text:
    STATE of Louisiana v. Charles E. JENKINS.
    No. 84-K-1372.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Charles E. Jenkins, applying for writ of review to the Third Circuit Court of Appeal, Nos. CR-83-1067, CR-83-1068 and K-83-1163, from the Fourteenth Judicial District Court, Parish of Calcasieu, Nos. 10852-83 and 10853-83, Section “C”.

Prior reports: 451 So.2d 1142; 451 So.2d 1146.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Larry Wayne HUNTER.
    No. 84-K-1383.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Hunter, Larry Wayne, applying for writ of review to the Court of Appeal, Second Circuit, No. 16165-KA; Parish of Lincoln, 3rd Judicial District Court, Div. “B”, No. 27832.

Prior report: 454 So.2d 131.

Denied.


text:
    STATE ex rel. Robert L. WYMORE v. ST. CHARLES PARISH, 29TH JUDICIAL DISTRICT COURT.
    No. 84-KH-1388.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Wymore, Robert L., applying for writ of mandamus, Parish of St. Charles, 29th Judicial District Court, Div. “B”, No. 78-215.

Denied. Moot.


text:
    STATE of Louisiana v. Larry Wayne SHOWS.
    No. 84-CK-1552.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Larry Wayne Shows, applying for writ of certiorari, and supervisory writs, Parish of Madison, 6th Judicial District Court, Div. “B”, Nos. JM2601, JM1248; to the Court of Appeal, Second Circuit, No. 16714-CWJ.

Denied.


text:
    STATE of Louisiana v. Louis HALL.
    No. 84-KH-1612.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Hall, Louis, applying for writs of certiorari, mandamus, Parish of Orleans, Criminal District Court, Div. “B”, No. 287-370.

Denied.


text:
    Robert CLARK v. STATE of Louisiana.
    No. 84-KH-1633.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Clark, Robert, applying for writ of certiorari, Parish of Orleans, Criminal District Court, Div. “E”, No. 298-618, to the Court of Appeal, Fourth Circuit, No. K-2734.

Denied.


text:
    STATE ex rel. John MOSE v. Honorable James N. LEE, Judge, 12th Judicial District Court, Parish of Avoyelles, State of Louisiana, et al.
    No. 84-KH-1523.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Mose, John, applying for writ of certiorari, writ of review, supervisory writ, mandamus, review and remedial writ, Parish of Avoyelles, 12th Judicial District Court, Div. “H”, No. 45055.

Granted for the purpose of transferring to the district court for consideration.


text:
    Robert Dean RICHARDSON v. Brenda Gayl RICHARDSON.
    No. 84-CC-1632.
    Supreme Court of Louisiana.
    Sept. 21, 1984.
   In re Richardson, Brenda Gayl, applying for remedial writ, Parish of Orleans, Civil District Court, Div. “I”, No. 84-9249; to the Court of Appeal, Fourth Circuit, No. C-2703.

Denied.


text:
    STATE of Louisiana v. Alvin R. MOORE, Jr.
    No. 84-KP-1687.
    Supreme Court of Louisiana.
    Sept. 21, 1984.
   In re Alvin R. Moore, Jr., applying for stay, supervisory writs of mandamus, prohibition/certiorari/habeas corpus, Parish of Bossier, 26th Judicial District Court, Div. “B”, No. 57718.

Writ Granted. A death warrant could not by law have been issued until September 12, 1984, the date on which the United States Fifth Circuit Court of Appeals issued its mandate and judgment favorable to the state in this matter. And an execution warrant issued on or after September 12, 1984 “shall fix the execution date at not less than 30 days nor more than 45 days from” that date. R.S. 15:567. The trial court’s warrant, issued on August 20,1984, and directing relator’s execution on September 26, 1984 is illegal and therefore set aside. The case is remanded to the trial court for proceedings in accordance with law.

DIXON, C.J., and DENNIS, J., not present.


author:
PRICE, Chief Judge.
      HALL, Judge,

text:
    STATE of Louisiana, Appellee, v. Vincent ORLANDO, Appellant.
    No. 16,113-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Writ Denied Nov. 26,1984.
    Charles J. Yeager, Alexandria, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Edwin 0. Ware, III, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., Alexandria, for appellee.
    Before PRICE, C.J., HALL, J., and ENOS C. McCLENDON, J. Pro Tem.
   PRICE, Chief Judge.

Vincent Orlando was indicted by a Rap-ides Parish Grand Jury for committing first degree murder of Harold Austin on January 17,1981. After the trial and conviction of a co-defendant, Avery W. “Pete” Moore, resulted in substantial publicity, the Ninth Judicial District Court ordered a change of venue to the Thirty-Seventh Judicial District Court for Caldwell Parish. Defendant was subsequently tried and convicted for second degree murder.

On this appeal, defendant has assigned 23 assignments of error which create the following general issues:

(1) The allegedly improper references by the prosecution to the law of conspiracy during voir dire;
(2) The allegedly improper references to inadmissible hearsay evidence by the prosecution during the opening statement and whether hearsay evidence was improperly admitted at trial;
(3) The alleged deprivation of defendant’s constitutional right of confrontation of witnesses whose out-of-court statements were admitted into evidence;
(4) The allegedly improper overruling of defendant’s motion to suppress pretrial identifications;
(5) The effect of pretrial forensic hypnosis upon in-court testimony of a witness; and
(6) The sufficiency of the evidence for conviction.

FACTUAL BACKGROUND

On January 17, 1981, at about 11:00 p.m. the body of Harold Austin was found in a ditch alongside Burma Road in rural Rap-ides Parish near Tioga. He had been shot one time in the back only a short time before being found. Austin was the night manager of the Shop-Mor convenience store in Tioga. He had apparently been abducted from the Shop-Mor store approximately 45 minutes prior to the time he was found.

On the night of this incident, Rapides Parish Sheriff’s Deputy Bruce Vandehoe-ven, while on routine patrol, noticed a gold and white Buick automobile parked parallel to and near the front door of the Shop-Mor store at about 10:15 p.m. He drove into the parking lot of an adjacent “Cotton Patch” restaurant to better observe this vehicle without being seen. He saw a person other than Austin locking the front door to the Shop-Mor store. This person then ran to the Buick automobile and entered the right rear door. Vandehoeven observed one person, believed to be a woman, in the front seat with the driver, and three persons in the rear seat.

He followed the car for some two and a half miles during which time he radioed a request for a vehicle identification of the car and for a check of the Shop-Mor premises. He was advised the vehicle was registered to Avery Moore of Tioga. After being advised that the Shop-Mor premises appeared to be secure, Vandehoeven terminated his surveillance of the car. The car was at this time proceeding on a route which would lead to the Burma Road in the area where Austin’s body was found.

Vandehoeven drove back by the Shop-Mor to further check the premises. He found Austin’s automobile parked at the far end of the parking lot with the driver’s door open. At the time he went off duty at 11:00 p.m. he informed the dispatcher at the Tioga substation of his observations.

After the discovery of Austin’s body Vandehoeven was called back to the Tioga sheriff’s substation to give information to the investigating officers. He gave a statement generally depicting the facts outlined above. In the statement he identified two persons with whom he was familiar as being in the suspected automobile. According to his statement Michael Ebey was the person seen locking the door and Tommy Wren was the person seated in the left rear position of the car. Following up on this information, the investigating officers, including Vandehoeven, proceeded to the residence of Ebey to question him. Ebey and his roommate, Wren, were asleep when the officers arrived. Vandehoeven, after noticing that Ebey had a full beard and a cast on his leg, advised the other officers he was mistaken in his identify of Ebey as the person he had seen locking the Shop-Mor door.

Further investigation disclosed Avery Moore had made statements to witnesses some two weeks prior to this incident exhibiting a desire to rob and kill the victim. This information along with the vehicle registration led officers to suspect that Moore was the driver of the subject vehicle and that the person seen locking the Shop-Mor door was defendant Orlando, known to be Moore’s roommate and frequent companion. The morning following the murder, Vandehoeven was shown photographs of Moore and Orlando and identified Moore as the driver and Orlando as the person locking the door. The following day Moore and Orlando were arrested in Houston.

On January 29, 1981, Vandehoeven was shown a photograph lineup and he again identified Moore as the driver, defendant as the right rear passenger, and Wren as the left rear passenger. In an attempt to assist Vandehoeven to identify the front right passenger who he believed to be a woman, Vandehoeven was hypnotized by a state police expert on March 6,1981. This procedure did not result in any change in Vande-hoeven’s ability to identify persons in the automobile. See State v. Wren, 425 So.2d 756 (La.1983).

On trial, the state offered the testimony of witnesses to whom the co-defendant, Moore, had made statements indicating he was thinking of robbing and killing Austin some two weeks prior to the date of his death. This evidence was permitted over the objection of defendant under the provisions of La.R.S. 15:455, as being a statement of a co-conspirator.

The subject testimony was given by Karen Weems and her mother, Margaret Weems, of Tioga. The evidence shows that Moore, accompanied by defendant Orlando, drove from their residence in Houston to Tioga to pick up a government check which came to Moore at a Tioga address. This was on a date approximately two weeks prior to the Austin murder. Karen Weems testified that her mother, Margaret, who was Moore’s niece, received a call from Moore that his car had broken down in front of the Shop-Mor store. She testified her mother sent her to pick up Moore and Orlando and bring them to her residence where they stayed for two days during the time repairs were made to Moore’s car.

Karen testified that Moore asked her unusual questions about Harold Austin and the Shop-Mor store, such as the time of closing and how much money Austin would be carrying. She testified that Moore on one occasion during this stay declared, “I bet he has alot of money, I’d like to shoot the SOB and throw him in the road ditch.” She testified Orlando was not present when these discussions took place. Margaret Weems testified that she was present and heard the statements made by Moore.

This evidence was such a vital link in the chain of circumstantial evidence on which the conviction of defendant was obtained that the correctness of its admissibility is the crucial issue raised in the numerous assignments of error made by defendant and as our conclusions on this issue are dispositive of this appeal, we find it unnecessary to discuss the remaining assignments of error.

Defendant attacks the admissibility of this evidence on the basis that it is hearsay; that the state has not laid the necessary foundation for its admission under any exception to the hearsay rule; and as the declarant Moore was not present at the trial, defendant was deprived of the right of confrontation and cross-examination of the person whose statements are being used against him in violation of the Sixth Amendment to the U.S. Constitution. For the purpose of directly reaching the dispos-itive issue of whether defendant’s constitutional right of confrontation has been violated, we will assume that the subject evidence would otherwise be admissible as the statement of a co-conspirator under La.R.S. 15:455, which provides:

Each co-conspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his co-defendant. But to have this effect a prima facie case of conspiracy must have been established.

Even though a defendant is not charged with the inchoate crime of conspiracy but rather as a principal to a substantive offense, reference to the law of conspiracy is nevertheless relevant and permissible to permit the state to utilize the evi-dentiary rules found in La.R.S. 15:455. State v. Gutter, 393 So.2d 700 (La.1981).

Therefore without further examination of the correctness of the trial court’s determination that the state had made a prima facie showing of a conspiracy between the declarant, Moore, and defendant, Orlando, which would provide for admissibility of this evidence under La.R.S. 15:455, we shall focus our attention on the question of whether defendant's constitutional right of confrontation has been violated.

The Sixth Amendment to the Federal Constitution requires “that in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Art. 1, § 16, of the Louisiana Constitution of 1974, provides that “an accused is entitled to confront and cross-examine the witnesses against him....” The Fourteenth Amendment to the Federal Constitution makes the federal confrontation clause obligatory on the states. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

Defendant contends that the state did not present the hearsay declarant Pete Moore to testify at defendant’s trial or show that his testimony was unavailable; therefore the admission of his hearsay declarations, even if permitted by an exception to the hearsay rule, violates the Sixth Amendment guarantee of the right of confrontation.

In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Supreme Court defined the relationship of the hearsay rules and the confrontation clause as follows:

... While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.
Given the similarity of the values protected, however, the modification of a State’s hearsay rules to create new exceptions for the admission of evidence against a defendant, will often raise questions of compatibility with the defendant’s constitutional right to confrontation. Such questions require attention to the reasons for, and the basic scope of, the protections offered by the Confrontation Clause.
* * * * % *
Finally, we note that none of our decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial. The concern of most of our cases has been focused on precisely the opposite situation — situations where statements have been admitted in the absence of the de-clarant and without any chance to cross-examine him at trial. These situations have arisen through application of a number of traditional “exceptions” to the hearsay rule, which permit the introduction of evidence despite the absence of the declarant usually on the theory that the evidence possesses other indicia of “reliability” and is incapable of being admitted, despite good-faith efforts of the State, in any way that will secure confrontation with the declarant.
Such exceptions, dispensing altogether with the literal right to “confrontation” and cross-examination, have been subjected on several occasions to careful scrutiny by this Court. In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065 [13 L.Ed.2d 923] (1965), for example, the State introduced at defendant’s trial the transcript of a crucial witness’ testimony from a prior preliminary hearing. The witness himself, one Phillips, had left the jurisdiction and did not appear at trial. “Because the transcript of Phillips’ statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips,” 380 U.S., at 407, 85 S.Ct., at 1070, we held that its introduction violated the defendant’s confrontation rights. Similarly, in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318 [20 L.Ed.2d 255] (1968), the State introduced the preliminary hearing testimony of an absent witness, incarcerated in a federal prison, under an “unavailability” exception to its hearsay rules. We held that that exception would not justify the denial of confrontation where the State had not made a good faith effort to obtain the presence of the allegedly “unavailable” witness.

In a much later case, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court further clarified the confrontation requirement:

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference of face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the de-clarant whose statement it wishes to use against the defendant, [citations omitted]
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
# * * # * #
The basic litmus of Sixth Amendment unavailability is established: “[A] witness is not ‘unavailable’ for purposes of the ... exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S., at 724-725, 88 S.Ct., at 1322.
Although it might be said that the Court’s prior cases provide no further refinement of this statement of the rule, certain general propositions safely emerge. The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ intervening death), “good faith” demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. “The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” California v. Green, 399 U.S., at 189, n. 22, 90 S.Ct., at 1951 (concurring opinion, citing Barber v. Page, supra). The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate.

The State maintains that it has met the requirements of Roberts in this instance by showing the probable unavailability of Moore’s testimony and because this evidence possesses adequate indicia of reliability and falls within a firmly rooted hearsay exception as the statement of a co-conspirator.

The State contends that because Moore has been convicted of first degree murder and sentenced to capital punishment, he would in all probability exercise his right against self-incrimination under the Fifth Amendment if called to testify and that this is a sufficient showing that his testimony is unavailable. The State also contends if Moore had been required to exercise this privilege in the presence of the trial jury, this could have constituted grounds for a motion for a mistrial by prejudicing the defendant in the eyes of the jury-

The State further argues that its need for this relevant, probative evidence which has a high degree of reliability as a declaration against penal interest should outweigh the defendant’s interest in a personal confrontation of the declarant accompanied by an opportunity for cross-examination.

While we understand the State’s need for this evidence to add a motive for the killing of Harold Austin to the otherwise purely circumstantial evidence against defendant, we are constrained to hold that the State has not shown the unavailability of Moore’s testimony as a predicate for admissibility as required by the prevailing jurisprudence.

... A witness is not unavailable for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.
Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

A witness incarcerated in a parish facility is not “unavailable” for the purpose ojf satisfying the confrontation clause requirement in admitting evidence under a hearsay exception. State v. Smith, 400 So.2d 587 (La.1981). Nor is incarceration of a witness in a state proceeding in a federal prison sufficient to constitute a showing of unavailability. Barber v. Page, supra. In Barber the Supreme Court indicated that every reasonable effort must be made to obtain the witness’s presence although it may appear to be an exercise in futility.

We cannot accept the State’s argument that it was unnecessary to produce Moore at trial under the circumstances present here. No effort whatsoever was made by the prosecution to obtain Moore’s presence at trial. The only evidence put on by the State in this regard was the testimony of Moore’s trial and appeal counsel who testified that if Moore were called as a witness he would advise him to exercise his Fifth Amendment privilege not to testify. The attorney admitted that he had not consulted with Moore in this regard and that he could not say whether Moore would follow his advice.

Moore was being held by the state at the state penitentiary at Angola, awaiting disposition of his application for relief in the federal courts following affirmance of his death sentence in the state Supreme Court. Therefore, he was under the control of state authorities and we can not perceive the state would have had any problem in obtaining his presence at trial had the prosecution properly made a request. Furthermore the state has not sought to show that unreasonable measures would have been required in order for the prosecution to obtain Moore’s presence at trial.

Nor can we accept the State’s argument that it would have been exposed to a mistrial if Moore had taken the stand and claimed the Fifth Amendment privilege in the presence of the jury. A determination of his willingness to testify or claim this privilege could have been made out of the presence of the jury by the trial judge.

There are a number of cases which have held that when the hearsay declarant is called as a witness and refuses to testify that unavailability has then been established. However, we find no cases where unavailability has been shown without requiring the witness to appear in court and claim the Fifth Amendment privilege. We therefore find that the admission of the declarations by Moore to Karen and Margaret Weems was a violation of defendant’s right of confrontation guaranteed by Art. 1, § 16 of the Louisiana Constitution of 1974 and the Sixth Amendment to the U.S. ■ Constitution.

There is no question that this evidence could not be found to be harmless error in this instance. La.C.Cr.P. Art. 921 provides “a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.” For guidance in the correct application of this article we refer to State v. Gibson, 391 So.2d 421 (La.1980) in which the Supreme Court ruled in part as follows:

Accordingly, this Court is no longer required by statute to reverse a criminal decision if there is any constitutional error in the proceedings below, and it is no longer authorized to reverse upon finding that there has been a miscarriage of justice. This Court constitutionally, however, still may not act as a surrogate jury; it is not free to substitute its determination of what the jury, in the absence of the error, would or should have decided in place of the jury’s actual verdict.
For these reasons we conclude that the federal harmless error rule, as stated and applied in Chapman v. California, is the standard most compatible with this Court’s view of its own criminal appellate jurisdiction. Whether there is a reasonable possibility that the constitutional error complained of might have contributed to the conviction is a question of law to which our appellate jurisdiction extends. Although the standard requires a reviewing court to consider the evidence in order to determine if there is a reasonable possibility that the error had prejudicial effect, it does not permit a court to substitute for the verdict its judgment of what the jury would or should have decided in the absence of error.
* * * * * *
The Chapman harmless error approach is also more consistent with the notion that all accused persons are entitled to a fair trial, even if guilty. Injudicious application of the harmless error doctrine tends “to. shield from attack errors of a most fundamental nature and thus to deprive many defendants of basic constitutional rights.” Harrington v. California, 395 U.S. 250, 257, 89 S.Ct. 1726, 23 L.Ed.2d 284, 289-90 (1969) (Brennan, J., dissenting). Our Court has recognized that absent reversal, certain legal practices may continue unabated. [State v.] Michelli, 301 So.2d [577] at 579 [ (La.1974) ]. The Chapman court pointed out that a state court may err by giving “emphasis, and perhaps overemphasis, upon the court’s view of ‘overwhelming evidence,’ ” 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed. 705, 710 (1967).

When the subject evidence is examined in the light of the test laid down in Gibson we have no doubt the admission of this inadmissible evidence could have contributed to the conviction of the defendant. There can be no question but that the prior declaration by Moore evidencing an intent or desire by him to rob and kill the victim could have influenced the jury on the ultimate question of defendant Orlando’s guilt or innocence. This is especially true in view of the lack of direct evidence of defendant’s participation in the crime in this case.

We therefore find the admission of the statements made by the co-defendant Moore in violation of defendant’s constitutional right of confrontation, was not harmless error. Consequently, the defendant’s conviction and sentence must be reversed and the case remanded for a new trial.

REVERSED and REMANDED FOR A NEW TRIAL.

HALL, J., concurs with written reasons.

HALL, Judge,

concurring.

The hearsay declaration by Moore to Weems was inadmissible because the state did not establish by independent evidence a prima facie case that a conspiracy existed between Moore and the defendant at the time the statement was made several weeks prior to the murder or that the statement was made in furtherance of the conspiracy. LSA-R.S. 15:434, 455. State v. Meredith, 403 So.2d 712 (La.1981); State v. Dupree, 377 So.2d 328 (La.1979).

      . See State v. Moore, 432 So.2d 209 (La.1983).


author: CHEHARDY, Judge.

text:
    Geraldine Scolaro ABBOTT v. John W. ABBOTT.
    No. 83-CA-857.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 1984.

      Hammett, Leake & Hammett, Edward J. McCloskey, New Orleans, for plaintiff-appellant.
    Berke & Ignolia, Kenneth J. Berke, New Orleans, for defendant-appellee.
    Before BOUTALL, CHEHARDY and CURRAULT, JJ.
   CHEHARDY, Judge.

Plaintiff, Geraldine Scolaro Abbott, filed this suit for an accounting of community property revenues, and traversing the corporate management of her former husband, John W. Abbott. Following trial, judgment was rendered in favor of Mr. Abbott approving the accounting and disbursement, ordering the parties to maintain the sum of $8,000 by equal contributions in the bank account for the operation of jointly held properties, and providing that any sums in such account in excess of $15,000 were to be equally divided between the parties.

Plaintiff has appealed.

The record reflects the parties were judicially separated on November 2, 1981 and at that time they entered into a settlement of community and compromise agreement. Under the terms of the agreement plaintiff and defendant were recognized as co-owners in indivisión of various items of very substantial community property consisting of notes, a fourplex, two residences, a tour company (Abbott Tours, Inc.), for which defendant paid plaintiff $220,000 for her one-half interest, and a commercial building known as the Abbott Building.

After much litigation, most of their problems were resolved, with the exception of property involved here, the Abbott Building, which continued to be co-owned from November 2, 1981 through November 30, 1982 (the accounting period).

During the accounting period defendant managed the property. Initially joint checking accounts were established into which Mr. Abbott deposited all rents and revenues, and wrote disbursement checks which required the signature of both parties.

This arrangement was unsatisfactory, apparently because plaintiff refused to sign checks for various expenses defendant considered necessary. He then filed a rule to show cause why plaintiff should not be required to sign the checks. (Plaintiff excepted that such action was not proper under summary proceedings. Defendant dismissed the rule and then opened a bank account for the benefit of plaintiff and defendant on which .only he signed the checks. He sent copies of deposit slips, bank statements, etc., to plaintiff.)

Plaintiff was dissatisfied with this arrangement and wanted the management turned over to a third party, a local real estate firm. The defendant objected because the real estate firm contract also included a listing agreement whereby it would receive a percentage of the purchase price on any sale of the building, and also provided it was to receive a surcharge on any necessary repairs.

Defendant could see no savings of time or money by using a third-party agent and was not agreeable to the terms proposed, so he continued to manage the business (Abbott Tours, Inc.) and the property (the Abbott Building) keeping invoices and can-celled checks for each supplier or serviceman who rendered services or supplies for the building.

This appeal is concerned with approximately $40,000 in payments made out of joint funds for maintenance of their joint property. Approximately $20,000 of that total represents money paid for a new air-conditioning system for the building and the remaining disbursements challenged represent janitorial services and miscellaneous expenses.

Plaintiff submits six categories of error in the trial court judgment and makes the following claims as her share with respect to each:

DESCRIPTION CLAIM
1. Janitorial expenses $ 7,140.27
2. Legal fees 768.45
3. Mortgage account 301.78
4. Repairs by the Theil brothers 504.48
5. Flettrich Engineering (air-conditioning repairs) 10,605.47
6. Miscellaneous 530.79
Total $19,851.24

Most of the disbursements involve expenses incurred in connection with the Abbott Building, a five-story office building containing 4,500 square feet per floor, purchased by the parties in 1977.

Plaintiff challenges all disbursements for janitorial services for the Abbott Building. She contends that Abbott Tours, Inc., defendant’s corporation, is responsible for these charges.

The evidence establishes that Abbott Tours occupies one floor of the five-story Abbott Building and pays $2,000 per month rent. Plaintiff claims payment for janitorial services for the entire building was part of Abbott Tours’ responsibility, in addition to the rent.

When the parties first acquired the building they hired a janitorial service company to perform these duties. They later found it more economical to discharge the service company and hire their own janitors.

Defendant contends such expenses were never the responsibility of Abbott Tours, but Abbott Tours paid these expenses as a convenience to the parties at a time the corporation was jointly owned by plaintiff and defendant. At that time it made no difference whether they paid the janitorial services themselves or had the corporation pay such expenses.

Abbott Tours maintained payroll records and had computer processing facilities for employees, while plaintiff and defendant as individuals did not. For this reason it was easier and more efficient to handle the janitorial personnel through Abbott Tours than for the parties to do it for themselves. Defendant began reimbursing Abbott Tours for janitorial expenses for the Abbott Building after November 2, 1981, the date defendant purchased plaintiff’s interest in Abbott Tours.

The trial court received all of the building leases and activities of the parties regarding the janitorial expenses and concluded that while Abbott Tours’ rent was below the present market value for office space, it was not grounds for objection if it was the rate agreed upon between the parties.

The court also noted it was not the lowest rent in the building, thus corroborating defendant’s contention the $2,000 figure was agreed upon at that time. It also noted the parties paid the janitorial expenses out of their undivided funds until they hired their own janitorial employees, thus supporting defendant’s position that the only reason for a change in procedure was for the convenience of the parties.

The court found the parties did agree to the rental rate of $2,000 for Abbott Tours and that it paid, and continues to pay, janitorial expenses solely as agent for the parties and is entitled, and will be entitled, to be reimbursed for these sums.

We agree with that conclusion.

Plaintiff complains of legal fees paid by defendant in the sum of $1,536.90 to Kenneth J. Berke. Prior to the separation and settlement of community property agreements Mr. Berke was the personal attorney of both parties as well as their attorney for business interests. Plaintiff contends that during the accounting period Mr. Berke was acting solely in the interest of defendant and that she received no benefit from these services.

However, defendant claims that to manage the jointly owned property it was necessary to enter into leases, collect delinquent rents and dispose of tenant controversies. Mr. Berke had performed legal services in connection with the property since its purchase and was familiar with the services required. The servicés were rendered over a 13-month period and counsel identified each invoice and described the services rendered.

The trial court found plaintiff benefited from these services and approved the payment as altogether proper. We agree.

Plaintiff claims she is entitled to an additional award of $263.57 plus $38.21 interest from a mortgage account. At the time the parties settled the community they were not sure how much money there was in this account, but that it was approximately $10,000. Both parties were represented by counsel at the time of the settlement and plaintiff accepted a cheek for $5,000 in settlement of this account. It was later established that the account actually contained $10,527.14.

The defendant entered into evidence the check payable to plaintiff and endorsed by her bearing the notation “includes settlement of mtg. acct.”

The trial court found from the evidence that the parties chose to stipulate the $10,000 figure at the time of the settlement and that the court could not allow the parties to withdraw from the settlement agreed upon. There being no evidence of fraud, it found the settlement agreement binding on the parties. We find no error in this conclusion.

Plaintiff objects to all payments for maintenance work performed by the Theil brothers, identifying them as friends of the defendant. They were paid $1,008.96 over a period of 13 months for services rendered. These men had performed maintenance service for both plaintiff and defendant for years.

At the trial Terrance Theil identified every itemized receipt and payment for work which he described: painting a fire escape, painting various offices, and hauling away trash. There was no evidence that any invoice was in error, fraudulent or otherwise improper. These payments were properly approved.

Plaintiff claims she is entitled to one-half of the $21,210.93 defendant paid to Flett-rich Heating and Air Conditioning Corporation on the ground that these expenses were too high. This is the same company plaintiff used for heating and air-conditioning problems arising in the Abbott Building when she was • in charge of its management.

The evidence established that the air-conditioning system in the Abbott Building was 20 to 25 years old and in need of extensive repairs. Defendant testified he used Flettrich because their service was prompt, they are a highly reputable air-conditioning and heating service, and are very responsive to the needs of the Abbott Building. They come promptly, do a good job, and correct the problems quickly. Because of the age of the system and considering the size of the building, it is clear the judge did not find the charges excessive.

Representatives, of Flettrich identified each invoice describing the work performed. The trial court found both parties received the benefit of these services and approved payment. His finding is clearly supported by the record.

Plaintiff challenges miscellaneous expenses, claiming she is entitled to her half of these expenditures amounting to $530.79. She complains of two $25 Christmas presents given to people who served the parties for years and to whom similar gifts had been given in the past.

She questions the expense of changing elevator keys but concedes that the parties had always paid for such security measures in the past.

Plaintiff challenges the furnishing of a refrigerator at a cost of $150 to a tenant to replace an existing unit which had ceased to function. The court was satisfied that under the lease the parties were obligated to provide a working unit.

We are impressed, as was the trial court, by the completeness and accuracy of defendant’s records. He entered into evidence all of the bank statements and can-celled checks in payment of expenses, and attached to each the invoices for which they were paid.

He entered into evidence exhibits itemizing income and expenses during the accounting period, November 2, 1981 through November 30, 1982. These exhibits itemize income as to the date it was received, the source of the item, a description of what it represented, the date it was deposited in the bank accounts, and the amount of the deposit in which it was included.

As to expenses, the exhibit showed the date each check was written, the person to whom payment was made, a description of the expense and the check number. The evidence fully substantiated the payments made in every respect.

Furthermore every witness who testified concerning the invoices corroborated the correctness of defendant’s accounting and described the work performed.

Plaintiff, on the other hand, failed to show any error or discrepancies between the facts and figures. The trial court was therefore correct in approving the accounting submitted by defendant as being complete and adequate.

Thus, for the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


author: CURRAULT, Judge.

text:
    Janice Gurtner BAHAM v. Hollis Roy BAHAM. (Two cases)
    Nos. 84-CA-14, 84-CA-15, C/W 84-CA-359 and C/W 84-CA-360.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 1984.

      Joel Levy, Levy & Levy, Marrero, for plaintiff-appellant.
    Lloyd J. LeBlanc, Jr., George Ann Hayne Graugnard, Accardo, Carville, Edrington, Leblanc & Golden, LaPlace, for defendant-appellee.
    Before BOUTALL, CHEHARDY and CURRAULT, JJ.
   CURRAULT, Judge.

In this appeal, plaintiff Janice Gurtner Baham challenges the trial court judgment finding her “not without fault” for purposes of permanent alimony after divorce, as well as the judgment award for child support in the amount of Two Hundred Fifty Dollars ($250), plus medical expenses.

Mrs. Baham filed a suit for separation from appellee, Hollis Roy Baham, on September 16, 1981. On January 18, 1982, a consent judgment was éntered into giving the custody of two minor children to plaintiff along with child support in the amount of Four Hundred Twenty-Five Dollars ($425) per month. A judgment of separation was never rendered.

On March 4, 1983, appellant filed for divorce on the grounds of living separate and apart in excess of one year, and in connection therewith sought child support, alimony pendente lite and permanent alimony. On April 20, 1983, a consent judgment was entered into awarding Mrs. Ba-ham Two Hundred Dollars ($200) per month alimony pendente lite.

On June 9, 1983, a rule for contempt was filed by plaintiff for failure to pay child support, for arrearages and executory judgment and for revocation of defendant’s visitation rights.

On June 17, 1983, all matters were consolidated and transferred to Division “B” of the Twenty-Ninth Judicial District Court and set for trial on September 2, 1983. Prior to trial, one of the children attained her majority.

The judgment of the trial court rendered on October 3,1983, in pertinent part, granted the divorce on the grounds of having lived separate and apart in excess of one year; awarded plaintiff the custody of the minor child; awarded child support in the amount of Two Hundred Fifty Dollars ($250) per month, plus all medical expenses; found defendant, Mr. Baham, in arrears in the sum of Three Thousand, One Hundred Ninety-Seven Dollars and Fifty Cents ($3,197.50) and made the amount executo-ry; granted reasonable visitation rights to defendant and denied permanent alimony to plaintiff on the basis that she was not free from fault.

Plaintiff thereafter perfected this appeal of the judgment.

Four issues are presented for our review.

(1) Whether the trial court should have revoked defendant’s visitation rights as stipulated at trial;

(2) Whether the trial court erred in its determination of the amount of arrearages;

(3) Whether the trial court erred in finding plaintiff at fault and thereby denying her alimony; and

(4) Whether the determination of the amount of child support was in error.

The first two allegations of error are conceded by appellee in brief and supported by the record. Consequently, the trial court judgment is reversed on visitation rights and corrected to reflect the arrear-ages owed from the sum of Three Thousand, One Hundred Ninety-Seven Dollars and Fifty Cents ($3,197.50) to the amount of Four Thousand, Two Hundred Eighteen Dollars and Fifty Cents ($4,218.50).

Appellant argues next that the trial court erred in denying permanent alimony in that (1) the trial court determined that mutual incompatibility is a bar to permanent alimony; and (2) that the facts do not support a finding of fault chargeable to the wife.

In her petition for divorce, based on living one year separate and apart (LSA-R.S. 9:301), Mrs. Baham sought permanent alimony as provided in Civil Code Article 160 which states in pertinent part:

“[A] When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income_”

Louisiana law provides that a spouse seeking permanent alimony bears the burden of proving himself or herself free from fault as well as demonstrating insufficient means for support. Moore v. Moore, 393 So.2d 822, 824 (La.App.2d Cir.1981).

“Fault in this context is conduct violative of the marital duties and responsibilities, and it ‘must be serious and an independent contributory or proximate cause of the separation.’ Pearce v. Pearce, 348 So.2d 75, 77 (La.1977).” Schexnayder v. Schexnayder, 424 So.2d 516, 518 (La.App. 5th Cir.1982).

For purposes of permanent alimony preclusion, the courts have held that fault is synonymous with the fault grounds for separation and divorce. Adams v. Adams, 389 So.2d 381 (La.1980); Jones v. Jones, 442 So.2d 817 (La.App. 4th Cir.1983). A spouse is, however, not deprived of post-divorce alimony simply because she or he is not blameless in the marital discord. Pearce v. Pearce, supra. Mutual incompatibility, as appellant correctly notes, does not constitute grounds for a fault based separation or divorce. Loyd v. Loyd, 336 So.2d 912 (La.App.2d Cir.1976); Jones, supra; Langton v. Langton, 442 So.2d 1308 (La.App.3d Cir.1983).

The trial court judge stated inter alia the following:

“I also deny permanent alimony having found as a matter of fact Janice G. Ba-ham is not free of fault with respect to the burden of proof she is required to carry for an award of alimony. I find that the parties are both guilty of fault sufficient so as to constitute independent grounds for the separation and divorce. Mutual incompatibility prevents an award of alimony.”

While we find that the trial court incorrectly stated the law as to mutual incompatibility, we also find that the misstatement is inconsequential in light of the preceeding language which clearly finds appellant’s fault an independent ground for separation or divorce.

Alternatively, appellant argues that the evidence does not support a finding of fault. In this regard, it is alleged that as appellee simply denied the allegation of freedom from fault in his answer to the divorce petition without reference to specific instances, an unfair burden was placed on Mrs. Baham to counter unexpected accusations. In support thereof, appellant cites Carter v. Carter, 316 So.2d 829 (La.App. 1st Cir.1975); rehearing denied; writ refused 320 So.2d 913 (La.1975). There the court stated in reference to the wife’s burden of proof:

“From its very nature this is a heavy burden to cast upon a pleader and must be imposed within reasonable limitation to avoid injustice. It calls for proof of a negative. This is always difficult and in many eases impossible, especially when the implications calling for disproof are non-specific broad generalities. Unless the wife is informed by the husband’s answer to her petition for alimony by some specific allegation of fault on her part, she is put in the impossible position of disproving every conceivable fault which could bring about a separation between married persons. It is contrary to all reason that a wife be required to come to court prepared to disprove any and every possible accusation which might be levelled against her during the course of the trial.” At page 830.

In that case, the husband presented vague inferences of infidelity which the court rejected as evidence of fault.

The Fourth Circuit Court of Appeal discussed the Carter statement in Smith v. Smith, 357 So.2d 93 (La.App. 4th Cir.1978). There the court noted that while it is unnecessary to plead specific instances of fault, the Carter statement

“... raises the question of fairness and consideration of effect of the evidence presented in the discharge of her burden of proof.” At page 95. See also Barrios v. Barrios, 342 So.2d 1263 (La.App. 4th Cir.1977).

The evidence herein reveals that Mr. and Mrs. Baham were married in 1964 and two children were born of this marriage. Mr. Baham testified that for the first five years the marriage was severely troubled, but was a good one from 1972 to 1980. Mrs. Baham did not testify in this regard, but the evidence clearly indicated that Mr. Ba-ham had a violent temper and on occasion physically abused his wife. On the day the parties separated (May 28, 1981), the evidence sufficiently discloses that Mr. Baham physically threw Mrs. Baham out of the house and down the stairs. Mr. Baham denied the fact, but admitted he was angry because Mrs. Baham did not come home the previous night. He stated that she telephoned at 7:00 a.m. the next morning to tell him she was at her father’s house, but that he in turn told her not to come home. When she returned anyway, he forced her out of the house. The evidence further reflects that Mr. Baham discovered several days later that Mrs. Baham had been “out” the previous evening with a male friend and co-worker. However, there were no allegations of infidelity and this knowledge occurred after the fact of the separation.

Mrs. Baham, on the other hand, admitted that she was out with her male friend, but denied going places with him previously. Her daughter and husband both testified to the contrary. Mrs. Baham also testified that she spent the night at her father’s house in order to avoid a confrontation with her husband. Mrs. Baham’s father, Ralph Gurtner, however testified on cross-examination that he did not recall seeing his daughter on the night in question.
The evidence further revealed that prior to the separation both parties stayed out late after work on numerous occasions without the other spouse. Mr. Baham indicated that on three or four occasions prior to May 28, 1981, Mrs. Baham left the matrimonial domicile remaining away from the home for a day or two, and once for three days. On those occasions, he claimed she removed some of her clothing which she did not bring back to the domicile. He stated that she told him upon return that she had filed “for divorce and all of this other stuff”. Mr. Baham testified that he told her that if she stayed away all night again, the marriage would end. Consequently, on May 27, 1981, he refused to allow Mrs. Baham to return after remaining absent from the home without informing him or the minor children of her whereabouts or informing the family of the reason for her absence. Mrs. Baham was not recalled to the stand to explain or rebut Mr. Baham’s testimony on the issue of her prior departures and absences from the home.
While we agree that unexpected accusations can create an unfair burden on the spouse attempting to prove freedom from fault, we cannot agree that such occurred under these facts. Consequently, as the facts of Mrs. Baham’s conduct are unrebut-ted, we cannot say that the trial court was clearly wrong in determining appellant was not free from fault. Pearce, supra.
Finally, appellant argues that the trial court abused its discretion in its award of child support. In the judgment, the court awarded Two Hundred Fifty Dollars ($250) per month plus medical expenses for the support of nine year old Rachel. At the time of trial, the other child reached majority and was self-supporting.

The alimentary obligations of parents to children as set forth in LSA-C.C. Articles 227, 230 and 231, provide that parents together undertake the duty of supporting, maintaining and educating their minor children. Fouquet v. Fouquet, 442 So.2d 787 (La.App. 5th Cir.1983), rehearing denied 1984. The provision is to be made with consideration both to the needs of the recipient and the circumstances of the provider. Fouquet v. Fouquet, supra. The parent seeking child support bears the burden of proving the needs of the children and the ability of the former spouse to pay. Stepp v. Stepp, 442 So.2d 1327 (La.App. 3d Cir.1983). In consideration of these factors, the jurisprudence also holds, as appellant aptly notes, that children are entitled to support sufficient to maintain them on a basis commensurate with the family standard of living enjoyed before the marriage is terminated, and are entitled to more than a bare subsistence. Mire v. Mire, 251 So.2d 797 (La.App. 1st Cir.1971); Byrd v. Byrd, 335 So.2d 515 (La.App. 1st Cir.1976). However, on review, the appellate court will not disturb an award made by the trial court absent a showing of abuse of his wide discretion. Trinchard v. Trinchard, 446 So.2d 400 (La.App. 5th Cir.1984).

The evidence on the child support issue reveals that Mrs. Baham was, at time of trial, not receiving any income due to a job-related accident at Winn-Dixie. She received worker’s compensation benefits for four weeks, after which the payments were discontinued. She stated that she was attempting to recover further benefits as she was still under medical care and unable to return to her employment.

An itemized statement of expenses produced by Mrs. Baham reflects a monthly total of One Thousand, Two Hundred Four Dollars ($1,204), One Hundred Nineteen Dollars ($119) of which is attributable to the school expenses of Rachel. No other breakdown of Rachel’s needs was presented to the trial court. As medical expenses for Rachel were ultimately assessed against Mr. Baham without complaint, those items are not under consideration.

Mr. Baham, an employee of Winn-Dixie, listed his weekly gross income as Five Hundred Twenty-Five Dollars ($525), and his net at Three Hundred Fifty-Five Dollars and Ninety-Seven Cents ($355.97). Based on these figures, his total gross income equals Twenty-Seven Thousand, Three Hundred Dollars ($27,300). However, the defendant testified that his gross income for 1982 was “about $34,000 or $32,000, somewhere around in that neighborhood.” Mr. Baham also testified that he received bonuses not reflected in his Five Hundred Twenty-Five ($525) gross income figure. He receives an additional bonus check yearly, the largest of which totalled Thirteen Hundred Dollars ($1300) in 1982. The monthly bonus received by Mr. Baham varies from $3 to $300. As a further benefit of his position, his employer provides “Golden Brush points” for selling products. Each point is valued at 50 cents. At time of trial, he acknowledged possessing “3,000 or 4,000 points” the value of which totals Fifteen Hundred to Two Thousand Dollars ($1500 to $2000). The points are received monthly and may be cashed in or used to purchase products from a book. He stated he generally receives 1,000 points or Five Hundred Dollars ($500) worth per month. Aside from the bonuses apparently reflected in his yearly income statements, the point system increases his disposable income monthly from One Thousand, Five Hundred Forty-One Dollars and Thirty-Five Cents ($1541.35) (net based on 355.97 multiplied by 4.33 weeks) to Two Thousand Forty-One Dollars and Thirty-Five Cents ($2,041.35). He provided a list of monthly expenses totalling One Thousand, Two Hundred Twenty-Seven Dollars ($1,227) exclusive of alimentary obligations. In addition, Mr. Baham’s assets include at least 100 shares of Winn-Dixie stock; four automobiles, one of which he recently sold to his major daughter, and two of which he stated are immobile; and equity in the home in which he presently resides.

In view of these facts, it is our opinion that the trial court erred in fixing the child support.

By including tuition in the award of Two Hundred Fifty Dollars ($250), Rachel only receives $131 per month or $32.75 per week for her other needs, excluding medical expenses. Clearly, in view of Mr. Baham’s income, this amount is “bare subsistence” and should be increased.

Consequently, we hereby increase the amount of support to Three Hundred Fifty Dollars ($350) per month plus medical expenses.

Therefore, after a review of the law and evidence, we hereby (1) affirm the judgment denying alimony; (2) reverse the judgment to revoke defendant’s visitation rights; (3) amend the judgment to increase the arrearages owed by appellant to Four Thousand, Two Hundred Eighteen Dollars and Fifty Cents ($4,218.50); and amend the judgment to increase the award of child support to Three Hundred Fifty Dollars ($350) per month, plus medical expenses.

Each party is to bear its own costs on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED.

      . An appeal of a related matter (#84-CA-359 C/W 84-CA-360) was lodged by defendant subsequent to plaintiff's appeal. The cases were consolidated, however defendant voluntarily abandoned his appeal prior to oral argument.


author: DOUCET, Judge.

text:
    James W. POUSSON, Jr., Plaintiff-Appellant, v. Charles KLUMPP, Defendant-Appellee.
    No. 84-791.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 1984.
    Donald R. Jory, Jennings, for plaintiff-appellant.
    Errol D. Deshotels, Oberlin, for defendant-appellee.
    Before STOKER, DOUCET, and YEL-VERTON, JJ.
   MOTION TO DISMISS

DOUCET, Judge.

We issued exproprio moto an order to show cause as to why plaintiff-appellant’s appeal should not be dismissed as being untimely perfected. The plaintiff has answered the rule to show cause. We dismiss the appeal.

When the record was filed with this court, the Clerk of this Court noted that the record contained two identical judgments: one dated April 4, 1984, and the other dated July 2, 1984. Suspecting the rendering of the second judgment was for the sole purpose of extending the appeal time, this Court issued the above mentioned rule to show cause.

In his answer to the rule, the plaintiff avers that the original judgment, signed April 4, 1984, was sent to him for approval, and that he signed same, and sent his secretary to bring the judgment to his opponent for him to sign, and then to the office of the trial judge for his signature. He also avers, and attaches the affidavit of his secretary stating the same, that he forwarded with the judgment a motion for appeal which was somehow lost or misplaced.

The plaintiffs attempt to perfect an appeal from the judgment of July 2, 1984 is null and void and without affect. The law does not contemplate that the trial judge will sign (or render) two identical judgments in the same lawsuit. The judge, having rendered and signed one final judgment, had no authority to sign another one. LSA-C.C.P. Art. 1911. The April judgment had become definitive and the trial court could make no substantive change by the signing of “another” judgment in July. LSA-C.C.P. ' Art. 1842; LSA-C.C. Art. 3556(31). Cox v. Kirkpatrick, 393 So.2d 1284 (La.App. 1st Cir.1980).

While we do not contest the veracity of plaintiffs attorney or his secretary, we cannot accept the mere word of any party that an appeal was timely taken but lost. To accept such unsupported statements would subject the appellate process to abuse by fraud.

For the reasons assigned, the appeal is dismissed at the appellant’s cost.

APPEAL DISMISSED.


author: GUIDRY, Judge.

text:
    George LERAY, Plaintiff-Appellant & Appellee, v. Lloydell Iles MULLICAN, et al., Defendant-Appellee & Appellant.
    No. 84-952.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1984.
    Writ Denied Oct. 17, 1984.

      James K. Nichols, DeRidder, for plaintiff-appellant & appellee.
    Cox, Cox & Townsley, Rex Townsley, Lake Charles, for defendant-appellee & appellant.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

This is an election contest for a seat on the Beauregard Parish School Board, District 3A. In the September 29, 1984 primary election the plaintiff, George LeRay, the incumbent, received 405 votes, and the defendant, Lloydell lies Mullican, his only opponent, received 406 votes. On October 5, 1984 the plaintiff timely moved for, and was granted, a recount of the absentee ballots. The recount as ordered by the Court was conducted on October 9 at 8:30 A.M., with a hearing on the matter held at 10:00 A.M. that same day.

There were fifty-one absentee ballots cast in the election. Twenty-four of the votes cast were counted by the absentee computerized counting machine for George LeRay, and twenty-one votes were counted for Lloydell lies Mullican. Six absentee ballots were not counted by the absentee computerized counting machine as there were no holes punched in these ballots for either candidate, one of these ballots being marked with an X in the square opposite the name of George LeRay.

The recount, as ordered by the Court, was conducted by hand and not by the absentee computerized counting machine. On the recount twenty-two absentee votes were tabulated for the plaintiff, George LeRay, and twenty-one were tabulated for the defendant, Lloydell lies Mullican, with eight absentee votes not being counted for either candidate, i.e. the 6 unpunched ballots and 2 ballots which were double punched.

The ballots were printed on IBM type cards for the purpose of machine tabulation. On the face of the card appeared the name of the office and the names of the candidates running for that office. To the immediate right of each candidate’s name appeared a box which contained a perforated die-cut circle with a cross inside. The instructions on the face of the ballot read as follows:

“Record your vote(s) by removing completely the circled cross ® to the right of your choice.” (The word completely was of a darker print.)

Of the eight absentee ballots that were not counted on the recount, five were not counted as the circled cross ® was not punched out for either candidate. These ballots áre not in contention, as both parties concede that they were spoiled and should not be counted.

The trial court agreed with the recount insofar as it disallowed the double punched ballots but disagreed with the disallowance of the unpunched but pencil marked ballot and rendered judgment declaring the defendant, Lloydell lies Mullican, as duly elected.

From that judgment George LeRay appeals. The appellee, Lloydell Des Mullican, also perfected an appeal from that portion of the trial court’s judgment which counted the absentee ballot voted by check mark.

The sole issue before this court is the validity of the three remaining absentee ballots. One of the ballots had no holes punched out, either for the school board race in contention here, or for any of the other offices voted on, but rather the voter had marked the ballot by placing a penciled check mark inside the box containing the circled cross for each candidate voted on. With regard to the school board race there was a check mark in the circle opposite the name of George LeRay. The other two ballots had the circled cross punched out by the names of both candidates.

The plaintiff contends that the trial court erred in throwing out the two ballots with the holes punched out besides both candidates’ names. Plaintiff argues that when the ballots were originally counted there was only one hole punched out and that punch out showed a vote for him. It is the position of the plaintiff, and testimony of the Registrar and Deputy Registrar of Voters was introduced to support this claim, that if both holes of the ballot had been punched out at the time the ballots were originally counted, the automatic absentee ballot counter computerized machine would not have counted the ballots. It is also the plaintiffs contention that these two ballots were for him as the original machine tabulation showed an absentee ballot count of twenty-four votes for him and twenty-one for his opponent with six ballots not being counted for a total of 51. Testimony was also introduced to show that the perforated die-cut circle punch out on these absentee ballots were very fragile, and that there was a tendency for these holes to fall out with handling. The defendant disputes these claims, alleging in effect, that the machine erroneously originally counted these ballots.

The defendant argues that the trial court erred in allowing the pencil check mark voted ballot. It is her contention that once the form of the ballot is chosen, the instructions for voting the ballot must be followed and that substitute marks will result in the ballot being spoiled. She also contends that the pencil check mark constitutes a ballot containing a distinguishing mark, a feature that both our statutory law and jurisprudence strictly forbids.

As aforestated, after hearing the matter, the trial court voided the two ballots with the circled cross punched out for both candidates holding that there was no way to determine if both circled crosses were missing before or after the machine tabulation, or for which candidate the ballots were cast. The trial court counted the pencil marked ballot in favor of the plaintiff, holding that it appeared to him that the voter made an honest attempt to vote, and that the punching out of a perforated circle was for the mere accommodation of the computer. This brought the absentee tally to twenty-three votes for George LeRay, and twenty-one absentee votes for Lloydell lies Mullican, which brought the total vote to 404 votes for George LeRay and 406 votes for Lloydell lies Mullican. The trial court thus rendered judgment declaring the defendant, Lloydell lies Mullican, the duly elected Representative of the Beauregard Parish School Board, District 3A.

With regard to the ballot voted with pencil check marks, the law prescribes the methods and marks that may be used to mark an absentee ballot. LSA R.S. 18:1306 provides in pertinent part as follows:

1306 A (2).
"Each ballot shall have printed on its face instructions informing the voter of the types of marks which may be used on that ballot to indicate his vote. Depending on the type of ballot used in any election, the following marks may be used by a voter to indicate his vote:
(a) A cross [X] mark;
(b) A check [/] mark;
(c) A mark that is made by filling in the appropriate space or box; or
(d) A mark that is made by punching out the appropriate space or. box.”
1306 A (3).
“Depending on the type of ballot used in an election, a ballot shall be marked by the voter with a pencil containing black lead or a pen or bail-point pen containing black, blue-black, or blue ink, or with an instrument or device to punch out the appropriate space or box on the ballot. The instructions printed on the face of the ballot shall inform the voter of the type of instruments that he shall use to mark his ballot.”

The jurisprudence holds that ballots that are marked otherwise than provided by law are treated as ballots marked for identification and are void. State v. Breithaupt, 220 La. 1042, 58 So.2d 332 (1952); Vidrine v. Eldred, 153 La. 779, 96 So. 566 (1923); Hendry v. Democratic Executive Committee, 128 La. 465, 54 So. 943 (1911).

The current law that requires the rejection of ballots having distinguishing marks is LSA R.S. 18:1316 which provides in pertinent part as follows:

“Any ballot with a distinguishing mark or feature making the ballot susceptible of identification shall be rejected if at least a majority of the members of the board determine that the distinguishing mark was made by action of the voter.”

The purpose of requiring identical marking of ballots, and rejecting those with distinguishing marks is to preserve the secrecy of voting. This is known as the “Australian ballot,” or secret, system of voting. The idea is that all the ballots are alike, and the voter prepares his ballot and easts it in secret, with no distinguishing marks upon it. Under this system, form is sacramental, and a voter cannot mark the ballot in any other way than the method prescribed, Hendry, supra.

In Vidrine, supra, the prescribed method of voting a ballot was for the voter to place a cross mark in the square opposite the names of the candidates. The Court rejected thirty-one ballots as having distinguishing marks which might have been placed on the ballot for identification. Some ballots were voted by scratching out the names of candidates not voted for, leaving the names of those intended to be voted for. On others check marks were used, or stars, or by writing “yes” after the name of a candidate instead of a cross mark, or again by making the cross mark with ink instead of pencil, or by putting the cross mark outside the square.

In the present case, the ballot used was designed to be marked by punching out a perforated circle next to the candidate’s name. This punching could be accomplished by either using the punch machine that was available for use at the Registrar’s Office or by punching out the perforated circle by using any pencil or pen-like instrument.

The ballot in question was not marked by a punched hole. Instead the voter chose to make a check mark next to the candidate’s name with a pencil. This was not the prescribed method to mark the ballot. Therefore we must hold that the ballot is void as the penciled check mark is a distinguishing mark which is susceptible of identification.

Since both parties agreed that the plaintiff incumbent candidate needed all three of the contested absentee votes to tie the election, we need not discuss the validity of the other two absentee ballots.

For the reasons assigned, the judgment of the trial court is affirmed insofar as that judgment declares the defendant, Lloydell lies Mullican, to be the duly elected Representative of the Beauregard Parish School Board, District 3A. All costs of this appeal are assessed to the plaintiff-appellant, George LeRay.

AFFIRMED.


author: ROBERTSON, Justice,

text:
    George A. WILLIAMS, Clarence Brown, and Johnny Brown, Appellants, v. STATE of Mississippi, Appellee.
    Misc. No. 1593-D.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    George A. Williams, pro se.
    Clarence Brown, pro se.
    Johnny Brown, pro se.
    Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

ON MOTION FOR LEAVE TO FILE OUT OF TIME APPEAL

George A. Williams, Clarence Brown and Johnny Brown are each in the custody of the Mississippi Department of Corrections pursuant to sentences imposed by the Circuit Court of Yazoo County, Mississippi. On November 12, 1982, this trio of petitioners filed applications for habeas corpus relief in that Court. Ten days later, on November 22, 1982, the Circuit Court entered an order summarily denying petitioners any relief. Our problem arises from the fact that no one notified petitioners that their applications had been acted upon.

On July 30, 1984, well after expiration of the time period within which any appeal to this Court should have been perfected, the three filed in this Court the instant motions. They seek leave to file an out of time appeal. For the reasons set forth below, the motions must be remanded to the Circuit Court. Because important issues are implicated, we write briefly.

Petitioners’ applications for habeas corpus relief must be treated as having been filed in accordance with Rule 8.07 of the Uniform Criminal Rules of Circuit Court Practice. Ball v. State, 437 So.2d 423, 425 (Miss.1983).

Rule 8.07 requires that each petition be examined promptly by the judge of the court in which the petition is filed and

“(3) If from the showing made by the petition it is manifest that the person whom, or on whose behalf, it is presented is not entitled to any relief, the Court can refuse to grant the writ and enter an appropriate order.”

Apparently the trial judge acted under this provision when he entered his order of November 22, 1982.

Obviously, the Circuit Court cannot just deny the petition and not tell anybody. The petitioner is entitled to notice when final action is taken. Particularly where a petitioner is incarcerated and has no ready access to the court’s records or the clerk’s office, he must be so notified.

By analogy we note that the preeeeding subsection in Rule 8.07 provides that

“(2) If the petitioner, upon examination, does not substantially comply with the requirements of this rule, it need not be entertained on its merits and the clerk shall so notify petitioner.” [Emphasis added]

Subsection (3) should be construed as though the words “and the clerk shall so notify petitioner” were included at its end the same as at the end of subsection (2).

Petitioners now say to us that they would like to appeal the order of November 22, 1982. They say that, if they had known of entry of the November 22 order, they would have perfected their appeal timely. They charge that they cannot be deprived of the right to appeal by virtue of the Circuit Court’s having failed to notify them of the entry of the order dismissing their petition.

If there is to be a time limit for giving notice of appeal, and if the clock begins to tick when the final order is entered, petitioners are entitled to notice of entry of that order promptly after it has been filed. To deny petitioners this right under such circumstances would, they say, deny them due process rights secured by the Fourteenth Amendment to the Constitution of the United States and by Article 3, Section 14 of the Mississippi Constitution of 1890. There is much merit in this contention. Cf. City of Gulfport v. Saxton, 437 So.2d 1215, 1217 (Miss.1983).

Rule 8.07, with respect to appeals, provides:

“(1) Any party aggrieved by the judgment on the hearing of habeas corpus or the refusal to grant a hearing of habeas corpus shall have the right to an appeal to the State Supreme Court.
(2) Such appeal may be had by or in behalf of the person deprived of his liberty on the same terms and conditions as are provided for in criminal cases; but such appeal shall not entitle a party to be discharged on bail in any case held not to be one in which the party entitled to bail. In all other cases, an appeal may be had on the terms prescribed for appeals in civil cases where a supersedeas is not desired.”

Jones v. State, 346 So.2d 376 (Miss.1977), appeal granted 355 So.2d 89 (Miss.1978), established a procedure for the taking of an appeal in a criminal case where the appeal was not timely perfected through no fault of the criminal defendant. When Rule 8.07 provides that parties such as these three petitioners have a right to appeal to this Court “on the same terms and conditions as are provided for in criminal cases”, this, in our view, invokes the procedures of the Jones case.

The operative point in Jones as applicable here is whether these three petitioners, or any of them, failed to perfect appeals from the order of November' 22, 1982, through no fault of their own. This question should in the first instance be heard by the circuit court. Robinson v. State, 409 So.2d 719, 720-721 (Miss.1982).

We are mindful of the recent enactment of the Mississippi Uniform Post-Conviction Collateral Relief Act, approved by the Governor on April 17, 1984. Miss. Laws of 1984, chapter 378 [Senate Bill No. 2186]. That act purports to supersede Rule 8.07. Without passing on the question whether that act may lawfully supersede a procedural rule promulgated by this Court, we regard this proceeding as governed by Rule 8.07 for two reasons. First, the original application for habeas corpus relief was made in this case on November 12, 1982, well prior to the enactment of the new post-conviction relief- act. Second, Section 13(1) of the new act provides

A final judgment entered under this act may be reviewed by the Supreme Court of Mississippi on appeal brought either by the prisoner or the state on such terms and conditions as are provided for in criminal cases. [Emphasis]

This is essentially the same as has been provided in the Appeal subpart of Rule 8.07. Suffice it to say that we find nothing in the new post-conviction relief act that informs or affects today’s decision.

The case is remanded to the Circuit Court of Yazoo County, Mississippi. Upon remand, the Circuit Court is directed to hold a hearing in the case of each of these petitioners in accordance with Jones v. State, 355 So.2d 89 (Miss.1978) and, in accordance with the standards there announced, determine separately in each case whether an out of time appeal should be allowed. See Wilson v. State, 426 So.2d 792, 793 (Miss.1983) (implementing Jones); Robinson v. State, 409 So.2d 719 (Miss.1982) (same); Smith v. State, 358 So.2d 405 (Miss.1978) (same). Each petitioner shall be allowed reasonable opportunity in advance of the hearing to file such amended or supplemental pleadings and affidavits as he may desire, with the State to be given a like opportunity to respond.

REMANDED.

WALKER and ROY NOBLE LEE, P.JJ. and BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Johnny R. GRACE v. STATE of Mississippi, By and Through MORRISON FOOD SERVICE, UNIT 29, PARCHMAN, MISSISSIPPI.
    No. 54816.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
    Johnny R. Grace, pro se.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.


text:
    AMCO CONSTRUCTION COMPANY v. PAT HARRISON WATERWAY DISTRICT, and Houston General Insurance Company.
    No. 55094.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    David L. Reynolds, Reynolds, Anderson & Bradley, Jackson, for appellant.
    Patrick H. Zachary, Zachary & Zachary, Hattiesburg, John L. Low, IV, Watkins & Eager, Jackson, for appellee.
   Appeal from Chancery Court, Forrest County; Howard L. Patterson, Chancellor.

Before BOWLING, HAWKINS and PRATHER, JJ., and SUGG, Retired Supreme Court Justice.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and DAN M. LEE and ROBERTSON, JJ., concur.

PATTERSON, C.J., and SULLIVAN, J„ not participating.


text:
    James DOSSETT v. STATE of Mississippi.
    No. 54480.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Fielding L. Wright, Jr., Wright & Hamilton, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    Walter COLEMAN v. STATE of Mississippi.
    No. 55128.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Kenneth D. Bridges, Louisville, for appellant.
    Bill Allain, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr. and Niles McNeel, Judge.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.

REVERSED AND REMANDED.

WALKER, P.J., and HAWKINS, PRATHER and SULLIVAN, JJ., concur.

PATTERSON, C.J., and BOWLING, J., not participating.


text:
    Vernon BUNNELL v. BOARD OF SUPERVISORS OF PERRY COUNTY, Mississippi.
    No. 54467.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Leonard B. Caves, Laurel, for appellant.
    Jeffrey Hollimon, Pittman & Hollimon, Hattiesburg, for appellee.
   Appeal from Circuit Court, Perry County; Jack B. Weldy, Judge.

Before WALKER, P.J., PRATHER and SULLIVAN, JJ., and SUGG, Retired Supreme Court Justice.

Affirmed.


text:
    James K. SMITH, Jr. v. STATE of Mississippi.
    No. 55160.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Mose Lee Sudduth, Jr., Columbus, for appellant.
   Appeal from Circuit Court, Lowndes County; Ernest L. Brown, Judge.

Edwin Lloyd Pittman, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.

Affirmed.


text:
    Audrey COTTON v. STATE of Mississippi.
    No. 55167.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Firnist J. Alexander, Jr., Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Adams Coun ty; Edwin E. Benoist, Jr., Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

Affirmed.