have firmly established the declaration against penal interest as a hearsay exception in our jurisprudence. It appears that Chambers may have given a defendant a constitutional right to have such out-of-court declarations held admissible. In this case, however, we are dealing with a declaration against pecuniary or proprietary interest made by Mrs. Guerin to her friends Roan, Anderson and Lee.

We have found no Louisiana criminal cases dealing with the declaration against pecuniary or proprietary interest. However, our analysis of the cases and treatises on evidence convince us that historically the declaration against pecuniary or proprietary interest has been considered more trustworthy and reliable than declarations against mere penal interest. McCormick, at 671, states that “[t]he traditional field for this exception has been that of declarations against proprietary or pecuniary interest.”

We hold that a relevant out-of-court declaration made by a nonparty, unavailable for trial, against the declarant’s proprietary or pecuniary interest can be an exception to the hearsay rule and admissible for its probative value. Mrs. Guerin was not available. She was a nonparty. Her statements to Roan, Anderson and Lee were against her pecuniary and proprietary interest because she admitted an adulterous relationship. Adultery is a ground for immediate divorce in Louisiana (La.C.C. art. 139) and brings with it a dissolution of the community and other adverse effects (La.C.C. art. 155, et seq.).

Additionally, Angela Andrews, the manager of the Holiday Inn on Siegen Lane, was subpoenaed. Andrews was not permitted to testify concerning her hotel records, as the trial court ruled that they were inadmissible as being irrelevant. However, defendant had a receipt from the hotel dated about a week before the shooting which had Lair’s name on it and was purportedly signed by Lair. This is the same receipt defendant found earlier in his wife’s purse. Andrews’ testimony would have been corroborative. It would have added weight to the testimony of Roan, et al. While the receipt itself was circumstantial evidence, the jury should have been allowed to consider and attach to it whatever weight it deemed appropriate. We assume that a proper foundation, if necessary, could have been laid to use the business records exception to the hearsay rule if use of the exhibit itself created any problem. State v. Hodgeson, 305 So.2d 421 (La.1974); State v. Lewis, 288 So.2d 348 (La.1974).

Also, since Lair had denied an assignation with Mrs. Guerin at the Holiday Inn on Siegen Lane, Andrews’ testimony was relevant for its contradictory value.

The trial court’s ruling which prevented Roan, Anderson, Lee and Andrews from testifying, either on the ground of hearsay or irrelevance, deprived defendant from presenting to the jury evidence which tended to corroborate his theory that Lair was the one with the motive for being the aggressor because if defendant was out of the way, Lair could continue his illicit relationship with Mrs. Guerin without further interference from defendant. During the presentation of the State’s case, the trial judge, over objection, permitted evidence of the alleged kidnapping the day before the shooting, and the State argues here that that testimony was relevant not only to show the intent of defendant but also the state of mind of the victim which was put at issue by defendant’s assertion of self-defense. However, the trial court’s rulings during the presentation of defendant’s case prevented him from presenting evidence to the jury that Lair was the aggressor and that he had acted in proper self-defense under La.R.S. 14:21. Defendant contends that the irrelevancy ruling on the evidence of Lair’s affair with his wife left the jury with the impression that the only reason Lair would have carried a loaded gun on the day of the shooting was to protect himself from defendant. He also contends that the jury was left with the impression that he had every reason to shoot Lair but that Lair had no reason to shoot him.

In State v. Vaughn, 431 So.2d 358 (La.1983), the Supreme Court, on rehearing, addressed the question of relevant evidence in support of a defense. In that case, two black males were charged with raping a white female. Their defense was consent. The defendants advanced a theory that the alleged victim could have consented to having relations with a black man because she had displayed open affection for her black brother-in-law. The victim denied that her brother-in-law was black, and the trial judge ruled that proof of this was an improper attempt to impeach on a collateral issue and inadmissible. The Supreme Court reversed, holding that La.R.S. 15:494 must give way if impeachment evidence is relative to an asserted defense. Specifically, the court said:

We therefore conclude that the trial judge should have exercised his discretion in favor of admissibility of the evidence, which (1) tended to prove a fact that was relevant and probative of the defense theory (but that had little prejudicial effect upon the prosecution’s theory) and (2) was so inextricably tied to Ms. Smith’s credibility that it bore significantly on the determination of whether Ms. Smith’s version was accurate and truthful.

State v. Vaughn, 431 So.2d at 371.

In this ease, the prosecution was permitted to introduce evidence of another crime between defendant and Lair which occurred the day before the shooting to explain why defendant and not Lair was the aggressor. Defendant was not allowed to introduce evidence to explain why Lair (and not himself) was the aggressor, to support his claim that he acted in self-defense. We also find the following statement from Vaughn, 431 So.2d at 371, pertinent:

Doubtless, conscientious trial judges have difficulty making quick decisions on complex issues presented during a trial, and the “hindsight” of an appellate court’s review of a full record may more clearly reveal the significance of an issue. For this reason, appellate courts accord great deference to the decisions of trial judges. Nevertheless, when a reviewing court concludes on a review of the record that the trial court improperly prevented a defendant from offering evidence which is critical to the theory of his case, we must reverse because the error is not harmless beyond a reasonable doubt. State v. Gibson, 391 So.2d 421 (La.1980).

(Footnote omitted.)

We find that the cumulative effect of the trial court’s rulings in connection with these three assignments of error deprived defendant from fully presenting his defense, thereby denying him due process of law because: (1) Angela Andrews’ testimony was relevant and admissible to corroborate defendant’s testimony that Lair and his wife were having an extra-marital affair and to contradict the testimony of Lair (as it affects his credibility), and (2) the testimonies of Roan, Anderson and Lee were relevant and admissible to substantively prove the affair between Lair and defendant’s wife, to impeach the testimony of defendant’s wife (if she denied the affair; La.R.S. 15:493) and to contradict Lair (and thus affect his credibility.). We are not convinced that the exclusion of this evidence did not affect the jury’s determination. La.C.Cr.P. art. 921. State v. Gibson, 391 So.2d 421 (La.1980). Fundamental fairness dictates that the jury should hear both versions completely.

Accordingly, defendant’s conviction and sentence are set aside, and this case is remanded for a new trial.

REVERSED AND REMANDED.

      . This sentence is unlawfully lenient because La.C.Cr.P. art. 893.1 requires that it be served without benefit of probation, parole or suspension of sentence.

      . See La.R.S. 15:484 and 485; State v. Talbot, 408 So.2d 861 (La.1980).


text:
    The PEOPLES WATER SERVICE COMPANY OF LOUISIANA v. MENGE PUMP AND MACHINERY CO., INC. and Colt Industries Operating Corporation.
    No. 83-CA-833.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Writ Denied Sept. 28, 1984.
    David J. Krebs, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for plaintiff-appellant.
    Paul B. Deal, Jerald L. Album, and Wood Brown, III, Paul M. Lavelle, New Orleans, for defendant-appellee.
    Before CHEHARDY and GRISBAUM, JJ. and CLEVELAND J. MARCEL, Sr., J. pro tempore.
   CLEVELAND J. MARCEL, Sr., Judge Pro Tempore.

This appeal arises from the trial court judgment granting exceptions of prescription in favor of defendants, Menge Pump & Machinery Company, Inc. (Menge) and Colt Industries Operating Corporation, Fairbanks-Morse Pump Division (Colt) in an action for breach of contract filed by plaintiff, The Peoples Water Service Company of Louisiana, Inc. (Peoples).

Plaintiff Peoples supplies drinking water to the community of Bastrop, Louisiana and the surrounding area. In 1975, Peoples determined the need for two additional pumps in its water wells. Because the well water in Bastrop is apparently more acidic than average and has other non-standard characteristics, Peoples decided that “stock” pumps would not meet its requirements. Consequently, Peoples had detailed specifications for the water pumps specially prepared by their consulting engineers and a contract for procurement of the specialized pumps was placed for bid. These specifications, some fifty-eight pages in length, specified in detail the required characteristics of the component parts and performance capabilities required of the pumps and provided specifications for other work as well.

On December 12, 1975, defendant Menge submitted to Peoples a bid responsive to the specifications for the procurement of the pumps, but not, however, for the installation. Menge’s bid was formally accepted by Peoples on January 26, 1976. A purchase order contract was then issued by Peoples to Menge for the pumps in accordance with the specifications contained in the bid documents. The contract stated: “Items below are as per specifications & addendum No. 1 of Bid documents for wells; pumps, motors, etc. as mailed to you November 13, 1975. Please reference your bid of December 12, 1975.” No mention of a specific standard pump model or pump manufacturer was made. The pumps were subsequently delivered and installed in May, 1976.

In 1981, one of the pumps failed and tests revealed that the pumps did not meet the non-corrosive specifications set forth in the bid package which was incorporated into the contract between Menge and Peoples. As a result, one of the pumps fell apart due to the qualities of the well water which the pumps were specifically engineered to withstand which, in turn, caused the suction end of the pump to fall down the well, warping all of the shafts and breaking out all of the bearing retainers. A subsequent examination of the other pump revealed the same advanced stage of deterioration. As a result, both pumps had to be refitted immediately and extensive damage to the first well had to be repaired. Plaintiff thereupon entered into correspondence with defendants Menge and Colt, in which it sought reimbursement for damages suffered. Formal demand and tender for repair was made by certified mail on November 5, 1981. In response to this letter, defendant Colt agreed to perform certain laboratory analyses, promising “further discussion” after those tests.

On February 16, 1982, Mr. James L. Carbley of defendant Colt's office informed Mr. Charles L. Porter of Colt’s belief that it was not responsible for the pump failures, but instead requested Peoples to conduct further field evaluations and to advise Colt of its findings, upon which Colt stated that it would “gladly make material recommendations to overcome the problem.”

Plaintiff Peoples filed suit on February 16, 1983. In response, peremptory exceptions of prescription were filed by defendant Menge on May 4, 1983, and by defendant Colt on May 31, 1983. Trial on the exceptions was held on September 23, 1983. In a judgment rendered on September 27, 1983, the exceptions were granted and plaintiff’s suit was dismissed with prejudice at plaintiff’s costs.

Plaintiff Peoples thereafter perfected an appeal of the judgment specifying the following as error:

(1) The trial court erred in holding that the contract between Peoples and Menge was a contract of sale and was. governed by the prescriptive period of one year.

(2) The trial court erred in holding that no act of defendant Colt served to interrupt or suspend prescription.

The issues presented by appellant are:

(1) Whether the contract between Peoples and Menge is governed by the prescriptive period of one year.

(2) Whether Colt’s communications with Peoples and actions suspended the commencement of prescription until Colt denied liability on February 16, 1982.

Appellant argues that the court erred in maintaining the exception of appellee Menge because appellant Peoples’ suit against Menge does not sound in redhibition, but rather in contract, and as such is governed by the ten-year prescriptive period for personal actions arising out of breach of contract. LSA-C.C. Article 3544. Appellee Menge argues conversely that the action is one of breach of a warranty in a contract sale and thus the damages are regarded as founded upon redhibition and subject to the one-year prescription applicable to redhibitory actions.

Redhibition is defined in the Louisiana Civil Code as follows:

“Art. 2520. Redhibition, definition
Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

The definition of a sale is:

“Art. 2439. Sale, definition
The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.”

The Louisiana Civil Code and applicable jurisprudence further provide that redhibition actions prescribe one year from the date of sale, from the buyer’s discovery of the defect if the vendor knew or is chargeable with the knowledge of the defect, or from the date the seller last attempted to repair the defect. LSA-C.C. art. 2534; 2546. Weaver v. Fleetwood Homes of Mississippi, Inc., 327 So.2d 172 (La.App. 3d Cir.1976); White v. International Harvester Company, Inc., 415 So.2d 658 (La.App. 3d Cir.1982); de la Houssaye v. Star Chrysler, Inc., 284 So.2d 63 (La.App. 4th Cir.1973). On the other hand, if the contract is other than a sale, the ten-year prescription applies under LSA-C.C. Article 3544.

Classifications of contracts have occasioned the courts some difficulty where the contract includes aspects of the obligation both to do and to give. Where they are inseparable, generally one of the obligations must be determined as fundamental and the rules thereunder will control. 7 S. Litvinoff, La. Civil Law Treatise: Obligations Book 2, Section 158 at page 291. However, where the object provided is not that which is contracted for, redhibition does not apply.

In Victory Oil Company, Inc. v. Perret, 183 So.2d 360 (La.App. 4th Cir.1966), writ refused, the court noted succinctly that an action in redhibition is based upon a vice or defect in the thing sold. LSA-C.C. Article 2520. There the object contracted for was a specific type of diesel oil, but the oil delivered was a different type unsuitable for use in the buyer’s trucks. The court determined that an action based on the delivery and failure of the wrong commodity was not an action in redhibition, but one for breach of contract and the ten-year prescriptive period applies. In Vico Concrete Company, Inc. v. Antley, 283 So.2d 830 (La.App. 2d Cir.1973), the court cited Victory and distinguished its own facts, which involved contaminated concrete, from the Victory facts involving a failure to provide the specific product under the contract. See also PPG Industries v. Industrial Laminates, 664 F.2d 1332 (5th Cir.1982).

In this case, the seller Menge contracted to provide a specific type of pump to specifications different from the available “showroom floor” standard pumps available. The pumps provided were not of the type contracted for, i.e., fabricated to be non-corrosive. The pumps herein failed because, as in Victory, they were the wrong commodity and not because of a vice or defect in the thing itself. Consequently, as these facts are more pointedly in line with Victory, the action is one of breach of contract and the ten-year prescription applies as to defendant Menge. LSA-C.C. 3544 (now found in LSA-C.C. Article 3499, effective January 1, 1984).

Appellant’s second issue raises the question of whether the defendant manufacturer’s actions may have served to suspend the commencement of prescription. In this regard, appellant agrees that its action against Colt sounds in redhibition and did not dispute that a redhibitory action against the manufacturer ordinarily prescribes one year from the date of discovery of the defects. However, appellant asserts that it is well established in Louisiana that prescription in favor of both the seller and the manufacturer on a redhibi-tory action does not begin to run until the seller abandons all attempts to repair. Fleur de Leis Apartments v. Davidson Sash and Door Company, Inc., 364 So.2d 234 (La.App. 3d Cir.1978), writ refused, 366 So.2d 572 (La.1979); Weaver v. Fleetwood Homes of Mississippi, Inc., supra; First Mortgage Investors v. CMF and Associates, Inc., 393 So.2d 937 (La.App. 3d Cir. 1981).

Furthermore, appellant argues that exception to the rule of commencement of prescription has not been limited to actual physical attempts to remedy, but instead includes verbal or written communications which will lead a buyer to believe that the defect will be remedied. Austin v. North American Forest, 656 F.2d 1076 (5th Cir. 1981); Sweeny v. Vindale Corp., 574 F.2d 1296 (5th Cir.1978); Fleur de Leis Apartments v. Davidson Sash and Door Company, Inc., supra.

Appellee, on the other hand, asserts that the evidence herein fails to indicate that the manufacturer intended or attempted to repair or remedy the problem and that the negotiations between the parties did not lead appellant to believe the problem would be remedied.

The record indicates that the problem was discovered in spring of 1981. In November, 1981, appellants notified appellee Colt of the failure of the pumps manufactured by their company and requested reimbursement of costs incurred in the replacement. Colt replied in letter dated December 17, 1981, requesting that appellant return the bolts at issue for analysis, following which they would further discuss the problem. Appellant apparently did so and two months later, on February 16, 1982, appellee, by letter, disclaimed any liability with regard to the failure of the equipment.

Appellant asserts that further correspondence continued until October, 1982; however the record is devoid of any evidence in that regard. As noted previously, suit was not filed until February 16, 1983, twenty-one months from discovery, and one year from the date of Colt’s letter disclaiming liability. Under these facts, as presented by the documentary evidence, it is our opinion that the trial court did not err in finding the action prescribed as the correspondence between the parties does not constitute anything other than an investigation of appellant’s complaints. Further, we do not find an acknowledgment or admission of liability, nor is there any indication that appellant was misled into believing that Colt intended to remedy appellant’s losses.

For the foregoing reasons, therefore, the judgment sustaining the exceptions of prescription is hereby reversed as to defendant Menge, but affirmed as to defendant Colt, and the case is remanded for proceedings consistent with this opinion. Costs of this appeal are to be apportioned between the parties.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . As distinguished from Tidewater, Inc. v. Baldwin-Lima Hamilton Corp., 410 So.2d 355 (La. App. 4th Cir.1982) (action against a distributor of a crane assembled subsequent to an agreement to purchase the crane); FMC Corp. v. Continental Grain Company, 355 So.2d 953 (La. App. 4th Cir.1977) (statutory warranty question related to the adaptation of a piece of coal unloading equipment for use in grain unloading); Tripod Boats, Inc. v. George Engine Co., 170 So.2d 238 (La. 4th Cir.1964) (action against seller of three boats purchased after they had been built and were in the water); and Kegler’s Inc. v. Levy, 239 So.2d 450 (La.App. 4th Cir. 1970) (where a contract to furnish and install wall-to-wall carpeting was determined not to be a sale because of an obligation beyond the mere delivery of the object). In these cases, the object of the transaction was in fact furnished and some defect or vice in that object caused the damage claimed.


author: FRED W. JONES, Jr., Judge.

text:
    STATE of Louisiana, Appellee, v. Darren BAILEY and Pete Bailey, Jr., Appellants.
    No. 16030-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Writ Denied Sept. 14, 1984.

      Smith & Hingle, P.C. by J. Randolph Smith, Monroe, for appellants.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty. by Robert C. Johnson, Asst. Dist. Atty., Monroe, for appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

The defendants, Darren Bailey and Pete Bailey, Jr., were charged with possession of cocaine with intent to distribute (R.S. 40:967). After trial by jury they were found guilty of the lesser offense of possession of cocaine (R.S. 40:967 C). Each was sentenced to be imprisoned for four years at hard labor. Each prison sentence was suspended and each defendant placed on supervised probation for five years, with the special condition that each defendant serve 90 days in the Ouachita Parish jail.

The defendants have appealed, relying jointly upon six assignments of error.

Assignments of Error Nos. 1, 2 & 4

The defendants contend in assignment of error No. 1, that the trial court erred in failing to grant the defendants’ motions to suppress. In assignment of error No. 4, defendants contend that the trial court erred in admitting into evidence exhibits S-l (search warrant and oath), and S-3— S-6 (contraband and paraphernalia found inside the residence at the time of the search and seizure.) In brief, the defendants incorporate by reference their arguments on assignments of error Nos. 1 and 2, as all of the objected to items pertain to the obtaining and execution of the search warrant.

In support of these assignments defendants argue that all controlled dangerous substances and drug paraphernalia seized from their residence pursuant to a search warrant executed in the early morning hours of May 2, 1982 should have been suppressed because the affidavit supporting that warrant contained information known by the affiant, Detective Brian Boney, to be false. Defendants contend that known false information was that an informant had been inside the residence located at 212 Gilbert Street, West Monroe, Louisiana, within the 16 hour period preceding the signing of the affidavit and had observed in excess of eight plastic bags of marijuana. Defendants asserted that this false and inaccurate information should have been deleted and the sufficiency of the affidavit tested after that deletion. In support of their argument that the cited information was false, defendants presented the testimony of various witnesses who stated that it was impossible for a confidential informant to have been inside the described residence during the time set forth in the affidavit.

In State v. Morstein, 404 So.2d 916, 920 (La.1981), it was reiterated that the credibility of an affiant’s informant or the correctness of the information furnished by the informant may not be attacked on a motion to suppress. An affidavit supporting a search warrant is presumed to be valid. State v. Brannon, 414 So.2d 335, 337 (La.1982). However, the credibility of the affiant himself may be traversed on a proper showing of “a genuine issue on the affiant’s veracity supported by convincing allegations of which, if proven, would establish the falsity of the affidavit.” State v. Morstein, supra. Where the State has obtained a warrant and the defense contends that the warrant is defective, the burden of proving the same is on the defense. State v. Whorton, 440 So.2d 858, 860 (La.App. 2d Cir.1983). However, after the defendant had produced his evidence and if he carries his burden of proof of establishing by a preponderance of the evidence that the affidavit contains false statements, then the burden of proof will shift to the State to prove that the allegations in the affidavit are true, or that the informant misrepresented the situation but the affiant reasonably believed him and thus had probable cause. State v. Paster, 373 So.2d 170, 174 (La.1979).

A review of the record reveals that the defendants did not make a proper showing of a genuine issue on the affiant’s veracity supported by convincing allegations which would establish the falsity of the affidavit. The defense’s evidence consisted of testimony of family members who resided at the home searched and a female friend of the defendant Pete Bailey. These witnesses all testified as to the activity at the searched home during the time period mentioned in the affidavit, in an attempt to prove false the statement in that affidavit that a confidential informant had been present during the time stated.

As the trial court noted in its written rulings on the motions to suppress, all such testimony was purely self-serving. The defense’s only other “evidence” was the allegation that the officers, or someone else, had “planted” the drugs. However, the testimony of the officers specifically negates this allegation. Detective Royce To-ney testified that he was present at the time Detective Boney searched the pants pocket of defendant Darren Bailey and found a bag of marijuana and a one-gram bag of cocaine. Additionally, as the trial court pointed out in its reasons for ruling on the motion to suppress, even if the defense evidence were taken at face value, it leaves gaps of time when another person could have been present in the residence within the period covered by the affidavit. For example, during the cross-examination of Mrs. Genevieve Bailey, the defendants’ mother, she admitted that from the time she went to bed at 3:00 A.M. on the night before the search until she got up around 7:00 A.M., she would have had no way of knowing if anyone had entered the house during that period of time. Thus, it is clear that the trial court did not err in ruling that the defendants failed to meet their burden of proving the general allegations in their motions to suppress in relation to any alleged falsity of information and false swearing of the affiant.

In assignment of error No. 2, the defendants contend that the trial court erred in failing to grant defendants’ motion to compel disclosure of the identity of the confidential informant. As previously noted under assignment of error No. 1, in defendants’ assignment of error No. 4 they incorporate by reference their arguments under assignment of error Nos. 1 and 2.

In brief, the defendants argue that their allegation that the contraband was “planted” in their residence by the same law enforcement personnel that executed the warrant distinguishes the instant case from the factual basis of State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

The court in State v. Zamora, 430 So.2d 274, 279 (La.App. 5th Cir.1983), summarized the applicable law on the present issue:

“In State v. Dotson, [260 La. 471] 256 So.2d 594, 606 (La.1971) (citations omitted), the Louisiana Supreme Court said:
“ ‘The informer privilege is the privilege of withholding the identity of an informant who supplies information to law enforcement officials concerning crime. The privilege is founded upon public policy and seeks to advance the public interest in effective law enforcement. * * *
“ ‘Because of its social importance, courts zealously guard the privilege. They order disclosure of the name of a confidential informant only under exceptional circumstances for the prevention of an injustice. The burden is upon the defendant to show exceptional circumstances justifying disclosure. * * * On the question of whether the circumstances warrant disclosure, much discretion is vested in the trial court. * * *’
“While evidence that the informer set up or participated in defendant’s crime will justify a disclosure of his identity, merely supplying information used by the police to obtain a search warrant is not in itself an exceptional circumstance justifying disclosure. State v. McDonald, 390 So.2d 1276 (La.1980).
“It is only when the informer is the sole witness to the crime with which the accused is charged that his identity must be revealed. When the informer is nothing more than an informer and does not participate in the criminal transaction which forms the basis of the prosecution, no disclosure of his identity is required. See United States v. Clark, 482 F.2d 103 (5th Cir.1973), and cases cited therein. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Williams, 347 So.2d 184 (La.1977).”

In that case, the court held that, since the informant was not present when the warrant was executed, the trial judge acted properly in refusing to order disclosure of the informer’s identity.

Defense counsel’s interpretation of the Dotson case is not well-founded. Although the court did state that the mere suggestion that an informer framed the defendant does not require a disclosure of the informer’s name, the court made no statement that the result would be different if allegations were that law enforcement officers framed the defendant. State v. Dotson, supra, 256 So.2d at p. 608.

A review of the evidence in the instant case shows that the informer did nothing more than supply information used by the police to obtain a search warrant. This is not in itself an exceptional circumstance justifying disclosure of an informant’s identity. State v. McDonald, 390 So.2d 1276 (La.1980). There is no evidence that the confidential informant participated in the criminal transaction, nor does the defense contend such a fact. In brief, the defense alludes to the fact that someone other than the police officers might have framed the defendants. However, the court in Dotson, supra, clearly held that such allegations are not sufficient to warrant the disclosure of the name of a confidential informant. The defense’s allegations that defendants were framed by law enforcement officers do not even logically require the disclosure of the identity of the informant, as it is the law enforcement officers that must be cross-examined to ascertain the truth of the matter, not the informant.

These assignments are without merit.

Assignments of Error Nos. 3 and 5

In assignment of error No. 3 it is argued that the trial court erred in failing to sustain defense objections to references by the State in its opening statement to controlled dangerous substances and paraphernalia found at the scene of defendants’ arrests not directly associated with the charge for which the defendants were on trial. At trial, and prior to the State’s opening statement, the defense objected to the inclusion of any reference to any drugs seized in the Bailey home other than the cocaine for which the defendants were on trial. The court ruled in advance that that evidence would be admissible.

In assignment of error No. 5, the defendants complain about the trial court’s admission into evidence of S-10 over defense’s objection. S-10 consists of an Indian headdress made of numerous feathers and roach clips.

This court dealt with a similar situation in State v. Green, 437 So.2d 302 (La.App. 2d Cir.1983). There the defendant asserted that the trial court erred in admitting drug paraphernalia and marijuana found pursuant to a search warrant of his person and automobile, contending these items constituted evidence of other crimes, which is inadmissible. The trial court admitted the evidence as part of the res gestae of the alleged crime under R.S. 15:447, which provides that any part of the res gestae is always admissible in evidence. It was stated that the articles introduced were seized at the time of defendants’ arrest in connection with the crime of possession of a controlled dangerous substance. This court held that these items were immediate concomitants of the crime with which defendant was charged and properly admitted by the trial court, citing State v. Haarala, 398 So.2d 1093 (La.1981). In State v. Green, supra, the defendant was found guilty of possession of Preludin.

This court summarized the jurisprudence relating to the res gestae exception to admission of evidence of other crimes in State v. Johnson, 440 So.2d 838, 842 (La. App. 2d Cir.1983):

“While the rule is that evidence of other criminal acts is inadmissible to show that the defendant is a bad person thereby making it more likely that he committed the instant offense [State v. Belgard, 410 So.2d 720 (La.1982)] the general prohibition does not bar admission of criminal acts which are an inseparable part of the whole deed; that is, acts which form part of the res gestae. State v. Haarala, 398 So.2d 1093 (La.1981). The purpose of such evidence is to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. State v. Haarala, supra.

The Louisiana Supreme Court in State v. Mitchell, 437 So.2d 264 (La.1983), described the res gestae exception:

“The res gestae consists of events speaking for themselves under the immediate pressure of the occurrence, through the spontaneous words and acts of the participants. To constitute res gestae, the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction. LSA-R.S. 15:447, 448.”

In State v. Brown, 428 So.2d 438, 442 (La.1983), the Louisiana Supreme Court stated that evidence of other crimes included in the res gestae is admissible without balancing its probative value against the prejudicial effect.

Therefore, assignments of error Nos. 3 and 5 are without merit.

Assignment of Error No. 6

The defense argues that the trial court erred in allowing prosecution witness Detective Royce Toney to testify as to how cocaine was normally packaged for distribution and as to how the substance was normally consumed, because this testimony was irrelevant and prejudicial and the officer was not properly qualified as an expert witness. The objected to testimony was elicited from Officer Toney on redirect examination by the State. During that examination, testimony was allowed as to how cocaine is packaged, how it is distributed, the different quantities in which it is distributed, and how it is consumed.

With respect to the relevancy issue, this court in State v. Johnson, 440 So.2d 838, 842 (La.App. 2d Cir.1983), held:

“To be admissible in a criminal proceeding, evidence must be relevant to a material issue. La.R.S. 15:435. Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negate the commission of the offense and the intent. La.R.S. 15:441. Furthermore, the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981).”

In State v. Allen, 440 So.2d 1330 (La.1983), the Louisiana Supreme Court stated that error, if made by the trial court, is not fatal unless the defendant demonstrates prejudice.

Intent is a state of mind and need not be proven as a fact, but may be inferred from the circumstances. The circumstantial evidence considered includes the quantity of the illegal drug and the circumstances of its possession. Testimony as to street value and dosage units of the narcotic is also relevant to the issue of intent. State v. Staton, 433 So.2d 222, 224 (La.App. 1st Cir.1983). Intention to distribute narcotics or other controlled dangerous substances, can be inferred from the quantity in the accused’s possession. State v. Trahan, 425 So.2d 1222, 1227 (La.1983). In Trahan, the court held that the packaging and the scales as well as the quantity indicated an intent to distribute.

The court in State v. Montana, 421 So.2d 895, 899 (La.1982), held that, in a prosecution for possession of heroin with intent to distribute, it was proper for an officer to testify concerning the modus operandi of illicit users and distributors of heroin. The procedures and techniques for the illegal use and distribution of heroin are generally unknown to the public at large and may be explained to a jury to aid them in their search for truth by one possessing special training or expertise in such matters.

In discussing the qualification of a witness as an expert, this court in State v. Green, supra, stated:

“La.R.S. 15:466 states:

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.
“The trial court is generally vested with great discretion regarding the competency of experts to venture opinions within a specialized field and that discretion will be upheld absent a manifestly erroneous decision. State v. Rives, 407 So.2d 1195 (La.1981).”

Prom the above cited law, it is clear that Officer Toney’s testimony as to the packaging, distribution, quantities, and consumption of cocaine was relevant, as such factors aid in the determination of an intent to distribute. The offense for which the defendants were on trial required a proof of intent to distribute. Therefore, the relevancy portion of defendants’ complaint in assignment of error No. 6 is without merit.

In brief, the defense also contends that an improper foundation was laid for such testimony. The defense states that it objected repeatedly as to relevancy and improper foundation, but those objections were overruled, citing generally to the trial transcript. However, the defendants’ retained counsel only designated the portion of the witness’ testimony where the witness was questioned as to the normal packaging of cocaine and the method of consumption, the defense objections to that testimony and the court’s rulings on those objections. Defense counsel did not designate sufficient record upon which this court could determine if a contemporaneous objection was made as to the qualification of Detective Royce Toney as an expert witness. Therefore, this court need not consider this portion of defendants’ argument in assignment of error No. 6. However, even if defendants’ contention that Officer Toney was not properly qualified as an expert were considered, a review of his testimony reveals that he did not give any opinion as to the packaging and quantities involved in the instant case. Officer Toney only testified generally as to drug dealers’ methods of operation so as to explain such to the jury and aid them in their determination. Such testimony is clearly allowed under State v. Montana, supra. Therefore, this portion of defendants’ argument under assignment of error No. 6 is without merit if considered absent a contemporaneous objection.

This assignment is without merit.

Decree

For the reasons set forth, defendants’ convictions and sentences are affirmed.


author: KLEES, Judge.

text:
    Mrs. Van Le Thi NGUYEN and Mr. Thang Trung v. Hanh Van NGUYEN, et al.
    No. CA-0907.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Writ Denied Oct. 5, 1984.

      Thomas E. Loehn, Boggs, Loehn & Ro-drigue, New Orleans, for defendants-appellants Wayne C. Gilford, Instrumentation Laboratories, Inc., and Commercial Union Ins. Co.
    Robert W. Booksh, Jr., Stephen T. Victory, Liskow & Lewis, New Orleans, for Canal Indem. Co.
    Jesse R. Adams, Jr., William H. Howard, III Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Employers Nat. Ins. Corp.
    Before GULOTTA, KLEES and WARD, JJ.
   KLEES, Judge.

This appeal is from a Summary Judgment rendered in favor of the defendant, and 3rd party defendant, Budget Rent-a-Car of New Orleans, Inc. (Budget), Employers National Insurance Corporation (Employers), Canal Indemnity Company (Canal), and Equitable General Insurance Company of Oklahoma (Equitable) and against Mrs. Van Le Thi Nguyen and Mr. Thang Trung Hoang, the plaintiffs, and Wayne C. Gilford and Instrumentation Laboratories, Inc., the third-party plaintiffs. Wayne C. Gilford and Instrumentation Laboratories, Inc. have appealed the granting of the Motion for Summary Judgment. Appellants assert the following issues: 1) That there exists a genuine issue of material fact regarding the coverage of various insurance policies which would warrant a trial on the merits. 2) Because ambiguous provisions of insurance policies are construed against the drafter, contractual ambiguities under the facts of this case tends to afford coverage to Budget’s lessees. For the following reasons, we affirm the judgment of the trial court.

The plaintiff, Mrs. Van Le Thi Nguyen was seriously injured in an. intersectional collision which took place at Chef Menteur Highway and Paris Road in New Orleans. She was a passenger in a car driven by Hanh Van Nguyen and owned by Son-T Nguyen. Hanh Van Nguyen attempted to cross the intersection on a yellow light and was struck by a car owned by Budget and driven by Wayne C. Gilford which caused the Nguyen vehicle to strike a parked dump truck. Wayne Gilford was employed by the defendant, Instrumentation Laboratories, Inc. at the time of the accident. Mrs. Nguyen and her husband Thang Trung Hoang filed suit against Hanh Van Nguyen, Son-T Nguyen, Allstate Insurance as their insurers, Wayne C. Gilford, Instrumentation Laboratories, Inc. and its insurer, Commercial Union Insurance Company, Budget and its insurers, Employers, Canal, and Equitable.

Budget, Employers, Canal and Equitable filed a Motion for Summary Judgment on the grounds that one of the two policies issued by Employers and the policies issued by Canal and Equitable provided coverage only for the owner, Budget, and not its lessees. At the time of the accident Budget’s insurance coverage was structured as follows:

Carrier Policy # Coverage Limits
Budget self-insured $25,000
Employers #077-1718 $75,000 in excess of
$25,000 self-insured
Employers #C77-1717 ($100,000 - $300,000)
Canal #XL001149 ($300,000 - $500,000)
Equitable #HU3301 ($500,000 - $1,000,000)

Budget and its insurers asserted that only the first $100,000 provided by Budget, as self-insurer, and Employers # C77-1718 were intended to cover the authorized lessees of Budget’s rental automobiles. The coverage provided that $100,000 primary insurance by Employers # C77-1717, Canal # XL001149 and Equitable # HU3301 was intended as excess insurance for the owner, Budget, and not its authorized lessees.

At the time of the accident, Instrumentation Laboratories, Inc. had in full force and effect a policy of liability insurance issued by the defendant, Commercial Union. Gil-ford, as an employee, was an insured under this policy because at the time of the accident, he was acting in the course and scope of his employment. Commercial Union as the provider of the non-owner liability insurance coverage would be liable once the limits of Budget’s primary insurance had been exhausted.

The evidence presented by the defendants in their Motion for Summary Judgment consisted of affidavits from Ronald E. Lazarus of Budget Rent-A-Car and W. Dana Roehrig of Dana Roehrig and Associates, Inc., the agent for Employers, Canal and Equitable, the rental agreement between Budget and Gilford and Employers policy # C77-1717 along with other evidence supporting its contention that the policy along with the Canal and Equitable policies did not provide coverage for any lessees. The third party plaintiffs, Gilford, Instrumentation Laboratories, Inc. and Commercial Union offered a memorandum in opposition to the motion for summary judgment.

The provisions of the Louisiana Code of Civil Procedure which govern summary judgments are Articles 966 through 969 inclusive. Article 966(B) and the pertinent part of Article 967 provide:

Art. 966. Motion for Summary Judgment: procedure
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
Art. 967. Same; affidavits
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

The affidavits presented established that Dana Roehrig and Associates acting as agent for Employers, Canal and Equitable obtained insurance for both Budget Rent-A-Car of New Orleans and Budget Rent-A-Car of Miami consistent with the requirements for a Budget franchise holder, that is, insurance for the rentee/lessee of $100,-000 per person and $300,000 per occur-rance, plus property damage liability of $25,000 per occurrance, and a minimum of $1,000,000 combined single limit for the franchise holder only. Budget was self-insured for the first $25,000 and purchased insurance up to $100,000 for the rentees with excess coverage of $1,000,000, for the franchise holder. A single policy was initially issued for New Orleans and Miami, but for bookkeeping purposes separate policies were written at a later date. Employers # C77-1717 was issued naming Budget of New Orleans as its insured and the original policy # E78-0458 was revised to provide coverage only to Budget of Miami.

Appellants, in both their opposition to the motion and in their appeal brief, argue that the Canal policy covers, “All vehicles owned or operated by the insured in rent-a-car operation”, and that the reference in that policy to Employers #E78-0458 and # E78-0457, which does not insure Budget of New Orleans, cannot expand Canal’s coverage. We do not find that the reference to the other policies in any way affects the scope of Canal’s) coverage. The layers of excess insurance were referenced to each underlying policy of excess insurance or primary insurance and Employers # C77-1717 clearly states that it is excess automobile liability for owner only. (Emphasis added) For the appellants to reach the Canal policy, they must have first exhausted the Employers # C77-1717 policy. The scope and coverage provided by # C77-1717 is clear and unambigious. Only Budget is insured, not its rental drivers. Any error in the reference to other policies in # C77-1717 is not material to the scope of coverage.

To determine whether there is a genuine issue of fact, a trial court must of necessity examine the merits. Despite the presence of disputed facts, summary judgment as a matter of law will be granted if the disputed issues of fact are so patently insubstantial as to present no genuine issues. Merely formal allegations without substance will not preclude summary judgment, (citations omitted) Aydell v. Charles Carter & Co., Inc. 388 So.2d 404 (La.App. 1st Cir.1980), writ denied 391 So.2d 460.

The rental agreement signed by Gilford shows that only $100,000 of insurance would be available to the rental driver. This further supports the defendants’ claim that the policies issued in excess of the first $100,000 were intended only to cover Budget only.

On a motion for summary jdgment the court must first determine whether the supporting documents presented by the moving- party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980).

We conclude that the defendants have satisfactorily supported their motion for summary judgment and that the appellants did not establish the existance of any material issue of fact in light of the evidence presented. Accordingly, the judgment of the trial court granting the Motion for Summary Judgment is affirmed. All costs assessed to the appellants.

AFFIRMED.


author: GARRISON, Judge.

text:
    Elizabeth Rodrigue, Wife of and Angelo V. QUAGLINO, Jr. v. Melvin J. ZIEGLER, Jr.
    No. CA 1493.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1984.

      Glenn E. Diaz, Chalmette, for defendant-appellant.
    Jonathan M. Lake, New Orleans, for in-tervenor-appellee.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment in which liquidated damages and attorney’s fees were awarded to plaintiffs and their real estate agent for breach of a real estate purchase agreement by the defendant/purchaser.

The facts of this case are as follows:

Plaintiffs, Mr. and Mrs. Angelo Y. Qua-glino, Jr., owned a home located at 3412 Palmisano Boulevard in Chalmette, Louisiana. They listed this property for sale with the real estate company of Latter & Blum, Inc. On March 27, 1982, the defendant, Melvin J. Ziegler, Jr., made an offer to purchase this property and this offer was subsequently accepted by the plaintiffs. Both parties executed a standard purchase agreement under the direction of the listing and selling real estate agent, Millie France.

The purchase agreement set forth the obligations of both parties. The portion of the standard agreement which states that the agreement is conditioned on the ability of the purchaser to obtain financing was marked “not applicable” for this particular transaction. This section was eliminated from the agreement by the real estate agent due to the fact that this sale was going to involve owner financing rather than standard lender financing. An addendum was attached to the purchase agreement indicating the terms of the owner financing arrangement. Both parties signed both documents and were given the opportunity to ask questions as to the terms of the agreement.

This particular agreement provided that the purchaser pay a deposit of 10% of the purchase price at the time of the signing of the purchase agreement. In accordance with this provision, Mr. Ziegler gave Ms. France a check in the amount of $15,800.00 at the signing of the agreement which took place on March 27, 1982. However, Ziegler postdated this check for March 31, 1982 and explained that he needed this additional time in order to “transfer some funds”.

On March 31, 1982, the defendant issued an oral stop payment order to the bank from which the $15,800.00 check was drawn. A written stop payment request was signed on April 2, 1982. Mr. Ziegler claims that he stopped payment on this check because his father suddenly became seriously ill and, therefore, the bank refused to process a loan to Ziegler which he needed in order to cover the amount of the deposit check for the Quaglino home.

At the signing of the purchase agreement, the parties agreed to set the act of sale for April 29, 1982. All parties were notified as to this closing; however, Ziegler failed to appear and refused to take title to the property.

Plaintiffs filed suit for the amount of the deposit and for attorney’s fees. Latter and Blum intervened in the suit and asked to be awarded the agent’s commission and attorney’s fees. The demands in this suit were made pursuant to a portion of the purchase agreement which states:

“Upon acceptance of this offer, seller and purchaser shall be bound by all its terms and conditions and purchaser becomes obligated to deposit with seller’s agent immediately 10% of the purchase price amounting to $15,800.00 and failure to do so shall not void this agreement but shall be considered as a breach thereof and seller shall have the right, at his option, to demand liquidated damages equal to the amount of the deposit or specific performance and purchaser shall, in either event, be liable for agent’s commission, attorney’s fees and costs.”

The trial judge entered judgment in favor of the plaintiffs and intervenors and awarded damages as follows:

To Mr. and Mrs. Quaglino:

Liquidated Damages $15,800.00
Attorney’s Fees 8,950.00
Total 19,750.00

To Latter and Blum:

Agent’s Commission $8,320.00
Attorney’s Fees 2,000,00
Total 10,320.00

Therefore, Mr. Ziegler was found liable for the amount of $30,070.00 and he now appeals this judgment.

On appeal, the defendant argues that it was his understanding that he would not be bound by this agreement if he was unable to obtain financing. He assumed that the blanks marked “not applicable” on the purchase agreement were designated as such only because this sale involved owner financing as specified in the addendum. However, he was under the impression that the sale continued to be subject to the ability of the defendant to obtain financing. Defendant claims that the portion of the agreement quoted above which refers to liquidated damages was ambiguous in that it did not specify whether or not this clause applied in the case of the inability of the purchaser to obtain financing. He argues that because this clause was not specifically explained to him by the real estate agent, he should not be bound by it. Mr. Ziegler also claims that he informed Ms. France immediately of his father’s illness and of his coinciding inability to obtain financing. Defendant argues that this was a fortuitous event which prevented him from complying with his part of the agreement and that this non-compliance occurred through no fault of his own. Therefore, he argues that this event relieves him from paying liquidated damages.

A review of the purchase agreement and the addendum pertaining to owner financing clearly reveals that this contract was not subject to a suspensive condition, i.e. the ability of the purchaser to obtain financing. Additionally, it should be noted that the defendant is well versed in real estate transactions. He is an officer in a corporation dealing in the buying, selling and building of property, an officer in a land development corporation, an officer in a millwork corporation and the owner of numerous rental properties and other investment property.

The Louisiana Supreme Court in Chauvin v. Bohn, 411 So.2d 442 (La.1982) stated that:

... It is the writing and the words that are important in the sale of immovables, not extrinsic evidence.
“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.” C.C. 2276 In light of the prohibition in this article, the court is constrained to an examination of the instrument itself; ...

Therefore, Mr. Ziegler’s self-serving testimony as to his intentions and his understanding of the purchase agreement is irrelevant due to the unambiguous wording of the contract. In the recent case of Lewis v. Gary, 439 So.2d 1236 (La.App. 5th Cir.1983), plaintiffs/sellers sued the defendant/purchaser for liquidated damages amounting to the forfeited deposit and attorney’s fees. The defendant argued that the sale was conditioned upon the buyer’s obtaining funds for the purchase price from a settlement of the community of acquets and gains. She argued that her reconciliation with her husband had the effect of cancelling all obligations under the contract. The Fifth Circuit affirmed the trial court’s decision to award liquidated damages to the plaintiffs. This decision was made in light of the fact that there was no indication in the agreement that the sale was conditioned upon the buyer’s receipt of funds from the anticipated partition of the community of acquets and gains then existing with her husband.

In the instant case, there is no indication in the purchase agreement that the sale was conditioned upon the ability of the purchaser to obtain financing. The purchaser could have easily ascertained this information had he carefully read the agreement and addendum and asked this question to the real estate agent. If Mr. Ziegler intended for the addendum to include the suspensive condition clause which was marked “not applicable” on the main agreement, he should have made a note to that effect on the agreement.

Therefore, for the reasons discussed above, the decision of the trial court is affirmed. Appellant shall bear all costs of these proceedings.

AFFIRMED.


text:
    SUCCESSION OF Albert Joseph CAZALAS.
    No. CA 1565.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1984.
    Writ Denied Oct. 5, 1984.
    Andrew G. Búcaro, New Orleans, for plaintiff-appellant.

      Mary Williams Cazalas, in pro. per.,
    Girard J. Fernandez, New Orleans, for defendant-appellee.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   GARRISON, Judge.

Albert Joseph Cazalas died while domiciled in Orleans Parish on February 8, 1981. At the time of his death, he was survived only by his wife, Mary Williams Cazalas, and by his father, Francis Joseph Cazalas. Albert Cazalas left a properly executed olographic will dated May 8, 1964 in which he left his entire estate, consisting of both community and separate property, to his wife, Mary Williams Cazalas. This will was probated and Mrs. Cazalas was appointed administratrix of her late husband’s estate on February 19, 1981. On this same day, Mary Cazalas filed a Descriptive List of Assets and Liabilities of the estate in which the estate was shown to be solvent.

Upon Albert Cazalas’ death, Francis Ca-zalas, became entitled as a forced heir to one-third of his son’s separate property according to Civil Code Article 1494 as amended in 1979. Shortly after Albert Cazalas’ death, attorneys for Francis Caza-las contacted Mrs. Cazalas and her attorneys and requested that Francis Cazalas be recognized as a forced heir of his son’s estate and that he be put into possession of his portion of the estate. This request was denied by Mrs. Cazalas. On August 6, 1982, Francis Cazalas filed a suit for reduction of an excessive donation mortis causa against Mary Cazalas. In this suit, Caza-las prayed that he be placed in possession of an undivided one-third interest of all of the property belonging to the decedent’s estate. This matter was set to be heard on August 26, 1982; however, Francis Cazalas died on August 7, 1982.

Francis Cazalas was not survived by any forced heirs but his properly executed statutory will named his sister, Julia C. Griot, as residuary legatee of his estate. Ms. Griot was appointed Dative Testamentary Executrix of Francis Cazalas’ estate. In her capacity as succession representative of the Estate of Francis Cazalas, she filed a rule against the Executrix of the Estate of Albert Cazalas to show cause why Francis Cazalas should not be recognized as a forced heir of his son’s estate and be placed in possession of his rightful portion and why Mary Cazalas should not be removed as Executrix of the Estate of Albert Caza-las for her failure to administer the estate according to law and to act as a prudent administrator. In response to this rule, Mrs. Cazalas filed a peremptory exception of no right or cause of action based on her position that Francis Cazalas’ action for reduction abated upon his death on August 7, 1982. Therefore, she urged the court to dismiss the actions filed on behalf of Francis Cazalas.

The trial court ruled that Francis Cazalas should be recognized as a forced heir of his son’s estate and denied the request to have Mary Cazalas removed as Executrix of the Estate of Albert Cazalas. The court also overruled Mary Cazalas’ exception of no right or cause of action. In recognizing the father as a forced heir, the trial court stipulated that he was only entitled to one-third of the decedent’s separate property according to Civil Code Article 1494 as amended in 1979.

On appeal, the appellant, Mary Cazalas, argues that:

1. the trial court erred in denying her exception of no right or cause of action because the reduction action filed by Francis Cazalas on August 6, 1982 was a strictly personal action which abated upon his death and, therefore, Ms. Griot lacked standing to assert this action.
2. the laws of forced heirship in Louisiana are unconstitutional in that they violate equal protection and substantive and procedural due process as guaranteed by the 5th and 14th Amendments of the United States Constitution.

Appellant’s first argument involves the interpretation of Civil Code Article 1504 which states:

“On the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for only by forced heirs, or by their heirs or assigns; neither the donees, legatees, nor creditors of the deceased can require that reduction nor avail themselves of it.”

Mrs. Cazalas interprets this article as stating that because Francis Cazalas filed his own action for reduction on August 6, 1982, his heir could not also assert this action after his death. In his reasons for judgment, the trial judge rejected Mrs. Ca-zalas’ reasoning and stated:

“The Court rejects the argument of Mary Cazalas that the heirs’ action abated upon the death of Francis J. Cazalas. The fact that Francis J. Cazalas exercised his own rights as a forced heir in no way precludes his heirs from continuing to assert Francis J. Cazalas’ rights as a forced heir and/or from asserting their own rights as heirs to a forced heir.”

Additionally, Ms. Griot clearly had standing to continue Francis Cazalas’ reduction action according to Code of Civil Procedure Article 685 which states:

“Except as otherwise provided by law, the succession representative appointed by a court of this state is the proper plaintiff to sue to enforce a right of the deceased or of his succession, while the latter is under administration. The heirs or legatees of the deceased, whether present or represented in the state or not, need not be joined as parties, whether the action is personal, real, or mixed.”

Therefore, we find that Mrs. Cazalas’ argument is without merit and that the trial judge was correct in his ruling.

As for the appellant’s argument that forced heirship is unconstitutional, the United States Supreme Court case of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), states that:

“The orderly disposition of property at death requires an appropriate legal framework, the structuring of which is a matter particularly within the competence of the individual States. In exercising this responsibility, a State necessarily must enact laws governing both the procedure and substance of intestate succession. Absent infringement of a constitutional right, the federal courts have no role here, and, even when constitutional violations are alleged, those courts should accord substantial deference to a State’s statutory scheme of inheritance.”

Article 12, Section 5 of the Louisiana Constitution clearly states:

“Section 5. No law shall abolish forced heirship. The determination of forced heirs, the amount of the forced portion, and the grounds for disinherison shall be provided by law. Trusts may be authorized by law, and a forced portion may be placed in trust.”

The Louisiana legislature modified the forced heirship laws in the repeal of Article 1494 which designated ascendants as forced heirs. However, the legislature clearly specified that this repeal would only be effective for the estates of persons dying after December 31, 1981 and would not be applied retroactively.

For the reasons discussed above, we affirm the decision of the trial court. All costs are assessed to the appellant.

AFFIRMED.

      . This article was later repealed and parents of children whose death occurs after December 31, 1981 are no longer forced heirs. However, Albert Cazalas died on February 8, 1981, eleven months prior to the effective date of this repeal.